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Attorney General's School Discipline Push Will Backfire on Students and Reinforce Segregation and Zero Tolerance

In a speech Saturday, Attorney General Holder made a very ironic claim: blaming racial disparities in school discipline on "zero-tolerance" policies, even though such policies were actually spawned partly by school officials' fear of being investigated over racial disparities. There are many things wrong with "zero-tolerance" policies, but an increase in racial disparities is not among them. Racial disparities in school suspension rates are almost entirely the result of differing rates of misbehavior within different demographics, not school officials' racism. Indeed, demanding that schools eliminate such disparities may actually reinforce harsh and unjust zero-tolerance policies, which tend to produce a slightly larger ratio of suspended white students to suspended black students than alternative disciplinary policies (and thus, slightly less racially disparate impact).

A 2014 study in the Journal of Criminal Justice by criminologists and academics like John Paul Wright examined what was causing racial disparities in student discipline. The study, entitled "Prior Problem Behavior Accounts for the Racial Gap in School Suspensions," concluded that "the racial gap in suspensions was completely accounted for by a measure of the prior problem behavior of the student," not racism by school officials, or worse treatment of black offenders compared to similarly-situated white offenders. As the National Review put it, a "study by University of Cincinnati criminologist John Paul Wright . . . confirms the obvious: The racial gap in suspensions" simply reflects who is actually violating school rules and their history of misbehavior, not differential treatment of students based on race.

Nor do zero-tolerance rules result in a higher ratio of suspended black students to suspended white students than alternative rules.

Yet Holder said, "in too many of our school districts . . .segregation has reoccurred -- including zero-tolerance school discipline practices that, while well-intentioned and aimed at promoting school safety, affect black males at a rate three times higher than their white peers." 

But the reality is that, as the Cato Institute’s Walter Olson observed, “zero-tolerance policies were adopted in the first place in part as a defense for administrators against disparate-impact charges. In other words, the new supposed remedy (disparate-impact scrutiny) helped cause the disease to which it is being promoted as the cure.” As lawyer and statistical expert James P. Scanlan notes, draconian, zero-tolerance “discipline policies tend to yield smaller racial differences in discipline rates than more lenient ones,” by increasing the ratio of suspended white students to suspended black students.

For example, the March 5, 2014 Education Week blog discussed a recent study of school discipline in Maryland. This study found an increase in the ratio of suspended black students to suspended white students following general reductions in discipline rates due to more lenient disciplinary policies. Mr. Scanlan posted a comment pointing that out:

The referenced report notably found with respect to a decline of Maryland out-of-school suspension rates from 5.6 percent in 2009/10 to 2011/12: "Because rates of out-of-school suspension and expulsion decreased more rapidly for White students than for Black students, disproportionality between Black and White rates increased in 2011/12, the most recent year examined."

The finding highlights the remarkable situation where the belief, promoted by Departments of Justice and Education, that stringent discipline policies result in large relative racial differences in suspensions and expulsions prompts school districts to relax discipline standards. The belief is exactly the opposite of reality. Relaxing discipline standards and otherwise reducing discipline rates leads to larger, not smaller, relative differences in discipline rates. See my:

"The Paradox of Lowering Standards,"Baltimore Sun (Aug. 5, 2013)

"Misunderstanding of Statistics Leads to Misguided Law Enforcement Policies," Amstat News (Dec. 2012):

The following web page shows how reducing discipline rates in Los Angeles and Denver schools led to increases in racial/ethnic differences in discipline rates in those schools.

The following web page shows how the Department of Education's own report shows that relative racial difference in discipline rate are larger in districts with zero tolerance policies than those without such policies.

The Education and Justice Departments believe they have the power to demand that schools (including private colleges whose students receive federal financial aid) eliminate colorblind disciplinary rules just because they have a "disparate impact" (i.e., if a higher percentage of blacks than whites are suspended, and the school cannot prove to bureaucrats' satisfaction that the disciplinary rule is needed to maintain order). They argue that school discipline rules can violate Title VI of the Civil Rights Act even when they are completely untainted by racism, and are applied in a colorblind fashion. The Education Department insists that a school can be deemed guilty (under the disparate-impact concept) solely due to its “neutral,” “evenhanded” application of discipline rules just because more minority students in fact commit such offenses, even when the school in fact proves that such misbehavior is in fact more frequent among certain groups. It is not necessary to show that a black student was treated any differently than a white student for the school system to be deemed guilty in the Education Department’s eyes, according to its January 8, 2014 guidance about school discipline (see pp. 11-12), which I discussed earlier:

The administration of student discipline can result in unlawful discrimination . . . if a policy is neutral on its face – meaning that the policy itself does not mention race – and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.

But the Education Department’s authority to even enforce disparate-impact rules is legally questionable at best, as I noted earlier. It seeks to ban “disparate impact” even though the Supreme Court ruled in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. The Supreme Court ruled in the Sandoval case that people cannot sue institutions over “disparate impact” under Title VI. The Obama administration takes the position that while Title VI statute itself doesn’t reach disparate impact, Title VI regulations can and do (a position that the Sandoval decision did not decide, but described as "strange" in footnote 6 of the Court's opinion).

For example, the Obama Education Department wrote in its recent guidance to schools that even if the only reason a school district punishes more black than white students for unauthorized “use of electronic devices” is because black students actually ”are engaging in the use of electronic devices at a higher rate than students of other races” (pg. 18), the school district could still possibly be liable for discrimination under a disparate-impact theory. Similarly, it wrote that a school could be liable for punishing students for an offense like tardiness if more students of one race than another were tardy, and the school district could have reduced the disproportionate impact on that race by remedying school district policies that made it harder for them to get to class on time (pg. 19).

Its January guidance also claimed that such disparities were generally the product of intentional discrimination by school officials, not just "disparate impact." This claim is in tension with the Supreme Court's Armstrong ruling. The Supreme Court ruled in United States v. Armstrong (1996) that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since that is “contradicted by” real world data. For example, blacks, who are only 13% of America’s population, commit nearly half of all murders — four times the general rate. Indeed, relying on that false presumption can lead to constitutional violations: A federal appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial caps or proportions in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline” as a veiled racial quota.

Yet, curiously, the Education Departments treats this false presumption as fact, and insists that there is no evidence of “more frequent” misbehavior by some groups (pg. 4), and that “research suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.” It cites the flawed work of Professor Russell Skiba for this claim, whose flaws are discussed in National Review and elsewhere, and is also belied by the recent study entitled "Prior problem behavior accounts for the racial gap in school suspensions" by John Paul Wright, Mark Alden Morgan, Michelle A. Coyne, Kevin M. Beaver, and J.C. Barnes.

As Heather Mac Donald of the Manhattan Institute has noted, black teenagers are 25 times as likely to get arrested in Chicago as whites, and the black homicide rate for teenagers is 10 times higher nationally than for whites. As she noted in City Journal:

Nationally, “the homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined.” In the Chicago schools, which used to be headed by Obama’s own current Education Secretary, “25 times more black Chicago students than white ones were arrested at school,” between September 2011 and February 2012.

So the only way to get suspension rates to be equal among all racial groups would be to adopt quotas in school discipline that reduce discipline for violent or disruptive minority offenders. But reducing discipline for threats, fighting, and classroom disruptions will harm, not help, African-Americans, especially since crime victims are disproportionately the victims of black-on-black violence. It will also aggravate the racial achievement gap. As University of Rochester professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom. According to Kinsler’s findings, significantly cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

By making urban schools even more violent (and more racially divided and tense), these racial quotas in discipline are likely to increase de facto segregation in such schools, by driving out white, Asian, and black middle-class students, leaving behind a racially-isolated core of poor black students who cannot afford to either move to a better neighborhood or go to a private school.

Creating de facto racial quotas in school discipline will also increase school violence and disruptive behavior. At a widely-read education blog, a teacher described the violence and disorder that occurred when her school adopted racial quotas in school discipline:

I was the homeroom teacher in an incident in a school that tried to implement just this criteria for discipline. One kid (scrawny 7th grader) had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races. The little kid was suspended before his copious blood had been cleaned up off the floor. The big kid never did have ANY punishment – that particular ethnic group had been disciplined too many times.

Need I mention that it was a tough month, as word quickly spread that violence against the “under-disciplined” ethnic group was treated as a freebie?

I have been for many years a critic of zero-tolerance policies and draconian school discipline rules, including back when they were more popular than they are today (for example, in the New York Times in May 2001, I criticized the arrest of "an 11-year-old boy . . . for making drawings of weapons" and the suspension of "a 14-year-old girl" for “saying, during a classroom discussion of the Columbine High School massacre, that she could understand how ostracized students might turn homicidal" which illustrated “school officials' inability to distinguish between fantasy and reality" and “prosecutors' contempt for the First Amendment"). But I do not believe that threatening school districts with Title VI investigations for "racially disparate impact" in discipline will eliminate such policies. Instead, I worry that in the long run, it will reinforce them, since for all their warts, they have less "disparate impact" than alternative, less rigid disciplinary rules.