In addition to micromanaging college discipline under Title IX, the Obama-era Education Department also sought to transform the disciplinary policies of K-12 schools and even preschools. It pressured primary and secondary schools to reduce suspensions, in the name of fighting racial disparities. Teachers in affected school districts complain of increased disorder and physical attacks by students as a result.
In places like New York City, schools have made it more difficult for principals to suspend disruptive or threatening students. The results? Increased violence, drug use, and gang activity, according to the Manhattan Institute’s Max Eden. He looks at the consequences of the curbs on suspension imposed under Mayor Bill de Blasio in a study released today: School Discipline Reform and Disorder: Evidence from New York City Public Schools, 2012-2016.
His findings are based on student and teacher responses to questions contained in the NYC School Survey. As he notes, “the de Blasio administration removed the vast majority of school-order-related questions on the NYC School Survey, limiting our ability to judge changes in school climate. But the answers to the five questions that were asked consistently reveal a troubling pattern. According to teachers and students, school climate…deteriorated dramatically” when de Blasio’s curbs on suspensions were implemented from 2013 to 2016.
In terms of violence, 50% of schools deteriorated, and only 14% of schools improved. In terms of gang activity, 39% deteriorated, while only 11% of schools improved. For drug and alcohol use, 37% deteriorated while only 7% of schools improved. By contrast, these measures had been stable during the preceding four years before Mayor de Blasio took office.
Ironically, although these curbs on suspensions were done in the name of helping minority students and ending a supposed “school-to-prison pipeline,” they harmed minority students the most, producing “a significant differential racial impact.” As Eden notes, “Nonelementary schools where more than 90% of students were minorities experienced the worst climate shifts…compared with schools serving a lower percentage of minority students.” Indeed, the harm from curbing suspensions “appears to have a disparate impact by race and socioeconomic status.” Of schools that serve over 90% minority students, “about 50% saw a deterioration in student-reported physical fighting…and nearly 40% saw an increase in student-reported drug and alcohol use and gang activity. Across every student question, about three times as many schools reported a deterioration as an improvement.”
One reason for these curbs on suspension was the dubious notion peddled by the Obama-era Education Department that student suspensions are often due to racism, and that higher suspension rates among minority students are typically the result of racism. (See Education Department, Office for Civil Rights, Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, Jan. 8, 2014).
That notion is at odds with federal court rulings. For years, the courts have recognized that schools are not guilty of discrimination merely because black students get suspended from school at a higher rate than whites, since the higher rate may just reflect higher rates of misbehavior. (See, e.g., Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001) (en banc) (although “statistics show that of the 13,206 students disciplined from 1996–98, sixty-six percent were African–American,” this “‘disparity does not, by itself, constitute discrimination,’” and provides “no evidence” that the school district “targets African–American students for discipline.”); Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 775 (3d Cir. 1996)(rejecting the “assumption ‘that “undiscipline” or misbehavior is a randomly distributed characteristic among racial groups’”); Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981)).
For example, the Seventh Circuit Court of Appeals struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 538 (7th Cir. 1997)).
Student misconduct rates are not usually the same among different racial groups. A 2014 study in the Journal of Criminal Justice by criminologist John Paul Wright and his co-authors, for example, found that racial disparities in student discipline resulted from more frequent misbehavior by black students, not racism.
Higher rates of misconduct among black students are not surprising, since they are more likely to come from a poor or single-parent family, and factors such as low socio-economic status are correlated with higher rates of misbehavior. For example, a 2007 report noted that serious “discipline problems” were much higher in schools with many poor kids than in schools with few kids in poverty, and frequent “verbal abuse of teachers” occurred at nearly five times the rate in those schools. (See Rachel Dinkes, et al., Indicators of School Crime and Safety: 2007 (2007), pg. 26).
The Obama-era Education Department claimed it has the right to demand that schools 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 essential to maintain order. The Education Department’s January 2014 guidance to the nation’s schools declared that a school can be guilty under Title VI of the Civil Rights Act (for disparate impact) solely due to “neutral,” and “evenhanded” application of discipline rules, just because more minority students violate such rules (see pp. 11-12).
But the Supreme Court ruled in Alexander v. Sandoval (2001) that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department elsewhere has claimed that while the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision did not explicitly reject, but cast serious doubt on, by describing it as “strange” in footnote 6 of its opinion), but clearly the statute itself does not.
The Obama-era Education Department was so rigidly focused on race that its 2014 guidance stated that even if the only reason a school punishes more black students for unauthorized “use of electronic devices” is because blacks actually “are engaging in the use of electronic devices at a higher rate than students of other races,” the school could still be liable for racially “disparate impact.” This distorts the disparate impact concept. Even when courts do allow liability for disparate impact, the disparity must result from something in the disciplinary process, not the pattern of behavior observed.
For example, the Obama-era guidance fails to control for non-racial factors to even the limited extent required in disparate-impact cases. Even when courts do allow liability for disparate impact in discipline (as in the workplace), they require that the disparity result from something in the disciplinary process, not the mere fact that more members of one racial group misbehaved. As a federal appeals court decision allowing lawsuits over disparate impact in workplace discipline emphasized, a mere “bottom line racial imbalance in the work force” is “insufficient.” That case allowed minority employees to sue over allegations that delegation of discretionary disciplinary authority to managers caused more minorities to be punished, but it noted that the employer could nonetheless prevail by showing that this “challenged practice [of delegation] did not cause the disparity” in discipline rates. (See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160-61 (2d Cir. 2001), abrogated in part by Wal-Mart Stores v. Dukes, 564 U.S. 338 (2011)). That court later allowed the lawsuit to continue because the plaintiffs’ statistical expert “controlled for various factors that one would expect to be relevant to the likelihood of disciplinary action,” — such as “age, years with the company,” “department, and union vs. management status.” (See Caridad v. Metro-North Commuter R.R. Co., 191 F.3d 283, 292-93 (2d Cir. 1999), abrogated in part by In re IPO Sec. Litig., 471 F.3d 24 (2d Cir. 2006)).
By contrast, the 2014 guidance issued by the Obama administration’s Office for Civil Rights simply relies on the “bottom line” racial imbalance between blacks and whites, rather than controlling for various non-racial factors that one would expect to be relevant to the likelihood of disciplinary action, such as low socio-economic status, which are much more prevalent in the black community.
The Education Department also claimed such racial imbalances were usually the product of racist intent by schools, rather than just “disparate impact.” That assumption is at odds with the Supreme Court’s ruling in U.S. v. Armstrong. It rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality.
The only way to make suspension rates exactly equal for all races would be to have racial quotas. But that would be unconstitutional: a court ruled in 1997 that schools cannot use racial quotas 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” Ignoring that ruling, the Obama administration has pressured some school districts into imposing targeted numerical reductions in minority suspensions that likewise constitute quotas.
The Supreme Court has warned against using “disparate-impact” rules to “pressure” institutions to use race, noting that “it is completely unrealistic to assume that” every institution will have a racially balanced workforce in the absence of “unlawful discrimination.” “Racial quotas,” it said, are not the purpose of disparate-impact provisions, but rather something that “Congress expressly rejected” in enacting the civil rights laws. (See Ward's Cove Packing Co. v. Atonio, 490 U.S. 642, 650-53 (1989)).
They also are likely to harm minorities themselves. As Max Eden’s study suggests, curbing suspensions in the name of racial balance can harm African-Americans, who are often victims of black-on-black violence. Professor Joshua Kinsler similarly found that “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”