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Crime rates are not the same across different racial categories,
and student misconduct rates aren't, either. The Supreme Court
ruled many years ago that such racial disparities don't prove
racism or unconstitutional discrimination. But in guidance
released last week by the Education and Justice Departments, the
Obama administration signaled that it will hold school districts
liable for such racial disparities under federal Title VI
regulations. In the long run, the only practical way for school
districts to comply with this guidance is to tacitly adopt
unconstitutional racial quotas in school discipline.

This will result in increased school violence, discrimination in
discipline against white and Asian students, an increased racial
achievement gap that harms black students, and more white flight
from inner-city schools. Eventually, private and public colleges
will be affected, not just school districts, since Title VI bans
racial discrimination not just in the public schools, but in
higher education, as well.

The administration made clear that it views racial disparities
in student discipline rates, which exist in virtually all school
systems, as generally being the product of racism by school
officials, not "more frequent or more serious misbehavior by
students of color." Moreover, it also made clear that even if
the school district proves itself innocent of racism, it will
still be held liable for "racially disparate impact" - non-
racist conduct that unintentionally has a discriminatory effect
on a racial group, even though it treats individuals of all
races alike - unless the school district shows that its
discipline not only furthers an important educational purpose,
but also does not lead to more suspensions of minorities than
other (more ideologically-fashionable) methods of discipline
that the government views as equally effective.

Administration officials like Attorney General Eric Holder do
not like harsh discipline of minority students, such as out-of-
school suspensions or referrals to law enforcement, for things
like "schoolyard fights" or "threats" to teachers that have not
yet culminated in a physical attack.

But, such suspensions are often necessary for learning and
school safety: "in 2012 Senate testimony," Cato Institute
education researcher "Andrew Coulson pointed out that. . .
compared with the alternatives, the use of out-of-school
suspensions appears to improve the learning environment for
other (non-disciplined) students by protecting them from
disruption."

Liberal academics believe that schools should focus on trying to
gently rehabilitate offenders through "reparative" or
"restorative" methods, instead of using strict punishments like
suspensions aimed at deterring such offenses from being
committed in the first place. But, that excessive focus on
rehabilitation is myopic: while "research shows that out of
school suspensions do no good for the suspended student
academically," "they do appear to benefit the rest of the
school, presumably by making it easier for teachers to teach the
non-disruptive children."

As a practical matter, the Obama administration's guidance
defines virtually all of the nation's school districts as being
in violation of Title VI.

It does so based, partly, on a disparate-impact theory of
discrimination that the Supreme Court has questioned in the
educational context, ruling that the Title VI statute itself
does not ban race-neutral "disparate impact," only intentional
discrimination, and that students also cannot sue in federal
court over disparate-impact, even if an agency adopts a Title VI
regulation that bans "disparate impact," because such a
regulation seeks to fundamentally transform rather than
implement Title VI's ban on racial discrimination.

Fear of "disparate-impact" liability in recent years has driven
frightened school officials to adopt rigid, inflexible "zero-
tolerance" policies, since draconian "discipline policies tend
to yield smaller racial differences in discipline rates than
more lenient ones," notes a lawyer and statistical expert.
Ironically, those zero-tolerance policies were criticized by the
administration in announcing its new school-discipline guidance.
But that guidance doubles down on the very "disparate impact"
mandates that spawned that zero-tolerance excesses in the first
place. As the Cato Institute's Walter Olson notes, "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."

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, incredibly, the Education Departments treats that 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."

But, 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.

This intransigent disregard for reality shows that the Education
Department has an ingrained bias against school systems that
have statistical disparities for reasons having nothing to do
with racism and everything to do with sensible imposition of
discipline on students who commit violence and make it hard for
other students to learn. School districts investigated for
discrimination by the Education Department simply will not
receive due process but rather will be presumed guilty.

Worse, 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 (see pp. 12, 71):

"Examples of policies that can raise disparate impact concerns
include policies that impose mandatory suspension, expulsion, or
citation (e.g., ticketing or other fines or summonses) upon any
student who commits a specified offense . . . .

"The administration of student discipline can result in unlawful
discrimination based on race in two ways: . . . second, 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."

For example, the Education Department wrote that even if a
school district punished more black than white students for
unauthorized "use of electronic devices," but only 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 is still liable for discrimination under a
disparate-impact theory if the punishment itself (evenly applied
to both white and black offenders) was "excessive" relative to
what the school district's own guidelines indicated was proper.
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).

Where racial imbalances result - even from student conduct, not
school officials' racism - the Education Department wrote that
it will find the school liable if it believes that there are any
"comparably effective alternative policies or practices that
would meet the school's stated educational goal with less of a
burden or adverse impact." The Education Department is likely to
claim that such alternatives exist even if they seem non-
existent or utterly impractical to school officials, since the
bureaucrats in its Office for Civil Rights, many of whom have
seldom been in a classroom (as I can attest from having worked
there), believe they know better that teachers how to run a
classroom. Elsewhere, the Education Department's guidance
lectures the nation's school officials about the latest fads in
"classroom management, conflict resolution and approaches to de-
escalate classroom disruptions," reflecting its belief that it
knows better than teachers and principals do how to run a school
and discipline students.

Never mind that the Education Department's authority to even
enforce disparate-impact rules is legally questionable. It
imposes its ban on "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. The
Sandoval decision said that people cannot cite those regulations
to sue over "disparate impact" under Title VI. Federal appeals
courts have also said that people cannot even invoke those
disparate-impact regulations to sue under other laws, such as
Section 1983, that more broadly allow people to sue over rights
created by federal law, further clouding the legality of these
disparate-impact regulations.

These guidelines reflect the mindset of left-wing civil-rights
activists who have little understanding of how classrooms
operate in the real world (and how disorderly and unsafe
classrooms spawned by restrictions on discipline can destroy
students' ability to learn, prevent teachers from teaching, and
drive teachers out of teaching). They show little empathy for
teachers and principals, and little concern for how difficult it
will be for schools to comply with their impractical rules and
red tape. (When I worked in the Washington headquarters of the
Office for Civil Rights, one of the senior lawyers there boasted
that every investigation for compliance with the bilingual
education regulations she enforced, always found the school
district to have violated Title VI. The important decision was
which school district to investigate; once the investigation was
launched, a finding of non-compliance with Title VI was a
foregone conclusion. The regulations she boasted about
interpreted Title VI quite differently - and more onerously -
than federal courts did.)

Reducing discipline for threats, fighting, and classroom
disruptions will harm, not help, African-Americans, by
increasing 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."

Black students will suffer if school officials are prevented
from adequately disciplining other black students, such as those
who commit acts of violence, since violence is usually committed
against other members of the perpetrator's own race. Giving
black students special treatment in discipline is an example of
the "soft bigotry of low expectations" that undermines
educational achievement among African-Americans. Moreover, a
loud and disorderly classroom environment, in addition to
preventing learning, also prevents students from absorbing the
lessons in politeness and courtesy that employers expect when
they hire new employees. Employers require their employees to
follow rules and get along with co-workers, not exhibit
"defiance" towards superiors, traits instilled through school
discipline. Regulations that interfere with this deprive
students of "equal access" to an essential educational
"benefit," namely, moral instruction and instruction in how to
get along with others. See Davis v. Monroe County Board of
Education, 526 U.S. 629, 650 (1999) (civil rights laws forbid
denying students access to an educational "benefit" based on
their sex or race).

Racial disparities in suspension rates do not show
discrimination. For example, the Supreme Court said that it is
"completely unrealistic" to argue that minorities should be
represented in each field or activity "in lockstep proportion to
their representation in the local population." (See Richmond v.
J.A. Croson Co., 488 U.S. 469, 507 (1989).)

Demanding that schools eliminate all racial disparities among
groups will harm students by effectively forcing school
officials to treat some accused students worse based on their
race - exactly what the Title VI statute forbids. A disparate-
impact regulation cannot override the very statute it purports
to implement. (Title VI bans differential treatment based on
race - even when the victim is white.)

Writing in City Journal in Summer 2006, former educator Edmund
Janko explained how informal pressure from bureaucrats to
suspend students in numbers proportional to their race (what the
Obama administration is now demanding) led him to engage in
unfair racial discrimination against some white students:

"More than 25 years ago, when I was dean of boys at a high
school in northern Queens, we received a letter from a federal
agency pointing out that we had suspended black students far out
of proportion to their numbers in our student population. Though
it carried no explicit or even implicit threats, the letter was
enough to set the alarm bells ringing in all the first-floor
administrative offices. . .

"There never was a smoking-gun memo . . . but somehow we knew we
had to get our numbers "right"-that is, we needed to suspend
fewer minorities or haul more white folks into the dean's office
for our ultimate punishment. What this meant in practice was an
unarticulated modification of our disciplinary standards. For
example, obscenities directed at a teacher would mean, in cases
involving minority students, a rebuke from the dean and a
notation on the record or a letter home rather than a
suspension. For cases in which white students had committed
infractions, it meant zero tolerance. Unofficially, we began to
enforce dual systems of justice. Inevitably, where the numbers
ruled, some kids would wind up punished more severely than
others for the same offense."

As Professor Joshua Dunn notes, Asian students may be
particularly harmed by racial quotas in school discipline - even
more than whites - since they are currently disciplined at lower
rates than members of other races due to their committing fewer
violations of disciplinary rules:

"These guidelines will also encourage schools to unjustly punish
students in races that have lower rates of punishment than their
percentage of the student body. If we accept the guideline's
assumption that disruptive behavior should be evenly distributed
across racial groups, Asian students are woefully underpunished.
Under these guidelines a school would be well-advised to
increase their punishments of Asian students whether or not they
committed any infractions."

Creating de facto racial quotas in school discipline will also
increase violence and disorder in the schools. At a widely-read
education blog, a teacher describes 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?"

By making urban schools even more violent, 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. As Professor Dunn
observes, "the consequences for schools and particularly for
minority students will be nothing short of disastrous if
actually implemented. The only conclusion that can be drawn from
these guidelines is that the Obama administration does not care
about actual student behavior and only wants to focus on
disembodied percentages regardless of their destructive
educational consequences."

That the Obama administration's guidance creates powerful
incentives for just such quotas was confirmed by legal experts
quoted in publications like the Washington Times:

"You have to make certain that your school discipline cases
match those percentages. If you don't, you'll have the feds on
your doorstep," said Joshua Dunn, a political science professor
at the University of Colorado and director of the university's
Center for Legal Studies. "If they actually do enforce these
guidelines, there will be unintended consequences. This creates
some rather destructive incentives. I don't think there's any
way around that."

http://cnsnews.com/commentary/hans-bader/administration- undermines-school-safety-demanding-racial-quotas-school
 

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