The Volokh Conspiracy
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The final version of my school discipline article (with Alison Somin) is now available on SSRN. It's called The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong For Students and Teachers, Wrong on the Law.
As the title suggests, the article makes two arguments: (1) The Obama Administration's aggressive application of disparate impact theory to school discipline, is a bad policy; and (2) It goes beyond the scope of the federal government's authority too.
I'll discuss the second argument in another post. Right now, let me give you a taste of the first.
During the Obama Administration, one of the Department of Education's primary missions was to stop schools from suspending or otherwise disciplining African American students at higher rates than white or Asian American students:
… One of its primary strategies would be for its Office for Civil Rights (OCR) to pore over statistical evidence from every school district, looking for evidence of racial disparate impact in discipline. When a school district was found to be disciplining African-American students at a significantly higher rate than Asian or white students, the school district could expect to be subjected to an investigation. As one media report put it, rather than waiting for "cases [to] come in the door," the Obama Administration "plans to use data to go find [civil rights] problems."
School districts wishing to avoid costly investigations would need to avoid the kind of disparate impact that would attract OCR's attention. The easiest and safest strategy would be clear: Reduce suspensions for minority students in order to make your numbers look good.
The danger should have been obvious. What if an important reason more African-American students were being disciplined than white or Asian students was that more African-American students were misbehaving? And what if the cost of failing to discipline those students primarily falls on their fellow African-American students who are trying to learn amid classroom disorder? Would unleashing OCR and its army of lawyers cause those schools to act carefully and precisely to eliminate only that portion of the discipline gap that was the result of race discrimination? Or—more likely—would schools react heavy-handedly by tolerating more classroom disorder, thus making it more difficult for students who share the classroom with unruly students to learn?
Almost everyone has had experience with distant bureaucracies. Even when their edicts are reasonably nuanced, by the time they reach the foot soldiers on the ground (in this case classroom teachers), any subtlety has disappeared. "Don't discipline minority students unless it is justified" is naturally understood by school district administrators as "Don't discipline a minority student unless you are confident that you can persuade some future federal investigator whose judgment you have no reason to trust that it was justified." In turn, this is presented to principals as "Don't discipline a minority student unless you and your teachers jump through the following time-consuming procedural hoops designed to document to the satisfaction of some future federal investigator whose judgment we have no reason to trust that it was justified." Finally, teachers hear the directive this way: "Just don't discipline so many minority students; it will only create giant hassles for everyone involved." This is in the nature of bureaucracy. Those who complain that schools overreact to governmental directives are howling at the moon. It is inevitable.
The first half of the article examines both empirical evidence and opinions from teachers indicating that things are getting worse in schools as a result of the push to stop disparate impact in discipline. In addition, it discusses a poll showing that a healthy majority of teachers oppose the Obama Administration's school discipline policy.
Also in the first half, the article examines (and rejects) studies cited by the Department of Education for the proposition that disparate impact in discipline is the result of discrimination rather than differences in actual behavior. Instead it cites to better-designed studies leading to the opposite conclusion.
So far, the Trump Administration has left the Obama-Era Dear Colleague Letter on school discipline in place.