The Department of Education's Obama Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law

By Heriot, Gail; Somin, Alison | Texas Review of Law & Politics, Spring 2018 | Go to article overview

The Department of Education's Obama Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law


Heriot, Gail, Somin, Alison, Texas Review of Law & Politics


Introduction

On March 8, 2010, one year into the Obama Administration, Secretary of Education Arne Duncan stood on the Edmund Pettus Bridge in Selma, Alabama. There, on the occasion of the forty-fifth anniversary of the infamous confrontation between police and peaceful civil rights marchers known as "Bloody Sunday," he delivered an impassioned address, promising to "reinvigorate civil rights enforcement."1

The emotion that Secretary Duncan felt was understandable considering the site of his speech. But his words had the ring of a general rallying his troops to fight the preceding war. His strategy-a frontal attack on hidden race discrimination and disparate impact-bears little relation to the problems that schools face today, especially schools that primarily serve minority students. Instead of promising to cut through the layers of bloated bureaucracy that smother innovative schools and teachers, he promised even more federal regulation of local schools.

School discipline was to be a prime concern of the enforcement initiative unveiled that day. Duncan told the assembled crowd of civil rights activists and schoolchildren that African-American students "are more than three times as likely to be expelled as their white peers."2 Martin Luther King "would have been dismayed," Duncan declared.3

Under Duncan's leadership, the Department of Education's (ED's) mission would be to change all that. 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.4 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."5

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 AfricanAmerican 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?6 Or-more likely-would schools react heavyhandedly by tolerating more classroom disorder, thus making it more difficult for students who share the classroom with unruly students to learn?7

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 timeconsuming 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. …

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