DoJ: school discipline must follow disparate-impact standards

by Walter Olson on January 10, 2014

The Justice Department and Department of Education have sent out a Dear Colleague letter discouraging schools from pursuing strict discipline policies against student misbehavior, especially against “routine” or “minor” infractions; Education Secretary Arne Duncan cited tardiness and disrespect as examples of the latter. [Christian Science Monitor]

Assuming that the federal government has somehow acquired the legitimate constitutional authority to begin dictating the fine points of disciplinary policy to local schools in the first place — a big if — it might seem at first that much of this is innocuous. Some early coverage, for example, makes it sound as if the letter is mostly aimed at obtaining a reconsideration of zero-tolerance policies, long criticized in this space, as well as the sorts of suspensions and expulsions that are based on far-fetched dangers like finger guns or forbidden hugs.

Unfortunately, there’s much more. The letter represents the culmination of a years-long drive toward imposing tighter Washington oversight on school discipline policies that result in “disparate impact” among racial or other groups. Policies that result in the suspension of differentially more minority kids, or special-ed kids, will now be suspect — even if the rate of underlying behavior is not in fact uniform among every group. (Special-ed kids, for example, include many placed in that category because of emotional and behavioral problems that correlate with a higher likelihood of acting out in misbehavior. Boys misbehave more than girls.)

If the policy helps speed the correction of some overly harsh, mechanical school policies, both under the zero-tolerance rubric and otherwise, it may have some positive side effects. But the disparate-impact premise is a pernicious one that’s sure to create many new problems of its own. [Andrew Coulson, Cato; Scott Johnson, PowerLine]

More: in 2012 Senate testimony, Andrew Coulson pointed out that 1) 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; 2) 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. (& welcome Andrew Sullivan, Scott Greenfield, Hans Bader readers; cross-posted at Cato at Liberty)

{ 6 trackbacks }

Schools Have Rules: Disparate Impact Edition | Simple Justice
01.13.14 at 8:27 am
School suspensions by the (racial) numbers - Overlawyered
01.15.14 at 12:45 am
Obama Administration Undermines School Safety, Pressures Schools to Adopt Racial Quotas in Student Discipline
01.15.14 at 1:14 pm
Education Department ‘Guidance’ Pressures Schools to Adopt Racial Quotas In Discipline
01.16.14 at 9:00 am
January 17 roundup - Overlawyered
01.17.14 at 12:15 am
New racial school-discipline guidelines, cont'd - Overlawyered
01.25.14 at 1:00 pm


1 John Fembup 01.10.14 at 11:29 am

I suppose we should be thankful DOJ did not order schools to select 10% of students at random every day, and punish them.

2 rxc 01.10.14 at 12:20 pm

I thought that one of the reasons the “zero tolerance” policies were developed was to avoid disparate impact in the impostion of discipline penalties. If they implemented policies consistently against everyone, with no option to choose which infractions to ignore, discrimination complaints could be dismissed. Unfortunately, it appears that the underlying basis for this policy – all racial/economic/ethnic groups behave the same way – is not valid.

So, now we will have affirmative action for discipline – once you get to your discipline quota for a particular protected group, you can’t impose any more discipline on that group, unless you balance it with an equal amount levied on some other, non-protected group.

Hmmm… this will be interesting to watch…

3 rxc 01.10.14 at 12:20 pm

Sorry, I did not see the comment in the “more” update.

4 wfjag 01.10.14 at 3:34 pm

“So, now we will have affirmative action for discipline – once you get to your discipline quota for a particular protected group, you can’t impose any more discipline on that group, unless you balance it with an equal amount levied on some other, non-protected group.”

Nothing new with that idea: “Tucson Schools To Implement Race Based Punishment – Blacks And Hispanics To Receive Passes” (Sept. 23, 2009)

5 aaaa 01.11.14 at 9:05 am

@rxc zero tolerance policies has been founded on idea that it is a good idea to handcuff students for chewing gum and punish acylpirin possession the same way as heroin. Or to use cops against six years old engaged in play fight, forgotten to button his shirt, coming late or other similar infractions.

Once they putted cops to schools and instituted zero tolerance policies, stupidity like that started to happen. Some district more then others, Texas leading I heard. The argument was that students will feel safer and learn more if they know that authorities in charge are braindead.

6 Sebastian Seiguer 01.11.14 at 10:50 am

Starting with the rate of discipline, rather than the behaviors being disciplined, is backwards. I can’t think of an analogy where such an approach would make any sense. For example, imposing a quota for violent crime to cap it at x% of all crime? Insanity.

Does not seem that the DOJ is targeting biased rules; instead they are engineering the outcome of the application of those rules.

7 Hugo S. Cunningham 01.11.14 at 12:19 pm

Ever cheaper surveillance technology might eventually protect a sane disciplinary policy from “disparate impact” lawsuits. If every incident subject to discipline was preserved on video (as well as borderline incidents where discipline was not imposed), then DoJ plaintiffs would be forced to argue from objective facts rather than statistical conjectures.

I have some sympathy for the argument that poor kids suspended out of school are more likely to use the time to get in worse trouble. Rather than keeping disruptive kids in class, however, a better solution is to bring back a “reform school” where troubled kids can serve out their suspensions while still learning as much as they can. Some larger schools might be able to operate their own “reform” program while keeping regular classes disruption-free.

8 DensityDuck 01.12.14 at 11:14 pm

Hah. You’re right that “video everything” is a valid answer
to “ensure no disparate impact”.

Except that then people will say “white kids are just exploiting the gaps in the system and they only misbehave in places where the cameras don’t cover and if you had video of locker rooms and toilets you’d see them!”

9 Boblipton 01.13.14 at 9:23 am

Disparate impact? Aren’t the vast majority of instances of school discipline directed at the young? Surely this ranks as age discrimination.


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