Published Online: October 7, 2010
Updated: March 23, 2012

Obama Administration Targets 'Disparate Impact' of Discipline

Federal officials are getting the word out that addressing racial disparities in school discipline is a high priority, and they plan to use “disparate-impact analysis” in enforcing school discipline cases—a legal course of action that some civil rights lawyers contend was neglected under the administration of President George W. Bush.

“Regrettably, students of color are receiving different and harsher disciplinary punishments than whites for the same or similar infractions, and they are disproportionately impacted by zero-tolerance policies—a fact that only serves to exacerbate already deeply entrenched disparities in many communities,” Thomas E. Perez, the assistant attorney general for civil rights at the U.S. Department of Justice, recently said at a conference on school discipline and civil rights, according to a transcript of his speech. The invitation-only conference was hosted by the U.S. departments of Education and Justice on Sept. 27 and 28.

Also at the conference, Ricardo Soto, the deputy assistant secretary for the Education Department’s office for civil rights, announced that his office will release guidance this winter on school discipline that will include an analysis of disparate impact.

“Disparate impact is woven through all civil rights enforcement of this administration,” said Russlynn H. Ali, the assistant secretary of the Education Department’s civil rights office, in an interview this week.

Nationwide Middle School Suspension Rates in 2006

By Race and Gender

In enforcing civil rights law, she said, federal officials look for evidence of “different treatment,” or that people intentionally discriminated against a particular group. But federal officials are obliged to also look at “disparate impact,” she said, whether a particular group is disproportionately affected by a policy though no intention of discrimination may exist. An education agency would be found out of compliance, for example, only if an equally sound policy would have less of a disparate impact, she said.

“It’s my understanding from talking with long-time career colleagues here in the [Office for Civil Rights] headquarters and regional offices that disparate impact was not a theory that was used during the last administration in education,” Ms. Ali added, although previous civil rights officials did pursue cases on the basis of “different treatment.”

Incomplete Analysis?

Kenneth L. Marcus, a professor of public affairs at Baruch College of the City University of New York, who headed up the Education Department’s civil rights office in 2003 and 2004 during the Bush administration, said he also recalls that most education cases were brought by the agency under the “different-treatment” rather than “disparate-impact” course of action. Gerald Reynolds and Stephanie Monroe, who also served as heads of the Education Department’s civil rights office during the same administration, weren’t available for interviews this week.

A focus by federal officials on fully enforcing the disparate-impact analysis could force many school districts to re-examine and change their discipline policies, some civil rights lawyers say.

At the conference, U.S. Secretary of Education Arne Duncan also added his voice to the choir expressing concern about racial disparities in school discipline. According to a copy of his prepared remarks, Mr. Duncan said he was “deeply troubled by rising discipline rates and disparities in discipline” in the nation’s schools. Speaking by videoconference from New York City, he told conference attendees that the Obama administration has already launched five compliance reviews on school discipline, when no reviews of that kind had been conducted for years.

Those reviews are being conducted in the Christina School District in Wilmington, Del.; the Salamanca City (N.Y.) Central School District; Winston-Salem/Forsyth (N.C.) County Schools; San Juan (Utah) School District; and Rochester (Minn.) Public Schools, according to Ms. Ali. She said all involve both different-treatment and disparate-impact analyses.

Some civil rights lawyers say disparate-impact analysis warrants a lot of scrutiny.

Roger Clegg, the president and general counsel of the Falls Church, Va.-based Center for Equal Opportunity, contends that it could drive schools to “get their numbers right” rather than actually combat discrimination.

“In education, with respect to discipline, my concern would be that school districts are afraid they will be hauled before a court or some administration agency and threatened with a loss of federal funding whenever they have a racial imbalance of one kind or another,” he said. He explained that educators might become hypersensitive to students’ race or ethnicity in discipline decisions, resulting in disciplining some students who shouldn’t be and not disciplining others who deserve it.

‘Dubious’ Tactic

Mr. Clegg held the No. 2 post in the civil rights division of the Justice Department during the administrations of presidents Ronald Reagan and George H.W. Bush. Under both administrations, he said, “we were dubious about the disparate-impact approach to civil rights enforcement generally.”

Mr. Marcus noted that disparate-impact cases were approved under the George W. Bush administration but tended to get a lot of scrutiny because some officials felt that the Clinton Administration had abused the disparate-impact approach to bring “frivolous or ideologically motivated cases.”

Daniel J. Losen, the senior education law and policy associate for the Civil Rights Project at the University of California, Los Angeles, said an unpublished OCR directive from 2003 instructed staff to use the different-treatment approach, except with regard to English-language learners in special education.

A supporter of disparate-impact-based legal action, Mr. Losen is the co-author of a report released last month, “Suspended Education: Urban Middle Schools in Crisis,” that calls for educators to address imbalances in out-of-school suspension rates in middle schools between students of color and their white peers. The study released by the Montgomery, Ala.-based Southern Poverty Law Center, found that 28.3 percent of black male students had been suspended at least once during the 2005-06 school year, the most recent year for which data is available, compared with 10 percent of white males. At 18 percent, the suspension rate for black females in middle school was more than four times the rate of 4 percent for white females.

Link to Dropping Out

The imbalance is a big problem, said Mr. Losen, because at least one suspension in middle school is a key predictor that a student will drop out of school. He contends that the Education Department’s civil rights office under the Bush administration didn’t fully enforce civil rights law because it didn’t take civil rights inquiries beyond the different-treatment standard.

The Obama administration’s prioritizing of disparate impact will help keep students in school, he said. With that legal approach, Mr. Losen said, “the burden is on the district to explain why they didn’t pursue another practice that has an equally effective or less discriminatory impact.”

Judith A. Browne-Dianis, the co-director of the Advancement Project, a Washington-based civil rights organization, also backs the use of a disparate-impact approach to civil rights enforcement. She also claims the Bush administration neglected to fully enforce civil rights law in schools. “Now is the time when we need to have strong enforcement of civil rights laws with regard to public education because we see the numbers are so outrageous with regard to outcomes for children of color,” she said.

Her organization holds up the discipline policy of the 78,000-student Denver Public Schools as a model.

Allegra “Happy” Haynes, the chief community-engagement officer for Denver Public Schools, said the district received complaints from a local community group, Padres & Jóvenes Unidos, and others that the district was giving more out-of-school suspensions to Latinos and African-Americans than whites. She said the district’s data confirmed that perception so the district formed a committee with teachers, students, administrators, and community members to overhaul its discipline policy.

The district implemented a “discipline ladder,” for example, that spelled out the level of the disciplinary action students would receive for specific kinds of infractions, such as chewing gum in class or talking back to teachers. The policy emphasized that students should receive out-of-school suspensions or be referred to police only for serious misconduct, such as causing harm to someone in a fight.

The result was that referrals to law-enforcement officers dropped by 63 percent and out-of-school suspensions declined by 43 percent in the district from the 2008-09 school year to the 2009-10 school year, she said.

Ms. Haynes said it’s appropriate for federal agencies to urge school districts to address racial disparities in how discipline is applied, but she cautioned that federal agencies should take an approach of providing resources and support to school districts in civil rights enforcement. She said she hopes a renewed focus on school discipline by federal agencies doesn’t result in “the long arm of justice coming to pound schools about the problem.”

Vol. 30, Issue 07

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