Published Online: February 15, 2011
Updated: March 24, 2012

Obama Administration's 'Disparate Impact' Policy Draws Criticism

The Obama administration’s new efforts to reduce the overrepresentation of some racial and ethnic groups in school discipline cases came in for criticism at a public briefing before the U.S. Commission on Civil Rights.

Obama officials announced last spring that as well as looking for evidence of “different treatment,” or intentional discrimination against students in civil rights enforcement, federal officials also would examine “disparate impact,” disproportionate effects on a particular group by a policy though no intention of discrimination may exist. ("Duncan Plans to Prod Schools on Civil Rights Laws," March 8, 2010.) Federal officials have said that even with the new focus, an education agency would be found out of compliance only if an equally sound policy would have less of a disparate impact. ("Obama Administration Targets ‘Disparate Impact’ of Discipline," Oct. 7, 2010.)

Some civil rights lawyers have welcomed the new emphasis, noting that “disparate impact” was neglected under the administration of President George W. Bush.

At the Feb. 11 briefing, Ricardo Soto, the deputy assistant secretary for the Education Department’s office for civil rights, elaborated on the office’s new policy, saying that the Obama administration is “using all the tools at our disposal,” including “disparate-impact theory,” to ensure that schools are fairly meting out discipline to students. Some research shows, for instance, that suspension rates for African-American males in middle school can be nearly three times as high as those for their white, male peers.

Mr. Soto said the department recognizes “there is no universal, one-size-fits-all approach to discipline that will be right for every school or all students.” The department is expected to release new guidance on school discipline this year, Mr. Soto added in an interview after the briefing.

However, Commissioner Todd F. Gaziano, a conservative-leaning Independent on the eight-member commission, told Mr. Soto that he’s concerned about the administration’s interpretation of disparate-impact analysis.

“What bothers me about your approach is you put an extremely heavy burden on the school to justify any disparity,” he said.

Mr. Gaziano also expressed a concern that the civil rights office is applying disparate-impact analysis in a way that could lead to educators’ reducing the amount of disciplinary action against students of a particular minority group merely to avoid an overrepresentation of action taken against members of that group, even if it were warranted. He questioned if the office for civil rights’ procedures would be able to detect such a scenario.

Views From the Classroom

Several teachers who testified at the briefing expressed concerns similar to Mr. Gaziano’s.

Allen Zollman, a teacher of English as a second language at an urban middle school in Pennsylvania that he did not name, said he rarely makes a disciplinary referral that removes a student from his classroom. But he said he is opposed to having to give “a thought to disparate impact” if he needs to remove a disruptive student from class, saying he views it as a constraint on effective discipline.

Should his school require such a policy, Mr. Zollman said, he would respond in one of three ways: disregard it and continue to refer whatever students he sees fit for disciplinary action, do nothing and tolerate chaos in his classroom, or take an early retirement from teaching.

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Jamie Frank, who said she has been a teacher for 11 years in the suburban Washington area, said the pressure school administrators already feel to reduce overrepresentation of disciplinary action against minority groups has led to problematic policy changes. She said she worked in a district that did away with a penalty for students to lose academic credits if they failed to attend class because the policy was disproportionately affecting some groups of students. Eliminating the policy put an unfair burden on teachers to reteach and retest students on course content and allow them to make up lost work, she contended.

A number of school district administrators who testified before the commission, however, took the opposite view and backed a focus on disparate impact.

For example, Hertica Y. Martin, the executive director of elementary and secondary education for Minnesota's Rochester public schools, reported that from the 2007-08 to 2009-10 school years, the district reduced an overrepresentation of expelled African-American males. She credited a disciplinary approach gaining traction in schools nationwide, called Positive Behavioral Interventions and Support, with helping to support fairer disciplinary action. She also emphasized the importance of classes about racial and ethnic diversity that the school district has provided to teachers, with titles such as The Role of Whiteness and The Culturally Relevant Classroom.

Administrators, she said, need to address “why the kids are misbehaving a certain period of the day or in a certain teacher’s classroom,” indicating that a lack of understanding of students by teachers can sometimes contribute to a discipline problem.

Advice on Remedies

Some commissioners, in comments made at the briefing, also seemed sympathetic to the civil rights focus on disparate impact, though they weren’t as clear in stating their position as Mr. Gaziano was.

“You have the ability to offer the district a set of best practices,” Roberta Achtenberg, a new commissioner, told Mr. Soto. She added that the OCR, however, should also examine remedies to eliminate disparate impact to see if they actually work. If the department is “transparent” about what remedies work, she said, it may allay fears some educators have that the federal government is interfering with their daily work for the sake of “political correctness.”

The U.S. Commission on Civil Rights has had a history of recent discord. In September, three commissioners boycotted a national conference hosted by the panel because they felt they hadn’t had adequate input into the agenda for the conference. ("Civil Rights Group Seeks a 'National Conversation'," Sept. 15, 2010.) Michael Yaki, a Democrat whose term expired in December, said in a statement then that the conference topics were “extremely narrow,” ignoring such issues as the civil rights of immigrants or gays and lesbians.

Since then, however, the composition of the board has changed. The commission’s chairman, Gerald A. Reynolds, a Republican; Arlan Melendez, a Democrat; and Ashley L. Taylor, a Republican; left the commission when their terms expired in December.

President Barack Obama and Congress replaced them with three Democrats: Dina Titus, a former U.S. congresswoman from Nevada; Martin R. Castro, a lawyer and Latino community advocate; and Ms. Achtenberg, who was a senior adviser to the secretary of the U.S. Department of Housing and Urban Development under the Clinton administration. One seat on the commission continues to be vacant, but Mr. Yaki is expected to be reappointed to fill it, according to the commission’s acting chairwoman, Abigail Thernstrom, a Republican and adjunct scholar for the Washington-based American Enterprise Institute. The Feb. 11 meeting was the first for the new slate of members.

Ms. Thernstrom said the current mix of three Democratic and four conservative commissioners may lead to more attention to issues such as the civil rights of immigrants and gays.

Vol. 30, Issue 21

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