School Climate & Safety

‘Disparate Impact’ Discipline Policy Criticized

By Mary Ann Zehr — February 22, 2011 3 min read

The Obama administration’s new efforts to reduce the overrepresentation of some racial and ethnic groups in school discipline cases came in for criticism this month 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. 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.

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. 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.” 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.

Classroom Views

Several teachers who testified at the briefing echoed some of Mr. Gaziano’s concerns.

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.

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 New York state’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.

Some commissioners, in comments made at the briefing, also seemed sympathetic to the civil rights focus on disparate impact.“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 Feb. 11 meeting was the first for a new slate of commissioners. The commission’s chairman, Gerald A. Reynolds, a Republican; Arlan Melendez, a Democrat; Michael Yaki, 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.

A version of this article appeared in the February 23, 2011 edition of Education Week as ‘Disparate Impact’ Discipline Policy Criticized

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