If a school disciplines black students at a significantly higher rate than their white peers, is that alone a violation of federal civil rights laws?
That question—at the core of recent debates over school discipline—played a big role in Tuesday’s confirmation hearing for Kenneth Marcus, President Donald Trump’s nominee to be assistant secretary of civil rights at the U.S. Department of Education.
“If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?” asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.
“In general, the answer is yes,” Marcus said.
Murphy said he “would argue that we have a school discipline crisis in this country.” He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. “If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?” he asked.
“Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern,” Marcus responded. “Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions.”
“I will just share my view with you,” Murphy responded. “I don’t believe there’s any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn’t find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?”
Marcus said his “experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are.” He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.
“I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences,” said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.
The Debate Over Disparate Impact in School Discipline
That back and forth between Murphy and Marcus during Tuesday’s confirmation hearing was quite timely. Civil rights groups like the Leadership Forum have urged a thorough vetting and his positions on enforcement in areas like school discipline.
Civil rights groups have voiced concern that Trump’s education department, under the direction of Secretary Betsy DeVos, would rescind Obama-era civil rights guidance on school discipline. That 2014 document, released by the education and justice departments, calls out “disparate impact,” putting schools on notice that the agencies may find them in violation of federal civil rights if they discipline students of one race at higher rates than their peers, even if their disciplinary policies were written without discriminatory intent.
Advocates have said that the Obama guidance protected students of color, who are persistently disciplined at higher rates than their peers. Conservative groups have said the document is a heavy-handed directive that amounts to placing racial quotas on discipline. Some critics of the guidance recently met with officials from the Education Department to voice their concerns.
Educators For Excellence, a national group that supports the guidance, says it will have a meeting with Education Department officials Friday.
Here’s what the guidance in question says about disparate impact:
The administration of student discipline can result in unlawful discrimination based on race in two ways: first, if a student is subjected to different treatment based on one's race, and second, if a policy is neutral on its face—meaning that the policy itself does not mention race—and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race. Under both inquiries, statistical analysis regarding the impact of discipline policies and practices on particular groups of students is an important indicator of potential violations. In all cases, however, the Departments will investigate all relevant circumstances, such as the facts surrounding a students' actions and the discipline imposed."
The guidance includes a flowchart to help schools determine if policies that result in disparate impact are discriminatory.
As an example of a hypothetical policy that would be flagged for disparate impact, the guidance cites a zero-tolerance policy for tardiness that is applied more frequently to Asian-American students because those students largely live farther away from their school and are more likely to deal with delays in public transportation compared to their white peers, who are able to walk.
“If the departments determine that a school’s articulated goal [reducing disruption caused by tardiness, encouraging good attendance, and promoting a climate where school rules are respected] can be met through alternative policies that eliminate or have less of an adverse racial impact, the Departments would find the school in violation of Title VI and require that the school implement those alternatives,” the guidance says.
For complete coverage of the confirmation hearing for Marcus and Johnny Collett, Trump’s nominee ssistant secretary of education for special education and rehabilitative services, read Alyson Klein’s post on Politics K-12.
Further reading on discipline and civil rights:
- DeVos’ Team Hears Criticisms of Obama-Era Guidance on Student Discipline
- Will Betsy DeVos Change Course on Racial Disparities in School Discipline?
- Trump Stance on Civil Rights Is ‘Distressing and Dangerous,’ Obama Official Says
- Civil Rights Took Spotlight Under Obama
- New Federal School Discipline Guidance Addresses Discrimination, Suspensions
- Adults See Black Girls as Less Innocent Than Their White Peers, Survey Finds
A version of this news article first appeared in the Rules for Engagement blog.