A destructive belief seems poised to unfold within the public-school system in the form of new policies. The Department of Education (ED) is threatening to conduct “disparate impact” inquiries on schools that have a higher punishment, expulsion, or suspension rate for black children than for whites or Asians. A racial quota system may soon be imposed on school discipline.
The legal theory of disparate impact
A standard definition of “disparate impact” is the
adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.
The most destructive aspect of the belief is its assumption that disparate impacts are the result of discrimination and, therefore, should be illegal.
A clear example of this belief in action occurred in the business world earlier this year. As the legal site FindLaw reported in its article, ““Pepsi Settles EEOC Racial Bias Case for $3.1 Million,” Pepsi had a policy of checking the criminal backgrounds of job applicants and not hiring anyone with an arrest record or conviction. The Equal Employment Opportunity Commission, investigating this practice, did not accuse Pepsi of applying the policy in a biased manner. But the EEOC did insist that “the policy disproportionately affected African-American job applicants.” This made it legally racist. And so it became illegal to discriminate against criminals in hiring.
In disparate-impact claims there is no need to prove that there was a discriminatory intent — only a discriminatory result.
In March, the Department of Education released a report entitled, “New Data from U.S. Department of Education Highlights Educational Inequities Around Teacher Experience, Discipline and High School Rigor.” The key finding with regard to school discipline was,
African-American students, particularly males, are far more likely to be suspended or expelled from school than their peers. Black students make up 18% of the students in the CRDC sample, but 35% of the students suspended once, and 39% of the students expelled.
In short, and if the statistics are reliable, school discipline has a disparate impact on blacks.
But it is not clear why. A survey only indicates that something deserves more attention; it does not explain causes. The explanation of racism comes from the political assumption that an equality of opportunity and equal treatment of people will naturally render an equality of results. An unequal outcome, therefore, means there is an inequality of opportunity or treatment. This assumption is flatly false.
Outcomes between individuals and categories of people naturally vary, and sometimes widely so. Indeed, in a free society, equal opportunity and treatment will usually render unequal results because of how widely people differ in their attitudes, goals, character, and abilities. The outcome for categories of people also depends on a wide range of factors, including cultural influences.
To view justice in terms of equal results, as the ED does, is to argue not for equality but for egalitarianism. Winston Churchill captured the difference between the two concepts when he stated, “‘All men are created equal’ says the American Declaration of Independence. ‘All men shall be kept equal’ say the Socialists.” Nothing short of totalitarian social control can assure the latter.
The problem and possible solutions
The ED statistics are disturbing. The willful disadvantaging of any child by a tax-funded agency is intolerable. For years it has been evident that the public-school system has forsaken the obligation to educate all children, but it seems to have failed black students the most. Yet, whether the Department of Education’s detected statistical difference in discipline arises from racism is far from clear. Moreover, if racism is present, the extent of its impact is equally unclear.
Fortunately, there are ways to mitigate the problem that do not require solving the root cause. One of them is to end the zero-tolerance policies through which trivial offenses are punished. This would shrink the overall problem down to a manageable size. Moreover, zero tolerance has been documented to impact minority children with special force, helping to create what is called “the school-prison pipeline” for minorities.
Schools could cease to mimic prisons — this imitation almost guarantees conflict between administrators, teachers, and children. And if the ED claim is true that blacks, Hispanics and the disabled are disproportionately subject to physical abuse such as restraints, then the abusers should face criminal charges.
More fundamentally, the root causes for black students’ disrespect for authority could be explored. In some cases, the causes may not be difficult to address: for example, a soaring unemployment rate that kills the hope black students have for the future. Repealing minimum-wage laws would instantly create jobs for black youths as well as the hordes of other unemployed.
Of course, the most effective solution would be to make school attendance voluntary; then students who acted out because they hated being there could leave and explain themselves to their parents.
The ED response
The government will not explore the foregoing solutions. The beginning and the end of the response from the Obama administration and the Department of Education seem to be a hunt for “racism.” The ED branch that provided the data in question was the Civil Rights Data Collection department, because disproportionate school discipline has become a civil-rights matter. Secretary of Education Arne Duncan told reporters, “Education is the civil rights of our generation. The undeniable truth is that the everyday education experience for too many students of color violates the principle of equity at the heart of the American promise.”
According to ED threats, the solution may be “disparate-impact” inquiries conducted on school districts in which blacks are disciplined more than whites or Asians. (It is not clear whether school districts in which whites are disciplined more than Asians will be subjected to a similar racial review. Perhaps in this case, it will simply be concluded that white children misbehave more often than Asian ones, who are typecast as having notoriously strict parents.)
The inquiries at public schools will almost certainly duplicate the protocol established for universities. At the University of California, this was spelled out in a report “to assist the Board of Regents and the broader University community in understanding federal disparate impact law.” [PDF]
One of the key criteria used to establish “disparate impact” is “a significant disparity in the provision of a benefit or service that is based on race, national origin or sex.” Once “a significant disparity” has been established, there is a “legal inquiry … probing the educational justification of a particular practice and the degree of fit between the University’s educational objectives and the means employed to achieve its goals.”
Teachers and administrators who have the “wrong” statistics may be required to prove they are innocent of racism.
Likely consequences of this policy
Actual “disparate-impact” inquiries may not be necessary. Public schools are utterly dependent on tax funding, and the scare tactic of a looming inquiry may be sufficient to compel preemptive compliance. Schools may well rush to apply a double standard based on race, one that will be self-conscious. It will aim at establishing an equal punishment, suspension, and expulsion rate for whites, blacks, Asians, and Hispanics. There are two ways to accomplish this goal, and both may be used. First, misconduct by “protected” groups can be overlooked. Second, trivial misconduct by “unprotected” groups can be zealously penalized.
A teacher who was faced with racial quotas for discipline offered a real-world view of what happens:
What this meant in practice was an unarticulated modification of our disciplinary standards. For example, obscenities directed at a teacher would mean, in cases involving minority students, a rebuke from the dean and a notation on the record or a letter home rather than a suspension. For cases in which white students had committed infractions, it meant zero tolerance. Unofficially, we began to enforce dual systems of justice. Inevitably, where the numbers ruled, some kids would wind up punished more severely than others for the same offense.
In short, the federal demand for non-discrimination established a powerful incentive for racism. Government created a double standard in the treatment of race.
It also constructed a make-work project for lawyers. OpenMarket.org, the blog of the Competitive Enterprise Institute, explained,
Racial quotas in school discipline will indeed “result in lawsuits,” as white and Asian students sue over being disciplined for conduct that triggered no discipline when committed by a black peer (unless the school manages to conceal from the public the fact that it is applying a de facto quota). In People Who Care v. Rockford Board of Education … the United States Court of Appeals for the Seventh Circuit declared that racial quotas and racial-balance requirements in school discipline are unconstitutional, and also stated that it is unconstitutional to use racial preferences to offset “disparate impact.”
It is impossible to tell whether the ED data stems from racism. Whatever the truth, however, the solution being floated is disastrous and will almost certainly worsen any racism that may exist. As always, the federal government is reacting to a problem by tightening control, imposing its agenda, and creating more bureaucracy.
Children of all races will suffer.