Crimes and infractions are not evenly distributed across racial groups, as the Supreme Court noted in United States v. Armstrong, 517 U.S. 456 (1996). As that 8-to-1 Supreme Court ruling noted, there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data, in which “more than 90% of” convicted cocaine traffickers “were black” in 1994, and “93.4% of convicted LSD dealers were white.” But the Maryland Board of Education has chosen to ignore reality by proposing a rule that would require school systems to discipline and suspend students in numbers correlated to their race, and require school systems that currently don’t do so to implement plans to eliminate any racially “disproportionate impact” over a three-year period. Thus, it is imposing quotas in all but name.
In doing so, the Board of Education is apparently unaware of a federal appeals court decision in Chicago that ruled that schools cannot use either racial proportionality rules, or quotas, for school discipline, since that violates the Constitution’s Equal Protection Clause. See People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997). That court ruling also said that a school cannot use race to offset “disparate” or “disproportionate impact,” and that doing so is not a valid kind of affirmative action.
The Maryland Board of Education’s proposed rule is found on page 25 of the Report of the Maryland Board of Education: School Discipline and Academic Success: Related Parts of Maryland’s Education Reform. It reads as follows:
A. The Department shall develop a method to analyze local school system data to determine whether there is a disproportionate impact on minority students. B. The Department may use the discrepancy model to assess the impact of discipline on special education students. C. If the Department identifies a school’s discipline process as having a disproportionate impact on minority students or a discrepant impact on special education students, the school system shall prepare and present to the State Board a plan to reduce the impact within 1 year and eliminate it within 3 years. (boldface added)
Thus, the Maryland Board of Education wants to ban “disproportionate impact” – legalese for non-racist treatment that unintentionally affects more minorities than whites – in school discipline. The Supreme Court has allowed minority employees to sue over such “disparate impact” in limited circumstances, but it has refused to allow minority students to sue over it. Its ruling in Alexander v. Sandoval, 532 U.S. 275 (2001), said that individuals could not sue under Title VI of the Civil Rights Act for “disparate impact,” only intentional discrimination. Title VI is the federal law that covers racial discrimination in schools and other institutions that receive federal funds. (The Board’s proposed rule is not needed to prevent discrimination in the ordinary sense, since there are already lots of laws banning discriminatory treatment of minorities, as opposed to disparate impact, that minority students can already sue under, like 42 U.S.C. 1981, and Title VI of the Civil Rights Act).
The fact that there are disparities in suspension rates does NOT prove discrimination. For example, in a ruling by Justice Sandra Day O’Connor, the Supreme Court said that it is “completely unrealistic” to argue that minorities should be represented in each field or activity “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989)). In an earlier ruling, Justice O’Connor noted that it is “unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” (See Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 992 (1988).)
The Constitution does not forbid “disparate impact.” The Supreme Court made that clear in Washington v. Davis, 426 U.S. 229, 248 (1976), where it noted that it cannot be denied “that a whole range of tax, welfare, public service, regulatory, and licensing statutes” are “more burdensome to the poor and to the average black than to the more affluent white,” yet they are still constitutional.
The fact that a higher percentage of black students are suspended than whites in most schools reflects greater infraction rates associated with poverty and single-parent households — not racism against minorities by school officials. As a scholar at the Brookings Institution notes, “children who spend time in single-parent families are more likely to misbehave, get sick, drop out of high school and be unemployed.” As the federal CDC notes, while most whites and Asians are born to two-parent families, most blacks and other minority groups are born out of wedlock.
Since infraction rates are typically higher among such minority groups, it is only natural that discipline and suspension rates are higher as well, even if that is bureaucratically defined as “disproportionate impact.” Pressure to discipline minorities and whites in numbers proportional to their percentage of the student body leads to racial discrimination in discipline, such as needless suspensions of white and Asian students for technicalities that would result in nothing more than a warning for a black student.
Writing in the Summer 2006 edition of the Manhattan Institute’s City Journal, educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what Maryland’s Board now seeks) led him to engage in unfair racial discrimination against students:
More than 25 years ago, when I was dean of boys at a high school in northern Queens, we received a letter from a federal agency pointing out that we had suspended black students far out of proportion to their numbers in our student population. Though it carried no explicit or even implicit threats, the letter was enough to set the alarm bells ringing in all the first-floor administrative offices. . .
There never was a smoking-gun memo . . . but somehow we knew we had to get our numbers “right”—that is, we needed to suspend fewer minorities or haul more white folks into the dean’s office for our ultimate punishment.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.
I remember one case in particular. It was near the end of the day, and the early-session kids were heading toward the exits. . .The boy was a white kid, tall, with an unruly mop of blond hair. He was within 200 feet of the nearest exit and blessed freedom. But he couldn’t wait. The nicotine fit was on him, and he lit a cigarette barely two yards from me. I pounced, and within 20 minutes he was suspended—for endangering himself and others.
Janko’s article is aptly titled, It Still Leaves a Bad Taste. But the bad experience and guilty conscience he experienced is mild compared to what Maryland teachers and principals will experience. The federal agency that pressured Janko is the Education Department’s Office for Civil Rights (OCR) — where I used to work as a lawyer. Its disparate-impact regulations — which may not even be enforceable after the Supreme Court’s 2001 decision in Alexander v. Sandoval — never purported to require school systems to eliminate all racially “disproportionate impact,” the way Maryland’s Board of Education apparently seeks to do in school discipline. Its rules didn’t reach all statistical disparities, no matter how meaningless. Moreover, even if a school’s policies did have a meaningfully “disproportionate impact,” the school only needed to demonstrate to OCR a “substantial legitimate justification for its practice,” to keep using it (in theory, anyway). See Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). In short, Janko discriminated as he did because of bureaucratic dictates that were far less extreme than anything Maryland’s Board of Education is proposing. Even a liberal federal civil-rights bureaucrat would not demand that Maryland do something as extreme as what its Board of Education is proposing. If the Maryland proposal goes through, discrimination far worse than what Janko recounts will occur in its schools.