Obama Administration Imposes Racial Quotas On School Discipline In Oakland

by Hans Bader on October 12, 2012 · 5 comments

in Legal, Politics as Usual, Zeitgeist

Under pressure from the Education Department, which investigated it over “racial disparities” and “disparate impact,” the Oakland, California, school system has agreed to impose “targeted reductions in the overall use of student suspensions; suspensions for African American students, Latino students, and students receiving special education services; and African American students suspended for defiance.” See Agreement to Resolve Oakland Unified School District, OCR Case No. 09125001, page 14, Section VIII(c)(iii). These “targeted reductions” are racial quotas in all but name. (“Disparate impact” is when a process affects one racial group more than another, despite having no racist motive, such as when whites have higher average scores than minorities on a standardized test.)

One federal appeals court (in a different region of the country) has said that schools cannot use racial targets 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 in student discipline to offset racial disparities not rooted in school officials’ racism (so-called “disparate impact”).

Racial “disparities” or “disparate impact” in student discipline rates are not the product of racism by school officials, but rather reflect higher rates of violence and other disruptive conduct among African-American students. Nationally, “the homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined.” In the Chicago schools, which used to be headed by Obama’s own current Education Secretary, “25 times more black Chicago students than white ones were arrested at school,” between September 2011 and February 2012.

The Supreme Court’s Armstrong decision emphasized that crime rates are not the same for different races, and that racial disparities in crime rates and conviction rates are not proof of racial discrimination. Stopping school officials from disciplining black students who violate school rules just because they previously disciplined more black than white students is as crazy as ordering police to stop arresting black criminals just because they previously arrested more blacks than whites.

Using race in student discipline, the way Oakland has agreed to do, also violates Article I, Section 31 of the California Constitution, which forbids all “racial preferences,” regardless of whether they are permitted by federal law.  That includes racial preferences in student discipline. (This provision, known as Proposition 209, was upheld by the federal appeals court with jurisdiction over California, in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), and it resulted in the invalidation of many state affirmative action programs in Connerly v. State Personnel Board.)

At a widely-read education blog, a teacher describes the violence and disorder that occurred when her school adopted racial quotas in school discipline:

I was the homeroom teacher in an incident in a school that tried to implement just this criteria for discipline. One kid (scrawny 7th grader) had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races. The little kid was suspended before his copious blood had been cleaned up off the floor. The big kid never did have ANY punishment – that particular ethnic group had been disciplined too many times.

Need I mention that it was a tough month, as word quickly spread that violence against the “under-disciplined” ethnic group was treated as a freebie?

The Obama administration argues that higher minority suspension rates presumptively violate Title VI of the Civil Rights Act by constituting “disparate impact,” even though the Supreme Court ruled in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. (The Supreme Court ruled in the Sandoval case that individuals cannot sue schools over “disparate impact” under Title VI.  The Obama Administration takes the position that while Title VI statute itself doesn’t reach disparate impact, its regulations implementing the statute do.  The Sandoval decision said that people cannot cite those regulations to sue over “disparate impact” under Title VI. Federal appeals courts have also said that people cannot invoke those disparate-impact regulations to sue under other laws, such as Section 1983, either.)

Even where statutes do expressly authorize lawsuits over “disparate impact,” such as in the workplace, Supreme Court justices have recently questioned the constitutionality of using racial preferences or classifications to eliminate such disparate impact, such as in the Supreme Court case of Ricci v. DeStefano, where the Supreme Court ruled that a mere prima facie case of disparate impact is not justification for race-based action, and Justice Scalia lamented the “war between disparate impact and equal protection” guarantees contained in the Constitution.

Disciplining a minority student for misconduct is not racism, or something that is harmful to minorities in the long run; instead, discipline is a valuable form of instruction that teaches students essential moral values, and how to interact properly with others (a skill that a kid will someday need to handle a job). Depriving disruptive or violent minority students of such discipline based on their race is itself a form of racial discrimination, since it deprives them of “equal access” to an essential educational “benefit,” namely, moral instruction and instruction in how to get along with others. See Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999)(civil rights laws forbid denying students access to an educational “benefit” based on their sex or race). Employers require their employees to follow rules and get along with co-workers, not exhibit “defiance” towards superiors, and expect them to have “soft people skills,” all traits that are instilled through discipline in school and in the home.

Moreover, black students themselves will suffer if school officials are prevented from adequately disciplining other black students, such as those who commit acts of violence, since violence is usually committed against other members of the perpetrator’s own race. Giving black students special treatment in discipline is an example of the “soft bigotry of low expectations” that undermines educational achievement among African-Americans. But the Obama administration is doing just the opposite, discouraging school districts from disciplining violent or disruptive black students if they have already disciplined “too many” black students, as Heather MacDonald notes in a recent issue of the Manhattan Institute’s City Journal.

Racial disparities in suspension rates are not the product of white racism, or racial favoritism by teachers towards students of their own race. For example, Asians have much lower infraction rates than whites, notes MacDonald, even though far more school teachers are white than Asian (and even though many categories of Asian immigrant children are far more likely than whites to grow up in poverty).

Racial disparities in suspension rates do not show discrimination under the Constitution, either. For example, 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, the Supreme Court emphasized 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 despite their manifest disparate impact.

Writing in City Journal in Summer 2006, former educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what the Obama administration is now demanding) 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.

jvermeer October 12, 2012 at 2:20 pm

This is hardly new. I had a teacher in Seattle 30 years ago say that the school administration had let teachers know that non-white students would not be subject to discipline for “minor” behavior violations.

J. Knight October 12, 2012 at 4:21 pm

I have my copy of the Constitution in my hand, have looked all through it, and can’t find one word about “disparate impact”. I do see equal protection in it, though. Looks like it’s time for a lawsuit against the Oakland School System and the Department of Education.

Hans Bader October 12, 2012 at 10:09 pm

As I noted above, the Sandoval decision said that people cannot sue under Title VI’s disparate-impact regulations, nor can they sue for disparate impact under the Title VI statute itself.

I should also have mentioned that the Supreme Court also expressed doubt about those disparate-impact regulations’ validity even in the purely administrative context, noting that they are in “considerable tension with the rule” that Title VI “forbids only intentional discrimination.” See Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001).

Since the regulations do not create any enforceable rights, it is also the case that, as I have noted above, federal appeals courts have also said that people cannot invoke those disparate-impact regulations to sue under other laws, such as Section 1983, either. (42 U.S.C. 1983 creates a statutory remedy for violations of the Constitution or federal laws).

The Obama Administration may be stretching even the Education Department’s dubious disparate-impact regulations beyond their language in pushing racial preferences in student discipline, and ignoring legitimate educational justifications for reasonable school policies that have an unintended disparate impact. Those regulations have not previously been interpreted to require school systems to eliminate ALL statistical disparities. Moreover, previously, even if a school’s policies’ did have a substantially “disproportionate impact,” the school only needed to demonstrate to the Education Department a “substantial legitimate justification for its practice,” to keep using them. See Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).

Thus, a school’s educational needs could justify even a practice that has disparate impact, under the disparate-impact regulations.

Moreover, many disparate-impact rules are designed to be applied to specific identifiable practices that have a disparate impact on similarly-situated white vs. minority students, rather than whether there is just a crude, overall disparity (e.g., in how many whites vs. minorities are disciplined overall — which seems to be the Education Department’s focus here).

So the school is supposed to isolate and fix whatever component of its disciplinary process has a disparate impact, rather than just be pressured to use quotas (to create a “racially-balanced” bottomline).

Cromulent October 12, 2012 at 11:46 pm

These are just the wages of progressivism. Its not a bug but a feature.

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