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Federal officials are getting the word out that addressing racial disparities in school discipline is a high priority, and they plan to use 鈥渄isparate-impact analysis鈥� in enforcing school discipline cases鈥攁 legal course of action that some civil rights lawyers contend was neglected under the administration of President George W. Bush.
鈥淩egrettably, students of color are receiving different and harsher disciplinary punishments than whites for the same or similar infractions, and they are disproportionately impacted by zero-tolerance policies鈥攁 fact that only serves to exacerbate already deeply entrenched disparities in many communities,鈥� Thomas E. Perez, the assistant attorney general for civil rights at the U.S. Department of Justice, recently said at a conference on school discipline and civil rights, according to . The was hosted by the U.S. departments of Education and Justice on Sept. 27 and 28.
Also at the conference, Ricardo Soto, the deputy assistant secretary for the Education Department鈥檚 office for civil rights, announced that his office will release guidance this winter on school discipline that will include an analysis of disparate impact.
鈥淒isparate impact is woven through all civil rights enforcement of this administration,鈥� said Russlynn H. Ali, the assistant secretary of the Education Department鈥檚 civil rights office, in an interview this week.
By Race and Gender
SOURCE: Southern Poverty Law Center
In enforcing civil rights law, she said, federal officials look for evidence of 鈥渄ifferent treatment,鈥� or that people intentionally discriminated against a particular group. But federal officials are obliged to also look at 鈥渄isparate impact,鈥� she said, whether a particular group is disproportionately affected by a policy though no intention of discrimination may exist. An education agency would be found out of compliance, for example, only if an equally sound policy would have less of a disparate impact, she said.
鈥淚t鈥檚 my understanding from talking with long-time career colleagues here in the [Office for Civil Rights] headquarters and regional offices that disparate impact was not a theory that was used during the last administration in education,鈥� Ms. Ali added, although previous civil rights officials did pursue cases on the basis of 鈥渄ifferent treatment.鈥�
Incomplete Analysis?
Kenneth L. Marcus, a professor of public affairs at Baruch College of the City University of New York, who headed up the Education Department鈥檚 civil rights office in 2003 and 2004 during the Bush administration, said he also recalls that most education cases were brought by the agency under the 鈥渄ifferent-treatment鈥� rather than 鈥渄isparate-impact鈥� course of action. Gerald Reynolds and Stephanie Monroe, who also served as heads of the Education Department鈥檚 civil rights office during the same administration, weren鈥檛 available for interviews this week.
A focus by federal officials on fully enforcing the disparate-impact analysis could force many school districts to re-examine and change their discipline policies, some civil rights lawyers say.
At the conference, U.S. Secretary of Education Arne Duncan also added his voice to the choir expressing concern about racial disparities in school discipline. According to a copy of his prepared remarks, Mr. Duncan said he was 鈥渄eeply troubled by rising discipline rates and disparities in discipline鈥� in the nation鈥檚 schools. Speaking by videoconference from New York City, he told conference attendees that the Obama administration has already launched five compliance reviews on school discipline, when no reviews of that kind had been conducted for years.
Those reviews are being conducted in the Christina School District in Wilmington, Del.; the Salamanca City (N.Y.) Central School District; Winston-Salem/Forsyth (N.C.) County Schools; San Juan (Utah) School District; and Rochester (Minn.) Public Schools, according to Ms. Ali. She said all involve both different-treatment and disparate-impact analyses.
Some civil rights lawyers say disparate-impact analysis warrants a lot of scrutiny.
Roger Clegg, the president and general counsel of the Falls Church, Va.-based Center for Equal Opportunity, contends that it could drive schools to 鈥済et their numbers right鈥� rather than actually combat discrimination.
鈥淚n education, with respect to discipline, my concern would be that school districts are afraid they will be hauled before a court or some administration agency and threatened with a loss of federal funding whenever they have a racial imbalance of one kind or another,鈥� he said. He explained that educators might become hypersensitive to students鈥� race or ethnicity in discipline decisions, resulting in disciplining some students who shouldn鈥檛 be and not disciplining others who deserve it.
鈥楧ubious鈥� Tactic
Mr. Clegg held the No. 2 post in the civil rights division of the Justice Department during the administrations of presidents Ronald Reagan and George H.W. Bush. Under both administrations, he said, 鈥渨e were dubious about the disparate-impact approach to civil rights enforcement generally.鈥�
Mr. Marcus noted that disparate-impact cases were approved under the George W. Bush administration but tended to get a lot of scrutiny because some officials felt that the Clinton Administration had abused the disparate-impact approach to bring 鈥渇rivolous or ideologically motivated cases.鈥�
Daniel J. Losen, the senior education law and policy associate for the Civil Rights Project at the University of California, Los Angeles, said an unpublished OCR directive from 2003 instructed staff to use the different-treatment approach, except with regard to English-language learners in special education.
A supporter of disparate-impact-based legal action, Mr. Losen is the co-author of a report released last month, that calls for educators to address imbalances in out-of-school suspension rates in middle schools between students of color and their white peers. The study released by the Montgomery, Ala.-based Southern Poverty Law Center, found that 28.3 percent of black male students had been suspended at least once during the 2005-06 school year, the most recent year for which data is available, compared with 10 percent of white males. At 18 percent, the suspension rate for black females in middle school was more than four times the rate of 4 percent for white females.
Link to Dropping Out
The imbalance is a big problem, said Mr. Losen, because at least one suspension in middle school is a key predictor that a student will drop out of school. He contends that the Education Department鈥檚 civil rights office under the Bush administration didn鈥檛 fully enforce civil rights law because it didn鈥檛 take civil rights inquiries beyond the different-treatment standard.
The Obama administration鈥檚 prioritizing of disparate impact will help keep students in school, he said. With that legal approach, Mr. Losen said, 鈥渢he burden is on the district to explain why they didn鈥檛 pursue another practice that has an equally effective or less discriminatory impact.鈥�
Judith A. Browne-Dianis, the co-director of the Advancement Project, a Washington-based civil rights organization, also backs the use of a disparate-impact approach to civil rights enforcement. She also claims the Bush administration neglected to fully enforce civil rights law in schools. 鈥淣ow is the time when we need to have strong enforcement of civil rights laws with regard to public education because we see the numbers are so outrageous with regard to outcomes for children of color,鈥� she said.
Her organization holds up the discipline policy of the 78,000-student Denver Public Schools as a model.
Allegra 鈥淗appy鈥� Haynes, the chief community-engagement officer for Denver Public Schools, said the district received complaints from a local community group, Padres & J贸venes Unidos, and others that the district was giving more out-of-school suspensions to Latinos and African-Americans than whites. She said the district鈥檚 data confirmed that perception so the district formed a committee with teachers, students, administrators, and community members to overhaul its discipline policy.
The district implemented a 鈥渄iscipline ladder,鈥� for example, that spelled out the level of the disciplinary action students would receive for specific kinds of infractions, such as chewing gum in class or talking back to teachers. The policy emphasized that students should receive out-of-school suspensions or be referred to police only for serious misconduct, such as causing harm to someone in a fight.
The result was that referrals to law-enforcement officers dropped by 63 percent and out-of-school suspensions declined by 43 percent in the district from the 2008-09 school year to the 2009-10 school year, she said.
Ms. Haynes said it鈥檚 appropriate for federal agencies to urge school districts to address racial disparities in how discipline is applied, but she cautioned that federal agencies should take an approach of providing resources and support to school districts in civil rights enforcement. She said she hopes a renewed focus on school discipline by federal agencies doesn鈥檛 result in 鈥渢he long arm of justice coming to pound schools about the problem.鈥�
