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The Obama administration鈥檚 new efforts to reduce the overrepresentation of some racial and ethnic groups in school discipline cases came in for criticism at a public briefing before the .
Obama officials announced last spring that as well as looking for evidence of 鈥渄ifferent treatment,鈥� or intentional discrimination against students in civil rights enforcement, federal officials also would examine 鈥渄isparate impact,鈥� disproportionate effects on a particular group by a policy though no intention of discrimination may exist. (鈥淒uncan Plans to Prod Schools on Civil Rights Laws,鈥� March 8, 2010.) Federal officials have said that even with the new focus, an education agency would be found out of compliance only if an equally sound policy would have less of a disparate impact. (鈥淥bama Administration Targets 鈥楧isparate Impact鈥� of Discipline,鈥� Oct. 7, 2010.)
Some civil rights lawyers have welcomed the new emphasis, noting that 鈥渄isparate impact鈥� was neglected under the administration of President George W. Bush.
At the Feb. 11 briefing, Ricardo Soto, the deputy assistant secretary for the Education Department鈥檚 office for civil rights, elaborated on the office鈥檚 new policy, saying that the Obama administration is 鈥渦sing all the tools at our disposal,鈥� including 鈥渄isparate-impact theory,鈥� to ensure that schools are fairly meting out discipline to students. Some research shows, for instance, that suspension rates for African-American males in middle school can be nearly three times as high as those for their white, male peers.
Mr. Soto said the department recognizes 鈥渢here is no universal, one-size-fits-all approach to discipline that will be right for every school or all students.鈥� The department is expected to release new guidance on school discipline this year, Mr. Soto added in an interview after the briefing.
However, Commissioner Todd F. Gaziano, a conservative-leaning Independent on the eight-member commission, told Mr. Soto that he鈥檚 concerned about the administration鈥檚 interpretation of disparate-impact analysis.
鈥淲hat bothers me about your approach is you put an extremely heavy burden on the school to justify any disparity,鈥� he said.
Mr. Gaziano also expressed a concern that the civil rights office is applying disparate-impact analysis in a way that could lead to educators鈥� reducing the amount of disciplinary action against students of a particular minority group merely to avoid an overrepresentation of action taken against members of that group, even if it were warranted. He questioned if the office for civil rights鈥� procedures would be able to detect such a scenario.
Views From the Classroom
Several teachers who testified at the briefing expressed concerns similar to Mr. Gaziano鈥檚.
Allen Zollman, a teacher of English as a second language at an urban middle school in Pennsylvania that he did not name, said he rarely makes a disciplinary referral that removes a student from his classroom. But he said he is opposed to having to give 鈥渁 thought to disparate impact鈥� if he needs to remove a disruptive student from class, saying he views it as a constraint on effective discipline.
Should his school require such a policy, Mr. Zollman said, he would respond in one of three ways: disregard it and continue to refer whatever students he sees fit for disciplinary action, do nothing and tolerate chaos in his classroom, or take an early retirement from teaching.
Jamie Frank, who said she has been a teacher for 11 years in the suburban Washington area, said the pressure school administrators already feel to reduce overrepresentation of disciplinary action against minority groups has led to problematic policy changes. She said she worked in a district that did away with a penalty for students to lose academic credits if they failed to attend class because the policy was disproportionately affecting some groups of students. Eliminating the policy put an unfair burden on teachers to reteach and retest students on course content and allow them to make up lost work, she contended.
A number of school district administrators who testified before the commission, however, took the opposite view and backed a focus on disparate impact.
For example, Hertica Y. Martin, the executive director of elementary and secondary education for Minnesota鈥檚 Rochester public schools, reported that from the 2007-08 to 2009-10 school years, the district reduced an overrepresentation of expelled African-American males. She credited a disciplinary approach gaining traction in schools nationwide, called Positive Behavioral Interventions and Support, with helping to support fairer disciplinary action. She also emphasized the importance of classes about racial and ethnic diversity that the school district has provided to teachers, with titles such as The Role of Whiteness and The Culturally Relevant Classroom.
Administrators, she said, need to address 鈥渨hy the kids are misbehaving a certain period of the day or in a certain teacher鈥檚 classroom,鈥� indicating that a lack of understanding of students by teachers can sometimes contribute to a discipline problem.
Advice on Remedies
Some commissioners, in comments made at the briefing, also seemed sympathetic to the civil rights focus on disparate impact, though they weren鈥檛 as clear in stating their position as Mr. Gaziano was.
鈥淵ou have the ability to offer the district a set of best practices,鈥� Roberta Achtenberg, a new commissioner, told Mr. Soto. She added that the OCR, however, should also examine remedies to eliminate disparate impact to see if they actually work. If the department is 鈥渢ransparent鈥� about what remedies work, she said, it may allay fears some educators have that the federal government is interfering with their daily work for the sake of 鈥減olitical correctness.鈥�
The U.S. Commission on Civil Rights has had a history of recent discord. In September, three commissioners boycotted a national conference hosted by the panel because they felt they hadn鈥檛 had adequate input into the agenda for the conference. (鈥淐ivil Rights Group Seeks a 鈥楴ational Conversation鈥�,鈥� Sept. 15, 2010.) Michael Yaki, a Democrat whose term expired in December, said in a statement then that the conference topics were 鈥渆xtremely narrow,鈥� ignoring such issues as the civil rights of immigrants or gays and lesbians.
Since then, however, the composition of the board has changed. The commission鈥檚 chairman, Gerald A. Reynolds, a Republican; Arlan Melendez, a Democrat; and Ashley L. Taylor, a Republican; left the commission when their terms expired in December.
President Barack Obama and Congress replaced them with three Democrats: Dina Titus, a former U.S. congresswoman from Nevada; Martin R. Castro, a lawyer and Latino community advocate; and Ms. Achtenberg, who was a senior adviser to the secretary of the U.S. Department of Housing and Urban Development under the Clinton administration. One seat on the commission continues to be vacant, but Mr. Yaki is expected to be reappointed to fill it, according to the commission鈥檚 acting chairwoman, Abigail Thernstrom, a Republican and adjunct scholar for the Washington-based American Enterprise Institute. The Feb. 11 meeting was the first for the new slate of members.
Ms. Thernstrom said the current mix of three Democratic and four conservative commissioners may lead to more attention to issues such as the civil rights of immigrants and gays.
