In March 2010, Secretary of Education Arne Duncan announced that his department was “going to reinvigorate civil rights enforcement.” The secretary was speaking on the 45th anniversary of “Bloody Sunday,” when state troopers savagely beat and teargassed peaceful voting-rights marchers in Selma, Alabama. Duncan fleetingly acknowledged the racial progress that the nation had made since that shameful era, but he was soon back in the 1960s: “Skeptics sometimes tell me, ‘Slow down.’ They say our agenda to pursue equal opportunity is too ambitious. To them, I simply repeat what Martin Luther King said many years ago: ‘We can’t wait.’ I repeat what President Lyndon Johnson said after Bloody Sunday, when he told a joint session of Congress: ‘We have already waited a hundred years and more—and the time for waiting is gone.’ ”

President Johnson was calling on Congress to pass the Voting Rights Act in order to end the South’s century-long obstruction of black suffrage. What was the pervasive racial injustice that led Duncan to present himself as a modern-day Johnson? Black elementary and high school students are disciplined at a higher rate than whites are. To Duncan, that disparity can mean only one thing: schools are discriminating.

And so the Departments of Education and Justice have launched a campaign against disproportionate minority discipline rates, which show up in virtually every school district with significant numbers of black and Hispanic students. The possibility that students’ behavior, not educators’ racism, drives those rates lies outside the Obama administration’s conceptual universe. But the country will pay a high price for the feds’ blindness, as the cascade of red tape and lawsuits emanating from Washington will depress student achievement and enrich advocates and attorneys for years to come.

This past March, Duncan released some newly gathered national discipline data. The “undeniable truth,” he said, was that the “everyday educational experience for many students of color violates the principle of equity.” The massive media coverage of Duncan’s report trumpeted the discipline disparity—blacks were three and a half times more likely to get suspended or expelled than their white peers—as convincing evidence of widespread discrimination. (The fact that white boys were over two times as likely to be suspended as Asian and Pacific Islander boys was discreetly ignored, though it would seem to imply antiwhite bias as well.)

The Department of Education has launched investigations of at least five school systems because of their disparate black-white discipline rates. The Department of Justice has already put the Barnwell, South Carolina, school district under a costly consent decree, complete with a pricey outside consultant, and is seeking similar control of other districts. The theory behind this school discipline push is what Obama officials and civil rights advocates call the “school-to-prison pipeline.” According to this conceit, harsh discipline practices—above all, suspensions—strip minority students of classroom time, causing them to learn less, drop out of school, and eventually land in prison.

The feds have reached their conclusions, however, without answering the obvious question: Are black students suspended more often because they misbehave more? Arne Duncan, of all people, should be aware of inner-city students’ self-discipline problems, having headed the Chicago school system before becoming secretary of education. Chicago’s minority youth murder one another with abandon. Since 2008, more than 530 people under the age of 21 have been killed in the city, mostly by their peers, according to the Chicago Reporter; virtually all the perpetrators were black or Hispanic. In 2009, the widely publicized beating death of 16-year-old Derrion Albert by his fellow students sent Duncan hurrying back to the Windy City, accompanied by Attorney General Eric Holder, to try to contain the fallout in advance of Chicago’s bid for the 2016 Olympics (see “Chicago’s Real Crime Story,” Winter 2010). Between September 2011 and February 2012, 25 times more black Chicago students than white ones were arrested at school, mostly for battery; black students outnumbered whites by four to one. (In response to the inevitable outcry over the arrest data, a Chicago teacher commented: “I feel bad for kids being arrested, . . . but I feel worse seeing a kid get his head smashed on the floor and almost die. Or a teacher being threatened with his life.”) So when Duncan lamented, upon the release of the 2012 discipline report, that “some of the worst [discipline] discrepancies are in my hometown of Chicago,” one could only ask: What does he expect?

Nationally, the picture is no better. 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. Such data make no impact on the Obama administration and its orbiting advocates, who apparently believe that the lack of self-control and socialization that results in this disproportionate criminal violence does not manifest itself in classroom comportment as well.

Though the federal government does not collect data on student misbehavior by race, it does survey schools on their discipline problems. During the 2009–10 school year, the rate at which schools that were over 50 percent minority reported gang activity was five times as high as the rate at schools where minorities constituted 5 to 20 percent of the population. More than 11 times as many schools in the first category as in the second reported widespread weekly disorder in classrooms; more than four times as many reported weekly verbal abuse of teachers. The Departments of Education and Justice publish this information in their annual Indicators of School Crime and Safety, but they have not allowed it to contaminate their official position that racial disparities in student discipline reflect racial inequity, not student behavior.

As for the school-to-prison pipeline, the advocates inside and outside the White House have not come close to establishing their claimed causal relationship—that suspensions drive students to drop out and resort to crime. The much likelier possibility is that students’ propensity to misbehave leads to all three results: suspensions, dropping out, and crime. The lack of any empirical basis for the school-to-prison pipeline idea is irrelevant, though, to its ubiquity as an advocacy tool.

Aaron Benner, a fifth-grade teacher in St. Paul, Minnesota, scoffs at the notion that minority students are being unfairly targeted for discipline. “Anyone in his right mind knows that these [disciplined] students are extremely disruptive,” he says. Like districts across the county, the St. Paul public school system has been on a mission to lower the black suspension rate, following complaints by local activists and black parents. A highly regarded principal lost his job because his school had “too many” suspensions of black second- and fourth-graders. The school system has sent its staff to $350,000 worth of “cultural-proficiency” training, where they learned to “examine the presence and role of ‘Whiteness.’ ” The district spent another $2 million or so to implement an anti-suspension behavioral-modification program embraced by the Obama administration.

Benner sees the consequences of this anti-discipline push nearly every day in the worsening behavior of students. He overheard a fifth-grade boy tell a girl: “Bitch, I’ll fuck you and suck you.” (“I wanted to throw him against the locker,” Benner recalls.) The boy’s teacher told Benner that she felt powerless to punish the misbehavior. “This will be one of my black men who ends up in prison after raping a woman,” observes Benner. Racist? Many would so characterize the comment. But Benner is black himself—and fed up with the excuses for black misbehavior. He attended one of the district’s cultural-proficiency sessions, where an Asian teacher asked: “How do I help the student who blurts out answers and disrupts the class?” The black facilitator reminded her: “That’s what black culture is”—an answer that echoes the Obama administration’s admonitions to teachers. “I should have said: ‘How many of you shouted out in college?’ ” Benner remarks. “They’re trying to pull one over on us. Black folks are drinking the Kool-Aid; this ‘let-them-clown’ philosophy could have been devised by the KKK.”

Tired of writing up disciplinary referrals that had no further effect, Benner finally did the unthinkable: he spoke out to St. Paul’s board of education last December. “Disruptive students cannot remain in my room and affect those who want to learn,” he pleaded. Even more controversially, he laid the primary responsibility for student misbehavior on parents and community leaders, rather than on racism and cultural insensitivity. The “achievement gap / suspension gap is a black issue. My community must take the lead in correcting our children’s behavior,” he said.

The response was predictable. “People who think like that are like the people who believe that [black people] are . . . less than civil or human,” Victoria Davis, an education advocate with St. Paul’s NAACP chapter, told the local Star Tribune. An e-mailer called Benner a “tie-wearing Uncle Tom.” Benner remains undaunted. The refusal to hold students accountable only guarantees their future failure, he says.

Teachers across the country corroborate Benner’s observations about student behavior. Patrick Welsh, an acclaimed high school English teacher in Alexandria, Virginia, used to try to separate fights between black girls, he told the U.S. Commission on Civil Rights in 2011. “But as I get older, I’m not going to get in between them,” he said. “We’ve had staff members injured separating them. There’s an anger in those girls, where there’s no fathers in the home, . . . that is almost unbelievable.” Louise Seng taught eighth-grade social studies for 34 years in Allentown, Pennsylvania. Her students, who were mostly minorities, “came from families where they observed violence at home, and they therefore thought that it was acceptable to use violence to solve problems,” she told the commission. “It was not terribly unusual . . . for one student to throw a chair at another during the middle of class because the second student made a nasty verbal comment.”

Civil rights attorneys make a number of unlikely propositions to support their claim that disproportionate discipline equals discrimination. First, of course, is their implicit assumption that teachers and school administrators are a racist bunch—an assumption that’s “ridiculous,” says Brett Rosenthal, an assistant principal in Rockville Center, Long Island, who also worked for years as a dean of students in Jamaica, Queens. “I’ve never seen anything unfairly done, not once. Teachers are good-natured people who try to help out.” Teachers also constitute one of the most liberal occupation groups, as a visit to any education school will confirm. Yet if we’re to believe the Obama administration, when they enter the classroom or become administrators, these eager proponents of white-privilege theory suddenly become retributive bigots, favoring fractious white students over pacific black students.

The anti-discipline forces further suggest that the process for disciplining students is so loose that teachers can easily abuse it—a ludicrous proposition. Even without an explicit mandate to lower the minority suspension rate, schools face an arduous ordeal in disciplining students. Ever since the federal courts invented the notion of student due-process rights in the 1960s, a thicket of regulations and procedures has encumbered legitimate adult authority in the classroom. Merely removing a student from the classroom at the time of his disruptive behavior is almost impossible. Typically, a teacher must document in writing the student’s multiple prior offenses, as well as the corrective actions that the teacher has previously taken, and then hope that the relevant higher-ups will eventually respond to the removal request.

Students know that their teachers are hamstrung. Allen Zollman, a middle school remedial teacher in Pennsylvania, told an eighth-grade girl who would not stop talking over him: “You have two choices: either stop talking, or I will have you removed.” Her response: “I’m going to torture you. I’m doing this because I can’t be removed.” When students see no consequences for bad behavior, not only do they continue to misbehave, but the behavior worsens, with more and more students joining in, Zollman told the Commission on Civil Rights. Under such conditions, very little teaching or learning takes place.

Any student actually suspended from school will have received an enormous amount of prior adult attention. “Everything is attempted to support students inside school; it’s all we do,” says Rosenthal. A school removal usually comes only after multiple infractions and a “tremendous amount of process that involves psychologists, social workers, guidance counselors, teachers, deans, and assistant principals. The student will have been repeatedly discussed and known,” Rosenthal says. This intense care is a far cry from the arbitrary process that the critics allege.

Graphs by Alberto Mena

The research base for the Obama administration’s claim that minority students receive harsher punishment than whites for “the same or similar infractions” is laughably weak. None of the studies alleging disproportionate discipline actually observed students’ behavior or examined students’ full disciplinary histories, including classroom interactions and warnings, teacher and counselor observations, and efforts at informal resolution that preceded more formal measures. A principal might have had two dozen conversations with a student before deciding to suspend him; none of those conversations would have been included in the researchers’ models.

When pressed, the advocates say that this omission does not matter. (The Department of Education did not respond to repeated requests to explain how it determines that minorities are disproportionately disciplined.) It would be necessary to consider students’ actual behavior only if the government were making a “disparate-treatment” claim—the more traditional construct for alleging civil rights violations—says Daniel Losen, director of the Center for Civil Rights Remedies at UCLA’s Civil Rights Project / Proyecto Derechos Civiles. But the Department of Education, dusting off an abysmally drafted 1980 regulation, is using a “disparate-impact” standard, says Losen, the administration’s favorite exponent of the school-to-prison-pipeline conceit. Under disparate-impact theory, even if a school applies its discipline code fairly and in a color-blind fashion, it can still be liable for civil rights violations if minorities are disproportionately affected and it cannot demonstrate the absolute necessity of its disciplinary practices.

Political appointees in the George W. Bush administration had discouraged the use of disparate-impact theory in education investigations and elsewhere. Unfortunately, the Bush administration failed to rescind the Department of Education’s disparate-impact regulation, guaranteeing that the next Democratic administration would again unleash it upon hapless school districts. Advocates inside and outside the executive branch are now celebrating the resuscitation of disparate impact. “For years, we couldn’t rely on the federal government to enforce civil rights law, so now we have an Office for Civil Rights [in the Department of Education] that is finally taking up the torch,” Judith Browne-Dianis, codirector of the nonprofit Advancement Project, told America’s Wire in October 2011.

But while the legal theory behind the White House’s school discipline crusade might sidestep the question of whether schools are treating minorities more harshly than similarly situated white students, the rhetoric around the initiative clearly suggests that they are. That rhetoric is irresponsible and dangerous, only serving to alienate blacks in general further from society and black students in particular from those institutions that are their best hope for success.

The planks of the feds’ allegations of discriminatory discipline are contradictory and tendentious. Obama officials rail against zero-tolerance policies that try to ensure uniformity in sanctioning; yet they complain just as strenuously about discretionary punishments. This past February, addressing a meeting of 100 Black Men of Atlanta, Eric Holder decried the effect of zero-tolerance policies on black students and, in the next breath, complained about Texas—where, “tellingly, 97 percent of all suspensions were discretionary and reflected the administrator’s discipline philosophy as much as the student’s behavior.”

Another favorite—and wholly irrelevant—complaint is that black students are punished more often for “subjective” offenses. A 2002 study of one urban school system found that teachers disciplined black students more frequently for offenses like disrespect, excessive noise, and making threats, whereas teachers disciplined white students for “objective” transgressions, such as smoking, obscene language, and vandalism. To which the proper response is: So what? Even if you accept the specious subjective-objective distinction and assume that this one study generalizes to every school district, the research fails to demonstrate that the racial distribution of referrals doesn’t reflect actual differences in behavior. Moreover, it is absurd to suggest that disorderly behavior in class is less serious than smoking. Allen Zollman describes some of the “subjective” offenses that urban teachers routinely encounter: “Calling out, engaging in conversation across the room, dancing at one’s seat, loud singing, choral singing, exchanging insults, . . . talking back to the teacher, use of obscenity, insulting the teacher, . . . standing up and telling stories to the class, wandering around the classroom, . . . touching other students, [and] leaning into the hall and addressing passers-by.” None of this is conducive to an orderly lesson.

Richard Tsong/Minneapolis Star Tribune/MCT/Landov

Disproportionate rates of minority discipline were already ending school officials’ careers before the feds stepped in. Now that Washington has entered the fray, the pressure to bring those rates into alignment has grown even more intense. Civil rights investigations are the government’s “Jesus Christ moments, when it nails someone on the cross for all to see,” says former deputy associate attorney general Gerald Reynolds. Federal funding is at stake, which almost always leads the target to agree to whatever the Washington lawyers demand, but not before running a seemingly endless gauntlet of document production.

As usual when the feds swoop into town, they have refused to disclose to the school districts under scrutiny why they have aroused suspicion. But press accounts provide some clues. In Christina, Delaware, one of the districts under investigation, a six-year-old white boy faced expulsion in 2009 for bringing to school a Cub Scout tool (“a combination of folding fork, knife, and spoon,” reported a local TV station) with which to eat his pudding. After public outcry, the district removed kindergarten and first-grade students from its zero-tolerance policy for weapons. Also in 2009, however, the Christina school district expelled an 11-year-old black girl after a box cutter fell out of her jacket pocket. The girl said that she had no idea how the box cutter had got there, according to Wilmington’s News Journal. The U.S. Department of Education presumably chose Christina to investigate because it agrees with the girl’s mother, who brought a complaint to the Delaware Human Relations Commission, that only racism can explain why a school would distinguish a six-year-old’s possession of an improvised pudding spoon from an 11-year-old’s possession of a box cutter.

Might the school officials know something that federal officials do not, regarding the girl’s previous run-ins with authority and the likelihood that she had no knowledge of the box cutter? Not in the eyes of a Washington bureaucrat, who takes his own omniscience as a given. Perhaps the feds believe that an 11-year-old is too young to constitute a threat. Tell that to the family of a ten-year-old girl killed by an 11-year-old girl in a fight outside their elementary school in Long Beach, California, this past February. “We see aggressive behavior from kindergarten up,” Lawrence Jointer, a school official in Alexandria, Virginia, told the Washington Post in February.

If the Obama administration is so worried that minority students are losing valuable class time, it should focus on the behavior that interferes with teaching. “Disruption in the classroom often robs a class of one-quarter or one-half of its instructional time as the teacher works to manage what could be viewed as a three-ring circus when things get out of control,” retired teacher Dianna Hopen wrote in the Star Tribune this February.

Nevertheless, school systems are jettisoning whole swaths of their discipline practices in order to avoid disparate impact. Montgomery County, Maryland, once penalized repeated truancy with automatic loss of academic credit. This policy affected black students at higher rates because they had higher rates of truancy. Solution: get rid of the loss-of-credit rule. For similar reasons, Maryland is pressing its schools to eliminate suspensions for all nonviolent offenses. According to a recent hire, a Baltimore high school now asks prospective teachers: “How do you respond to being mistreated? What do you do if someone cusses you out?” The proper answer is: “Nothing.” Predictably, disorder has risen. A 34-year veteran of the school had to be taken from the premises in an ambulance after a student shattered the glass in a classroom display case. “If I prefer one student’s constitutional right to be here, what about the constitutional rights of the other 28 students?” the teacher told the Hechinger Report.

This pressure not to punish is everywhere. “Teachers are petrified to discipline students,” says a high school science teacher in Queens, New York, who blogs under the name “Chaz.” Students will tell a teacher to shut up or curse him when asked to open their notebooks, but the teacher’s supervisors will look the other way. The amount of insubordination now tolerated in New York schools is destroying them, says a former head of discipline for the city’s school system. Yet in June of this year, the schools chancellor proposed making official this de facto elimination of suspensions. Teachers would no longer be allowed to remove from class students who disrupted their fellow students’ ability to learn, engaged in obscene behavior, or were insubordinate. Advocates and the city council speaker, who is the leading mayoral candidate, complained that the changes didn’t go far enough.

The training industry is one clear winner in the federal discipline initiative. After the Department of Education informed the Rochester, Minnesota, school district that it was under investigation for disciplinary disparities, the district sent its staff to training sessions on the role of whiteness, the impact of race on student learning, and the need for “courageous conversations about race.” The legal profession is the other clear winner. In March 2012, education advocacy groups met behind closed doors at a New York conference to discuss how to use the newly released federal discipline data in their legal strategies against schools, reported the Huffington Post. Expect a rush of private lawsuits piggybacking on the federal claims.

The losers are the kids. Protecting well-behaved students’ ability to learn is a school’s highest obligation, and it is destroyed when teachers lose the option of removing chronically disruptive students from class. Nor does keeping those unruly students in class do them any favors. School is the last chance to socialize a student who repeatedly curses his teacher, since his parent is obviously failing at the job. Remove serious consequences for bad behavior, and you are sending a child into the world who has learned precisely the opposite of what he needs to know about life.

Federal and state regulations were already crippling schools before the Obama administration’s initiative. “The regulations and mandates are like an avalanche,” says Robert Breidenstein, superintendent of the Salamanca School District in upstate New York. “It’s like being in one of Dante’s layers of hell; if you wanted to structure a more inefficient system, you couldn’t do it.” The discipline push will only burden schools further and waste scarce taxpayer dollars.

Discipline isn’t the only area in which the Department of Education’s disparate-impact approach is uncovering putative discrimination. In the Los Angeles Unified School District, as in every school district, the racial composition of the gifted and talented programs does not mirror the racial composition of the general population. Those enrollment ratios will change, now that the department’s Office of Civil Rights has begun monitoring the LAUSD for civil rights violations. Naturally, the office produced no evidence that the district was discriminating against black students whose qualifications were similar to those of the white and Asian students who make up the majority of gifted and talented enrollees. The Department of Education has also put high schools on notice that if more white and Asian students enroll in advanced placement courses than blacks, the schools will face investigations and lawsuits.

In the same vein, Arne Duncan criticized the University of Georgia in his Bloody Sunday speech for its “inequality in educational access.” Duncan’s incendiary charge was based exclusively on outcomes: under 10 percent of the university’s freshmen in the 2007–08 school year were Latino, African-American, or Native American, though minority students accounted for nearly 40 percent of Georgia’s 2007 high school graduates. Duncan wasn’t about to inquire about the grade-point averages and SAT scores of the state’s various ethnic groups (in 2010, for the record, blacks’ SATs in Georgia were 279 points lower than whites’ on a scale of 2,400), or whether the University of Georgia was rejecting black high school graduates with SATs and GPAs similar to those of the whites it accepted (it is not). To the Obama administration, unequal results are persuasive evidence of discrimination because all groups are assumed, against all known evidence, to have identical qualifications.

Duncan concluded his speech with an invocation of Booker T. Washington, who “walked 500 miles to the Hampton Institute to receive an education. The force that drove Booker T. to make that long walk is known to everyone here today: in America, education is the great equalizer.” Duncan seemed unaware of the irony: if more minority students displayed Washington’s fierce drive for knowledge, the discipline gap (and the achievement gap, too) would melt away. Minority students hardly have a monopoly on educational apathy, but most urban teachers readily describe the difficulty of persuading students to take their textbooks home, much less to do their homework. Moreover, serious black students must contend with a poisonous stigma against academic achievement. “I see black students who struggle with their peers if they study, who are accused of acting white,” says Benner.

Though Barack Obama broached the taboo topic of personal responsibility on the 2008 campaign trail, now that he’s in the White House, his underlings have maintained a resolute silence on the behavioral components of inequality. Duncan’s Bloody Sunday speech and subsequent pronouncements have avoided any mention of what students and parents can do for themselves, such as paying attention in class, respecting your teacher, and studying, or monitoring your child’s attendance, homework, and comportment. Such an exclusive emphasis on victimhood plays well with Obama’s base, but it seriously distorts reality. No amount of federal oversight or litigation can make up for students’ lack of effort. As Benner observed to the St. Paul school board, the biggest force for overcoming lingering education gaps resides with families and communities.