The Obama administration is no stranger to trying to micromanage complex, intractable problems from Washington. But using the Civil Rights Act to direct schools’ disciplinary practices might be its most foolhardy idea yet. Beginning in 2010, the Department of Education, led by the occasionally sensible Arne Duncan, announced that it intended to pursue vigorously civil-rights violations in the American school system. That’s led to a number of DOE investigations of various school districts with racially disparate discipline rates.


This, of course, is not surprising: Black and Hispanic students are much more likely to be low achievers, coming from poor homes, often headed by a single parent. The discipline disparities produced by these tragic circumstances are so widespread that the Departments of Justice and Education have now issued a set of national guidelines for school discipline, summarizing “schools’ obligations to avoid and redress racial discrimination in the administration of school discipline” and explaining the departments’ ability to launch civil-rights investigations if they believe schools have failed in their duties.

The feds contend, as an aside, that discrimination in discipline shows up in studies when controlling for poverty and other factors, but the evidence for this contention is ludicrously weak. Federal civil-rights investigators don’t have to publicly disclose the grounds they’ve used to initiate investigations of racial discrimination, but their work so far leans as heavily as the new guidelines do on evidence of disparate statistical impact, rather than on indications of real bias and disparate treatment. They will not admit that they rely on such arbitrary evidence, since there is little statutory justification in the Civil Rights Act for such a disparate-impact case, but the objection is clear enough: Certain minorities are disciplined at higher rates than whites are, so racism must be at work.


When such a simple heuristic is applied, schools will feel even more pressure than they already do to adopt a simple solution: try to discipline all races, regardless of behavior, at the same rate. This might mean arbitrarily increasing rates of punishment for whites or, much more likely, reducing them for blacks and Hispanics, disadvantaging their classmates of all races who’d like peaceful classrooms. Discipline rates for Asian Americans, at half those for whites, are lowest of all — so resolving the Holder-Duncan dilemma means punishing them more, or trying to discipline all students at the rate of a small minority that significantly outstrips most Americans in student achievement. The logical conclusion of this application of the Civil Rights Act is that boys, who are disciplined at far higher rates than girls, are also subject to discrimination, which the federal government ought to address.

Teachers’ unions, which usually object to the idea that anyone else knows what’s best for kids, and bristle even at stronger administrators located within their own schools, have welcomed the edict of a more ideologically sympathetic distant set of much more distant administrators, in Washington, D.C. In large part, attention to school discipline is an opportunity for them to call for more money — smaller classes, more counselors, more social workers — from their own districts’ coffers and the federal government. Some of those investments may even be sensible, though the millions allocated to diversity and sensitivity efforts, of course, are not. School discipline isn’t perfect: Excessive punishment or unruly classrooms — these guidelines could easily encourage the latter — can hold back achievement. But spectral racism should not be the guiding principle of reform, let alone a legal justification for it.



In theory, Eric Holder and Arne Duncan are only asking for an explanation. If a punishment or rule is found to have a disparate impact — with no evidence of racial bias or animus needed – a school merely has to prove that the rule “is necessary to meet an important educational goal.” But with so little evidence needed on the feds’ behalf and the burden of proof placed on schools, it’s not hard to imagine how schools will simply discard challenged rules in favor of other ones, or of less punishment overall, setting policies not by their own needs but by the whims of Washington civil-rights bureaucrats. Indeed, this has already happened in some places: Montgomery County, Md., tossed a rule reducing students’ academic credit for truancy because black students were more likely to be truant.

No one should be surprised by the Obama administration’s zeal for alleging racial discrimination when it isn’t there and asserting central control where it is known to fail. But it is still shocking that the federal government is effectively encouraging schools to judge students on the color of their skin rather than the content of their character.