Last fall, the state Department of Human Rights delivered letters to 43 Minnesota school districts and charters, notifying them that — based on significant disparities in their student discipline data — they were under investigation for violating the state Human Rights Act.

That investigation has been unfolding over the course of the last several months, as state officials contacted each individual school district or charter to set up in-person meetings and work out any disagreements or misunderstandings.

Human Rights Commissioner Kevin Lindsey says that department staffers have now met with leadership from all 43 school districts and charters, which are located all across the state. MinnPost’s repeated requests for a list of the school districts and charter schools under review have been denied by the state Department of Human Rights, on the grounds that these districts and charters are currently under investigation.

As negotiations continue, Lindsey says he’s hopeful that all of the districts will enter into agreements with the department to work toward reducing discipline disparities that disproportionately impact students of color — especially Native American and African-American students — along with students with disabilities.

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The investigation comes at a time when federal officials are taking a step back from enforcing equitable access to public education for marginalized student groups. To fill the void in oversight, the state Department of Human Rights has identified patterns of discipline disparities over a 5-year period that suggest several school districts and charters have discriminatory discipline practices and policies.

In the event that a school district or charter that’s been flagged won’t cooperate with the department, Lindsey says the state will initiate litigation.

“We’re really trying to scratch out and understand: Why are they making those decisions?” he said. “And those decisions have consequences, because if kids aren’t in the classroom, they can’t learn. If kids aren’t learning, they don’t graduate. Kids that don’t graduate face a situation that makes it far more likely they are going to make bad choices and potentially end up in our criminal justice system. If they end up in our criminal justice system, they’re not productive workers. They’re not productive citizens. That makes it more difficult for Minnesota to thrive and succeed going forward. So it’s really important for us to disrupt that cycle.”

The investigation

Lindsey says the Human Rights Department began its investigation by looking at suspensions, expulsions and exclusions logged in the state Department of Education’s Discipline Incident Reporting System, commonly known as DIRS. Schools and districts self-report yearly exclusionary discipline incidents, broken down by race, disability, gender and the type of incident — with categories ranging from weapon and fights to cyber bullying and disruptive/disorderly conduct.

MDHR chose to focus on subjective incidents, since it’s an area where disparities tend to be large, and one where reforms can have an impact in reducing disparities. Subjective incidents include things like bullying, disruptive/disorderly conduct, verbal abuse, other, attendance, threats and intimidation, Lindsey said.

For the 2015-16 school year, the MDHR team found that 55 percent of all suspensions and expulsions statewide fell into these subjective categories. African American students were eight times more likely to be suspended than their white peers, while Native American students were 10 times more likely to be suspended than their white peers.

Lindsey says his team looked for patterns of disparities over a five year window in both charter schools and school districts. After weeding out districts that may have had some concerning numbers but not on a consistent basis, they issued notices to 43 school districts and charters.

“The way in which we had the conversation with charter schools and school districts is that we talked about the application of suspension decisions throughout the entire school district,” Lindsey said, noting some had a better understanding of which individual school sites within their district had greater disparities than others.

The reactions from school districts and charters have been mixed. Sensitive to the fact that school leaders may react negatively to any signs of finger-pointing, Lindsey says his department has been taking great caution to steer the conversations in a positive direction, focused on collaboration and shared goals around student success.

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“Within the space of human rights, or working on civil rights issues, tenuous, hard work can easily be derailed through no fault of anyone — just by the way in which a nuance is given to some communication,” he said. “For us, this is really important — given the number of students that we’re talking about and the impact that trajectory on their life could be. So, we want to be very diligent and careful in our communications and in our collaborations with school districts and charters, to best position us for success.”

His department is not looking to tell schools what they must do, he adds. “What’s really important for the Department is to make sure that each school district is being consistent with the training that it’s providing to all its school personnel, and that there’s regular monitoring and oversight,” Lindsey said.

In terms of holding school districts and charters accountable, Lindsey says this piece of the process is still being fleshed out in negotiations. What he can say is that there will be a mix of resources to support this work moving forward. He says he’d like to tap into expertise that exists at the state Department of Education to assist school districts and charters in implemented discipline reforms. He also suspects they will form some type of committee to facilitate the sharing of best practices.

Why disparities matter

Researchers have been aware of discipline disparities in schools since at least the 1970s, not long after many public schools were integrated, said Edward Morris, an associate professor of sociology at the University of Kentucky who studies racial disparities in school discipline.

In the 1990s, zero-tolerance policies in schools and rising numbers of suspensions coincided with tough-on-crime attitudes in the justice system and rising incarceration rates, Morris said. “This ethos swept, I think, across different institutions throughout society, including education,” Morris said.

Think “Lean on Me,” Morris said — the 1989 based-on-a-true-story film about an inner-city New Jersey principal, played by Morgan Freeman, whose plan to save his school from state takeover included kicking out the troublemakers.

As a result of punitive efforts to impose order in classrooms, school suspensions increased rapidly in the ’90s. At the same time, progress on reducing achievement gaps stalled. “The no-brainer thing is it’s hard for kids to learn if they’re not in school, especially kids that are more vulnerable, which tends to be the kids who get suspensions,” Morris said.

Pulling kids out of the classroom as a means to correct behavior doesn’t work, Morris said: one of the best predictors of whether a kid will get suspended is if he or she has previously been suspended.

Suspensions are also associated with poor performance on tests. In a 2016 study, Morris and others found discipline disparities account for about a fifth of the difference in school performance between black and white students. Nationally, he said, about 16 percent of black students are suspended in a given school year compared to just 5 percent of white students.

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“We controlled for income, we controlled for prior achievement, special education status, single-parent households, pretty much anything you could think of that might be related to differences in behavior,” Morris said.

That means, Morris said, that implicit bias — unconscious attitudes about race — is the likely explanation for differences in discipline. “The perceptions of the behavior of kids are being read through a racialized lens,” he said. “The same types of behavior, when demonstrated by an African American girl, is perceived very differently than if it is shown by a white girl or an Asian girl.”

If implicit biases are to blame, that suggests the fix is in reducing the impulse — conscious or not — to treat kids differently based on race.

That often means giving teachers access to rigorous implicit bias training, the best kind of which empowers people to recognize how their perceptions of people are colored by race. “I’ve been through those types of trainings. They can be done well or not done well, but when they’re done well, you get a sense that you’re more in control of what’s hidden or implicit, and then you have more power over your perceptions,” Morris said.