A high school classroom. (Courtesy Wikimedia Commons)

The U.S. Commission on Civil Rights, of which I’m a member, just released a new report entitled, “Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities.” My colleague Gail Heriot and I dissented from this report. The report is essentially a defense of the Obama Department of Education’s 2014 “Dear Colleague” letter that used disparate-impact theory to interpret racial disparities in school discipline as evidence of racial discrimination. The Trump Department of Education withdrew the “Dear Colleague” letter late last year.

Progressives want to reinstitute the letter. To them, any racial disparity necessarily means invidious racial discrimination.

It’s undisputed that black students, as a group, are disciplined more than white students. For the commission majority, this is evidence of racially disparate treatment, as it’s an article of faith that discipline disparities aren’t due to disparities in behavior. As Gail Heriot and I point out in our separate dissents, there’s, to put it mildly, very little evidence that this is the case. To take but one example from Commissioner Heriot’s statement:

[S]elf-reported gang membership is not evenly distributed among children and teenagers by race and ethnicity. In Gang Membership Between Ages 5 and 17 Years in the United States, David C. Pyrooz and Gary Sweeten took data from the National Longitudinal Survey of Youth 1997. They found that while Hispanics were 12.9% of the young people in the sample who had never been in a gang, they were 20% of those who had been. Similarly, African Americans were 15.6% of the young people who had never been in a gang, but they were 23.6% of those who had been. Asian Americans were also over-represented in gangs with 2.3% never in a gang, but 2.5% of those who had been in a gang. Whites were the only group to be under-represented in gangs. They were 72.6% of the non-gang members, but 58.4% of those who had been gang members.

Similarly, as I write in my statement:

The report also ignores other common types of misbehavior that may result in suspension or expulsion. The report cites statistics from the Department of Education that indicate that “in 2015 approximately 7.8 percent of students reported being in a physical fight in the prior 12 months before the survey was conducted.” The Commission’s report does not mention that there were pronounced disparities by race and sex among those who engaged in fights on school property. Males were far more likely to engage in fights on school property than females (10.3% vs. 5.0%). Racial disparities were so stark that in some cases they overwhelmed the sex disparities. Black females (9.4%) were more likely to report engaging in a physical fight on school property than were white males (8.0%). Overall, 12.6% of black students and 8.9% of Hispanic students had engaged in a physical fight on school property in the previous year, as opposed to 5.6% of white students.

The Commission majority also is concerned that children of color with disabilities are punished more often than children without disabilities. When the majority refers to “disabilities,” they’re not referring, by and large, to children who are, e.g., deaf or in wheelchairs. “Disability” includes “emotional disturbance,” which essentially means “bad behavior for which there is not another clinical diagnosis.” Unsurprisingly, when “disability” is defined to mean “bad behavior,” “children with disabilities” are more likely to be disciplined.

The trouble with the Commission’s approach is that when you decree, in the face of all evidence to the contrary (including the testimony of their own parents), that children of all racial groups misbehave at exactly the same rates, the only way to get discipline rates to be the same is to artificially depress them. Accordingly, misbehaving students aren’t suspended or expelled, they’re invited to take part in “restorative practices” and “positive behavioral interventions and supports.” When you don’t suspend or expel misbehaving students, schools descend into chaos. Katherine Kersten has documented this phenomenon in the St. Paul school district. At the Commission’s hearing on this topic, teacher Deborah York from St. Paul appeared in person to testify during the public comment period. She stated:

I’m just one master teacher left behind by the system. Teaching is my life. I decided to become involved by creating the Minnesota Teacher Protection Bill when my employer, my union, and ultimately the legal system failed me and my students after I was assaulted as I intervened to prevent further harm to students, to classmates. That assault required three major surgeries, ending my 30-year career. And that troubled little guy, the 85-pound student, is now in his fourth school for special needs, emotionally and behaviorally disturbed kids. We failed him, and I think we failed all the other kids in that class too. We all know teachers can’t teach and students can’t learn when they don’t feel safe. But the Dear Colleague letter [means] too many schools are not safe. Most teachers across the country have not heard about the Dear Colleague letter. But I can assure you, many have experienced the impact of the letter by the increase in abusive behavior . . .

No doubt, the intent of the letter was to help all students and to affirm and validate all students of diversity and special needs students. But in actuality, the letter has done the exact opposite.


School districts in Minnesota have had an increase in violent behavior with harm to teachers and students because of fear of federal investigations and defunding. Teachers have lost their voice today, and they’re being silenced with gag orders.

They have lost their authority to control the classroom. They’re told they’ll be coached what to say, with whom, about classroom and school disruptive behavior. They’re told to shred, delete computer documents showing student violence that does not support the administrative agenda.



They’re directed to tolerate students who disrupt by screaming, swearing, tormenting, bullying, hitting, kicking, using pencils and scissors to stab other classmates. They use laptops, desks, and chairs as weapons. And these all go unreported.


Teachers get assaulted and injured, and those injuries do not get reported as well.

Closer to D.C., the same thing happened in the Baltimore Public School System, which the commission report touts as an example of the use of “restorative practices.” Mere months after the commission’s Maryland State Advisory Committee received testimony from a representative of the Baltimore Public Schools (but before this report was published!), such severe chaos and violence descended upon the Baltimore public schools that the teachers’ union created a “School Safety Task Force.” The president of the City Union of Baltimore stated, in regard to attacks on teachers and staff, “It’s sad to say, there have been people and there are people that may have been suffering through incidents like this and they’re not reporting them.” So much for “restorative practices.”

The premise of the report is flatly wrong, and as Commissioner Heriot notes in her statement, the premise is contradicted by data contained in the body of the report itself. Claiming that racism or dislike of children with disabilities accounts for disparate rates of discipline only stokes resentment and erodes personal responsibility. The supposed cures of “restorative practices” and “positive behavioral interventions and supports” only make it more likely that children in minority neighborhoods who want to learn will be less able to do so, and that teachers and children will be at the mercy of school bullies.


Anyone who cares about improving education in this country should disregard this report.