97 Pages Posted: 19 Jan 2018 Last revised: 26 Jun 2018

Date Written: January 1, 2018

Abstract

On March 8, 2010, one year into the Obama Administration, Secretary of Education Arne Duncan gave a passionate speech in which he asserted (correctly) that African-American students are the subjects of school discipline at higher rates than white students. Although he did not mention it, it is also true that white students are the subjects of school discipline at higher rates than Asian American students and that male students are disciplined at higher rates than female students.

In response to the racial disparity he identified, Duncan promised that the Department of Education would be stepping up its enforcement of Title VI of the Civil Rights Act of 1964. In the years that followed, the Department of Education made good on that promise by opening numerous investigations based on statistical disparities. On January 18, 2014, the Department of Education and the Department of Justice jointly issued a “Dear Colleague Letter” on school discipline in which they asserted that the law prohibits not only actual discrimination in discipline on the basis of race, but also what they called “unjustified” disparate impact.

In Part I of this article, we point out that there are two sides to the “disparate impact” coin. The Department of Education has focused only upon the fact that, as a group, African-American students are suspended and expelled more often than other students. By failing to consider the other side of the coin — that African-American students may be disproportionately victimized by disorderly classrooms — its policy threatens to do more harm than good even for the group Secretary Duncan was trying to help. In Part II, we discuss the Department of Education’s enforcement policy toward school discipline in greater detail, its over-reliance on racial disparate impact, and how that over-reliance pushes some schools to violate Title VI’s ban on race discrimination rather than honor it. In Part III, we elaborate on why school discipline is important and present evidence that the Department of Education’s policy has contributed to the problem of disorderly classrooms, especially in schools with high minority student enrollment. In Part IV, we discuss how aggregate racial disparities in discipline do not in themselves show the discrimination against African Americans, Hispanics, and American Indians that some proponents of the Department of Education’s policy claim. Rather, the evidence shows that they are the result of differences in behavior. In Part V, we explain why the Department of Education’s disparate impact policy is not just wrong-headed, but also unauthorized by law.