The old saying that, to a hammer, everything looks like a nail, increasingly resembles the New York Times house philosophy. If something might be done by the Trump administration, it must be racist.
A case in point is a recent report that the Departments of Justice and Education are considering withdrawing an Obama-era guidance document that strongly suggested that racially disproportionate rates of suspension and other forms of discipline might be deemed to violate Titles IV and VI of the Civil Rights Act. The guidance, which was disseminated in a “Dear Colleague,” letter sent an unsubtle message: If more black children that white children are disciplined, we will be looking at you. Make sure your numbers are “right” (i.e., that you have some measure of racial balance in disciplinary outcomes) or risk the wrath of the federal government. One thing I learned as a young lawyer, no one wants a “v.” between their name and the name of their country.
So racial balance became an imperative. But, according to the Times, the administration’s decision to remove an incentive to mete out discipline on the basis of race flies in the face of unspecified “strong evidence” of discrimination and will “certainly” be opposed by civil rights advocates. The decision to “target” these disciplinary policies is “unusual.”
Let’s see if we can help the Grey Lady understand.
The Obama administration’s “Dear Colleague” letter was bad law and bad policy. It was bad law because the relevant statute prohibits discrimination on the “ground” of race and other protected characteristics. A common sense reading of this language is that it prohibits actions taken because of race – not that it requires racial balance. A 2001 Supreme Court decision, while not definitively resolving this question, suggests that the law prohibits only discriminatory conduct and not disparate or discriminatory “effect.”
Nor can racially disparate outcomes be taken as a proxy for racial discrimination. As civil rights attorney Hans Bader has noted, study after study has shown that racially disparate disciplinary outcomes are rooted in different frequencies of misbehavior among racial groups. If, as is certainly the case, African-American children are more likely to face challenging home environments, it is not surprising that there would be higher rates of misconduct among them. That is, to be sure, cause for concern. But the answer is not to tinker with school discipline to “even out” rates of suspension and other forms of discipline. Doing so will only further disadvantage minority children who will be disproportionately schooled in unruly and unsafe environments where learning becomes more difficult, if not impossible.
In practice, the “Dear Colleague” letter resulted in school districts stepping down levels of school discipline. A study by my colleague Will Flanders and Natalie Goodnow compared the academic outcomes of students in schools that implemented alternative discipline practices with outcomes in schools that did not. Controlling for numerous other factors that affect proficiency rates and using seven years of data, our study found that implementation of alternative discipline was associated with declines in proficiency in both mathematics and reading.
But more concerning than academic outcomes are when policies truly endanger teachers and students. Max Eden of the Manhattan Institute, perhaps the strongest voice in opposition to these policies, has highlighted that teachers from Fresno to Buffalo express concerns about their safety in the classroom as schools reduce penalties for behavioral problems. Concerned about school shootings? Eden has also traced the disturbing pattern of lax treatment for Parkland shooter Nikolas Cruz, who was never arrested despite a long pattern of threats and violence.
Concern over racially disparate rates of school discipline is understandable. But efforts, like the “Dear Colleague” letter, to apply cosmetic fixes do not serve fairness or the interests of minority students. Rescission of this misdirected “guidance” by the Trump administration reflects a determination to take the challenges facing minority students seriously by ensuring that they, like white suburban students, can learn in orderly and safe classrooms.
It is ironic that the New York Times does not understand this. But it is all too predictable.
Rick Esenberg (@RickEsenberg) is president and general counsel at the Wisconsin Institute for Law & Liberty.
