Given a choice between following the law, and doing what a bureaucrat with power over them wants, people will often do what the bureaucrat wants, and ignore the law. That seems to be the lesson of the Minneapolis schools’ recent decision to adopt race-based school discipline.
The Minneapolis Star Tribune reported that “Minneapolis public school officials are making dramatic changes to their discipline practices by requiring the superintendent’s office to review all suspensions of students of color.” The Minneapolis school system will require prior review before “every proposed suspension of black, Hispanic or American Indian students” can occur, which means the superintendant may “take those suspensions back to” those recommending a suspension to “probe and ask questions.”
Meanwhile, suspensions of white and Asian students will occur without any impediment or scrutiny from the superintendant. This differential treatment is as unconstitutional as giving blacks two opportunities to pass their driving test, and Asians only one opportunity.
This is part of a larger push by the Minneapolis schools to impose racial quotas in suspensions, reportedly to resolve an investigation by the Education Department’s Office for Civil Rights. Minnesota Public Radio reports that “MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years. This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.” Some other school districts investigated by the Education Department have also adopted such “targeted reductions” by race.
Such racial-percentage rules violate the Seventh Circuit Court of Appeals’ unanimous ruling in People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997), which struck down as a violation of the Constitution’s equal protection clause a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” That court ruling also explicitly rejected the argument that race can be used to prevent disparate impact (see page 534 of the court’s opinion). I discuss the unconstitutionality of such rules, and why they are based on a misinterpretation of Title VI of the Civil Rights Act, at greater length in The Daily Caller.
Reason magazine says that “The new policy is the result of negotiations between MPS and the Department of Education’s Office for Civil Rights.” If that’s true, that doesn’t make it any less unconstitutional: The Education Department’s Office for Civil Rights, where I used to work, cannot order schools to violate constitutional rights. The courts made this clear in 1978 when they ruled that the Office for Civil Rights had violated the First Amendment by pressuring the East Baton Rouge Parish School Board into kicking out the Ku Klux Klan because of its racist views. (See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board). And in White v. Lee (2000), a federal appeals court allowed individual federal civil-rights officials to be sued for interpreting the Fair Housing Act in a way that violated the Constitution.
But in the real world, what school districts care about most is what the Education Department wants, not what’s constitutional. The amount of money a school district would have to pay in damages to a suspended white or Asian student who proves he was treated worse than a similarly situated black student is arguably pocket change compared to the millions of dollars a school district court would lose if the Education Department decided to cut off its federal funds for a supposed violation of Title VI of the Civil Rights Act.
Higher black suspension rates largely reflect higher rates of misbehavior among blacks. Misconduct rates are not the same for different races. A 2014 study in the Journal of Criminal Justice by criminologists like John Paul Wright found that racial disparities in student discipline result from more frequent misbehavior by blacks, not racism. The study, entitled “Prior Problem Behavior Accounts for the Racial Gap in School Suspensions,” concluded that higher black suspension rates are “completely accounted for” by students’ own behavior. (Higher black suspension rates are found even in schools with black principals and superintendants; the Minneapolis superintendant, Bernadeia Johnson, is an African-American).
In its January 2014 “guidance” to the nation’s schools, the Education Department claims it has the right to demand that schools eliminate colorblind disciplinary rules just because they have a “disparate impact” — i.e., if a higher percentage of blacks than whites are suspended, and the school cannot prove to bureaucrats’ satisfaction that the disciplinary rule is essential to maintain order. The Education Department’s January 2014 guidance to the nation’s schools insists that a school can be guilty under Title VI of the Civil Rights Act (for disparate impact) solely due to “neutral,” “evenhanded” application of discipline rules, just because more minority students violate such rules (see pp. 11-12).
But the Education Department has no right to enforce such “disparate impact” rules. The Supreme Court ruled in Alexander v. Sandoval (2001) that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department claims that while the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision described as “strange” in footnote 6 of its opinion).
The Education Department states that even if the only reason a school punishes more black students for unauthorized “use of electronic devices” is because blacks actually “are engaging in the use of electronic devices at a higher rate than students of other races,” it can still be liable for disparate impact. This distorts the disparate impact concept. Even when courts do allow liability for disparate impact, the disparity must result from something in the disciplinary process, not the mere fact that more blacks misbehaved. As the 2001 Robinson decision allowing lawsuits over disparate impact in workplace discipline emphasized, a mere “bottom line racial imbalance in the work force” is ”insufficient.”
The Education Department also claimed such disparities were the product of racism by schools, not just “disparate impact.” That contradicts the Supreme Court’s ruling in U.S. v. Armstrong. It rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. Blacks, who are only 13 percent of the population, commit nearly half of all murders. The Education Department claimed there is no evidence of “more frequent” misbehavior by minority students. But the homicide rate is 10 times higher for black teenagers than for whites.
The only way to equalize suspension rates for all races would be to adopt racial quotas that curb discipline for black offenders. But the People Who Care decision ruled that schools cannot use racial quotas in discipline. Ignoring that ruling, the Obama administration has pressured school districts such as Oakland and Palm Beach County into imposing veiled racial quotas.
Quotas harm, rather than help, most African-Americans, who are often victims of black-on-black violence. As Professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”