The Departments of Education and Justice have teamed up to make the lives of students in tough neighborhoods even tougher. Framed as a measure to combat discrimination against black and Hispanic children, the guidelines issued by the Obama administration about school discipline will actually encourage racial discrimination, undermine the learning environments of classrooms and contribute to an unjust race-consciousness in meting out discipline.
Claiming that African-American and Hispanic students are more harshly disciplined than whites for the same infractions, the Obama administration now advises that any disciplinary rule that results in a "disparate impact" on these groups will be challenged by the government.
"Disparate impact" analysis, as we've seen in employment law, does not require any intentional discrimination. It means, for example, that if an employer asks job seekers to take a test, and a larger percentage of one ethnic group fails the test than another, that the test is de facto discriminatory because it has a "disparate impact."
In the school context, the federal government is now arguing that if a disciplinary rule results in more black, Hispanic or special education kids being suspended or otherwise sanctioned, the rule must be suspect. The "Dear Colleague" letter explains that a disciplinary policy can be unlawful discrimination, even if the rule is "neutral on its face ... and is administered in an evenhanded manner," if it has a "disparate impact" on certain ethnic and other groups.
The inclusion of special education students is particularly perverse, as special ed students frequently get that designation because their emotional disturbances cause them to misbehave in various ways. So if a rule against, say, knocking over desks, is found to be violated more frequently by special ed than regular ed students, then the rule must be questioned? That's circular.
As the CATO Institute's Walter Olson notes, the federal guidelines pass over one example of disparate impact with no comment -- namely the dramatically more males than females who face disciplinary action nationwide. If we are to judge a rule's lawfulness by the disparate impact on males, no rule would survive the inquiry. Is it possible that more boys misbehave in the classroom than girls? To ask this question is to venture into an area the federal government would have us avoid. Actual infractions by individuals are not the issue. We must have group justice, not individual justice.
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