ONE GIANT STEP BACKWARDS: One of the best things the Trump Administration’s Department of Education did was turn away from the Obama Era policy prohibiting disparate impact based on race in school discipline. There are already hints that the Biden Administration will return to that policy.
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.