CLEGG: The dangers of disparate-impact policy
Late last month, the Justice Department's Civil Rights Division and the Education Department's Office for Civil Rights hosted a conference called “Civil Rights and School Discipline: Addressing Disparities to Ensure Educational Opportunity.” The focus was on the fact that black students are more likely, as a statistical matter, to be disciplined by schools than white students. The Obama administration is unhappy with this disparity.
But there are two issues here: Whether there is “disparate treatment,” that is, whether whites and blacks actually are being treated differently because of their race, or merely “disparate impact,” that is, whether school discipline policies are not written, intended or applied discriminatorily but simply have led to racially disproportionate results.
The Obama administration has made it clear that it will come down on school systems either way. The administration ought to object to disparate treatment, of course, but it is quite wrong to use the disparate-impact approach.
As a policy matter, any use of the disparate-impact approach will drive the regulated entity into doing one of two things, both bad: getting rid of perfectly legitimate policies because they have politically incorrect results or getting rid of the statistical imbalances through the use of surreptitious quotas.
In the school-discipline context, the bad results are either less discipline for all students or school systems getting their numbers right by punishing white students who ought not to be punished or - more likely - by not disciplining black students who should be. Alas, the Obama administration would appear to be perfectly happy with either outcome. Education Secretary Arne Duncan says he is “deeply troubled by rising discipline rates and disparities in discipline.”
If there is less discipline, the learning environment will suffer, which is unfair to all students. But no doubt the students who will suffer most disproportionately will be blacks who are trying to learn but are more often in schools with lots of ill-behaved classmates. As usual, it is the rule-following racial minorities whom liberals forget in their eagerness to showboat their compassion for rule-breaking racial minorities.
The departments of Justice and Education’s conference laments the “school-to-prison pipeline” - that getting disciplined in school leads later on to running afoul of the criminal justice system. Putting aside the problem that there seems to be a confusion of cause and effect here - that is, it is not the punishment for school infractions that makes prison time more likely ultimately, but the propensity to commit such infractions - there also may be this unintended and ironic consequence: School systems that are afraid of being slapped with a disparate-impact complaint if they discipline students may decide it is safer for them simply to call the police. So the school-to-prison pipeline will be avoided, all right - by schools simply sending people directly into the criminal justice system.
The head of the Department of Educations’s Office for Civil Rights, Russlynn H. Ali, is unfortunately correct in her declaration, “Disparate impact is woven through all civil rights enforcement in this administration.” Thus, the administration is unhappy with fire and police departments that hire or promote based on test performance and with lending and foreclosure policies that lead to politically incorrect racial and ethnic imbalances. Ms. Ali’s deputy, Ricardo Soto, has announced that their office will release school-discipline guidance this winter that will include an analysis of disparate impact, according to Education Week.
Reasonable people can differ about how strict school discipline should be. In particular, conservatives as well as liberals have shaken their heads and rolled their eyes at the excesses of some “zero tolerance” policies. But the wisdom of such policies should be evaluated without weighing race and ethnicity. That is, if the policy is silly, it should be rejected even if it does not result in a racial imbalance, and if it is valid, it should be retained even if it does.
Bad policy aside, there is an even bigger problem here, namely that the disparate-impact approach that the Obama administration is taking with regard to school discipline is illegal. The statute it purports to be enforcing is Title VI of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color and national origin in federally funded programs (which includes all public school districts). But the Supreme Court has ruled repeatedly that Title VI bans only disparate treatment, not disparate impact.
So the administration can rely only on the disparate-impact regulations that have been promulgated under Title VI. This is a weak reed. The Supreme Court noted in 2001 that Title VI “limits agencies to ‘effectuat[ing]’ rights already created” by it and “[w]e cannot help observing … how strange it is to say that disparate-impact regulations” implement Title VI when the statute “permits the very behavior the regulations forbid.” Strange indeed.
But if it is not discrimination, why is it that these black-white disparities exist? A big part of the answer is that children, especially boys, who grow up in a home without a father are much more likely to get into all kinds of trouble. And more than seven out of 10 blacks are being born out of wedlock. Let me repeat that: Today, more than seven out of 10 blacks are being born out of wedlock. This fact is our country’s No. 1 domestic-policy problem, and it will not be solved by bureaucrats bringing dubious civil rights complaints.
Roger Clegg is president and general counsel of the Center for Equal Opportunity.
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