- The Washington Times - Wednesday, January 8, 2014

How discipline is doled out in the classroom now will be under much closer scrutiny by the federal government, but some analysts say the Obama administration’s efforts ultimately may backfire and could lead to de facto racial quotas in American schools.

The Education Department and the Justice Department on Wednesday issued new “guidance” to ensure minority students aren’t punished through suspension, expulsion or other means more than their white peers. The administration cited legal authority under Titles IV and VI in offering detailed rules for how school districts can administer discipline.

It’s part of a larger effort — backed by teachers unions, civil rights advocacy groups and other organizations — to combat the “school-to-prison pipeline,” in which minority students are disproportionately kicked out of school and subsequently end up in the criminal justice system.

But within its guidance, most of which is not controversial and merely reinforces existing nondiscrimination laws, the administration also declares that schools’ disciplinary policies cannot have a “disparate impact” on one particular group.

In plain terms, it means district rules, guidelines and enforcement cannot result in the punishment of more black students than white students for the same offense, for example.

With that in mind, school leaders surely will keep a close eye on whether the same number of children from given racial groups are disciplined in equal number and equal measure for the same behavior.

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“You have to make certain that your school discipline cases match those percentages. If you don’t, you’ll have the feds on your doorstep,” said Joshua Dunn, a political science professor at the University of Colorado and director of the university’s Center for Legal Studies. “If they actually do enforce these guidelines, there will be unintended consequences. This creates some rather destructive incentives. I don’t think there’s any way around that.”

Chief among those negative incentives, Mr. Dunn said, will be that teachers, principals and other school personnel may hesitate to punish a minority student for a particular offense out of fear that they will appear prejudiced or that their actions will result in disproportionate effects on one racial group.

Taken to the extreme, such a scenario could lead to even bigger problems, some specialists say.

“Eventually, you’ll have disorder in schools. … They either suspend white students for relatively trivial things or they don’t punish black students for behavior that is really disruptive or even violent,” said Hans Bader, a senior attorney at the Competitive Enterprise Institute. “You’re effectively commanding them to have racial quotas” with respect to which students are disciplined and how often.

The administration and its supporters see the guidance quite differently and argue that it’s sorely needed in the 21st century to ensure minority students aren’t singled out and suspended, expelled or even turned over to police while white students receive little or no punishment for the same behavior.

“A routine school disciplinary infraction should land a student in the principal’s office, not in a police precinct,” Attorney General Eric H. Holder Jr. said in a statement. “This guidance will promote fair and effective disciplinary practices that will make schools safe, supportive and inclusive for all students.”

In addition to its “disparate impact” provision, the administration’s guidelines also call for school staff to be trained on how to discipline students in a fair manner with no account given to race, gender, sexual orientation or other factors; law enforcement to be kept out of the process whenever possible; and teachers to be given instruction on conflict resolution and other methods to defuse situations before they escalate or turn violent.

The guidance also provides districts with a directory of “federal school climate and discipline resources” and an online catalog of discipline laws and regulations already on the books.

While the guidance itself is non-binding and carries no additional legal weight, the federal government theoretically could cut funding to states or local school districts if they have violated Title VI, which specifically prohibits discrimination based on race, sex or national origin.

Soon after the guidelines were released, civil rights groups praised the administration for tackling a controversial and complex problem in the American education system.

“All children deserve access to a quality education, but too often children of color are pushed out of the classroom through the overuse of harsh school disciplinary policies, despite federal law that protects them,” said Judith Browne Dianis, co-director of the Advancement Project, a civil rights advocacy organization.

Local school districts also conceded that disparities in discipline remain a problem.

“The representation of African-American students who receive discretionary suspension is far greater than the overall percentage of students,” said Dana Tofig, spokesman for the Montgomery County School District.

“Discretionary suspension,” Mr. Tofig said, refers to disciplinary action decided by school officials on a case-by-case basis. Some actions, such as bringing a gun to school, result in mandatory suspensions that do not differ from case to case.

But the administration’s move Wednesday is not needed to deal with individual black and white students being punished differently and makes sense as a back-door way to require group equality, Mr. Dunn said.

Students who can prove discrimination — such as a black student being suspended for an offense while a white student is given detention for doing the same thing — already have legal recourse and can sue, he said.

“That’s just discrimination. Local school districts want to avoid those circumstances. You don’t need these guidelines to deal with those kinds of problems,” Mr. Dunn said.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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