- - Tuesday, July 30, 2019

Shoddy work is not uncommon for government commissions. But with its awkwardly-titled new report — ”Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities” — the U.S. Commission on Civil Rights goes beyond shoddy. Its unsupported claims threaten teachers’ ability to keep control of their classrooms.

No one disputes that African-American, Native American and Pacific Islander students get disciplined at school at higher rates than white students. Similarly, white students are disciplined at higher rates than Asian-American students, and boys are disciplined more often than girls. Not surprisingly, students with behavioral disabilities get in more trouble than those without. 

Sometimes the differences are substantial. Suspension rates, for example, have been about three times higher for African-Americans than for whites in recent years.  


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The commission purports to find, however, that “students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers.” According to the commission, they are simply punished more. Readers are left to imagine our schools are not just occasionally unfair, but rather astonishingly unfair on matters of discipline.

The report provides no evidence to support its sweeping assertion and, sadly, there is abundant evidence to the contrary. For example, the National Center for Education Statistics surveys high school students biennially. Since 1993, it has asked students whether they have been in a fight on school property over the past 12 months. The results have been consistent. In 2015, 12.6 percent of African-American students reported being in such a fight, while only 5.6 percent of white students did. 



A different study of school misbehavior shows that among 10th-grade boys, 7.9 percent of African-Americans, 7.4 of Native Americans and 3.0 percent of whites admit to having possessed a gun at school. A third study found similar racial disproportionalities in self-reported gang membership.  

There is a wealth of data and analysis out there. Some of it suggests that discrimination by teachers may play a small role in disciplinary rates. Some of it suggests that discrimination may play no role at all. But I know of nothing that supports the commission’s claim that there are no racial differences actual misbehavior.   

I wish racial disparities of this kind did not exist. And there is very little I wouldn’t give to make them disappear — the sooner the better. But the evidence shows they do exist, and pretending otherwise doesn’t benefit anyone (with the unfortunate exception of identity politics activists). It certainly does not benefit minority children.

To the contrary, because minority students disproportionately go to school with other minority students, when teachers fail to keep order out of fear that they will be accused of racism, it is these minority students — stuck in disorderly classrooms — who suffer most. 

What accounts for the differing misbehavior rates? The best anybody can say is, “We don’t know entirely.” But differing poverty rates, differing fatherless household rates, differing parental education, differing achievement in school, and histories of policy failures and injustices likely each play a part. Whatever the genesis of these disparities, they need to be dealt with realistically. We don’t live in a make-believe world.

Note that it would require race discrimination of epic proportions for the commission’s claim of no difference in behavior to be true. For what it’s worth, teaching is among the nation’s most liberal professions. It is a slap in the face to teachers — no matter their political persuasion — to suggest that they aren’t just getting it wrong occasionally, but that their efforts to teach students discipline are rotten to the core. 

What were the majority commissioners thinking when they made this claim? Some may have been mourning Education Secretary Betsy DeVos’ decision to withdraw the Obama-era policy that threatened to cut off funding to schools whose disciplinary practices have a racially disparate impact. Indeed, the commission’s current chair, Catherine Lhamon, was the architect of the Obama-era policy in her previous job as assistant secretary of Education.    

But Mrs. DeVos’ decision was the correct one, both as a matter of law and of sound public policy. Getting school discipline right is important. When discipline is lax, students can’t learn; when it is too harsh, they learn to hate school. But it is the height of hubris for federal bureaucrats to believe they can effectively manage school discipline from Washington, D.C.

It is an inherently local issue, best controlled by teachers and principals and supervised by elected school boards and parents. They are the ones with knowledge of the facts. 

My fellow commission conservative Peter Kirsanow and I dissented from the report. But this report should not have been about ideology. As Daniel Patrick Moynihan famously put it, “Everyone is entitled to his own opinion, but not to his own facts.” 

• Gail Heriot is a professor law at the University of San Diego and a member of the U.S. Commission on Civil Rights.

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