Justice Scalia’s death is a blow to crime victims and student safety

Justice Scalia’s death is a blow to crime victims and student safety

Supreme Court Justice Antonin Scalia was found dead yesterday at the age of 79. His death will have a powerful effect on the ideological balance on the Supreme Court, which has frequently divided 5-to-4 over the scope of federal agencies’ power over citizens, businesses, and schools. Recent Supreme Court rulings over Justice Scalia’s dissent overturned laws designed to protect public safety, such as a ruling overturning mandatory life without parole for the most vicious teenage murderers (resulting in thousands of dangerous people becoming eligible for parole).

If Scalia’s replacement is left-leaning, the next administration may be able to use “disparate impact” regulations to essentially take over the nation’s police departments (based on unfounded claims of racism: Ferguson’s police department was sadly abusive at times, but not usually racist, and as I explained in great detail in the past, the statistical evidence of racism the Justice Department cited was almost entirely bogus, and if accepted, would classify every police department in the country as racist, including those run by black police chiefs, in cities with black mayors, and many black police officers).  “Disparate impact” regulations ban certain colorblind rules when more offenders are black than white, regardless of the lack of a racist motive. An expansion of the Obama administration’s extremely aggressive disparate-impact rules will make it much harder to proactively police and arrest violent criminals.

Such “disparate impact” rules, if not limited by the Supreme Court, will also be used by the Justice and Education Departments to essentially take over school discipline. Racial targets used to address “disparate impact” racialize school discipline and result in unfair double standards as to who gets suspended.  They also impede badly needed school discipline for menacing or disruptive students.  To a limited extent, the Obama administration has already succeeded in doing this, through consent decrees mandating racial targets for suspensions under Title VI, in several large, heavily-minority school districts.

The Obama administration already demands veiled racial quotas in school suspensions in such consent decrees. The policies it promotes have resulted in extreme double standards in some school districts, and substantial increases in violence in some other predominantly minority school districts. The Obama administration’s race-based attack on school discipline (suspending minority students who disrupt class or menace their peers is considered “racist” “disparate impact”) is unpopular, judging by polling data cited by Joanne Jacobs and Education Week about how teachers and the public reject its school discipline push.

The Obama Education Department’s authority to even enforce disparate-impact rules is legally questionable at best, as I noted earlier. It seeks to ban “disparate impact” even though the Supreme Court ruled 5-to-4 in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. (Justice Scalia provided the deciding vote in that case, and his death will no doubt embolden the Obama Administration to flout that ruling even more flagrantly than it already has.).

The Supreme Court ruled in the Sandoval case that people cannot sue institutions over “disparate impact” under Title VI. The Obama administration takes the position that while Title VI statute itself doesn’t reach disparate impact, Title VI regulations can and do (a position that the Sandoval decision did not decide, but described as “strange” in footnote 6 of the Court’s opinion).

For example, the Obama Education Department wrote in its January 2014 guidance to schools that even if the only reason a school district punishes more black than white students for unauthorized “use of electronic devices” is because black students actually ”are engaging in the use of electronic devices at a higher rate than students of other races” (pg. 18), the school district could still possibly be liable for discrimination under a disparate-impact theory. Similarly, it wrote that a school could be liable for punishing students for an offense like tardiness if more students of one race than another were tardy, and the school district could have reduced the disproportionate impact on that race by remedying school district policies that made it harder for them to get to class on time (pg. 19).

Its 2014 guidance also claimed that such disparities were generally the product of intentional discrimination by school officials, not just “disparate impact.” This claim is in tension with the Supreme Court’s Armstrong ruling. The Supreme Court ruled in United States v. Armstrong (1996) that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since that is “contradicted by” real world data. For example, blacks, who are only 13% of America’s population, commit nearly half of all murders — four times the general rate. Indeed, relying on that false presumption can lead to constitutional violations: A federal appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial caps or proportions in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline” as a veiled racial quota.

Yet, curiously, the Obama Education Department treats this false presumption as fact, and insists that there is no evidence of “more frequent” misbehavior by some groups (pg. 4), and that “research suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.” It cites the flawed work of Professor Russell Skiba for this claim, whose flaws are discussed in National Review and elsewhere, and whose conclusions are also belied by the recent study entitled “Prior problem behavior accounts for the racial gap in school suspensions” by John Paul Wright, Mark Alden Morgan, Michelle A. Coyne, Kevin M. Beaver, and J.C. Barnes.

As Heather Mac Donald of the Manhattan Institute has noted, black teenagers are 25 times as likely to get arrested in Chicago as whites, and the black homicide rate for teenagers is 10 times higher nationally than for whites. As she noted in City Journal:

Nationally, “the homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined.” In the Chicago schools, which used to be headed by Obama’s own current Education Secretary, “25 times more black Chicago students than white ones were arrested at school,” between September 2011 and February 2012.

So the only way to get suspension rates to be equal among all racial groups would be to adopt quotas in school discipline that reduce discipline for violent or disruptive minority offenders. But reducing discipline for threats, fighting, and classroom disruptions will harm, not help, African-Americans, especially since crime victims are disproportionately the victims of black-on-black violence. It will also aggravate the racial achievement gap. As University of Rochester professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom. According to Kinsler’s findings, significantly cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

By making urban schools even more violent (and more racially divided and tense), these racial quotas in discipline are likely to increase de facto segregation in such schools, by driving out white, Asian, and black middle-class students, leaving behind a racially-isolated core of poor black students who cannot afford to either move to a better neighborhood or go to a private school.

Creating de facto racial quotas in school discipline will also increase school violence and disruptive behavior. At a widely-read education blog, a teacher described the violence and disorder that occurred when her school adopted racial quotas in school discipline:

I was the homeroom teacher in an incident in a school that tried to implement just this criteria for discipline. One kid (scrawny 7th grader) had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races. The little kid was suspended before his copious blood had been cleaned up off the floor. The big kid never did have ANY punishment – that particular ethnic group had been disciplined too many times.

Need I mention that it was a tough month, as word quickly spread that violence against the “under-disciplined” ethnic group was treated as a freebie?

Writing in City Journal in Summer 2006, former educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what the Obama administration is now demanding) led him to engage in unfair racial discrimination against some white students:

More than 25 years ago, when I was dean of boys at a high school in northern Queens, we received a letter from a federal agency pointing out that we had suspended black students far out of proportion to their numbers in our student population. Though it carried no explicit or even implicit threats, the letter was enough to set the alarm bells ringing in all the first-floor administrative offices. . .

There never was a smoking-gun memo . . . but somehow we knew we had to get our numbers “right”—that is, we needed to suspend fewer minorities or haul more white folks into the dean’s office for our ultimate punishment.What this meant in practice was an unarticulated modification of our disciplinary standards. For example, obscenities directed at a teacher would mean, in cases involving minority students, a rebuke from the dean and a notation on the record or a letter home rather than a suspension. For cases in which white students had committed infractions, it meant zero tolerance. Unofficially, we began to enforce dual systems of justice. Inevitably, where the numbers ruled, some kids would wind up punished more severely than others for the same offense.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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