A June 13 news article article touts a recent document issued jointly by the Departments of Education and Health and Human Services announcing that “it is federal policy to ‘prevent, severely reduce, and ultimately eliminate expulsion and suspension in early childhood settings.’” This goes beyond past Education Department guidance, which pressured school districts to adopt veiled racial quotas in student suspensions, but did not seek to eliminate the use of suspensions for even repeated, violent offenders.
This “federal policy” seems to have no basis in any law passed by Congress, and be yet another example of progressive bureaucrats’ belief in an imperial presidency. The Obama administration has flooded the nation’s public and private schools with new rules and regulations, without even going through the notice-and-comment rulemaking process mandated by the Administrative Procedure Act.
Under the constitutional separation of powers, it is supposed to be Congress that passes laws, while the executive branch merely enforces them. America has no national school board. The Department of Education, where I used to work, has historically only investigated school suspensions when they allegedly were discriminatory (Title VI of the Civil Rights Act bans racial discrimination by schools whose programs or students receive federal funds, while the IDEA restricts discipline of disabled students).
The motivation for this new policy seems to be that preschool suspensions are often used against minority kids, although the Department of Education’s report “stops short of attributing such disparate outcomes to intentional discrimination,” perhaps due to the Supreme Court’s ruling in U.S. v. Armstrong, which rejected the presumption that different rates of punishment by race proves discrimination.
But banning all suspensions based on a mere suspicion of discrimination is overreaching. Congress – unlike executive agencies – can sometimes ban neutral practices that are commonly used as a subterfuge for discrimination, under its remedial powers in Section 5 of the Fourteenth Amendment. But even that power is not unlimited. For example, Supreme Court rulings don’t allow broad federal nullification of local laws based on the fact that such laws are occasionally used to discriminate against minorities, and any federal restrictions on non-discriminatory practices have to be “congruent and proportional” to the evil they are aimed at. See Shelby County v. Holder (2013); Kimel v. Florida Board of Regents (2000). A policy against all suspensions appears to go well beyond that power. Moreover, regulation of private preschools is also subject to constitutional limits. See Pierce v. Society of Sisters (1925); United States v. Lopez (1995).
If the Obama administration has the power to ban suspensions of preschoolers, based on a freshly minted policy of its own devising, what would stop it from banning colleges from failing unprepared college students, or banning employers from firing underperforming employees, or banning landlords from evicting unruly tenants?
The Obama administration’s suspicion of discrimination appears to be based on the controversial writings of psychology professor Russell Skiba, whose conclusions have been rejected by National Review and other publications as methodologically unsound. Skiba’s discrimination claims are contradicted by a 2014 study in the Journal of Criminal Justice. See John Paul Wright, Mark Alden Morgan, Michelle A. Coyne, Kevin M. Beaver, & J.C. Barnes, Prior problem behavior accounts for the racial gap in school suspensions, Journal of Criminal Justice, Volume 42, issue 3, May-June 2014, Pages 257-266.
As Minneapolis Star-Tribune columnist Katherine Kersten has noted, the Journal of Criminal Justice study found that “the racial gap in suspensions is ‘completely accounted for by a measure of the prior problem behavior of the student,’” and is not caused by racism on the part of teachers or principals.
Kersten argues that the primary reason for the gap in problem behavior is “differences in family structure” for different groups: “nationally, 71 percent of black children are born out of wedlock — with the rate much higher in many inner cities — while the rate for whites is 29 percent. Research reveals that children from fatherless families are far more likely than others to engage in many kinds of antisocial behavior,” due to a “lack of impulse control and socialization that can result from chaotic family life.”
As we noted earlier, federal and state crime statistics do indeed show that juvenile offenders overwhelmingly “come from fatherless homes,” and that crime rates differ dramatically by racial and ethnic group. Reflecting that reality, an appeals court in People Who Care v. Rockford Board of Education (1997) struck down a decree that forbade a “school district to refer a higher percentage of minority students than of white students for discipline,” finding that that operated as a de facto racial quota in violation of the Constitution’s equal protection clause.