All too often, bureaucrats think they are above the law — such as civil rights’ officials pressure on schools to have unconstitutional racial quotas.
Twenty years ago, the federal appeals court in Chicago declared illegal a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” It considered that to be an unconstitutional racial quota.
And quotas, it said, were unfair to students, violating the requirement that “discipline be administered without regard to race or ethnicity.” “Racial disciplinary quotas,” it said, “violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
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But even today, bureaucrats are still prodding school districts to meet such quotas, pressuring them to having the same discipline rates for students of all races, even if students of different races don’t misbehave at the same rate. Indeed, bureaucrats in the very same city where racial-discipline quotas were outlawed are still encouraging schools to have quotas.
Officials in the Chicago branch of the Education Department’s Office for Civil Rights recently entered into a settlement with the Milwaukee schools requiring changes in their school discipline policies. Milwaukee is less than 100 miles from Chicago, and rulings by the federal appeals court in Chicago are binding in nearby Wisconsin. But the settlement with Milwaukee contains provisions all too similar to the provision struck down by the Chicago appeals court in 1997.
Pages 7-8 of the settlement require “data” on whether “administrators refer disproportionate numbers of students of a particular race for discipline.” The school district will then “explore possible causes for the disproportion and consider steps to eliminate the disproportion to the maximum extent possible.” See Resolution Agreement, Milwaukee Public Schools, Case No. 5-14-5003 (December 2017).
But it makes no sense to get rid of the “disproportion” in referrals for discipline, if that disproportion just matches the disproportion in student misbehavior rates among different races. And there is no reason to think misbehavior rates in a given school system will be the same. Such an assumption would contradict the Supreme Court’s ruling in U.S. v. Armstrong. That ruling rejected the “presumption that people of all races commit all types of crimes” at the same rate, as being “contradicted by” reality.
For example, 43.7% of all rapists in state prisons were black, according to a 1997 report by the Bureau of Justice Statistics, even though blacks are only 13% of the general population. [See Bureau of Justice Statistics, “Sex Offenses and Offenders” (Feb. 1997) (NCJ-163392)]. Similarly, a 2014 study in the Journal of Criminal Justice by criminologists such as J.P. Wright found that racial disparities in student discipline rates resulted from more frequent misbehavior by black students, not racism.
Nor does this “disproportionality” provision seem well-crafted to remedy any racially disparate impact or intentional discrimination in school discipline. “Disparate impact” is when a specific policy of an employer or school system lacks a racist motivation, but has an unjustifiable negative impact on a particular race or gender.
But the solution to that is to get rid of the specific policy that has that unjustified effect, not pressure the school to have a racial quota. Institutions cannot use racial preferences or quotas to offset disparate impact. Doing so neither remedies the disparate impact (Connecticut v. Teal, 457 U.S. 440 (1980)), nor justifies any racial preference to offset it; such a racial preference will be found unconstitutional when challenged. (Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir. 1993)).
The Supreme Court has specifically stated that quotas are at odds with the civil rights laws and not the goal of rules against disparate-impact. (Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653 (1989)). It has said that imposing numerical goals or quotas as a remedy for disparate impact would raise “serious constitutional questions.” Texas v. Inclusive Communities, 135 S.Ct. 2507, 2522, 2524 (2015).
Not only is a quota illegal, but civil-rights bureaucrats can’t pressure an entity to meet a quota. That’s true even if they don’t strictly require a quota, and ask only that the entity try to achieve it. So the Milwaukee settlement’s telling the school to try to “eliminate the disproportion to the maximum extent possible” qualifies as improper pressure to meet a racial quota. (See Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998) (requirement that regulated entity make good faith efforts to achieve racially proportionate workforce was unconstitutional pressure to have a racial quota, even though it did not have to be met if achieving it was unfeasible)).
Focusing on whether there is an overall “disproportion” in the discipline rate by race does not fix any disparate impact, nor does such a crude “bottom line” disproportionality show “disparate impact” to begin with. (See Wards Cove, 490 U.S. at 657).
As the Supreme Court explained in a 2005 decision, “it is not enough to simply allege” that there is a disproportionality, or to “point to a generalized policy that leads to such an impact. Rather,” showing disparate impact in a legal sense requires “identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” (Smith v. City of Jackson, 544 U.S. 228, 240-41 (2005)).
A disparity counts against a school only if the disparity is the “fault” of its disciplinary process, rather than external factors outside the school’s control, such as a “dearth” of minorities “qualified” for a position, or the fact that more minority students misbehave and violate school rules. (Wards Cove, 490 U.S. at 651). Even when disparate impact is shown, it is unconstitutional to use race to “remedy” its effects. (People Who Care, 111 F.3d at 534).
Indeed, there is no excuse for racial quotas or preferences in school discipline, even when intentional discrimination against minorities has occurred in the past. When there is an individual instance of discrimination against a minority person (such as a black student given harsher discipline than a similarly situated white classmate), civil-rights officials should remedy that injustice, not create a racial preference or quota in the opposite direction. (See Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir. 1996) (affirmative action is not justified based on individual or anecdotal cases of intentional discrimination, as opposed to widespread pattern)).
Even if the use of race is sometimes justified as a remedy for widespread intentional discrimination in areas such as hiring and promotions, it is generally not accepted in the context of student or employee discipline. That’s because being fired or expelled — as opposed to being denied a better job — inflicts a greater injury and thus unduly “trammels” your right to be free of racial discrimination. (Taxman v. Board of Education of Piscataway, 91 F.3d 1547, 1564 (3d Cir. 1996) (overturning firing of white teacher rather than black teacher where race was used as a tie-breaker to preserve racial diversity)).
