The fact that black students are suspended at a higher rate than white students doesn’t show racism. This disparity may just show that they are misbehaving at a higher rate. Thus, such a “disparity does not, by itself, constitute discrimination,” as a federal appeals court noted. (Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001)).
But this reality is lost on a Minnesota state agency, which is demanding that school districts adopt unconstitutional racial quotas to eliminate such “disparities.” Meanwhile, it is stonewalling freedom-of-information requests for the letters in which it makes these improper demands.
As the liberal publication Minnpost reports,
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Last fall, the state Department of Human Rights delivered letters to 43 Minnesota school districts and charters, notifying them that — based on significant disparities in their student discipline data — they were under investigation for violating the state Human Rights Act.
The Department’s head, Human Rights Commissioner Kevin Lindsey, says he “will initiate litigation” against those school districts if they don’t enter into “agreements” to reduce or eliminate these “discipline disparities.”
But telling a school district not to have a higher discipline rate for blacks than for whites is an unconstitutional racial quota, as an appeals court ruled in 1997. It struck down as unconstitutional 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 further noted that such a provision violated the legal requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
The state Department of Human Rights also chose to thumb its nose at freedom-of-information laws by refusing to disclose a copy of its letters to the school districts, even after receiving a request for them under the Minnesota Data Practices Act. The Minnesota Post writes:
MinnPost’s repeated requests for a list of the school districts and charter schools under review have been denied by the state Department of Human Rights, on the grounds that these districts and charters are currently under investigation.
But the fact that they are under investigation hardly means that the state agency needs to conceal the letters it sent to them. Indeed, under the federal Freedom of Information Act, an agency is not allowed to keep secret letters sent to the targets of its investigation. That is because disclosing them to the public will not “reveal the direction of the investigation” to the target, or “alert it to anything it does not know already” (see Campbell v. HHS, 682 F.2d 256, 260 (DC Cir. 1982)), and thus cannot harm investigative process, given the fact that any such letters are already “in the possession” of the target of the investigation. (see Grasso v. IRS, 785 F.2d 70, 77 (3rd Cir. 1986)).
The state agency peddles the discredited claim that black students are disciplined at a higher rate due to “subjective” offenses “where disparities tend to be large.” But as a Philadelphia appeals court observed, subjectivity is not the reason blacks are suspended at higher rates than whites. Instead, blacks are suspended at even higher rates relative to whites for serious, “very objective” offenses than for “subjective” offenses. Coalition to Save Our Children v. State Bd. of Educ. of State of Del., 90 F.3d 752, 775 (3d Cir. 1996).
To avoid this fact, Lindsey mislabels serious, objective offenses such as violent threats as being merely “subjective.” He claims that “subjective incidents include things like bullying … threats and intimidation.”
But threats are a classic example of objectively harmful conduct that schools can punish, as courts have recognized. Only by misclassifying offenses as “subjective” and lumping together offenses of widely-varying severity can he and others falsely argue that subjectivity in discipline is a cause of racial disparities.
In reality, as lawyer Roger Clegg notes in the National Review, “racial disparities in discipline rates” typically “reflect disparities in discipline violations,” not racism or subjectivity in discipline. Clegg is the general counsel of the Center for Equal Opportunity and was formerly a ranking official in the Justice Department’s Civil Rights Division. He says that what Lindsey is seeking “would be unconstitutional” quotas.
Indeed, Lindsey’s pressure on school districts is itself unconstitutional. Pressure on institutions to have racial quotas generally violates the Constitution, even when an institution fails to succumb to that pressure, as an appeals court made clear in its decision in Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998). In that case, the Federal Communications Commission was ordered to stop pressuring broadcasters to have racially balanced workforces. The FCC’s equal-employment opportunity (EEO) regulation took into account whether a radio station’s workforce was racially balanced. The FCC did not find stations in violation of the regulation solely based on a racial imbalance, but such imbalances would lead to an “in-depth” audit of whether the broadcaster was making sufficient efforts to recruit minority employees.
The court found that the broadcaster had the right to challenge this regulation to prevent violations of the rights of its white employees. As the court noted:
When the law makes a litigant an involuntary participant in a discriminatory scheme, the litigant may attack that scheme by raising a third party’s constitutional rights.
As it disapprovingly noted, “The regulations pressure stations to maintain a workforce that mirrors the racial breakdown of their ‘metropolitan statistical area,'” promoting “proportional representation in a station’s workforce.” As it explained, “the fact that the FCC looks at more than ‘numbers'” did not make its regulation constitutional, or eliminate pressure to have unconstitutional quotas, since a “station would be flatly imprudent to ignore any one of the factors it knows may trigger intense review … like racial breakdown. … It cannot seriously be argued that this screening device does not create a strong incentive to meet the numerical goals. No rational firm … welcomes a government audit.”
The Minnesota Department of Human Rights is pressuring school districts to eliminate “disparities” in discipline rates. But it makes no sense to get rid of such disparities, if they just match disparities in rates of behavior between different races.
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. These disparities persist even after controlling for class: middle-class blacks have a much higher violent crime rate than middle-class whites.
Nor does eliminating overall “disparities” in suspension rates do anything to end illegal discrimination in school discipline. Some states have enacted bans on unintentional discrimination, also known as “disparate impact.” But legally, “disparate impact” is when a specific policy of an employer or school system has an unjustifiable negative impact on a particular race or gender. 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 does not fix the underlying unjustified policy. (Connecticut v. Teal, 457 U.S. 440 (1980) (employer could not rely on racially balanced overall hiring process to defeat black employees’ disparate-impact claim over one component of its hiring process)).
Moreover, using racial preferences to offset disparate impact violates the equal-protection rights of whites, and thus will be found unconstitutional when challenged. (See, e.g., Ensley Branch NAACP v. Seibels, 31 F.3d 1548, 1572 (11th Cir. 1994) (“Use of racial hiring quotas to mask the effects of discriminatory selection procedures places grievous burdens on blacks as well as whites.“); Aiken v. Memphis, 37 F.3d 1155, 1164 (6th Cir. 1994)).
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 it is unconstitutional for civil-rights bureaucrats to pressure an institution to try to meet a quota. (See Lutheran Church v. FCC, 141 F.3d 344 (D.C. Cir. 1998)).
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).
Higher rates of misconduct among minorities are not surprising, since they are more likely to come from a poor or single-parent family, traits linked with higher rates of misbehavior. For example, a 2007 report from the National Center for Education Statistics noted that serious “discipline problems” were much more common in schools with many kids from households below the poverty line, where frequent “verbal abuse of teachers” occurred nearly five times as often.
Similarly, a 2017 Brookings Institution report pointed out that “black students are also more likely to come from family backgrounds associated with school behavior problems,” such as “single-parent families.” The vast majority of juvenile delinquents and young criminals come from broken homes.
Even when disparate impact is shown, it is unconstitutional to use race to “remedy” its effects. (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)). So any disparate impact in discipline in a Minnesota school district cannot justify an agreement with the state government to not refer minorities for discipline at a higher rate than whites.
Indeed, there is no excuse for racial quotas or preferences in school discipline, even when intentional discrimination against minorities has occurred in the past. For example, a federal appeals court overturned a requirement that a school district not refer minorities for discipline at a higher rate than white students, even though the school district had previously been found guilty of acts of racial segregation. (People Who Care v. Rockford Board of Education, 111 F.3d 528, 532-33, 538 (7th Cir. 1997)).
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 specific injustice, not create a racial preference or quota in the opposite direction. (See Middleton v. 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 not justified 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).
Being suspended or expelled triggers due process protections — including the right to an unbiased decision maker not pressured by a racial quota — in a way that being denied a promotion or new job does not. (See Goss v. Lopez, 419 U.S. 565 (1975)).
