Did Juan Williams libel LU’s Hans Bader?

Did Juan Williams libel LU’s Hans Bader?
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In a recent book that got bad reviews from many readers, Juan Williams attacked LU’s Hans Bader. The book contains some clearly false statements. Williams attributes to Bader things that are the opposite of what Bader in fact said. I am not a libel lawyer, but I wonder if these false statements constitute libel.

Bader criticized the Obama administration’s school-discipline guidance, which put pressure on school systems to have equal suspension rates for students of different races, even when misbehavior rates aren’t the same. In response, a few school districts, such as Minneapolis, adopted racial quotas in suspensions. They required that the minority suspension rate be reduced over time to the white rate, regardless of students’ actual behavior. Minneapolis had explicit racial double standards. It required that suspensions of minority students — but not white students — be reviewed and approved by the superintendant’s office.

Bader pointed out in a 2014 column that such quotas and double standards violated a federal appeals court decision. He also argued that given the reality of black-on-black violence, these quotas would harm most black students, who are the innocent victims — not the perpetrators — of school violence and disorder. As he wrote:

Quotas would harm, not help, African-Americans, who are often victims of black-on-black violence. As 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,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

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Despite Bader’s concern for “innocent African American children,” Williams falsely claims that Bader depicted “all black students” as “a group of bad actors.” He also falsely claims that Bader “dismissed” “poverty” and “broken families” as causes of misbehavior in school, even though Bader’s writings did just the opposite. Bader cited “poverty” and broken families as factors contributing to students misbehaving in school in a 2017 article, which also noted that the higher poverty rate and higher rate of single-parent households in the black community contributed to higher rates of misbehavior in school.

Williams makes these false claims as part of an attack on Education Secretary Betsy DeVos, in his September 2018 book “What the Hell Do You Have to Lose: Trump’s War on Civil Rights.” In it, he writes,

Secretary DeVos had a different view. … She hired a politically polarizing lawyer, Hans Bader, to serve in the Education Department’s Office of General Counsel. In June 2014 he wrote a column for the conservative website the Daily Caller making the case that “higher black suspension rates reflect higher rates of misbehavior among blacks.” Bader dismissed poverty, broken families, and racial bias as part of the problem. He gave no thought to helping black students stay in school, graduate, and go on to college or get a job. His is an unsympathetic view of all black students as a group of bad actors.

It is true that Bader worked in the Education Department’s Office of General Counsel for a year and that he pointed out that suspension and misbehavior rates are statistically higher among black students than among other races. But most of the other things Williams says about Bader are false.

The 2014 Bader column that Williams cites never said that “all” — or even most — “black students” are “a group of bad actors.” To the contrary, it complained about the many “innocent African American children” who are harmed when troublemakers are not suspended due to a lack of discipline or a school-discipline quota.

The Bader column itself does not discuss, much less “dismiss,” the role of “poverty” or “broken families.” Moreover, a 2017 Bader article at CNS News specifically emphasizes these problems, rather than dismissing them:

Higher rates of misconduct among black students are not surprising, since they are more likely to come from a poor or single-parent family, and factors such as low socio-economic status are correlated with higher rates of misbehavior. For example, a 2007 report noted that serious “discipline problems” were much higher in schools with many poor kids than in schools with few kids in poverty, and frequent “verbal abuse of teachers” occurred at nearly five times the rate in those schools. (See Rachel Dinkes, et al., Indicators of School Crime and Safety: 2007 (2007), pg. 26).

In the longer, unabridged version of this article present at Liberty Unyielding, Bader elaborates:

As the liberal Brookings Institution has noted, “black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.” (See Tom Loveless, The 2017 Brown Center Report on American Education: How Well Are American Students Learning?, Brookings Institution, March 2017, at pp. 30-31).

The argument that Bader has given “no thought to helping black students stay in school, graduate” or “get a job” is also contradicted by what Bader wrote. In the 2014 column, Bader criticized arbitrary curbs on suspensions for harming black students by worsening the “black-white achievement gap.”

Bader has also advocated that steps be taken to help more black people get a job. For example, he has argued that many occupational licensing regulations should be repealed, both because they harm consumers and increase unemployment, and because “occupational licensing restrictions disproportionately harm African-Americans, excluding them from jobs at a higher rate than other races.” He also criticized other regulations for harming black people, causing them to drop out “of school,” and depriving them of their livelihoods.

Bader drew criticism for opposing racial quotas in school discipline. But opposing racial quotas is not bigotry. In fact, racial quotas in school discipline are illegal. As Bader pointed out, a federal appeals court ruled in 1997 that was illegal to order a school district not to suspend or refer for discipline a “higher percentage” of black students than white students. (People Who Care v. Rockford Board of Education (1997)).

Another federal appeals court found no racism in the fact that blacks were suspended at a much higher rate, declaring that it would be “absurd” to have a racial discipline quota, and that “disparity” in discipline rates “does not, by itself, constitute discrimination.” (Belk v. Charlotte Mecklenburg Bd. of Educ. (2001)). Another appeals court similarly noted that “misbehavior” is not “a randomly distributed characteristic among racial groups․”

Some studies, such as a 2014 study in the Journal of Criminal Justice, have concluded that the higher black suspension rate simply reflects higher rates of misbehavior by black students, who disproportionately come from low-income single-parent households. Both poverty and out-of-wedlock births are linked to higher rates of misbehavior in school, as government agencies have pointed out. The homicide rate among black teens is ten times as high as among white teens, as noted in the Minneapolis Star-Tribune and National Review.

Bader pointed out the problem with quotas. He explained that it was unrealistic to expect schools to suspend black students at the same rate as whites, if they do not misbehave at the same rate. The Obama administration, by contrast, told schools in 2014 that it was presumptively illegal for schools to discipline blacks at a higher rate than whites, even when the higher rate was due solely to “neutral,” and “evenhanded” application of discipline rules, which more black or minority students violated. (By “presumptively” illegal, I mean illegal unless the school could somehow convince civil-rights bureaucrats that its rules were essential enough to justify the “disparate impact”).

The Obama administration claimed this was a valid interpretation of its “disparate impact” regulations under Title VI, the civil-rights statute governing America’s schools. But as Bader explained, this was a strange reading of those regulations, regulations themselves of dubious legality in a light of a 2001 Supreme Court decision:

The Supreme Court ruled in Alexander v. Sandoval (2001) that disparate impact doesn’t violate Title VI, only ‘intentional’ discrimination does. The Education Department elsewhere has claimed that while the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision did not explicitly reject, but cast serious doubt on, by describing it as ‘strange‘ in footnote 6 of its opinion), but clearly the statute itself does not.

Moreover, the Obama-era Education Department just ignored the fact that any findings of “disparate impact” are supposed to take into account rudimentary qualifications, and a higher black suspension rate may just reflect that more blacks than whites are qualified for a suspension due to a higher misbehavior rate among blacks. Only the “qualified population” should be taken into account in any disparate-impact analysis, under the Supreme Court’s 1989 decision in Ward’s Cove Packing Co. v. Atonio.

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Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is a retired attorney and author, who writes about politics.

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