Education Department may encourage racial quotas in school discipline, and promote intersectionality

Education Department may encourage racial quotas in school discipline, and promote intersectionality

The Biden administration is expected to reinstate the Obama administration’s 2014 school-discipline guidelines, which prodded schools to suspend all racial groups at the same rate, even if there was more misbehavior among students of one race than another. In response to those guidelines, and worried about being investigated by the Education Department, some school officials adopted unconstitutional racial quotas for school suspensions, or mandated special review of any suspensions of black or Hispanic students, effectively creating special privileges based on race.

The Biden administration renewed this pressure for quotas on June 4, by issuing a notice that called for new federal policies about school discipline, in light of the fact that “students of color are disproportionately subjected to disciplinary actions in contrast to their White peers.” It further implied that there are no racial differences in misbehavior rates, even though studies and surveys show that black students do have higher rates of misbehavior in school. It cited a controversial report by the U.S. Commission on Civil Rights that claimed that “Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers.”

But as the Washington Post noted in 2019, the Commission never showed that claim was true. The Commission’s chairwoman, who is now Biden’s nominee to head the Office for Civil Rights, “pointed to a few spots” in the Commission’s report to “claim that there are no underlying differences in student behavior. But those citations did not offer such evidence. One set of data referenced in the report showed the opposite,” noted The Post.

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The Trump-era Education Department did not believe this claim was true. It withdrew the Obama-era school discipline guidance in 2018, saying that in “too many instances … the previous administration’s discipline guidance often led to school environments where discipline decisions were based on a student’s race and where quotas became more important than the safety of students and teachers.”

The Biden administration is expected to not only reissue the Obama-era guidance, but also require schools to track students with multiple minority characteristics (such as transgender black youth) to see if any such subcategory has a worse statistical outcome, based on a concept known as “intersectionality.” Its June 4 notice “encourages commenters to identify and address . . . intersectional discrimination.”

These future policies were outlined by speakers at a May 11 event put on by the Education and Justice Departments, called “Brown 67 years Later: Examining Disparities in School Discipline.” Speaker Russell Skiba said we will “soon see action” from the Biden administration in issuing school-discipline rules. He suggested it would build on the Obama administration’s “2014 Rethink School Discipline guidance.” That “guidance” included a controversial “Dear Colleague Letter” that told school systems they could be investigated by the Education Department for higher black suspension rates, even if suspensions were simply the result of  “neutral,” “evenhanded” application of school discipline rules, rather than veiled racism.

Other speakers suggested the Biden administration’s guidance would likely go further than the Obama administration’s, to address “intersectional” people who are members of multiple minority groups (like a black transgender disabled person). Justice Department official Shaheena Simons said that intersectional people suffer most from discipline disparities. An advocate for transgender youth viewed metal detectors and gun bans as unfair to transgender youth, given that they are disproportionately bullied and feel the need to bring guns to school to defend themselves.

Speakers at the event repeatedly treated higher minority discipline rates as being the fault of school officials, rather than the misbehaving kids. In her opening remarks, Suzanne Goldberg, the acting head of the Education Department’s Office for Civil Rights (OCR), cited “a 1995 report from the Children’s Defense Fund called ‘School Suspensions: Are They Helping Children?'” She said “This report found based on OCR’s Civil Rights Data Collection that black students were being disciplined at a higher rate than any other students and not because of higher rates of misbehavior.”

But studies and surveys show that black students do have higher rates of misbehavior in school. Data from the National Center for Education Statistics shows blacks are much more likely than whites to get into fights at school — 11.4% of blacks did so, compared to 5.2 percent of whites, according to the Education Department’s NCES Indicators of School Crime and Safety: 2016.

Experts consider such survey data relevant. Michael Petrilli helped create the Education Department’s Office of Innovation and Improvement, and is the president of the Thomas B. Fordham Institute, which conducts research on the educational system. He points out that large differences exist in school misbehavior rates, by race, according to students themselves. As Petrilli pointed out in an article at Education Next, “In 2015, high school students were asked if they had been in a fight on school property at any time in the past 12 months. African American students were 2.2 times more likely to say yes than white students.”

Goldberg cited the “Civil Rights Data Collection” (CRDC) in suggesting that higher black discipline rates are not due to “higher rates of misbehavior.” But the CRDC says nothing about “rates of misbehavior.” It just shows discipline rates by race.

There are obvious socioeconomic reasons for black students to have higher rates of misbehavior. As the liberal Brookings Institution pointed out in 2017, “black students are also more likely to come from family backgrounds associated with school behavior problems” including “single-parent families.” Black people also are more likely to live in poverty, which is linked to higher rates of misbehavior in school, according to the National Center for Education Statistics.

Some researchers think differences in misbehavior explain all the differences in suspension rates between blacks and whites. A 2014 study in the Journal of Criminal Justice concluded that higher black suspension rates reflect higher rates of misconduct among black students, rather than racism. That study, “Prior Problem Behavior Accounts for the Racial Gap in School Suspensions,” argued that “the racial gap in suspensions” is “completely accounted for” by students’ behavior.

Because misbehavior rates are not the same for different racial groups, requiring schools to suspend all racial groups at the same rate would be an illegal racial quota. The federal appeals court in Chicago overturned a provision requiring a school district not “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 ruled such “racial disciplinary quotas” are illegal, and “violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty.” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).

Speakers at the May 11 event claimed that black students are suspended at a higher rate because they are punished more harshly for “minor, nonviolent, subjective infractions,” such as “disrespect, defiance, and insubordination.” But discipline data shows otherwise. The federal appeals court in Philadelphia pointed out in 1996 that “statistical data” showed larger differences in discipline rates by race for major, “very objective” offenses than for minor, “less objective” offenses. Like several other courts, it did not accept the idea that higher black discipline rates are due to racism in the schools. (See Coalition to Save Our Children v. State Board of Education of Delaware, 90 F.3d 752, 775 (3d Cir. 1996)).

For years, the courts have recognized that schools are not guilty of discrimination merely because black students get suspended from school at a higher rate than whites, since the higher rate may just reflect higher rates of misbehavior. (See, e.g., Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001) (en banc) (although “statistics show that of the 13,206 students disciplined from 1996–98, sixty-six percent were African–American,” this “‘disparity does not, by itself, constitute discrimination,’” and provides “no evidence” that the school district “targets African–American students for discipline.”); Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 775 (3d Cir. 1996)(rejecting the “assumption ‘that “undiscipline” or misbehavior is a randomly distributed characteristic among racial groups’”); Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981)).

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. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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