Education Department may investigate schools even if they have colorblind discipline policies and practices

Education Department may investigate schools even if they have colorblind discipline policies and practices

Are schools guilty of racism just because they suspend more black students than white students? Federal courts say no, because it could be the result of a higher rate of misbehavior by black students, rather than racism. Surveys and studies show black students generally misbehave at higher rates in school.

But the Biden administration thinks differently. On June 4, it issued a notice calling for new federal policies about school discipline, in light of the fact that “students of color” are disciplined more often than “their White peers.” It cited a controversial report by the U.S. Commission on Civil Rights “finding 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 “finding” was true. The Commission’s chairwoman, who is now President Biden’s nominee to head the Education Department’s 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.

By claiming that “Students of color…do not commit more disciplinable offenses than their white peers,” the Biden administration is implying that every time a school system disciplines a higher fraction of minorities than of whites, it is guilty of racial discrimination, regardless of whether that’s actually the case.

The Biden administration plans to issue new rules against “discrimination” in school discipline. That includes policies it views as either intentionally discriminatory, or as unintentionally resulting in “unjustified disparate impacts on, students of color.” “Disparate impact” is a legal doctrine that says that an institution can be found guilty of discrimination even if it treats whites and minorities the same, if one of its policies has a greater “impact” on minorities (an example of such a policy is a standardized test that blacks flunk a lot more than whites, and is not deemed essential enough to keep, by civil-rights officials).

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 schools either 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 Trump administration withdrew the Obama 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 go further than the Obama rules, by requiring 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. Speaker Russell Skiba predicted that the Biden administration’s school-discipline rules would build on the Obama administration’s “2014 Rethink School Discipline guidance.” It told school systems they could be investigated for higher black suspension rates, even if suspensions were simply the result of  “neutral,” “evenhanded” application of school discipline rules.

A speaker advocating for transgender youth viewed metal detectors and gun bans as having an unfair “disparate impact” on transgender students, because they are disproportionately bullied and thus feel the need to bring guns to school.

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 1975 “report from the Children’s Defense Fund called ‘School Suspensions: Are They Helping Children?’” She said “this report found . . . 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.

Michael Petrilli, who helped create the Education Department’s Office of Innovation, points out that large racial differences exist in school misbehavior rates, according to students themselves. As Petrilli noted in 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.”

There are obvious socioeconomic reasons for black students to misbehave more. 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.” Blacks are more likely to live in poverty, which is linked to more misbehavior in school, according to the National Center for Education Statistics. A 2014 study in the Journal of Criminal Justice concluded that higher black suspension rates are entirely due to higher rates of misconduct among blacks, not racism. (See John Paul Wright, et al., Prior problem behavior accounts for the racial gap in school suspensions, Journal of Criminal Justice, Vol. 42, pp. 257-266).

Because misbehavior rates are not the same for different racial groups, requiring schools to suspend all racial groups at the same rate is an illegal racial quota. In 1997, an appeals court overturned a rule 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.” (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 of “minor, nonviolent, subjective infractions,” such as “disrespect, defiance, and insubordination.” But discipline data shows otherwise. An appeals court 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. (Coalition to Save Our Children v. Board of Education of Delaware, 90 F.3d 752, 775 (3d Cir. 1990)).

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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