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Joshua Dunn

Today’s guidelines announced in Baltimore by the Justice and Education Departments brings the tortured logic of disparate impact to school discipline.  Unfortunately the consequences for schools and particularly for minority students will be nothing short of disastrous if actually implemented.  The only conclusion that can be drawn from these guidelines is that the Obama administration does not care about actual student behavior and only wants to focus on disembodied percentages regardless of their destructive educational consequences.

The guidelines issued by the departments contain all the standard boilerplate about helping students “learn and thrive” and supporting “positive behavior and character development” that anyone could want.  But nothing can mask the fact their heavy handed intrusions will only undermine schools’ ability to create—to use their own language—“a safe and inclusive environment where all students can learn and succeed.”  According to the guidelines schools still “violate Federal law when they evenhandedly [emphasis added] implement facially neutral policies” that were adopted with no intent to discriminate “but nonetheless have an unjustified effect of discriminating against students on the basis of race.”  Ordinary English users can be forgiven if they find themselves scratching their heads asking, “How could evenhanded and neutral policies actually be discriminatory?  Doesn’t discrimination require someone, you know, actually discriminating?”  But they are simply blissfully ignorant of the subtle nuances of disparate impact doublespeak.  In translation, the guidelines mean that if students in one racial group are punished more than their percentage of the student population a school can expect the feds to come knocking at their door.  In that investigation, federal bureaucrats will ask if a discipline policy had an “adverse” (disproportionate) impact on a particular race, if the policy is necessary to meet important educational goals, and if other effective policies could be substituted without the “adverse” effect.  The guidelines are unsurprisingly short on what could count as an important educational goal and what policies might be suitable alternatives.  If evenhandedly designed and implemented policies could fall afoul of their bureaucratic eye, then any policy could.

The perverse incentives of these guidelines are so obvious that only Justice and Education Department attorneys could ignore them.  Most perversely, they will encourage schools to tolerate disruptive and dangerous behavior lest they have too many students of one race being punished.  The effect will be to punish students who behave and want to learn since their education will be sabotaged by troublemakers.  And the disruptive will certainly learn, and learn quickly, that their schools are now tolerating even more disruptive behavior.  Sadly these incentives will be strongest in largely minority, urban school districts, like Baltimore’s, where disruptive student behavior is a more significant problem.  Thus, minority students are likely to bear the brunt of these guideline’s harmful effects.  After the Justice Department’s specious attacks on Louisiana’s voucher program, it shouldn’t be surprising that their self-righteous claims to be helping minority students do nothing but harm them.

But these guidelines will also encourage schools to unjustly punish students in races that have lower rates of punishment than their percentage of the student body.  If we accept the guideline’s assumption that disruptive behavior should be evenly distributed across racial groups, Asian students are woefully underpunished.  Under these guidelines a school would be well-advised to increase their punishments of Asian students whether or not they committed any infractions.  Punishing some innocent students could turn out to be very good policy.

While these policies will undermine the delivery of education, they do have the benefit of being a bonanza for attorneys and bureaucrats.  Almost every punishment of a student that falls outside of a magical percentage could reap a bountiful litigation harvest for enterprising advocates.  And federal bureaucrats are also winners since these guidelines give them another pretext to meddle in local schools.  When the only winners of a policy are lawyers and bureaucrats and students are the losers, something must have gone wrong.

Joshua Dunn is an associate professor of political science at the University of Colorado Colorado Springs.

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