Last week, Scott and I wrote about an article by Katherine Kersten regarding the ruinous impact on schools in the Twin Cities of racial “equity” in school discipline. As Kersten demonstrated, the attempt to reduce the number of disciplinary actions against minority school children, on the theory that they are disproportionately disciplined, has helped turn some schools in the Twin Cities into war zones.
Peter Kirsanow, a member of the U.S. Commission on Civil Rights, has been on this case for some time. Back in November 2014, he wrote a letter to Minneapolis school officials stating that the then-new discipline policy aimed at reducing suspensions for students of color is “legally and constitutionally suspect,” and warning of the deleterious consequences that the policy would produce.
Writing as a member of the Commission, not on behalf of the Commission as a whole, Kirsanow told the Minneapolis school superintendent, in part:
The new discipline policy is legally and constitutionally suspect. It is understandable that you would believe the new policy poses no legal or constitutional problems because it has been approved by the Department of Education’s Office of Civil Rights [OCR]. However, OCR’s approval has legal and constitutional problems of its own. It is based on its embrace of disparate impact theory, which is not contemplated in the text of Title VI and the use of which was questioned by the Supreme Court in footnoe 6 of Alexander v. Sandoval.
Furthermore. . .under the Administrative Procedure Act, which binds the Department of Education, it is impermissible for OCR to use something less than a duly promulgated regulation to place new burdens on school districts. The Guidance regarding racial disparities in school discipline is not a duly promulgated rule, and therefore the legality of the Guidance is questionable. It also exposes you to potentially violating § 601 of Title VI, which forbids disparate treatment on the basis of race, in an effort to avoid a racially disparate impact which is permitted by Title VI.
Turning to the constitutional question, Kirsanow said:
The use of disparate impact theory in this context also has constitutional problems, as efforts to ameliorate disparate impacts often do. I would have to be profoundly naïve to believe that this policy is not introducing a racial quota system for school discipline. According to the statement announcing the new discipline policy, “MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years. This will begin with a 25 percent reduction in reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.”
This is a racial quota system for school discipline, because it has nothing to do with whether any particular individual deserved to be punished for his misbehavior.
The Seventh Circuit has addressed the problem of racial quotas in school discipline. In People Who Care v. Rockford Bd. of Educ., Judge Posner wrote, “Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements.”
The Seventh Circuit’s criticisms apply as well to Minneapolis’s new quotas for racial discipline. It too exposes students who belong to non-preferred races to a stricter discipline policy than students who belong to preferred races. It teaches them that justice is not colorblind and that we do not stand or fall on our individual merit. In the event of litigation, I expect that the Eighth Circuit will find its sister circuit’s reasoning persuasive.
This profound inequity is the potential constitutional problem with this discipline policy. Achieving a state of affairs where there is no racial disparity in discipline by 2018 means that there will have to be differential treatment of misbehaving students based on their race.
There is, to our knowledge, no substantive allegation that black or brown students are being treated more harshly in Minneapolis schools on the basis of their race. If there were such an allegation, this new policy would refer to concrete examples of racially disparate treatment rather than racial disparities in discipline. Racial disparities in school discipline have been common knowledge for years. If it were possible for such disparities to be solved through racially neutral policies, it would have happened by now. The idea that MPS will be able to eliminate the racial disparity in discipline by 2018 without either treating black and brown students more leniently or white students more harshly is unrealistic and absurd.
Kirsanow then addressed the possibility that “black and brown” students are being “over-punished”. He pointed to a study in the Journal of Criminal Justice. It found that “differentials in suspensions are likely produced by pre-existing behavioral problems of youth that are imported into the classroom, that cause classroom disruptions, and that trigger disciplinary measures by teachers and school officials.” Thus, “differences in rates of suspension between racial groups. . .appear to be a function of differences in problem behaviors that emerge early in life, that remain relatively stable over time, and that materialize in the classroom.”
Kisanow also warned of the consequences that likely would result from letting student misconduct go unpunished in order to equalize rates of discipline by race. Citing testimony in hearings before the Civil Rights Commission, he stated:
When the witnesses who were teachers were asked what effect it would have on non-disruptive students if the disruptive student were back in class, the witnesses agreed it would be very negative. This is partly because the disruptive student continues to disrupt the classroom.
But it also has a negative effect on other students because it demonstrates that there is no real punishment for misbehavior. As an educator, you are doubtless aware of this, yet your new policy is designed to make it more difficult to remove disruptive students from the classroom. You may disavow that is the case, but teachers and administrators will get the message: we must reduce racial disparities in discipline, so suspend fewer black and brown kids.
Minneapolis administrators blew off Kirsanow’s letter. As a result, students, including many “black and brown” ones, are paying the price for the deterioration of the learning environment that administrators mandated in the name of racial “equity.”