I wrote here about the Obama administration’s “guidance” threatening litigation against school districts that failed to enforce quotas in school discipline, and the baleful effects that policy is still having across the country. A variation on the theme comes from a case called Kenny v. Wilson, decided just a few days ago by a panel of the 4th Circuit. The case was brought by the ACLU, which alleged that South Carolina statutes referred to as “the Disturbing Schools Law” and “the Disorderly Conduct Law” are unconstitutionally vague. Plaintiffs purport to represent a “proposed class of elementary and secondary public school students in South Carolina.”
Plaintiffs’ constitutional theory is based on reasoning similar to that that gave rise to the Obama administration’s infamous guidance letter:
According to plaintiffs, criminal charges under the two statutes are among the leading reasons young people enter the juvenile justice system in South Carolina. … Plaintiffs also allege that students arrested for violating the statutes are less likely to graduate and more likely to feel stigmatized and afraid….
Plaintiffs claim that the statutes are enforced in a discriminatory manner, leaving racial minorities and students with disabilities especially vulnerable. In 2014-2015 black students in South Carolina were nearly four times as likely to be charged under the Disturbing Schools Law compared to their white classmates. In Charleston County, a charge under the Disturbing Schools Law was the number one reason young people entered the juvenile justice system and black students were more than six times as likely to be charged for the offense compared to white students. Plaintiffs allege that such racial disparities in discipline cannot be explained by differences in behavior among students of different races.
The district court had dismissed the case for lack of standing, but the Court of Appeals found “injury in fact” and returned the case to the trial court for further proceedings. While the holding of the decision is limited to the procedural standing issue, the court’s opinion suggests sympathy for the plaintiffs’ case on its merits (e.g., “S.P is disabled, Nesmith is black, and D.S. is both disabled and black. Thus, the threat of enforcement is particularly credible with respect to these three plaintiffs.”
It remains to be seen how the Kenny case will play out, and of course the theory in that case–that certain South Carolina criminal statutes that seek to maintain order in the schools are impermissibly vague–is different from the race discrimination theory that animated the Obama guidance. But the fact that black students incur discipline at a higher rate than white and Asian students is central to both theories.
It seems to be a little-known fact that courts have explicitly rejected the claim that discrimination can be inferred from racially disparate rates of school discipline. Last year, Hans Bader reviewed some of the precedents:
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)).
For example, the Seventh Circuit Court of Appeals struck down as unconstitutional a provision that forbade a “school district 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,” concluding that that constituted a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 538 (7th Cir. 1997)).
Student misconduct rates are not usually the same among different racial groups. A 2014 study in the Journal of Criminal Justice by criminologist John Paul Wright and his co-authors, for example, found that racial disparities in student discipline resulted from more frequent misbehavior by black students, not racism.
The Supreme Court’s ruling in U.S. v. Armstrong….rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. Blacks, who are only 13 percent of the population, commit nearly half of all homicides…the homicide rate is 10 times higher among black teens than white teens.
There is more, including links that I have omitted, in the linked article. It strikes me that this body of law is one of several that the Left refuses to recognize, and likely will overturn as soon as it has the opportunity.