Editor’s note: This is part one in a series of posts on school discipline disparities. For part two, see “Behavior versus bias: How to interpret discipline disparities.”
On April 23, President Trump signed two executive orders that could significantly impact school discipline policies nationwide, as well as the federal government’s approach to civil rights investigations. The first is directly targeted at the discipline issue; the second aims more broadly at the use of “disparate impact.”
I’ve weighed in on these matters before but, given the news, it’s worth doing so again, especially since the media and folks on the left continue to mischaracterize what the Trump folks are trying to do.
Let’s start with disparate impact.
One definition is that disparate impact—and the violation of civil rights—occurs when policies or practices that are race neutral on their face have “disparate” impacts on individuals of different races (or genders etc.).
The classic example is making firefighters take literacy exams. Given the racial achievement gap in reading, it’s possible to design a literacy test that Black applicants will fail at higher rates than White applicants. That would be defensible if firefighters need high levels of literacy, but otherwise it may be just a ruse to discriminate against Black people who want to fight fires but whom fire departments don’t much want to employ.
Its counterpart in the context of school discipline is decreeing that dreadlocks are not allowable in schools—and because Black kids are more likely to wear dreadlocks, they will be more likely to run afoul of such rules. Indeed, that’s what House education committee ranking member Bobby Scott (D-VA) mentioned when he responded to Trump’s EOs.
Perhaps more than other conservatives—as well as the Trump administration—I have some sympathy for this aspect of disparate impact theory. It really is a problem if race-neutral policies have a disparate impact on different races—unless those policies are defensible.
Not that it’s always easy to figure out where to draw the line. Take the case of teacher licensure exams. This has been litigated in the context of disparate impact theory, given that Black teacher candidates tend to fail licensure tests at higher rates than White applicants. Courts have ruled that such tests can still be used—as long as they relate to performance in the classroom. Which means that school systems have to prove the link between, say, a teacher’s licensure scores and her ability to teach effectively. Otherwise, requiring a candidate to hit a high mark on a licensure exam might be a backhanded way to discriminate against Black candidates.
Interpreting discipline disparities
Where “disparate impact” goes off track—and loses my partial sympathy—is when it’s used to motivate government action based on data showing racial disparities (in discipline, hiring, earnings, etc.). The key question is whether racial disparities automatically indicate that something nefarious is going on, or whether there may be an explanation that has nothing to do with racism, discrimination, or bias—systemic or otherwise.
On one extreme is scholar Ibram X. Kendi, who equates racial disparities with racism itself. “Racism is a marriage of racist policies and racist ideas,” he writes, “that produces and normalizes racial inequities.” This might sound over the top, but it’s not so far from what advocates of disparate impact theory sometimes suggest, which is that racial disparities themselves demonstrate or at least suggest racial discrimination. They have nothing to do with whether a person was discriminated against in some unlawful way. They have to do with statistics about the overall consequence of a policy unrelated to the basis of or rationale for that policy.
That’s definitely the argument when it comes to racial disparities in school discipline—notably the fact that Black students are more likely to face suspensions or expulsions than their White peers. This is interpreted by many as prima facie evidence that schools are treating Black students unfairly—punishing them more harshly than they would White students for the same infractions.
And it’s why those on the “anti-racist” left are eager to act when they see these disparities—by, for example, investigating school districts for civil rights infractions (as was the case under the Obama administration), and/or demanding that schools reduce the use of suspensions and expulsions on grounds that they’re inherently biased against Black students.
But there could be an alternative explanation: Black students might misbehave at higher rates than White children—not because they are Black, but because they are much more likely to grow up in poverty, with all the risk factors that entails, and which might well lead a young person to act out in school.
That’s what Trump’s Executive Order on discipline is getting at when it says that “Disciplinary decisions are best left in the hands of classroom teachers and administrators and should be based on student behavior, rather than racial statistics.”
What’s the evidence say?
Here’s my take, which is largely congruent with the administration’s:
- Interpreting racial discipline disparities as stemming primarily from discrimination is hugely problematic, especially if we don’t at least control for students’ socio-economic status. It would be akin to blaming racial achievement gaps primarily on racial bias when, in reality, Black students’ much higher rates of childhood poverty explain much of the gap.
- What makes discipline such a hard issue to study—and also to address via civil rights investigations—is that we rarely “see” the underlying student behaviors that lead to suspensions or expulsions. We can only track how schools respond to student misbehavior. As a result, it’s hard to know if racial discipline disparities are caused primarily by disparate responses to similar offenses (i.e., racial discrimination) or to differences in student misbehavior across racial groups.
- The best evidence indicates that differences in student behavior explain most of the racial gap in disciplinary outcomes. Yes, Black students misbehave at higher rates than White children—not because of their race, but because of the much higher rates of poverty (and related risk factors) that tragically (and unfairly) afflict the Black community. It would be a miracle were children coming from violent neighborhoods, single-parent homes, families with incarcerated parents, foster care situations, and other tough challenges not more likely to misbehave in school. Yet that’s what we’d have to believe is the case were Black students no more likely to misbehave than White students. Even studies that show Black students being treated unfairly indicate that most of the discipline disparities are driven by differences in student behavior. (More on this in my next post).
- Still, plenty of evidence indicates that racial bias explains a small portion of the racial disparities in discipline. Working to address these cases of actual discrimination, then, needs to continue, including via targeted civil rights investigations. If a student believes he’s been treated unfairly, it’s critical that his family be able to request and receive an OCR inquiry.
- What we shouldn’t do is assume that all racial disparities in discipline are the result of bias or tell schools to stop holding students—all students!— accountable for misbehavior in a misguided attempt to address equity concerns. Yet that’s the message sent by the Obama administration and officials in many blue states. We know that schools need to be safe and orderly for students to thrive and learn, and teachers have been telling us that discipline is falling apart in too many of our schools, especially those serving our most disadvantaged kids.
In part two, we’ll explore the data: If discipline disparities really are driven primarily by bias and systemic racism, we would expect to see the largest disparities in the states with the most regressive racial attitudes. Yet mapping the data reveals a different picture. What if it’s not racism that mostly drives racial discipline disparities, but socioeconomic factors?
