In January, the Civil Rights Division of the Department of Justice (DOJ) and the Office of Civil Rights in the Department of Education (ED) issued a joint “Dear Colleague” letter to K–12 schools. The letter calls into question whether minority children are punished more harshly than white children for the same infractions. The letter notes that schools could be guilty of discrimination in one of two ways: If a student is treated differently because of his or her race, or if a neutral policy has a “disparate impact.”
While the first method of determining discrimination is clear and fair, the second method is far more open to interpretation. The letter explains that “examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation upon any student who commits a specified offense.” What the departments are suggesting here is that zero-tolerance policies, which impose a specific penalty for a specific offense, could have a disparate impact on minority students and may be discriminatory.
The disparate impact analysis forces the DOJ and ED into the murky water of differentiating between strict enforcement of zero-tolerance policies that are necessary to meeting educational goals and selective enforcement of policies that aren’t. Take, for example, what’s happening in Akron Public Schools (APS). The Akron Beacon Journal recently discovered that students in APS who commit egregious acts (like assaulting a teacher or bringing a weapon to school) have historically been immediately transferred to a different school—a de facto expulsion from their home school. While few of these transfers occur (they make up 1.4 percent of the entire student body), three-quarters of these transfers involved black students—even though black students make up less than half of the district’s students.
On the surface, this is exactly the kind of “disparate impact” that the ED and the DOJ are talking about—a disproportionate number of minority students are being penalized under a particular zero-tolerance policy. Disparate impact or no, schools cannot tolerate the assault of a teacher. It’s unacceptable, creates an unsafe school for students and staff, and clearly merits a zero-tolerance reaction. But only half of the APS transfers were related to teacher assaults. What about the other behavior-related transfers? Some were undoubtedly related to bringing weapons to school and other serious transgressions, but what about the rest?
I once taught at one of the lowest-performing (and, by reputation, most dangerous) high schools in Memphis. Zero tolerance was used as a blanket to cover any and every behavior infraction. I saw dozens of suspensions and expulsions that weren’t the result of justifiable zero-tolerance policies (like in the case of assaults, weapons, and drugs) but from school rules that were subjectively enforced and overly harsh. Uniform violations were huge. For example, why does a student with his shirt tail untucked as he leaves the gym locker room receive a five-day suspension while another who wears a sweatshirt that’s clearly against uniform policy (not to mention vulgar) only get a warning? Why does a male student who refuses to remove a single stud earring receive a suspension while another male student with two studs in his ear gets a free pass? These instances aren’t the result of a zero-tolerance policy needed to reach an academic goal; they are selective enforcement and overly harsh consequences for minor infractions. This is where disparate impact lives: not in data that the departments can study, but in how administrators make everyday judgments on discipline.
Our president, Mike Petrilli, argued earlier this month that if minority students actually misbehave at higher rates than white students, then the disproportionate numbers are merely the result of fairly applied policies. If that were true, I would agree. But research and my teaching experience say it isn’t. The problem isn’t that the departments are wrong about disparate impact. The real problem is that school discipline as a whole is a mess because so many schools are so quick to resort to exclusionary practices (suspensions and expulsions) when they don’t need to. By focusing on remedying only one consequence (albeit an awful one) of our disastrous reliance on exclusionary discipline, the departments are trying to put a Band-Aid over the hole in the ship. Unless we effectively plug it and actively work on preventing future holes, we’re going to keep sinking and we’re going to keep losing kids.
Exclusionary practices are harmful. Students who are suspended or expelled for a discretionary violation (a violation of a school rule, such as a uniform policy) are nearly three times as likely to be in contact with the juvenile justice system the following year. Students who are suspended or expelled are also more likely to be held back a grade or drop out (perhaps because they miss so much instructional time). Studies show that at-risk students do not change their behavior as a result of suspension. Furthermore, data shows that schools with higher rates of exclusionary practices tend to spend a disproportionate amount of time on disciplinary matters.
What is needed resides outside of the hands of the federal government. We need to treat school discipline as an issue with the same serious implications as low achievement. (The New York Times has done that here and here.) We also needs schools (like Akron Public) to closely examine their discipline practices and take the initiative, if necessary, to fix them. Schools across the nation, from Fairfax County to New York City to California are headed in the right direction. But we can do better. If schools learned how to use discipline data in an effective way, they could identify struggling students and intervene (similar to what has been proven to work in ninth-grade academies). Programs that focus on restorative justice (which schools from Oakland to Chicago are utilizing and seeing results from) are a great place to start, though they have to be implemented carefully and consistently in order to be effective. Teachers should have better access to strategies that work and teacher prep programs should be devoting far more time and energy toward training teachers on behavior management and interventions. Partnering with community organizations that work closely with students, their families, and the school gives students and teachers extra support when behavior issues arise, but it also leads to the kind of relationships that can prevent or eliminate misbehavior in the first place. It’s time to take a hard look at overly harsh exclusionary practices. Educators and students deserve better.