John Paul Wright et al. have published in the Journal of Criminal Justice an article titled “Prior problem behavior accounts for the racial gap in school suspensions.” From the abstract:

The study is significant because the Obama Department of Education and Justice have pursued aggressive civil rights investigations against school districts in which African-American, Hispanic, or Native American students are punished at higher rates than are Caucasian or Asian-American students. Title VI of the Civil Rights Act of 1964 bans only disparate treatment on the basis of race, meaning that it is illegal for schools to punish students differently based on their race. The Obama Departments of Education and Justice have gone further and claimed in a recent guidance document that discipline policies that have a disparate impact on particular racial groups — even if they were not adopted with racially discriminatory intent — also violate Title VI. If well-hidden intentional racial discrimination in school discipline were common, as some earlier studies that did not control for past misbehavior suggested, then the Department of Education and Justice’s disparate impact guidance would be an appropriate prophylactic method of enforcing Title VI’s ban on intentional discrimination. The Wright study thus casts doubt on an important factual assumption undergirding the Obama administration’s school discipline guidance. It suggests that the guidance may be illegal (because it is not in fact a prophylactic measure for effectuating Title VI’s ban on intentional discrimination, but instead is in effect making new law) and also misguided public policy.

For additional background on the Obama administration’s discipline guidance, I also recommend a U.S. Commission on Civil Rights report, “School Discipline and Disparate Impact,” and particularly the essays criticizing this approach to Title VI by Gail Heriot and Todd Gaziano and this Federalist Society podcast featuring Hans Bader and Roger Clegg’s commentary on the guidance.