Today the Los Angeles Times reports that efforts to reduce the numbers of African-American students suspended in Los Angeles public schools may be leading to “off-the-books” suspensions — students being sent home for “cooling off” periods that are not formally recorded as suspensions. Advocacy groups have raised concerns that such off-the-books suspensions deprive students of due process rights.

The rise in off-the-books suspensions appears to be an unintended consequence of efforts to reduce racial disparities in discipline rates. As I have noted before, the Obama administration has aggressively pursued civil rights investigations in school districts that punish African-American, Hispanic, or Native American students at higher rates than white or Asian-American students, regardless of whether the disparities appear to have been caused by intentional discrimination. Los Angeles was among the school districts that came under such investigation. In 2011, Los Angeles signed a consent decree in which the district agreed to eliminate “inequitable and disproportionate” discipline practices. To this end, Los Angeles became the first school district in California to get rid of suspensions for “defiant” student behavior. But teachers and administrators have since struggled to keep order under the new policy, leading some to circumvent the rules by suspending students off the books.

Unfortunately, Los Angeles does not appear to have been the only school district harmed by the Obama administration’s approach to disciplinary disparities. At a U.S. Commission on Civil Rights briefing on school discipline disparities, several teachers from majority-minority schools testified that this approach would likely lead to heightened disorder in their classrooms. One of these teachers, Louise Seng, hails from Allentown, Pennsylvania; eight months after the Commission’s briefing, the Allentown Morning Call reported that the adoption of Positive Behavior Interventions and Supports, a disciplinary decision-making framework recommended by the Department of Education as a tool for reducing disciplinary disparities, had led to increased disorder in Allentown’s classrooms.

These unintended consequences were all too predictable, as Gail Heriot, one of the Commission’s eight members, suggested in her statement appended to the Commission’s report: “The danger should be obvious: What if the most important reason African-American students are being disciplined more often than white or Asian students is that more African American students need to be disciplined?…   The problem with Secretary Duncan’s strategy isn’t that race discrimination in discipline doesn’t exist at all.  Somewhere there are surely African-American students who have been punished more harshly than they deserve on account of their race, just as somewhere there are American-Indian, Asian-American, Hispanic or white students who have suffered on account of theirs.  But federal enforcement procedures are incapable of making the fine case-by-case distinctions that are often necessary to eliminate the problem.  Heavy-handed bureaucratic enforcement procedures will lead only to heavy-handed bureaucratic responses from school districts.  Each time a student is to be disciplined for misconduct, more forms will have to be filled out.  More school officials will have to approve each disciplinary decision.  The process will become more unwieldy.  The inevitable result will be less classroom discipline.

No one should imagine that will be a victory for African-American students struggling their way through inner city schools.  To the contrary, it will be a serious loss.  No one learns in a disorderly classroom.  Students who fear violence at school cannot flourish.  There are millions of bright children from disadvantaged backgrounds of every kind who are hoping that a good education will be their ticket to a better life.  Some of them will make it; some of them won’t.  But by making it harder for teachers to control their disruptive classmates, the Obama Administration is making it harder for these students striving for a good education.”