Recently, the ACLU filed a complaint with the Department of Education’s Office for Civil Rights (“OCR”) about the South Orange-Maplewood, New Jersey district’s discipline and academic tracking policies. OCR has issued high-profile guidances indicating that school districts with racially disproportionate discipline rates and advanced class enrollment rates may violate Title VI’s ban on racial discrimination, even when these differences were not caused by intentional racial discrimination, because of their “disparate impact.” A local education blogger observes that the ACLU may be primarily “interested in using SOMW [South Orange-Maplewood] as a test case for this new application of disparate impact theory.”
Some advocates of disparate impact liability claim that it is necessary to smoke out cases of intentional race discrimination that would otherwise go well-hidden. Yet the ACLU complaint is remarkably forthright in conceding that neither Maplewood’s disciplinary nor academic policies are motivated by racism. Rather, it is concerned only about the “effects” of such policies.
The complaint asks that the district do away with out-of-school suspensions. Although I can understand the argument that these punishments do more harm than good by keeping students out of school and thus causing them to miss out on valuable learning, individual districts ought to be able to weigh the pros and cons of such policies without the threat of a federal investigation. The complaint cites some social science studies suggesting that racial disparities in out-of-school suspensions stem from race discrimination. But, as discussed in footnote 9 of Gail Heriot’s statement for this U.S. Commission on Civil Rights report, many of these studies have significant flaws. A study published since the Commission’s report also indicates that past misbehavior, not hidden racial discrimination, is a better explanation for racial discipline gaps. The complaint’s proposed alternative disciplinary system– Positive Behavior Intervention Supports, or PBIS — has its drawbacks (see Heriot dissent, n 19 at page 106, noting that the implementation of PBIS by the Allentown, Pennsylvania school district led to a “culture of defiance” where “[bathrooms are unsafe and trashed, detentions get ignored, study halls are a zoo, and school is dismissed early to quell a potential gang fight with bricks and bats.”
The complaint also asks that the district “eliminate levelling” – that is, put all high school students in Advanced Placement classes (currently the highest academic track) and provide extra support for those students likely to struggle in such a program and also extra enrichment for gifted students who will find the program too easy.
Although sometimes condemned for reinforcing racial and class inequities, there is much good empirical evidence that tracking and ability grouping work, as summarized by this website (which takes the inequity claims seriously.) See also. At the college level, the “mismatch” research also suggests that students learn less if they are placed in courses that are too challenging than they would in classes for which their preparation is a better fit. It is likely that the same principles apply to students placed in college-level courses as high school students when they are not well-prepared for them.
The complaint tells the stories of several individual students who appear to have been treated badly by Maplewood-South Orange (though the reader of course isn’t told the district’s side of the story.) But these stories don’t really appear to be discrimination against African-Americans; one appears to be a story of inadequate response to a disability, and another seems a tale of discrimination against a scholar-athletes who wants to juggle both a demanding academic and athletic schedule. Finally, in the latter case, the student’s Algebra II teacher declined to stay after school to help her because “she was not required to stay after school past 3:28 p.m. due to the teachers’ contract. Perhaps this story is as more a commentary on public employee unionization than it is on racism?
This complaint illustrates the breadth of modern disparate impact theory, under which virtually any educational practice with an adverse effect on one particular group is vulnerable to challenge in court. Because just about any educational policy can have a disparate impact on some group — remember that disparate impact also applies to national origin, meaning that Norweigan Americans can bring suit if they are adversely affected relative to Ukrainian Americans — just about any choice that a local school district makes can be second-guessed by the federal OCR.
It remains to be seen whether OCR will take up the ACLU’s open invitation. If they do, the court hearing the case may have to make a decision about the constitutionality of disparate impact.