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3 Reasons Why the Obama White House Should Rethink #RethinkDiscipline

In third grade, every girl in my class once had to stand at a flagpole for some transgression long since forgotten (maybe it was lingering over four square for too long before getting to lunch?) At the time, nobody involved — not the teacher, not any of us, not our respective parents — could have imagined that this exciting event was in any way the federal government’s business. Yet the Obama administration now claims that the bread-and-butter of meting out discipline on the playground is indeed the concern of the federal Department of Education and even the White House; it recently convened a day-long conference on the topic and rolled out a self-consciously trendy social media campaign, complete with hashtags, in the hopes of raising the public profile of their efforts to rethink discipline.

Although portions of the #RethinkDiscipline emphasize the benefits of reducing suspension and expulsion rates for students of any race, other portions indicate that the White House and ED see the situation as a race discrimination problem. Several charts near the top of the #RethinkDiscipline home page suggest that black, Hispanic, and Native American students may be suspended at particularly high rates; another page links to a Maryland study on disproportionality in discipline, and yet another explains how students who think that they have been suspended because of race may file a complaint with the Department of Education.  While I don’t have particularly strong views on whether suspensions and expulsions are used too frequently or not, I do find that the White House’s efforts to racialize the problem are seriously flawed.

#RethinkDiscipline is not a bolt from the blue. The Obama Department of Education has evinced interest in micromanaging school discipline policies almost since Obama took office, when Secretary Arne Duncan gave a speech on the Pettus Bridge indicating that curbing racial disparities in school discipline would be a major focus of his tenure in office.  Later, the Department of Education formalized its position in a guidance document which prohibits both actual discrimination in discipline policies (those that treat students differently based on race) and policies that have a disparate impact (facially race-neutral policies that have a disproportionate effect on students of a particular racial group, regardless of the school official’s actual motivation,  if these policies are not necessary to meet an important educational goal and if there are not comparably effective alternative policies that have a less racially adverse effect).  The disparate impact portion of the guidance proved the far more controversial of the two.

The United States Commission on Civil Rights* subsequently held a briefing and published a report on the Department of Education’s new discipline policies. The report contains no official findings or recommendations, but it does include several essays by commissioners, some of which were highly critical of the administration’s efforts. I note that, despite the long list of federal office-holders listed as participants in the White House’s discipline summit, none of the commissioners critical of the guidance were invited to share their perspectives. Perhaps their invitations were lost in the mail.

To summarize some of the major reasons to rethink #RethinkDiscipline, based on the Commission’s report and other criticisms found elsewhere:

1. It’s hard to manage student discipline well from afar; those closer to the situation will often best understand best what policies work and which don’t. As Commissioner Gail Heriot put it in her statement attached to the Commission’s report at 108-9:

No doubt Secretary Duncan would argue that his discipline initiative will not assume that all disparate impact is a violation of Title VI. Only that part of a school district’s discipline gap that cannot be explained and justified by the school district will form the basis of a finding of non-compliance with Title VI. But this reflects a lack of understanding of the nature of bureaucracy, the kinds of situations for which it is useful and the kinds of situations where it ordinarily does more harm than good.

The edicts of bureaucracies are usually devoid of nuance by the time they reach the foot soldiers on the ground (in this case, classroom teachers). “Don’t do X unless you have a good reason to do X” is naturally understood by school district administrators as “Don’t do X unless you are confident that you can persuade some future federal investigator whose judgment you have no reason to trust that you had good reason to do X.” In turn, this is communicated to principals as “Don’t do X unless you jump through the following time- consuming procedural hoops designed to document to the satisfaction of federal investigators whose judgment you have no reason to trust that you had good reason to do X.” Finally, this is communicated to the teacher as simply “Don’t do X; it will only get us in trouble.”

2. Loosening up discipline by reducing suspensions and expulsions may ironically make it harder for well-behaved students in inner-city schools to learn. To quote the Heriot statement again:

[I]n general, disorderly students mean disorderly classrooms. And disorderly classrooms make learning less likely to occur—something that both teachers and students recognize. The problem may be significant in many places, but it is particularly acute in inner-city schools and other low-income areas. An article in the San Francisco Chronicle entitled “Students Offer Educators Easy Fixes for Combating Failure,” had this to say on the topic:

Thousands of learned men and women gathered in Sacramento this week to chew over the vexing question of why black and Latino students often do poorly in school, someone had a fresh idea: Ask the students.

So they did. Seven struggling students – black, brown and white – spent an hour Wednesday at the Sacramento Convention Center telling professional educators what works and doesn’t work in their schools. It was the only one of 125 panels at the two-day Achievement Gap Summit convened by state schools chief Jack O’Connell where students had their say.

“If the room is quiet, I can work better – but it’s not gonna happen,” said Nyrysha Belion, a 16-year-old junior at Mather Youth Academy in Sacramento County, a school for students referred for problems ranging from truancy to probation.

She was answering a question posed by a moderator: “What works best for you at school to help you succeed?”

Simple, elusive quiet.

Nyrysha said if she wants to hear her teacher, she has to move away from the other students. “Half our teachers don’t like to talk because no one listens.”

The others agreed. “That’s what made me mess up in my old school – all the distractions,” said Imani Urquhart, 17, a senior who now attends Pacific High continuation school in the North Highlands suburb of Sacramento.”

3. The Department of Education’s guidance is based on a misinterpretation of the relevant law and is arguably unconstitutional. The White House’s efforts to attract additional attention to it will likely encourage more school districts to act illegally. 

Some have warned that the Department of Education’s disparate impact guidance may encourage schools to adopt quotas or targets in disciplining students to avoid liability. One federal appellate court has ruled that such disciplinary targets or quotas violate the Constitution’s Equal Protection Clause.  Moreover, the guidance claims to be implementing Title VI. But the Supreme Court held in Alexander v. Sandoval that Title VI does not create a private cause of action to enforce disparate impact regulations. Although the holding of Sandoval turned on the private cause of action question and not on the validity of disparate impact regulations themselves, some knowledgeable observers have understood a majority of the Sandoval Court to take the position that Title VI does not authorize disparate impact regulations. This question is discussed in greater depth in the U.S. Commission on Civil Rights report in then-Commissioner Todd Gaziano’s essay at 87-89 and in a public comment submitted by Roger Clegg and Edward Blum at 135-138.

Others have taken the position that disparate impact is unconstitutional. See, e.g., Ricci v. Destefano, 129 S. Ct. 2658 (2009) (Scalia, J. concurring: “ I write separately to observe that [this Court’s] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”).

Conclusion: One-size-fits-all dresses are generally unfortunate baggy and shapeless garments that flatter no-one. One-size-fits-all educational policies, which also often wind up not working really well for anyone, alas have the even more nefarious effect of holding back learning for entire generations of children. While suspending and expelling less and using other disciplinary methods instead may work well in some school districts, such disciplinary policies may work far less well in others. The White House and Department of Education would do well to consider using a lighter touch here and let local school districts make the decisions about what disciplinary methods work best for them without federal pressure. 


*Disclaimer: Although I am a special assistant and counsel to Gail Heriot, one of the eight members of the Commission, I am expressing only my personal views here, which are not necessarily those of the Commission. 



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