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School Discipline Disparate Impact Juggernaut Rolls On, This Time Stopping in Minneapolis

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The Obama Department of Education’s crusade against racial disparities in discipline – whether resulting from racial bias or not — marches on. Most recently, the Minneapolis Public Schools entered into an agreement with Education’s Office for Civil Rights promising to address racial gaps in student discipline rates.

“MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years,” Minneapolis superintendent Bernedeia Johnson said in a press release. “This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.”

There are several problems with Minneapolis’s approach. First, one federal appellate court has ruled that disciplinary targets or quotas similar to Minneapolis’s violate the Constitution’s Equal Protection Clause. Second, OCR purported to be investigating Minneapolis’s compliance with Title VI of the Civil Rights Act of 1964. 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, many 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 this 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.

For additional comments on Minneapolis’s case, see this excellent blog post by former Education Department lawyer Hans Bader at OpenMarket, an editorial at Investors Business Daily, Robby Soave at Reason magazine, and two Corner posts by Roger Clegg at National Review Online. The Minneapolis Star Tribune and MPR News. Some of these stories note comments from Superintendent Johnson stating that her leadership would review all suspensions of black or brown students involving non-violent offenses; Johnson later clarified her statements to indicate that her team would not be reviewing suspensions prospectively, but only retrospectively and with the goal of better understanding the circumstances around suspensions. Although I am glad to learn that Minneapolis’s policy is not quite as blatantly unconstitutional as it looked at first, I remain troubled that the constitutionally questionable discipline quotas still apparently stand.

                                                                             

 

 

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