British political publicist Ernest Benn famously quipped that “politics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly and applying the wrong remedy.” Unfortunately, this seems to be the exact process U.S. Attorney General Eric Holder and his staff used to create new federal guidelines on the “Nondiscriminatory Administration of School Discipline.”
Should the Department of Justice choose to aggressively enforce these guidelines, it would have a profoundly negative impact on school discipline in Utah and across the country.
First let me say, unequivocally, affirmatively, that racial discrimination is wrong wherever it is manifest, and there is certainly no room for it in our public schools. Any school policy or practice that intentionally disciplines students differently based on race is unconstitutional. On this much I agree with the DOJ. I also concede that the DOJ’s data is correct that while African-Americans make up just 15 percent of public school students, they account for 35 percent of suspensions and 36 percent of expulsions. Clearly, African-American students are having a disproportionally hard time in public schools.
However, this is where my agreement with the DOJ ends. While I am certain that some racial discrimination exists in public schools, the DOJ seems to suggest that racial discrimination is the driving force behind the school discipline statistics, ignoring other potentially significant societal factors, such as socioeconomic status, familial make-up, and cultural attitudes towards education, that might better explain the gaps. In other words, I am concerned that the DOJ has misdiagnosed the root cause of public school discipline disparities between races.
But I am far more concerned about the remedy the DOJ has proposed to try to fix school discipline disparity. The DOJ argues there are two categories of discrimination: first, when a student is subject to differential treatment based on race, and second when a neutral policy, impartially applied, has a “disproportionate and unjustified effect on students of a particular race.” The first category makes sense to me — it is per se racism and must not be tolerated. The second category, however, suggests that when a school develops and implements a specific policy, and if proportionally more minorities than non-minorities violate that policy, then the policy itself, even if impartially applied, is discriminatory. It appears that the DOJ has introduced discipline quotas for minorities in public schools.
The DOJ guidelines go on to say mandatory discipline procedures resulting in citations, suspensions or expulsions for “specified offenses — such as being tardy to class, being in possession of a cell phone, being found insubordinate, acting out, or not wearing the proper school uniform” will raise “disparate impact concerns” if proportionally more minorities are affected, triggering severe scrutiny by the DOJ. The school must then prove to the DOJ that such policies are “necessary to meet important educational goals” that cannot be achieved any other way. In essence, the DOJ has decided that it will act like a national school board, exercising veto power over which discipline policies may be adopted and how such policies will be applied in each and every public school in the country.
The impact of these guidelines on classrooms could be catastrophic should teachers and administrators either scrap standards of behavior and appearance altogether or try to enforce them selectively, carefully keeping track not to send too many minorities to the principal’s office. What will happen to the learning environment in our public schools if certain groups of students realize that they can misbehave and disrupt without consequences? Should the DOJ enforce these new guidelines, discipline in public schools will almost certainly deteriorate.
Dan Liljenquist is a former state senator and U.S. Senate candidate.