Federal Government to Analyze ‘Disparate Impact’ of School Discipline on Minorities

Published January 18, 2011

Officials at the U.S. Justice Department and Education Department say closer scrutiny of school discipline cases will be a high priority for 2011. The department announced it would use a “disparate-impact analysis” to help determine whether minority students are disproportionately punished at school.

“Regrettably, students of color are receiving different and harsher disciplinary punishments than whites for the same or similar infractions, and they are disproportionately impacted by zero-tolerance policies—a fact that only serves to exacerbate already deeply entrenched disparities in many communities,” said Thomas E. Perez, assistant attorney general for civil rights.

A federal investigation into local school discipline policies would be an unusual but not unprecedented action, said Dave Roland, director of litigation at the Freedom Center of Missouri.

“The Fourteenth Amendment specifically empowers the federal government to pass and enforce laws that will ensure that citizens enjoy due process and the equal protection of law,” Roland explained. “The reality is, certain bad actors at the state and local level, if given the opportunity, are perfectly willing to institute racially discriminatory policies in public schools.

“While I do believe that the federal government should generally not be involved in substantive education matters, I also think the Justice Department has a legitimate role to play in safeguarding students’ civil rights,” Roland added.

Analysis Method Questioned
The tougher question, Roland says, is whether the “disparate impact” model of analysis is appropriate in monitoring public school discipline.

“One of the concerns raised by Justice Department officials is that minority students in a given school system may be receiving harsher treatment than white students receive for the same misbehaviors,” he explained. “The implication in that sort of case seems to be not so much that that the policy itself is flawed, but rather that it allows too much discretion as to the punishments that are meted out, allowing racial prejudice to influence those punishments.”

Roland noted the Obama administration’s approach would be different from the tack taken by President George W. Bush’s Justice Department, which emphasized “different treatment” instead of “disparate impact.”

Justice ‘Should Not Interfere’

“‘Disparate impact’ is properly applied to policies that are neither facially nor intentionally discriminatory yet still result in one or more groups being systematically disadvantaged as a result of the policy’s enforcement,” Roland said. “A mere showing of ‘disparate impact’ only begins the analysis of whether a policy might be improper.”

The government should not act unless there is real evidence of intentional discrimination, Roland explains.

“Absent any indication that the policy or its enforcement is influenced by racial animus, the Justice Department should not interfere with schools’ efforts to establish the best possible learning environment for the students in their care,” he said.

Sarah McIntosh ([email protected]) is a constitutional scholar in Lawrence, Kansas.