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Affirming Affirmative Action and the Obama Administration: School (K-12) Discipline, Integration
William M. Leiter
Affirmative
action differs from other antidiscrimination efforts in that: (1) it targets and seeks to remedy
societal bias (as manifested in public and private illegal action), not
individual malefactors; (2) it mandates race, ethnic, and gender‑conscious
remedies for the disproportionately adverse effects—the so-called disparate
impact—of societal discrimination on protected groups, whether or not specific
discriminatory intent on the part of individual defendants can be isolated; (3)
it seeks to integrate institutions by race, ethnicity, and gender; and (4) the
goal of this process is to redress the disadvantage under which members of
disparately impacted groups are said to labor.
The doctrine of disparate impact is a particularly central reason for
the quarrel over affirmative action, and this theory has been a driving force
behind the Obama Administration’s stated approach to school (K-12) discipline
and racial/ethnic integration.
School Discipline
Early in the
Obama presidency, the Department of Education along with its Office for Civil
Rights (OCR) committed themselves to a “disparate-impact initiative” intended
to correct the disproportionate allocation of school discipline to young
minority students. Public schools were to be informed of their disproportionate
disciplinary treatment of minority students through “compliance reviews,” and were
to be advised that Title VI of the 1964 Civil Rights Act[1]
(which bars racial/ethnic discrimination in federally subsidized enterprises) prohibits
such disproportionalities unless structured on academic necessity. Even when such
justification was provided, Title VI—the Department of Education spokesperson
insisted-- required the search for and adoption of those corrective devices which
imposed lesser disproportionalities.[2]
Using
data provided by the U.S. Department of Education’s Office for Civil Rights (OCR), the Civil Rights Project at UCLA
reported in August, 2012 that African American and Hispanic school children
were subject to outlandishly excessive discipline when compared to whites and
Asians:
• National suspension rates show that
17%, or 1 out of every 6 Black school
children
enrolled in K-12, were suspended at least once. That is much higher than the 1
in 13 (8%) risk for Native Americans; 1 in 14 (7%) for Latinos; 1 in 20 (5%) for
Whites; or the 1 in 50 (2%) for Asian Americans.
•
For all racial groups combined, more than 13% of students with disabilities
were suspended. This is approximately twice the rate of their non-disabled
peers.
•
Most disturbing is the fact that one out of every four (25%) Black children with
disabilities enrolled in grades K-12 was suspended at least once in 2009-2010.
•
Students with disabilities and Black students were also more likely to be suspended
repeatedly in a given year than to be suspended just once. The reverse was true
for students without disabilities and for most other racial/ethnic groups.[3]
The
Obama OCR has claimed dramatically increased compliance reviews using Title VI
as a prod to correct punishment disparate impact, but it is quite limited in
what—aside from referrals to the Department of Justice for suits-- it can do
beyond making suggestions,[4]
and, importantly, it has failed to publish “guidance guidelines” as promised by its Principal Deputy
Assistant Director[5] as
it has done in connection with voluntary school integration (see below) and
LGBT bullying. [6]
This failure goes against the grain of academically attractive administrative
theories calling for decentralist rule-making sensitive to local conditions
which also conform with national guideposts.[7]
The absence of published national guidance has invited the scorn of a number of
civil rights organizations.[8]
OCR might cut off federal funding to school districts for violations of Title
VI, but –as of late this procedure has been quite rare – fund recission would require consent of Congress
and would likely hurt the very children OCR is trying to help.[9]
The capacity of private parties to sue under Title VI for disparate-impact violations—once a mainstay for federal
agency civil rights implementation affecting public entities—was denied
by the Supreme Court in Alexander v.
Sandoval (2003).[10]
OCR must rely on the Department of
Justice to sue, and, as of May, 2011, Justice has sued a school district but once in
the Obama years for inappropriate discipline. This suit resulted in a settlement
criticized by American Bar Association researchers as being too broad and
vague.[11]
Whether federal agencies like OCR can issue disparate-impact regulations or
engage in disparate-impact compliance reviews of states and localities –and whether
Justice can sue them for disparate impact under Title VI--is questionable as a
majority of Justices in the Court opinion of Regents v. Bakke (1978)[12]
limited Title VI to disparate-treatment discrimination, i.e., that is intentional discrimination. Disparate-impact
discrimination arises from the nation’s history and societal norms, remaining
systemic and often facially hidden, relying for its determination on
statistical underrepresentation (as in
employment), or over representation (as in school discipline).
Fueling
OCR’s school-discipline, disparate-impact initiative is the view that much of
the disproportionality stems from invidious racism, a charge which critics say
is not supported by the evidence.[13]
However, four members of the U.S. Civil Rights Commission, in an October 2012 Briefing
Report found that[14]
A recent analysis of nationwide data
showed that students from African American families were 2.19 (elementary) to
3.78 (middle school) times as likely to be referred to the office for
disciplinary problems as their white peers.[15]
In addition, the results also indicated that students from African American and
Latino families were more likely than their white peers to receive expulsion or
out-of-school suspension as consequences for the same or similar problem
behavior. In a recent longitudinal study of all Texas students conducted by the Council of
State Governments Justice Center, African American students were found to be
disproportionately removed from their classrooms for disciplinary reasons.[16]
The study conducted a multivariate analysis which controlled for 83 different
variables in isolating the effect of race alone on disciplinary actions. The
study found that African American students had a 31 percent higher likelihood of
receiving a disciplinary action when
compared to similarly situated white and Hispanic students.[17]
In response to
the above-cited commentary, fellow Commissioner Abigail Thernstrom said:
In a joint news release
of July 21, 2011 Attorney General Eric Holder and Secretary of Education Arne
Duncan announced a new initiative to address what they called the “school- to-prison
pipeline.” The initiative, they said, would support “good discipline policies
and practices that “foster safe and productive learning environments in every
classroom.” To that end, they promised to bring together government, law
enforcement, academic, and community leaders to make sure “school discipline
policies are enforced fairly and do not become obstacles to future growth, progress,
and achievement.”
The federal government
is much practiced in the art of making empty educational promises….[I]t is a
very safe bet that the latest fantasy of ensuring that the educational system
becomes “a doorway to opportunity– and
not a point of entry to our criminal justice system” – is little more than
appealing rhetoric. Attorney General Holder and Secretary Duncan describe that
aim as “a critical and achievable goal.” “Critical,” okay, but “achievable” . .
. surely they do not believe that in schools across the nation in every
demographic setting (in the entire “educational system”) they can magically
transform the current school discipline picture. We can all agree that,
proportionate to their school population, black children are much more likely
than their white or Asian peers to be disciplined for behavior the schools find
intolerable. I hope we can also acknowledge that whites are twice as likely to
be disciplined as Asians. We should also be able to agree that
disciplinary actions are taken in response to real discipline problems. But can
we come to a consensus on a solution? The clear answer is no.
Indeed, the likelihood
of a constructive response to the problem of school discipline policies that
have a disparate impact on non-Asian minority group members is probably
diminished by framing the issue in civil rights terms. Labeling an issue one
that involves civil rights usually implies a problem of bigotry – racial
animus. But racial animus cannot account for the magnitude in disparity that we
see in looking at group differences in school discipline. That same disparity
shows up in school systems run by black superintendents, schools in which the
principal is black, and classrooms in which the teacher is black…. What public
policy can solve the problem of the collapse of the black family in the last
four-to-five decades?[18]
Critics argue that OCR efforts that overcoming
disproportionality as disparate-impact theory dictates would reduce punishment
and increase danger for obedient children.[19]
This is nonsense to some because studies have shown that increased discipline
does not correlate with improved school performance.[20]
Researchers at the American Bar Association (ABA) argue that it would be difficult to say that
OCR has increased student danger because ABA studies show that the OCR
disparate-impact initiative has not done much of anything other than improve
the collection of civil rights statistics.[21]
In an apparent move to mollify those who want more done to improve
African-African education, the President issued an Executive Order creating a
commission to research how to thwart the
substantial
obstacles to equal educational opportunity [that]still remain in America's
educational system. African Americans lack equal access to highly effective
teachers and principals, safe schools, and challenging college-preparatory
classes, and they disproportionately experience school discipline and referrals
to special education. African American student achievement not only lags behind
that of their domestic peers by an average of two grade levels, but also behind
students in almost every other developed nation.[22]
School
Integration
In fact, if not in name,
public school-integration drives have conceptually overlapped affirmative
action thinking in employment, voting rights, and housing. This thinking
applied racial/ethnic group remedies and preferences for racial/ethnic
minorities. The objective was to employ proportional representation,
racial/balancing guideposts to remedy past group disparate-impact discrimination,
eradicate its lingering effects, and prevent its recurrence. There has been a
technical, legal distinction—though much watered‑down in school desegregation
cases outside of the South—which has served as a barrier to big city/suburban
integration. Traditional constitutional law has it that Brown v. The Board (1954)[23]
requirements only apply to de jure/intentional segregation
perpetrated by government, and not de facto segregation caused by such
factors as residential patterns. If followed to its logical conclusion, de
jure theory did not permit the presumption, in law, of discrimination when
gross disproportionalities existed, as disparate‑impact law has done in the
areas of employment and political representation. Of course, de jure
theory was not a barrier to the abolition of segregation in the South where
government required racial separation.
As of 2007, a five‑member
majority of the Supreme Court maintained the de jure/de facto distinction
in Parents Involved v. Seattle,[24]
but it emerged from that case in an even more weakened state. Four
members found the distinction lacking in merit. Justice Kennedy of the majority
insisted on maintaining the distinction, but he also concluded that school
districts which had not violated antisegregation law could seek integration on diversity
grounds by using race as a factor in the student admissions process. He also
opined that facially race/ethnic-neutral
devices could also be employed for diversification purposes. Here,
Justice Kennedy was joined by four other Justices giving rise to a Court
majority allowing for voluntary K-12 school-integration policies by school
districts for diversity purposes.
Diversity theory has come to importantly
supplement disparate-impact as the vehicle for affirmative action. Diversity
theory is legally dubbed nonremedial in that it facially seeks no remedies for
systemic discrimination, but centrally seeks a diversity of views in the
classroom and in the workplace, arguing that ideological diversity is
beneficial for education and the economy. On the other hand, disparate-impact
advocacy seeks remedies for systemic discrimination, and is thus referred to in
the law as remedial. While conceptually different, diversity and
disparate-impact theories aim to achieve the same result: an increase in the
number of underrepresented protected racial/ethnic/gender groups in higher-status
positions. In short, both theories are driven by the affirmative-action
remedial motor, and, in fact, they are two sides of the same coin. Diversity theory,
importantly, need not—unlike disparate-impact advocacy—demonstrate that there
is a “strong basis in the evidence” [25]that
racial/ethnic discrimination has occurred.[26]
Clearly, the absence of the “strong basis in the evidence requirement” is
important to the emergence of diversity theory as the current-day mantra of
affirmative action.
President Obama’s Departments of Justice and Education
blanketed the nation’s school districts with a Dear Colleague Letter dated December 2, 2011 and titled, Guidance on the Voluntary Use of Race to
Achieve Diversity in Postsecondary Education.[27]
The Guidance Letter portrayed
diversity in student-body makeup as a compelling governmental interest. The Guidance began as follows by
combining diversity and disparate-impact theory:
More than 50 years ago, Brown v. Board of Education recognized
that “education is perhaps the most important function of state and local
governments. . . .It is the very foundation of good citizenship.” [28] Providing
students with diverse, inclusive educational opportunities from an early age is
crucial to achieving the nation’s educational and civic goals.
As the Supreme Court has explained, elementary and
secondary schools (also referred to in this guidance as K-12 schools) are
“pivotal to sustaining our political and cultural heritage;” [29]they teach “that our
strength comes from people of different races, creeds, and cultures uniting in
commitment to the freedom of all.”[30]Racially diverse schools
provide incalculable educational and civic benefits by promoting cross-racial
understanding, breaking down racial and other stereotypes, and eliminating bias
and prejudice. Our “‘nation’s future depends upon leaders trained through wide
exposure’ to the ideas and mores of students as diverse as this Nation of many
peoples.”[31]
Conversely, where schools lack a diverse student body or
are racially isolated (i.e., are composed overwhelmingly of students of
one race), they may fail to provide the full panoply of benefits that K-12
schools can offer. The academic achievement of students at racially isolated
schools often lags behind that of their peers at more diverse schools. Racially
isolated schools often have fewer effective teachers, higher teacher turnover
rates, less rigorous curricular resources (e.g., college preparatory
courses), and inferior facilities and other educational resources. Reducing
racial isolation in schools is also important because students who are not
exposed to racial diversity in school often lack other opportunities to
interact with students from different racial backgrounds.[32]
For all these reasons, the Departments recognize, as has a
majority of Justices on the Supreme Court, the compelling interests that K-12
schools have in obtaining the benefits that flow from achieving a diverse
student body and avoiding racial isolation.[33]
The above-cited Guidance Letter calling for a K-12 admission policy which voluntarily used
racial considerations to achieve a diverse student body claimed that it was
governed by the standards of appropriate legal doctrine called “strict scrutiny.” The Letter insisted that a diverse student
body constituted a compelling government interest. Acquiring a diverse student
body, in turn, required first the seeking out of workable approaches that are “racially
neutral,” e.g., considering parental
education; student and neighborhood socio-economic status; and the nature of
neighborhood housing--single family or multiple family. Race-conscious
approaches consist of those which are “generalized” and do not consider the
race of the individual student—like the racial composition of neighborhoods. Race-conscious
devices could also consider a student’s race, but the race of the individual
student is a reference point, and could only be used as a “plus” factor—one
factor among other non-racial factors important to the achievement of a diverse
student body. Race-conscious approaches should be time-limited; not unduly
burden any student; be flexible; and treat students individually and not as a
mass. [34]
The purpose of
the abolition of racial segregation in the public schools—as was done in Brown v. The Board (1954)[35]-- was to end racial
discrimination. The Guidance Letter
was designed to encourage racial discrimination by taking the student’s race
into account; and by calling for the use of generalized race-conscious and
race-neutral techniques described previously. Critics could be expected to regard all these methods as the use of forbidden racial discrimination by stealth and “under the table” means. Indeed,
four members of the Supreme Court in Parents
Involved –a case centrally
referenced as support in the Guidance Letter--joined
in proclaiming that “The way to end racial discrimination is to stop discrimination
on the basis of race,”[36] but this commitment was not quoted in the Letter which insisted that race could be used as a criterion to
achieved a diverse propagation of ideas. Diversity theory focuses on ideational
variety. What kind of ideological differentiation can be expected in K-12, and
can it be determined by skin color or eye configuration? And do K-12
administrators have the resources to differentiate among applicants as to their
differing perspectives? Ending racial isolation was also critically emphasized
in the Letter. This remedial
objective is most worthy and the Letter
should have been platformed on that goal. Emphasizing differences in racial
perspectives could very well impede the end of racial isolation which should be
the major goal of the Obama Administration.
Despite the
inherent worthiness of ending racial isolation as expressed in the Guidance
Letter, the Obama Administration has been severely criticized for failing
to take significant steps to promote school integration. Gary Orfield and
associates at the UCLA Civil Rights Project published a September, 2012 report
which asserts that in the face of very substantial racial/ethnic segregation in
K-12, the Obama Administration has emphasized improving student tests, and has
given little attention to problems rooted in race and poverty. The
Administration has rejected—in its Race to the Top undertaking—ideas
calling for the allocation of substantial funds for magnet schools and for
voluntary integration programs. According to the Orfield Report, there have
been small efforts to advance school integration like the Guidance Letter and the White House Initiative
on Educational Excellence for African Americans noted above. Additionally, the
Administration supported a short, temporary, one round, small subsidy program
for school-district voluntary school integration. But these pro-integration
efforts, the Report insists, have been
undermined by the Administration’s pressure to expand and financially support
the creation of charter schools, particularly for black students—the schools
where blacks are particularly segregated.[37] If correct, what the Orfield report tells us is that the Obama Administration has
chosen one form of affirmative action (funding the augmentation of black
charter schools) to the neglect of
advancing school integration, an alternative form of affirmative action. It is
possible that the Obama Administration, despite its integration-advocacy assertions, has thus far chosen a more
politically palatable form of affirmative action.
Copyright 2012. All rights reserved. ©
[1]
Codified at 42 42 USC sect. 2000d et seq .
[2]
Statement of Richard Soto, Principal Deputy Assistant Secretary, Office For Civil Rights,
Department of Education, in U.S. Civil
Rights Commission, Briefing Report on
School Discipline and School Integration, October 21, 2011, pp. 15-16. For
entire document, hyperlink to: http://www.usccr.gov/pubs/School_Disciplineand_Disparate_Impact.pdf
[3]
Daniel J. Losen and Jonathan Gillespie, Opportunities
Suspended: The Disparate Inpact of Disciplinary Exclusion from School, UCLA,
Civil Rights Project , August 2012,7. For the entire document, hypelink to http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/upcoming-ccrr-research/losen-gillespie-opportunity-suspended-ccrr-2012.pdf
[4]
Note: After Sandoval: Judicial
Challenges. and Administrative Possibilities in Title VI Enforcement, 116
Harv. L. Rev. 1774-1797, 1778.
[5]
Statement by Richard Soto, U.S. Civil Rights Commission, Briefing Report on School
Discipline at 58 (cited in note 2).
[6]
Rosa K. Hirji and Benetta M. Standly, The
OCR as a Tool in Dismantling The School-to-Prison Pipeline, Children’s
Rights Litigation Section, American Bar Association, May 23, 2011. For entire
document, hyperlink below: http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-OCR-school-to-prison-pipeline.html
[8]
Hirji and Standly, The OCR as a Tool in Dismantling The School-to-Prison
Pipeline (cited in note 6)
[9]
116 Harv. L. Rev. at 1777 and n 19 (cited in note 2).
[10]
532 U.S.
275.
[11]
Hirji and Standly, The OCR as a Tool in
Dismantling The School-to-Prison Pipeline (cited in note 6).
[12]
438 U.S.
278.
[13]
See for examples U.S. Civil Rights Commission, Briefing Report on School
Discipline at 99-100 (cited in note 2); and John R. Martin, School Discipline and Disparate Impact,
1Engage, 30-34, March 2012, 32-33 . For
entire Martin article, hyperlink to:http://www.fed-soc.org/publications/detail/school-discipline-and-disparate-impact
[14]
U.S. Civil Rights Commission Briefing, Report
on School Discipline at 80 (cited in note 2).
[15]
R. J. Skiba, R.H. Horner, C. Chung, M.K. Rausch, S.L. May and T. Tobin, “Race
is Not Neutral: A National Investigation of African American and Latino
Disproportionality in School Discipline,” School Psychology Review, 40 no. 1, (2011), 85-107.
[16]
Fabelo, T., Thompson, M.D., Plotkin, M., Carmichael,
D., Marchbanks, M.P. III, & Booth, E.A., Breaking
Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’
Success and Juvenile Justice Involvement (New York: Council of State
Governments Justice Center, 2011).
[17]
Ibid.
[18]
U.S. Civil Rights Commission, Briefing
Report on School Discipline at 85-86 (cited in note 2).
[19]
John R. Martin, School Discipline and
Disparate Impact, 1Engage 30-34, March 2012, 34 (hyperlink cited in note
13) .
[20]
Daniel J. Losen and Jonathan Gillespie, Opportunities Suspended: The Disparate Inpact
of Disciplinary Exclusion from School,
UCLA, Civil Rights Project ,
August 2012, 8 (hyperlink cited in note 2).
[21]
Rosa K. Hirji and Benetta M. Standly, The OCR as a Tool in Dismantling The
School-t-Prison Pipeline, Children’s Rights Litigation Section, American Bar
Association, May 23, 2011 (hyperlink cited in note 6).
[22]
Executive Order: White House Initiative on Educational Excellence for African
Americans, July 26, 2012.For entire Order, hyperlink to: http://www.whitehouse.gov/the-press-office/2012/07/26/executive-order-white-house-initiative-educational-excellence-african-am
[23]
347 U.S.
483.
[24]
551 U.S. 701. Hyperlink to Volume 551 of U.S Reports below: http://www.supremecourt.gov/opinions/boundvolumes/551bv.pdf
[25]
Richmond v. Croson, 488 U.S. 469. 539
(1989).
[26]
Peter Schuck, Diversity in America:
Keeping Government at a Safe Distance (Cambridge, Mass: The Belknap Press of Harvard University Press, 2003), 160-163; Sanford Levinson, Wrestling with Diversity (Durham, North
Carolina, Duke University Press, 2003), 16, 64.
[28]
347 U.S.
483, 493 (1954).
[29]
Grutter v. Bollinger, 539 U.S.
306, 331 (2003) (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982)).
[30]
Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist. No. 1, 551 U.S. 701, 782
(2007) (Kennedy, J., concurring in part and concurring in the judgment).
[31]
Grutter, 539
U.S. at 324 (quoting i, 438
U.S. 265, 313 (1978) (opinion of Powell, J.)).
[32] See Parents Involved, 551 U.S. at 798 (“[N]eighborhoods in
our communities do not reflect the diversity of our Nation as a whole.”
(Kennedy, J., concurring in part and concurring in the judgment)).
[33]
The Departments also recognize the compelling
interest in remedying the vestiges of past racial discrimination, which is not
the focus of this guidance. Numerous school districts are required to consider
race pursuant to desegregation orders, compliance plans, or other legal
mandates to remedy discrimination. This guidance does not address the remedial
use of racial classifications in these or other circumstances; nothing in it
should be read to imply any limitations on remedial orders by courts or
administrative agencies. In addition, nothing in this guidance addresses other
claims of compelling interests justifying the consideration of race, which the
Departments will consider on a case-by-case basis. See Parents Involved, 551 U.S. at 720 (stating that the
Court’s opinion was issued “[w]ithout attempting in these cases to set forth
all the interests a school district might assert”).
[34]
U.S. Department of Justice and Education, Guidance
on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in
Elementary and Secondary Schools, December 2, 2011 (cited in note 27).
[35]
347 U.S.
483 (1954).
[36] 127 S. Ct.
2738, 2768(2007).
[37]
Gary Orfield, John Kuesera, and Genevieve Siegel-Hawley, E Pluribus…Deepening Double Segregation For More Students, UCLA
Civil Rights Project, September, 2012, pp. 5, 7, 11 XVI. Hyperlink below for
entire document:
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