Race & School Discipline

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an assistant director of practice groups with The Federalist Society. Today, we’re excited to host a webinar on race and school discipline. We’re joined today by Dr. Juan Del Toro, Max Eden, Kristen Harper, and Dan Morenoff.

 

Our moderator today is Alison Somin. Alison is a legal fellow with the Pacific Legal Foundation’s Center for the Separation of Powers. Before joining PLF, Alison was a long-time special assistant and counsel to Gail Heriot and the U.S. Commission on Civil Rights. Alison is an executive committee member of The Federalist Society’s Civil Rights Practice Group. And we thank her for her continued support of the society. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many questions as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. With that, Alison, thank you very much for being here today and the floor is yours.

 

Alison Somin:  Thank you so much for the kind introduction, Sam. We’re delighted to have four very distinguished panelists with us today. Let me just read a brief introduction to the topic, and then we’ll get started with our first panelist.

 

During President Obama’s second term, the Education Department began sharing studies indicating that Black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and in 2014 the Education and Justice Departments jointly published a resource package to help American schools “promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students.” Supporters applauded these steps from the federal government saying they reduced schools’ racial disparities in disciplinary decisions thereby curtailing what is known as the school to prison pipeline. But critics countered the guidance misstated federal civil rights law, encourage racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional.

 

The 2014 guidance was ultimately rescinded in 2018 under the Trump administration only to be largely restored by the Biden administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.” Today, we’re going to be addressing the questions what is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will schoolchildren be best served? What does the evidence really show about race and school discipline? Please join us as today’s expert panel discusses the legal and educational contours of the most recent guidance package on race and school discipline.

 

As Sam said, we have a distinguished panel with extensive credentials in this area and other subjects. You can find much more about their many accomplishments on The Federalist Society website, so I will only introduce them briefly. We’re going to start today with Dan Morenoff, the Executive Director of the American Civil Rights Project. Then, we’ll turn to Kristen Harper, Vice President for Public Policy and Engagement of Child Trends, who’s also a veteran of the U.S. Department of Education. Then, we’ll hear from Max Eden, who’s a research fellow at the American Enterprise Institute. And finally, we’ll hear about the research of Dr. Juan Del Toro, Assistant Professor, Department of Psychology at the University of Minnesota. Thanks so much for joining us, everybody. Dan, please take it away.

 

Dan Morenoff:  Please. So I’m going to be starting us off with a little bit more in depth version of the law and history, how we got here and where we are right now. And I think we may actually not have an entire agreement on where we are right now. So wait for that as kind of a teaser.

 

Look, normally -- this is a panel on federal school disciplinary policy. Usually if you want to know what federal policy is on a subject, you go see what Congress said. If you started by flipping through the U.S. Code looking for the Federal School Discipline Act, you’re not going to find it. There isn’t such an enactment. Congress never set a policy here.

 

All of the legal and policy direction that we’ve received is instead extrapolated out of either the equal protection clause or the general nondiscrimination provisions of our spending power laws: Title VI and its prohibition on federal funding recipients discriminating based on race, color, national origin; Title IX, same for sex; the Individuals with Disabilities Education Act and Rehabilitation Act, same for individuals with disabilities. That’s where we’re getting the law here. So our story really tracks back to the Civil Rights Act of 1964.

 

Shortly after it was passed, folks at the EEOC in their role in enforcing the subpart of the Civil Rights Act on employment law, Title VII, cooked up a theory of enforcement of the statute, disparate impact. They used this as a way to say, okay, yes, the statute says you can’t discriminate because of any of these demographic elements. But we don’t want to always have to prove intent, that this was because of whatever. Sometimes we can see that there’s a policy which is affecting different groups differently in stark enough terms that we can skip steps and just bring claims based on that.

 

By the end of the 1970s, the Supreme Court had agreed with them. And that left the rest of the federal government in kind of an odd place where agencies weren’t really sure whether the statutes that they were applying, say, Title VI, were subject to the same kind of alchemy. So in 1981, the Department of Education turned to its Office of Civil Rights, then headed by Clarence Thomas, and asked is this something that we need to worry about?

 

And the advice --very specifically about school discipline -- and the advice that OCR gave them was, no, Title VI is not a disparate impact statute. If a school or school system’s disciplinary policies are facial neutral and evenhandedly applied, we don’t worry so much about the statistics. That was as nearly as I can tell the standing policy of the department for the next 30 plus years.

 

In the meantime in 2011, we get to Alexander v. Sandoval, a decision of the Supreme Court, which says the same thing mostly. It also says Title VI is not a disparate impact statute. It directly reaches—directly is an important word—only intentional discrimination. On the other hand, it left open an additional question. And that additional question was whether Title VI regulations could be disparate impact regulations even though Title VI was now definitely not a disparate impact statute. They didn’t answer that question. It wasn’t in front of them. They left it for another day.

 

Three years later, we get to the Obama administration issuing the guidance documents that Alison mentioned a little while ago. Most importantly for these purposes, what they said was that they informed schools you can violate Title VI with your disciplinary policies one of two ways: either through intentional discrimination, disparate treatment of individuals based on their demographics or by pursuing a facially neutral policy in such a way that it produces a disparate impact.

 

Now, that’s a little problematic because the Supreme Court had said differently three years earlier. They could have meant that the regulations had that effect. It isn’t what they said. There is a whole longer discussion we could have about whether the regulations themselves actually are disparate impact regulations at all. I’m not going to at least get into that now.

 

I will mention that it’s perhaps hard to imagine how a regulation enforcing a disparate treatment regime could transform it into a disparate impact one. That’s generally not how at least I conceive of the power of regulatory agencies, especially after West Virginia v. EPA formally had the Supreme Court adopt the major questions doctrine. But regardless of that live dispute, come 2018, yes, the Trump administration reversed, and come 2021 the Biden administration announced that it would go back to the 2014 policy.

 

They announced that in a request for information, part of CFR, seeking comments and specifically information that might justify that move. On the other hand they didn’t do it at that time, at least. They didn’t reissue guidance going back to the 2014 interpretation of the law. And they didn’t issue that later in 2021. They didn’t issue it in 2022.

 

On the other hand, in the middle of 2022 they did issue a guidance set of documents about the IDEA Act and its interaction with school disciplinary policy. The statute’s language is almost perfectly parallel. One might have expected that it would say what the 2014 guidance did or something like it, but it didn’t. This guidance instead reflected that statistical evidence could be circumstantial evidence of intentional discrimination but that it would only be evidence of intentional discrimination that violates Title VI.

 

The next shoe to drop I’d flag for you was the resolution of an investigation of a particular school system in California, Victor Valley Unified School District. I would describe that as the easy over to find case where there were lots of reasons the school district was going to lose. They flagrantly ignored their reporting requirements for the federal government, even after being called out on that fact, failing for years to turn over their disciplinary data. When the department investigated, they found out a good amount of direct evidence of intentional racial discrimination in disciplinary decisions. Oh, and they also ran the numbers once they finally got credible data from the school system which also showed that different groups were in fact being punished materially differently.

 

You might have expected that when they therefore rung up the school system for violating Title VI they would have said that they were doing so because there was a disparate impact, but they didn’t. Instead, they referred to the statistical evidence as evidence of a discriminatory intent, bringing us right back to functionally what had been required under the 1981 and 2018 guidance but not in fact the position from 2014. And then, earlier this year, twice, the Department of Education has issued new guidance documents, first in, I think, March and then in May.

 

What’s interesting about those two sets is that, well, the first one never actually mentions disparate impact at all, not even in passing. And the second one explains that the department may investigate this kind of statistical evidence for determining the underlying causes of disparities. Well, that sounds to me an awful lot like the intentional discrimination, which everyone agrees is illegal under the statute and very different than the 2014 guidance.

 

What we make of all this, what it actually means in terms of what they’re doing or what they should be doing, what the law requires, that’s one we’re going to have to take up, I think, later in this discussion. But if nothing else, the fact that this is the course that the guidance has taken meant that among the thousands of comments filed in response to the 2021 RFI, the state attorney generals, the public interest law firms, the various groups that pointed out, you know, if you go ahead and do that, it’s illegal and unconstitutional with a clear implication that they would sue—I guess I should flag I was one of the filers—can’t sue. There’s nothing to sue about. The government appears to have conceded the point that it does not have the regulatory authority to transform the statute into something it flatly isn’t.

 

Alison Somin:  All right. Thank you, Dan. On that note, let’s move to Kristen Harper.

 

Kristen Harper:  Good afternoon, all, and thank you to The Federalist Society for hosting this discussion and the kind invitation to join. I’m Kristen Harper of Child Trends. We are a nonpartisan research institute focused on improving the lives of children, youth, and families. So I’m greatly for the opportunity to present a research perspective on the Biden administration’s most recent resource.

 

But before I jump into the resource, I do want to note that I enter this conversation with three conclusions drawn from research that inform my viewpoint. So first, the cost of out of school suspension to children vastly outweighs the benefits. The consequences of suspension to students’ academic prospects are severe. There was a 2018 study by Janet Rosenbaum that found a lower likelihood of high school graduation, a lower likelihood of getting a bachelor’s degree, an increased likelihood of future arrest, an increased likelihood of future incarceration, all stemming from a student’s suspension. Meanwhile, the benefits of a student’s suspension to their peers or to their schools is very slim, if it exists at all.

 

Second, schools continue to suspend students of color and particularly Black children at higher rates than white children. In 2021, we released an analysis of the civil rights data collection that showed that gaps have narrowed between 2012 and 2018 and overall use of suspension has declined. But the gaps are still there. And those disparities are reflective of gaps in education opportunity by race, but those disparities are also their own driver of education disparities as they create new obstacles to students’ academic engagement.

 

And last, schools need a lot more help than they are getting. Research on potential solutions to address racial disparities in discipline simply hasn’t kept pace with policy reforms that states and districts have introduced over the last 10 to 15 years. So we know now a lot more about how disparity happens, but we don’t know a lot more about how to address it. So those three things clarify for me the need for discipline reforms as an essential component of improving the quality of the education we’re providing to young people. What’s less obvious is how that work should proceed.

 

So turning to the resource that was published this year—and thank you, Dan, for just providing the history—taken together with the case studies that the federal agencies released in May I think answered three important questions for school communities. So I will offer a research perspective on how the resource answers those questions for the field. And the first question is what is the discrimination that schools need to avoid.

 

And as Dan mentioned, the guidance emphasizes different treatment rather than disparate impact as the form of discrimination driving gaps in students’ experiences of school discipline. The resource does leave behind the assumption made in the 2014 guidance that facially neutral, fairly administered policies with disparate impacts by race are a driving cause of disparity. And that emphasis on different treatment aligns with the research that has come out in the last ten years, showing that white children and children of color are disciplined differently. A 2020 study by Jayanti Owens examined that drivers of a Black-white gap in suspension of 21 percentage points among ninth graders. Nearly half of that gap was attributed to differences in how students were treated, keeping student behavior and school characteristics constant.

 

Folks can disagree about disparate impact and its legal foundation. I am not a lawyer, so I can’t contribute much to that conversation. But I will say this: disparate impact was simple and easy. With disparate impact where a facially neutral policy hits students differently even if the policy is administered fairly, we can point to policy as the problem. And we can change policy. But this resource and recent research illustrates a much more complex problem and one that’s really difficult to face. And that’s that schools are giving Black and Latino children on one hand and white children on the other different punishment for the same offenses.

 

So the second question is how do we confirm discrimination? And the guidance presents a simple but powerful illustration of the process we should use to examine school discipline practices for discrimination. In research and in policy, we often make the mistake of starting with the question do we see racist practice, racist policy, or racist people? And if we can’t find an obviously racist act or an obviously racist person, the fact that disparity exists is dismissed. We become comfortable with it despite the impact on kids, and nothing changes.

 

And the guidance illustrates a different approach. Instead, start with the presumption of equality. To treat all students fairly, start with the simple assumption that all students within a school or within a district should have the same risk of an out of school suspension. And given evidence of disparity, when presented with data that shows that schools are suspending one racial and ethnic group more than another, we should instead ask the question is there a reason that can explain that difference? And if no reason can be found, the conclusion should be that there is a problem needing a solution, that students are experiencing discriminatory discipline and the community should begin a process of fact finding and reform.

 

And the third question is how do we address discrimination. And in this area, I do find a gap between the research and how the resource answers this question. The resource encourages common sense remedies, similar to many of the reforms we’ve seen from states and districts. But while the practice remedies such as positive behavioral supports are fairly supported by research, the policy remedies really have not been evaluated.

 

At this point, the field’s really suffering from the absence of a solid research base that explores what happens after different policy approaches are put into effect. And because of that, it’s difficult to sift between policy approaches that should be thrown out because they don’t work, policy approaches that are easier to implement and do work, and policy approaches that will work but only in particular conditions and contexts. There are a couple studies out about Philly’s discipline reforms. I’ve seen one out. There’s work done in Chicago. Child Trends just completed an implementation study of a statewide policy in Maryland that restricted early childhood suspensions and expulsions. But given the volume of approaches tried, MOUs with law enforcement, suspension bans, requirements to try alternatives ahead of discipline, research has not kept pace to the detriment of efforts to address the problem. I am grateful for the opportunity to share my thoughts this afternoon, and I’m looking forward to questions and discussion.

 

Alison Somin:  Thank you so much for your remarks. Max Eden, please go ahead.

 

Max Eden. Okay. Good afternoon. Thank you all so much for joining us and thanks so much to The Federalist Society for having this discussion. In 2014 the Obama administration began to use the cudgel of civil rights enforcement to enforce school districts to adopt policies that made schools less safe. The Biden administration by appearances is doing the same thing while pretending that they are not. And this is likely because they understand there is a flimsy legal basis for disparate impact and enforcements and because the policies that were pushed through it have become politically toxic.

 

You’ve heard a bit about the legal basis from Mr. Morenoff, and I think that Ms. Harper very ably represented kind of the arguments that are being given now in favor of trying to shift away from traditional school discipline to alternative models. In 2014, the model that was pushed most often was something known as restorative justice, and the arguments made in favor of shifting towards it and away from traditional discipline were made in kind of more strident empirical terms. The claim was made that the substantial racial differential in aggregate school discipline numbers was not at all a reflection of differences in student behavior, that students behaved exactly the same but that teachers responded differently based on race or that the gap was driven by subjective infractions, not by objective behaviors.

 

This was not true, and there were severe consequences to basing a policy initiative on an assumption that was not true. There are of course substantial aggregate differences in behavior. It would be astonishing if there weren’t.

 

Students from single parent households are twice as likely to be disciplined as students from intact households. African American students are about three times as likely to come from a single parent household. That single variable explains a substantial share of the aggregate disparity, not the whole thing of course. Other variables factor in too. And depending on which study you see, you can see that once you factor in variables that plausibly influence behavior, the amount of the disparity that could be attributable to racism or differential racial reactions shrinks dramatically, in some cases to zero and in some cases simply pretty substantially.

 

But there is still the kind of willful assumption that we should be seeing the same disciplinary outcomes by students regardless of their background overall. And it was this assumption that drove the Obama administration’s decision to start using disparate impact as an enforcement tool for the Office of Civil Rights. Before, the standard was basically a Black student and a white student both swear at a teacher, and the white student gets a detention. And the Black student gets a suspension. That’s discriminatory treatment. That is illegal. That needs to be remedied.

 

The standard effectively changed under the 2014 dear colleague letter to become if two Black students and one white student all swear at a teacher and are all disciplined equally for doing so, that may or may not be a civil rights violation depending on the aggregate racial composition of the school district. Simple statistical differences became the grounds for civil rights investigations. But it’s important to note that these were not really investigations. They were policy enforcement fishing expeditions. The intrusive and publicly humiliating investigations could only end when school districts agreed to adopt more lenient discipline policies, no matter how much harm those policies might be doing to students.

 

Take for example Oklahoma City. The allegation was that white kid was disciplined more severely than a Black kid for the same offense. OCR found that they were actually disciplined the same for the same offense and that the white kid was actually Hispanic. But the individual instance did not matter once the systemic investigation began. And once the systemic investigation began, the district was coerced to adopt a policy that reduced suspensions by over 40 percent.

 

Unfortunately, about two-thirds of teachers said that behavior got significantly worse. About two-thirds said that they wanted to restore traditional discipline, and only about a quarter believed in the new approach. Teachers said things in anonymous surveys such as “students are yelling, cursing, hitting, and screaming at teachers and nothing is being done. The teachers are being told to ignore the behaviors. That’s very hard to do now the students know that there’s nothing teachers can do.” And another teacher said, “This is the worst student behavior I have seen in over 30 years of teaching. The violence in hallways is extreme.”

 

This is of course what we should expect to happen. If you pressure school districts to decrease the number of suspensions, they will decrease the number of suspensions. And the easiest way to do that is by simply letting students get away with bad behavior. This is something that’s borne out by basically every anonymous teacher survey conducted in the school districts that have implemented these policies. And the consequences are borne out by studies of school districts that have gone pretty hard in this direction.

 

In Philadelphia, for example, when they banned suspensions for low level offenses, truancy increased from about 25 percent to over 40 percent. Reading and math scores, proficiency scores went down by about 5 percentage points. In California, when school districts banned suspensions for low level offenses, the damage to math scores was enough to take students down from the 50th percentile to the 38th. Of course the idea behind these reforms isn’t simply to decrease suspensions but to replace them with other interventions, most notably restorative justice, a talk-based effort that is intended to address the root causes of harm and repair it. Or so it is said.

 

Now, often this does not really happen in reality, and according to the best study done on it, it’s actually worse when it does happen. In Pittsburg they did a randomized control trial on schools that implemented restorative justice and schools that didn’t and found that the ones that did actually saw worse Black student achievement compared to the ones that did not. But we should be clear that none of this actually mattered to the Obama administration as they were enforcing civil rights under a disparate impact regime. Even if it was documented, as it was in Oklahoma City, the policy shift was resulting in tragic consequences, it would still be pushed.

 

What was happening did not matter. Harms to student safety and student achievement did not matter. The Obama administration saw the statistics and wanted to change them and did in fact start to change them.

 

Fortunately, the Trump administration rescinded this policy, and by the time the Biden administration got around to it, I think they were deservedly toxic. Rather than reinstate the dear colleague letter as some expected or try to enshrine it in official regulation as others expected, they did what I perceive to be somewhat of a tricky thing. And here is perhaps where Mr. Morenoff might slightly disagree on the substance of what the Biden administration did.

 

Their guidance document basically said here are the investigations that we have done into school districts and what we’ve asked school districts to do after these investigations were concluded. The investigations that were referenced did proceed on a disparate impact basis. They proceeded on the basis that an individual allegation gave rise to a systemic investigation, and as they were implementing at the time systemic investigations could only end when school districts agreed to adopt the Obama administration’s policies.

 

Now, they did not officially say we are still conducting investigations under a disparate impact standard. They simply said we are doing these investigations as we have done these investigations, to which I think the memo was pretty darn clear to school leaders that we will still investigate you on this basis and we will probably still only end these investigations when you agree to adapt our policies. So even though the Biden administration is not apparently making the claim that disparate impact is still legitimate or a standard that is in use, there’s reason to believe from a facial reading of what they said that this is still how they’re conducting their enforcement investigations.

 

At the end of the day, this is really where the devil was in the whole thing. There are many arguments that can be made legally, given policy terms, but when a federal body takes its force down onto a school district and basically says we will investigate you; we will threaten you with bad press; we will give you administrative headaches, and you can end this if you agree to do what we say we want you to do, they’ll do it regardless of what actually happens to students.

 

Alison Somin:  Max, thank you for your remarks. On that note, let’s turn to Dr. Del Toro.

 

Dr. Juan Del Toro:  Hi, everyone. So just a friendly reminder I’m an assistant professor of psychology at the University of Minnesota, and I really want to kind of start off with just three key takeaways that I really want to showcase. And one being with a lot of school discipline policies why it’s important to sort of get rid of discretionary decisions that educators should make based on, quote/unquote, disruptive or unruly behavior.

 

And that is premised on how there’s a large stereotype literature on how when educators view African Americans versus white Americans who are questioning in the classroom. When an African American student questions in the classroom, it may not be viewed as curiosity but rather undermining. And because of these stereotypes about the way that young African American boys are perceived as much more older and more menacing as relative to white Americans, even innocent African American boys who engage in any kind of behavior could be viewed as a delinquent due to racial stereotypes and biases. So it’s really important to kind of take away some of that, quote/unquote, discretionary encouragement in school discipline policies because that then kind of encourages educators to engage in much more stereotyping behaviors and school discipline disparities.

 

And the second thing I want to highlight is that schools nowadays in order to meet a lot of criterion in regards to academic standards and achievement and especially performance in statewide tests, a lot of schools have conducted much more militant approaches to engaging student behaviors. But I actually think that sometimes it’s better to go therapist rather than go militant because of how oftentimes students are oftentimes coming from communities that are oftentimes underserved and have less resources. So when a student is late to their first class period, it could be potentially because of bus delays and other external circumstances that are out of students’ control. So it’s oftentimes better to approach why a student is coming in late to class rather than just simply referring them to the office for coming late to class.

 

And the third thing I really want folks to take away is that we want to be thinking about sometimes how when we think about the repercussions of school discipline -- Kristen Harper talked about some of the economic costs, but there’s also kind of the costs that we have on the non-disciplined student population because it can be uncomfortable to witness a close peer or a close classmate, witness them receive an unfair discipline infraction for a very nonviolent subjective infraction. And so I have research that shows that when an African American student receives suspensions for nonviolent subjective infractions, that can have negative repercussions for the non-disciplined student population because they start questioning school rules. They start having distrust toward the school figure. And that could lead students to rather have a proclivity to engage in more misbehaviors rather than less. So we have to think about the negative consequences that some of these school discipline practices can have on the larger non disciplined student population.

 

And so that’s really the three key takeaways. One, we need to start questioning the role of discretion for, quote/unquote, disruptive unruly behaviors. Second is it could be important to go therapist rather than go militant. And third is we want to start thinking about the negative repercussions that not only how we’re affecting students who receive suspensions but also how these suspensions are affecting the larger school and classroom climate. So thank you.

 

Alison Somin:  All right. Thank you so much to all of the panelists. Do you want to go back around in order starting with Dan Morenoff and take a few minutes to respond to what some of the other panelists have said?

 

Dan Morenoff:  Sure. I’m going to try to do this in reverse order, and I may fail. So forgive me if I do. Professor Del Toro, I’m noticing a certain tension in the lessons that you want to draw from the data that you’ve seen in that on the one hand you’re saying that discretion is bad; rules are better than discretion. But on the other hand it’s important to approach issues as a therapist rather than as a militant and therefore not apply rules without investigating further as to what actually should happen. I can see why both of those are rational statements, but they seem to conflict with each other in practice in a way that seem notable.

 

As to Max, Mr. Eden I should say, look, I have no doubt that we do not know yet given the number of investigations that have been concluded—as nearly as I can tell one—what it is that the Biden administration is actually doing and to what extent your fear is entirely justified. It’s entirely possible that the administration intends to do exactly what it was already doing but has been coached up probably by the Department of Justice not to say that they’re doing what they intended to do. And again, they announced very clearly in 2021 it was what they intended to do. That’s a risk.

 

With that said, I think that it’s inherently important that they are not in fact trying to make the legal argument for this theory. In part, that’s because this theory is undergirding any number of the things that the administration is currently pursuing in its interactions with the larger American economy. They are functionally using disparate impact, specifically disparate impact as tied to Title VI, in field after field after field. And as nearly as I can tell here in the environmental justice arena with the litigation that Louisiana has ongoing and elsewhere any time that a group is prepared to actually make the argument you cannot do that; it’s illegal, they seem to run away and hide rather than defend the practice. And if that is actually what the administration is doing, simultaneously pursuing what I would argue their lawyers know is unconstitutional behavior and hiding it by tanking investigations any time someone points it out, that’s really something that every federal funding recipient in America needs to know is what’s going on because they all need to raise the question when this hammer is used against them frankly illegally.

 

Ms. Harper, was there something I intended to ask you? I have no doubt that it is demonstrably true that running a disparate impact analysis is far simpler, easier to administer than having to find out why people are doing what they’re doing. I think it’s interesting that you flagged, though, that under what you perceive to be the current approach at this time being pursued by the administration they are asking that question: what is the reason for the disparities? And I do think that that’s actually the important thing here both as a matter of law and on some level as a matter of justice in order to make sure that we’re actually getting this right and not just accidentally requiring what I would describe as intentional racial discrimination in order to avoid the implication of a maybe discriminatory pattern. But I don’t know how responsive that one actually is.

 

Alison Somin:  Thanks, Dan. Kristen Harper, please go ahead.

 

Kristen Harper:  Just to respond directly to Dan because I’m also seeing a question from James Moren (sp), apologies if I’m skipping ahead by looking at the questions because here I see a question about whether or not disproportionate impacts may reflect differences in behaviors. It doesn’t necessarily mean discrimination. And I think that goes sort of directly to what Dan is pointing out. So because -- and this is why I did the foundation laying at the beginning is that for a child to receive a suspension is not something that we can ignore. And so if there are disparities by race and not -- large disparities, Black students remain twice as likely to receive an out of school suspension -- that’s not something that should be easily ignored because of the consequences for their future.

 

That said, the process should be it’s worth taking a look any time we see those numerical disparities to make certain that there is a rationale. And that rationale can be -- and I saw that in the new resource published in May they give examples of the type of rational that would indicate this is not racial and ethnic discrimination such as there is a difference in -- there are differences in behavior viewable in the data. There’s differences in disciplinary history viewable in the data. Especially if you’re looking across a district, there’s differences in grade. There’s differences in other circumstances.

 

But what they found both in the cases that they published is that no such reason existed. These were similarly situated young people that in some cases white students may have had a worse disciplinary history, Black students not as severe a disciplinary history yet Black students received more severe punishment. And that mimics, again, what we’re seeing in the research.

 

And again, I think one of the challenges is that folks are looking for something obvious in trying to make a determination that discrimination exists. They want to see hate words. They’re looking for a person that has expressed hatred. They’re looking for an explicitly discriminatory policy. And those exist. In the last few years a lot of disciplinary policies around how students wear their hair, those have surfaced a lot. So those have existed. But what is really troubling is the idea that we have policies that are actually being administered differently even in instances where students are behaving the same.

 

One of the studies I mentioned earlier actually looked at different drivers of disparity together. It looked at behavior, so they accounted for the potential that differences in student behavior could be driving the gap. They looked at differences in treatment. And they looked at structural inequity within education, so the fact that we have students segregated into different schools by race. And they found that a full 46 percent was attributable to different treatment, that 21 percent was attributable between school sorting, so to that segregation, and that 9 percent of the gap was due to differences in student behavior.

 

So it’s not that there’s no difference in student behaviors. Going back to Max’s African students more likely to come from fractured households, I just will note I don’t subscribe to the notion that we should be comfortable with discipline disparities by family structure or income. But it's really important that we not skip steps. If there is an actual difference in behavior that is driving the difference in disparity that should be borne out in the data. And that’s what we look to to say, okay, it’s not discrimination happening here. But where we can’t find that reason why the disparity is taking place, that means we have to take action. It means we need to conclude that students are experiencing a discriminatory disciplinary environment, and it’s time to do fact finding and reform.

 

Alison Somin:  Thank you. Max Eden, please go ahead.

 

Max Eden:  Yeah. Absolutely. I’ll just respond to a couple of the points that Ms. Harper and Dr. Del Toro made. First, Ms. Harper kind of said and insisted that suspensions are harmful to students, and we know this from the research because students who are suspended are more likely to drop out. And students who drop out are more likely to not have good job outcome prospects, go to jail at some point.

 

But I don’t think that we actually really know this from the studies or the data because the confounding variable when a student gets suspended is the way that the student behaves. And so if you take two students who otherwise look alike and one behaves violently towards the teacher, one does not, the one who behaves violently gets suspended. The one who does not does not. It’s actually very hard to say that the difference in outcome between those two students is attributable to the fact that the student who might have attacked his teacher got suspended for doing so. It probably is much more the case that there are other factors in the students’ lives that the behavior becomes one indicator of that later other outcomes become other indicators of. There’s one study in particular that tried to separate contingent on a similar misbehavior is it much of a difference between if a student is disciplined with a suspension or not and found a very, very modest differential, which I think is frankly more reasonable that this notion that getting suspended for misbehavior itself is a major driver of negative outcomes.

 

In terms of the overall rate and ratio, I think this is something that’s important to try to wrap one’s head around as one assesses this. Ms. Harper referred to a study that claimed to kind of be able to identify the relative shares at which variables could be responsible for the ratio. There are other studies that come to other conclusions. I think it’s an open empirical question. There’s one study that says once you control for other misbehavior it’s basically zero. Other studies just say it shrinks dramatically. I think it’s unremarkable and reasonable to say that differences in teacher reaction to some degree factor into the disparities that we are seeing. Just the question then is to what degree and what policy conclusions can we draw from it.

 

What Dr. Del Toro suggested is potentially to a substantial degree and potentially to such a substantial degree that we should have a blanket policy of trying to curb teacher discretion altogether under the theory that within the realm of teacher discretion there’s vast latitude for discriminatory judgements that may be unjust and destructive. Now, if that’s wrong or if that’s overstated dramatically and we reduce discretion dramatically, we risk cutting into really prudent, sensible judgements that teachers making into kind of tying their hands and not allowing them to discipline students in such a way that they think would be best for their school classroom culture and in a way that they might be right about. This is what I fear and believe that the previous kind of approach to federal school discipline policy really did, I think entirely unjustifiably in terms of federal law, federal policy.

 

Arguments can be made for school districts to adopt this approach in general. And more school districts have than not in recent years regardless of whether or not this dear colleague letter was being implemented. But it is a decision that school districts should make not with an eye towards the overall numbers they are being pressured to try to produce but an eye towards what’s actually happening in the classroom and what are the teachers actually saying and how are the students actually responding.

 

Alison Somin:  Thank you. And last but not least Dr. Del Toro.

 

Dr. Juan Del Toro:  Yes. So thank you everyone for posing your questions. And one thing I guess I should take back. I don’t think I want to say that we should eradicate completely the role of discretion because I do know and am familiar that with discretion it was used to address a lot of zero tolerance policies because a lot of zero tolerance policies contributed to the high rate of suspensions for everyone. But I do think discretion should be limited for a lot of cases that may not necessitate a suspension.

 

For example, Kristen Harper described about dress code policies and some of the discrimination that went into it such as the way students wear their hair or cover up their hair. So I don’t think that a dress code policy or violating a dress code policy should warrant a suspension and leave educators open to have that option. The same thing with arriving to school late, if you arrive to school late, I don’t think it should be up to educators’ discretion to choose a suspension as a viable option to address that type of misbehavior.

 

Instead, why not just have a detention and have that kind of be the much more general, more applied for a lot of these nonviolent infractions that tend to contribute to a lot of African American students’ overrepresentation in suspensions? So it’s not that necessarily I think that we should eradicate it completely but rather just limit it, limit educators’ discretion to choose suspension for a lot of nonviolent, subjectively viewed violations. Thank you.

 

Alison Somin:  Thank you. I jotted down some questions of my own and will also if time permits turn to many of the fine questions asked in the panel Q&A. Dan, you led off your remarks at the beginning by talking about the extraordinary breadth of disparate impact and its lack of roots or apparent roots in the text of Title VI. I wondered if you could talk about whether you perceive this as potentially a nondelegation or vagueness problem.

 

Dan Morenoff:  Yeah. Okay. So it’s worth honing in specifically on the fact that we’re talking about Title VI because, while the same thing could have once been said about Title VII, Congress amended the statute in 1991. Without getting into the weeds of how it did, there is at least a statutory acknowledgement, however grudging, that disparate impact claims exist under Title VII, which makes it different. But there is not such amendment to Title VI.

 

Yeah. I do think that there’s a dramatic problem with the argument that it is possible for agencies to pass catchall, generalized disparate impact regulations. And to capture why, I’m going to point in part at your former boss and mine, Gail Heriot’s work on the vast breadth of disparate impact. Gail has a longstanding open bet, challenge to—I think it’s still open. I’m not actually sure—to find any potential rule that you could devise that has no disparate impact on any protected class. And as nearly as I can tell it’s never had someone actually win that bet by coming up with one. Even something as innocuous as a division of the alphabet in half, given the allocation of different ethnic groups with the regularity with which their names will show up at different letters winds up being something that has a disparate impact by race. Left-handedness winds up having a disparate impact based on race.

 

So if it’s the case that Title VI really does allow agencies to pass catchall disparate impact regulations and then decide on the fly which disparate impacts they care about and which they don’t or to do so through guidance, that is a transfer of basically the total authority to agencies to decide that anything at all is illegal, regardless of the fact that Congress never said so. It’s also a materially different regulatory regime if they have the ability to pick anything and to declare that it now falls under disparate impact rather than disparate treatment which directly triggers the major question doctrine. There are 50 million American children in public and charter schools currently. I find it hard to imagine that Congress chose to authorize the Department of Education to make up whatever rule it wants for how they should be disciplined without coming back to Congress.

 

This also ties into something, by the way, that Professor Del Toro was saying which was that it’s just a bad rule for people to be suspended because of a dress code violation. I might very well agree with you. There are a lot of really stupid rules that schools can put into place. And there are really stupid rules that a lot of schools have put into place.

 

But our question isn’t that. It isn’t “Is the rule stupid.” It’s “It’s a civil rights violation to have a stupid rule that winds up impacting different groups differently.” And if it wasn’t adopted with the intent of treating people differently and if it isn’t being administered unfairly, ignoring violations by some groups and taking the hammer to those in others, I think it’s really hard to argue that civil rights law has anything to say there other than that as a policy matter we shouldn’t do stupid things to our children.

 

Alison Somin:  Thanks. A question for both you and Max mainly, you alluded to having somewhat different understandings of what the current guidance package actually does. I wondered if you could tease that out a bit more. Where are we legally? How should school districts and regulated entities interpret this package in front of them? What should they be concerned about? Also, what avenues exist for litigation for those who are concerned that it authorizes unlawful behavior?

 

Dan Morenoff:  Who do you want to go first?

 

Alison Somin:  Either of you.

 

Max Eden:  I’ll take a stab at going first. I think Mr. Morenoff kind of neatly articulated the difference in saying what they’re doing and what they might actually be doing behind the scenes. I think right now any school district who looks at the discipline package will see a history of schools being investigated in part on the basis of disparate impact and see that those investigations ended when schools agreed to adopt the policy prescriptions of the Obama administration when it comes to school discipline. So I think the reasonable assessment from any given school district looking at that package is I’m probably going to be treated similarly to these other school districts whose investigations will resemble what they might do to me. So kind of the threat pressure on its face is still there.

 

We don’t actually know whether the investigations are being concluded in the exact same way as the Obama administration. The same people are in charge at the highest levels of OCR, so there’s reason to think that they might be. In terms of where the litigation opportunity is or what school districts might want to do to resist it, I’ll probably punt this to Mr. Morenoff at the end of the day.

 

But it did strike me when I was looking at the enforcement of this under the Obama administration that school districts didn’t really seem to be able to have a legal basis to object to the implicit grounds of an investigation and that those grounds could always be slightly shifted during the course of investigation itself so that any chance for litigation or legal appeal could only come after an adverse ruling which the point of these investigations is that an adverse ruling is basically never reached. It is that they are concluded under a voluntary resolution agreement instead of an adverse ruling, and then school districts don’t really have grounds to, I think, legally appeal to something that they voluntarily agreed to -- quote/unquote voluntarily agreed to.

 

Dan Morenoff:  So I’d flag a couple things. One, I would hope that school districts notice something else in the current pair of guidance packets. What I would hope that they hone in on is that while there are suggestions dropped throughout that you might want to track all your disciplinary decisions based on race/ethnicity -- by the way, I think they’re required to in the information reporting provisions anyway, so that’s not really -- but there is this suggestion you might want to look at how your policy is impacting different groups to make sure everyone is being treated fairly. And you might want to, but it never suggests you have to.

 

And the move from the 2014 version to this I think is actually material that we’ve gone from “you must,” “we will,” “if you don’t, we will pull your funding” to “you might want to think about it because” -- but that’s the kind of suggestion I would put in the class of hey, you might want to repaint the kitchen. You might. You might not. It might be a helpful suggestion. It might be unwelcome, but it never suggests you have to or that you’ll be held responsible if you don’t.

 

In the move by the same people from having said you must to if you feel like it, what I would hope schools would take from that is they no longer can force you to allocate your administrative decisions as to how you’re punishing individual children in order to produce a match to underlying demographics, and they know it. And they’re trying to avoid litigating it. So if they come knocking trying to force you to take that step, then you might in fact have something that is litigable.

 

On the other hand—and I know this was one of the anonymous questions that we had registered—given that this is what they’ve put in writing, no, there isn’t a currently pending litigation to challenge it because they haven’t said anything that’s arguably illegal. All they’ve said is here’s some of the stuff we did in the past. So you can’t challenge the applicability of we did some stuff. That’s definitionally not a policy statement or something that any court will hear, which means that we are in a situation where we have to have some school teed up by the department get to a point where they can actually say, no, that just isn’t the law, and we want to continue to treat our students fairly.

 

Alison Somin:  Thanks, Dan. This question is mainly for Dr. Del Toro and Ms. Harper. You’ve summarized your research talking about the limitations of suspension or other types of punishment. And I was struck that it seems like if one accepts this research at face value it seems to argue more for finding ways, whether it’s state, federal, or local level, to turn to your preferred methods of discipline policy. But it’s not necessarily obvious that discrimination law is the best vehicle to enact those changes or reforms but rather they should be done on a race neutral basis by willing school districts, local governments, or even if constitutional at the federal level. Can you respond to what you think of that?

 

Kristen Harper:  If I’ve understood your question, is civil rights enforcement only one tool in the toolbox? Absolutely. So just the parameters of this discussion are interesting. We are focusing on what I see as a sliver of the work to be done to address school discipline disparities in a couple of respects.

 

So a focus on discipline to address discipline, okay, that’s limited. A focus on improving school environments to improve behavior and improve discipline, okay, now we’re getting closer. A focus on communities where we’re not just thinking about -- we’re thinking about the resources available to schools, the supports that we’re providing to children, the supports that we’re providing to families, still further. But the gold standard for me is really thinking about intersections between systems, thinking about how our education systems collaborating/coordination with health systems.

 

So we spent a lot of time in this conversation talking about civil rights law. Sure. Civil rights law but also Medicaid, also what are the different strains placed on children that give rise to behavioral challenge? Criminal justice law, when we remove parents from the home, what does that do to children? Child welfare law. So honestly, that sounds huge and really difficult to wrap a head around. And I don’t expect a school or even a school district to immediately go to that level. But that’s the work truly. That’s the work. And so civil rights is an important tool, but we can’t rely on that exclusively, or we will run into problems.

 

Dr. Juan Del Toro:  Yeah. I just want to second that we’re only really talking a sliver of the issue in a sense of how a lot of these issues are very complex in nature. I kind of want to take a step back and think about teachers, not necessarily that always teachers who are engaged in disproportionate discipline practices are racist. Oftentimes, teachers rely on unconscious biases for a swath of factors. It could be because they’re just having a bad day, bad mood, and honest public school teachers are experiencing role strain because of increasing demands for their time. And these are adults where they only have 40 hours a week but yet are asked to work more than that, up to 60 hours a week. And because of that stress just from work strain, they could rely on unconscious racial biases unintentionally.

 

So we’ve really got to think about giving a lot of these schools a lot more resources, giving educators a lot more resources, considering smaller class sizes where they don’t feel like they have to make a decision really quickly. Because they have to oftentimes in the classroom make a decision very quickly, they begin relying on a lot of those biases and then feel like suspension is the most quickest means to control the classroom and the climate. So we’ve got to think about this issue not just kind of thinking about as issues in regards to injustice in policies and the school discipline but rather just thinking about the climate in general in school and how it necessitates more resources.

 

Alison Somin:  So Sam, I have a couple more questions, but I fear that we are at 3:00. Should I just give everybody a moment to offer some concluding thoughts and then we’ll wrap up for the day?

 

Sam Fendler:  That sounds great.

 

Alison Somin:  Okay. Thanks. So thank you to everybody for your thoughtful remarks today. If the panelists just want to go around in the original order and offer any concluding thoughts, I’d welcome that. Then we’ll turn it back to Sam.

 

Dan Morenoff:  Sure. Let me thank all of you for being here, Alison for your guidance throughout, and Sam for letting us talk. Look, I think the best takeaway here is that both Professor Del Toro and Ms. Harper have said that frankly civil rights is an utterly insufficient tool to use to address the real issues here. I entirely agree. This is framed this way entirely because it’s the tool the Obama administration pulled out of the toolbox to deal with the fact that the federal government has no say in these issues at all. There is a deeply unfortunate path dependency that has gotten us here, and I would love if we could instead address our problems directly and honestly rather than pretending that they’re civil rights issues. I hope we get there.

 

Kristen Harper:  The fact of discipline disparities by race is absolutely a civil rights issue, but it demands more than a civil rights solution. The fact that suspension can feed into such harmful education and life outcomes for young people means that every time we see a disparity of two times or more, we should be spurred to act. And in the face of people still having questions about whether or not this is worth acting on or whether or not it’s important or whether or not it's deserving of our focus, I’m not surprised to see this continued reach for civil rights enforcement as a way to get folks to sit up and pay attention. At the same time, I think the two biggest things folks need to pay attention to is the reality of difference in treatment by race in the administration of discipline and the need for increased capacity for schools, for states to begin to really address this issue.

 

Max Eden:  Yeah. I agree with Mr. Morenoff, disagree with Ms. Harper as to whether or not disciplinary disparities are a civil rights issue insofar as a “civil rights issue” is a rhetorical tool that frequently is a stand in for something that I really, really think is a problem and therefor think we should use strong measures to address. Yeah. Maybe I see how people think that, but in terms of kind of the law, I think that there is no civil rights issue presented unless there are students who are actually being treated differently on the basis of their race. That is the civil rights issue. And I fear -- and it’s a fear that I’ve had for almost more than a decade now, almost a decade now is that our effort to try to close these disparities which may be rooted more in student behavior than many advocates would like to admit will actually lead to providing students with a lot of latitude for misbehavior in schools which will do them far more harm than good.

 

Dr. Juan Del Toro:  Yeah. So my takeaway is go therapist before going militant. These are young children, adolescents, teenagers who are not like adults. And they’re not always conscious about how some of their silly misbehaviors as a means to acquire peer group approval or peer group acceptance could lead to a suspension or even more negative consequences. So just a friendly reminder that these are just young children who are engaging in silly misbehaviors that maybe should not always be deserving of suspension.

 

Sam Fendler:  Well, thank you very much to all of our panelists. I will say before we sign off dated today—and it may have happened while we were on this call—the U.S. Department of Education’s Office for Civil Rights issued a dear colleague letter on race in school programming. So we may need to bring this panel back together to discuss that. But on behalf of The Federalist Society, I want to thank all of you for joining us today. Thank you, Alison, for moderating such a great conversation. I want to thank our audience as well for joining us. We greatly appreciate your participation. Please, check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.