New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights

The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline.  It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public.  They, more than attorneys and policy wonks, seem to be the intended audience.  It also includes some clear "how to" steps, aimed at minimizing the effects of bias.  LDF offered this in their press release:

The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.

“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”

Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline.  As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students.  Sadly, little progress has been made in reducing these disparities.  In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.

The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.

New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.

“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”

Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.

The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.

Read the full report here.

The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues.  The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline.  Pursuant to that guidance, the Office forced corrective change in a number of school districts.  The question now is whether Marcus would continue that policy.  Here are a few exchanges from the hearing.

 

"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.

"In general, the answer is yes," Marcus said.

Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.

"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."

 "I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"

Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.

"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.

His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right.  And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting. 

With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration.  I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid.  Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.

He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge.  And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors.  To be fair, however, the  legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear.  This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends. 

Am I happy that he will lead the Office?  Absolutely not.  Do his pet projects bother me? Absolutely yes.  Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate?  Absolutely yes.  In short, he is a mixed bag.