Thursday, May 3, 2018
The joint policy guidance on racial disparities by the US Department Justice and US Department of Education has been under intense debate for the past few months. The Parkland school shooting only fanned the flames, as those who believed the federal guidance is an overreach irresponsibly argued that laxity in school discipline may have been a cause of the shooting. Then Secretary DeVos hosted listening sessions on the guidance.
Those who oppose the guidance would have us believe it is the cause of enormous evil, forcing teachers to leave disruptive students in the classroom and undermining the academic achievement of everyone else. That is a hard pill to swallow for two reasons.
First, the guidance does not prevent schools from punishing anyone. They are free to remove students from the classroom as often as necessary to protect the learning environment. Nor are they prohibited from suspending students. All the guidance does is trigger an inquiry when data shows that a school is suspending one racial group at a much higher rate than others.
But the disparity alone does not demand a remedy. If the school shows that there is a legitimate reason for the disparity and the suspensions are necessary, they don’t have to change their practices. In other words, the school that treats students fairly in discipline need not worry. And in these respects, the guidance did not do anything new. It simply put districts on notice of what the administrative law has always been.
Second, even if the guidance did something new, it was well justified by what we know about school discipline. More than a decade of social science demonstrates that harsh discipline policies don’t help anyone. The harm to suspended and expelled students is pretty obvious. But studies show that innocent bystanders are harmed as well. Harsh and racially inequitable discipline practices erode relationships between students and teachers, creating an environment that undermines rather than reinforces learning. In fact, when students perceive discipline as authoritarian, students begin to resent school leaders. The schools with the highest student achievement are those that proactively address student misbehavior through means other than suspension and expulsion. They try to minimize the incidents of serious misbehavior before they occur rather than addressing them reflexive after-the-fact through harsh punishment.
I don’t doubt that some schools have struggled to transition to discipline systems that are less reliant on suspension. But the fact that they have struggled with the transition to new policies does not mean their old policies were better. Yet, this is logic of those who want the federal guidance withdrawn.
In April 2018, the US GAO—the non-partisan fact based federal agency that provides information to Congress—released a report on discipline. The basic data is pretty shocking:
Black students, boys, and students with disabilities were disproportionately disciplined (e.g., suspensions and expulsions) in K-12 public schools, according to GAO's analysis of Department of Education (Education) national civil rights data for school year 2013-14, the most recent available. These disparities were widespread and persisted regardless of the type of disciplinary action, level of school poverty, or type of public school attended. For example, Black students accounted for 15.5 percent of all public school students, but represented about 39 percent of students suspended from school—an overrepresentation of about 23 percentage points.
This led critics to jump up and down, shouting that disparities don’t prove anything. That may be true, but again, the federal guidance doesn’t demand a policy change based on numbers alone. It asks that we look behind the numbers. And numbers of this magnitude do give us an extremely compelling reason to “look under the hood” of the district’s data.
Again, let's just look at what we have seen in the last month. Christie Norris and Erwin Chemerinsky's new amicus brief explains,
Race and other related variables are consistent predictors of how discretionary decisions are made with regard to school discipline. But how does such discretion result in outcomes that are racially biased? Heilman and Haynes note,
The answer lies in the links between stereotypes, the expectations they engender, and the subsequent impact of those expectations on cognitive processing and evaluative judgements. It is in the last linkthat the role of subjectivity is critical; the greater the subjectivity, the more opportunity for stereotype-based expectations to influence evaluative judgements.
(Heilman & Haynes, Subjectivity in the Appraisal Process: A Facilitator of Gender Bias in Work Settings in Beyond Common Sense: Psychological Science in the Courtroom (Borgida & Fiske edits., 2008) p. 127.) For example, Skiba et al. claim that the racial disparities in school discipline may be at least partially explained by teachers’ misperceptions in that “[t]eachers who are prone to accepting stereotypes of adolescent African-American males as threatening or dangerous may overreact to relatively minor threats to authority, especially if their anxiety is paired with a misunderstanding of cultural norms of social interaction.” (Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment (2002) 34 The Urb. Rev. 317, 336.6)
Stereotypes reflect a “mental association about a person’s attitudes or actions based on the person’s membership in a group.” This can be an important psychological tool for our minds, as it keeps people from having to encounter each new situation without the benefit of prior knowledge or experience. This not only prevents psychological exhaustion by conserving cognitive exertions, but the ability to make quick and non-conscious associations can help protect people from dangerous situations. For example, the association most people make between a glowing red stove top and being burned helps them automatically and unconsciously avoid harm without having to re-process these variables every time they enter a different kitchen.
However, in a society where the prominence of race and racism in everyday life makes derogatory associations with racial minorities seem like common sense, the proverbial glowing stove top that elicits an automatic association with danger can easily be a child of color in a classroom. This automatic, unconscious association of a group of people with a stereotyped behavior is known as implicit bias – a contrast to explicit bias where people knowingly and consciously choose to discriminate against people because of an association made with their group. Since “human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning,” implicit bias has been shown to have an impact in virtually every social situation. (Levinson, Racial Disparities, Social Science, and the Legal System in Implicit Racial Bias Across the Law (Levinson & Smith edits., 2012).) This includes criminal justice and sentencing, employment, and health care. (See generally Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier (Jan. 31, 2017) 126 Yale L.J. Forum8; Krieger & Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment (July 2006) 94 Cal. L.Rev. 9979; Chapman et al., Physicians and Implicit Bias: How Doctors May Unwittingly Perpetuate Health Care Disparities (Nov. 2013) 28 J. Gen. Internal Med. 1504.10)
Each of these examples involves institutions where administrators – judges, managers, physicians – interface with the public and exercise considerable discretion in performing their duties. While the principles that they apply – sentencing guidelines, hiring heuristics, clinical protocols – are often facially race neutral, the exercise of professional discretion coupled with pre-existing stereotypes interact to produce differential outcomes for people of color that lead to documented disparities in sentencing, employment, and clinical care. As discussed in in Part I(A), this same pattern exists in school discipline. Extensive research links this racial discipline gap to the toxic combination of discretion and implicit bias. (See Staats, Implicit Racial Bias and School Discipline Disparities: Exploring the Connection (May 2014) Kirwan Institute Special Report.11) When organizations give administrators wide discretion, the socially produced implicit associations that they harbor at an individual level (for example, the belief that Black people are more violent than members of other racial and ethnic groups) can influence decision making in a way that is disproportionately unfavorable to those who they subconsciously dislike and/or fear, i.e. children of color.
With data and science like this, school discipline policy should not be a partisan issue. Well, again, Minnesota just recently showed us that it is not. A new Minnesota Department of Human Rights study showed that
students of color received 66 percent of all suspensions and expulsions despite making up 31 percent of the state’s public school enrollment. Only 14 percent of Minnesota students have a disability, but they accounted for 41 percent of those types of discipline incidents.
The disparity falls the hardest on black and Native American students. Native students are 10 times as likely to be suspended or expelled as whites, and black students are eight times as likely.
When the results came out, the state did not fight about it. The state senate scheduled a hearing and, according to local reporting,there is bipartisan support for "more resources for mental health and counseling, improved training for educators and less punitive consequences for students who act out."
--on Twitter @DerekWBlack