Don't Stop the Office for Civil Rights From Providing Strong and Fair Oversight on School Discipline

Jan 30, 2018 12:00:00 AM

by Paul O’Neill

We know that students of color and those with disabilities are  disproportionately suspended and expelled from public schools, whether in district or charter. The Civil Rights Data Collection (CRDC), compiled by the U.S. Department of Education, attests to this. It tells us, among other stark statistics, that African-American students without disabilities are more than three times as likely as their White peers without disabilities to be expelled or suspended. Although African-American students represent 15 percent of students in the CRDC, they make up 35 percent of students who have been suspended once, 44 percent of those suspended more than once and 36 percent of students who have been expelled. Further, over 50 percent of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American. Such inequity and its consequences are a crisis.

Disparate Impact

The U.S. Departments of Education and Justice sent that message in 2014 when they jointly issued a “Dear Colleague” letter designed to help public schools administer discipline in ways that do not discriminate on the basis of race. Much of that document focuses on “disparate impact” analysis. It describes how the Department’s Office for Civil Rights (OCR) conducts investigations. It shows how public school disciplinary policies and practices unfairly impact students of a particular race. Not everyone thinks it is a good idea for OCR to bring federal oversight into the realm of school discipline. Max Eden recently wrote that OCR investigations must stop because they impose a standard and process guaranteed to find schools at fault. He reads the 2014 “Dear Colleague” letter as establishing a presumption that impact equals discrimination, such that when someone challenging a school policy on discriminatory grounds demonstrates that a nominally neutral practice has a disproportionate adverse effect on a protected group, that essentially ends the matter. He concludes that this approach liberates OCR from determining whether a legitimate justification for the practice exists. Eden provides anecdotal support for this interpretation, but stops short of showing how OCR enforcement actions around disparate impact are simply rigged. Eden does raise a point worth remembering—that investigations and enforcement actions only protect civil rights and ensure fairness when they are neutral, provide an even-handed analysis and are based on a full range of evidence.

Let’s Not Go Overboard

To the extent that any OCR actions fail to follow these principles, they create inequity rather than remedy it. But even if such problems exist, his solution is far too drastic. He wants OCR to stop. No more oversight and enforcement of disparate impact. In this, Eden joins the voices of others ( including Michael Petrilli) who see federal involvement in such matters as overly bureaucratic and unnecessary. The reality is that we need OCR to provide oversight over civil rights issues. As recent, egregious civil rights violations in Texas attest, states have a mixed and often worrisome record of protecting such rights, and the federal government can shine a bright light on bad practices. OCR serves as an outside entity, a third party to whom parents can directly appeal when they believe their rights and those of their children are being abused. [pullquote position="left"]No other organization serves that function.[/pullquote] This is particularly important in the face of lopsided CRDC data showing that racial minorities and students with disabilities are so disproportionately suspended and expelled from school. It is hard to believe that such statistics would improve if the watchdog were removed. If, as Eden contends, OCR may be less than neutral in how it approaches disparate impact investigations and enforcement, that problem should be corrected—but not abolished. We cannot risk losing a crucial layer of support for families and children, especially those most vulnerable and in need of protection.

Paul O’Neill

Paul O’Neill is the co-founder and senior Fellow at the National Center for Special Education in Charter Schools. He is an education attorney, professor and author with extensive experience in guiding education organizations through challenges and growth. He advises schools, authorizers, networks, non-profits, government agencies and philanthropies on the rules and complexities that apply to educational organizations as well as on effective board governance. A graduate of Oberlin College, Paul earned his J.D. from the University of Virginia School of Law and his M.Ed. from Teachers College.

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