‘Zero Tolerance’ School Policies Are Dumb, But Are They Racist?

“Zero tolerance” school
policies are rightly despised by libertarians, who see perfectly
well-behaved children being harshly punished for harmless mistakes
and inoffensive behavior—such as accidentally bringing a
tackle box to school or
folding a piece of paper into a vague gun-like shape.

Lawmakers in some states are smartly easing up on the
codification of such policies, which force school districts to
suspend and even expel students over trivial slights. Even the
Obama administration has recommended reducing them.

Unfortunately, the Obama administration has also instructed
schools to stop disciplining students at all if such punishments
have a “disparate impact” on minority students. According to the
U.S. Department of Justice Office of Civil Rights Division’s
“Dear
Colleague” letter from earlier this year:

The administration of student discipline can result in unlawful
discrimination based on race in two ways: first, if a student is
subjected to different treatment based on the student’s race, and
second, if a policy is neutral on its face—meaning that the policy
itself does not mention race—and is administered in an evenhanded
manner but has a disparate impact, i.e., a disproportionate and
unjustified effect on students of a particular race. …

Schools also violate Federal law when they evenhandedly
implement facially neutral policies and practices that, although
not adopted with the intent to discriminate, nonetheless have
an unjustified effect of discriminating against students on
the basis of race.

The letter was poorly received by many education experts. For
one thing, it’s actually quite vague. Who determines whether a
disparate impact is “justified?” Surely it will be difficult for
teachers to maintain classroom order if punishing children for
actual misbehavior could trigger a civil rights lawsuit under the
“disparate impact” philosophy.

Nevertheless, Dr. Andre Perry wrote in
The Washington Post yesterday that the letter has the
right idea:

The real reason to stop expulsions is that, in the noble cause
of closing the black-white achievement gap, schools are insidiously
giving up on black children by expelling those who are considered
not ready to learn. While zero-tolerance expulsions myopically help
the school and the majority of students in it, they destroy the
student — and, ultimately, the community, too.

Zero-tolerance policies have many allies. Parents are often the
most ardent supporters. (If a kid injured your son or daughter,
you’d want expulsion, too.) Moreover, teachers and principals will
tell you that ridding the school of disruptive behaviors
accelerates achievement for the overwhelming majority of its
students. Educational leaders embrace no-tolerance policies on the
ground that they provide the greatest good for the greatest number.
…

That doesn’t mean Obama’s conceit is flawless.
It is important for schools to be able to
credibly threaten reprisals for the malcontents. Some
behaviors do warrant out-of-school time: Weapons
and schools don’t mix. Fighting may require separating a child from
the school to assess and calm a situation.

I get the sense that Perry is lumping many different policies
together under the banner of zero tolerance. Schools should stop
kicking kids out of class for dumb reasons—the quintessential
example is the “chewed
Pop-Tart into the shape of a gun” incident. All students should
be safe from this kind of nonsense, regardless of their skin
color.

It’s a little more problematic for the federal government to
broadly mandate that school districts move away from all
punishments that have a “disparate impact” on racial minorities,
however. For instance, suppose a school maintained a policy of
suspending students who were late to class three times. If that
policy impacted one racial group more than another, it could run
into trouble with OCR, even if it was enforced “evenhandedly”
against anyone who violated it.

Now, I happen to agree that school administrators use the
weapons of suspension and expulsion all too readily. That reality
is particularly harmful to minorities, as Perry points out. But
broad federal recommendations against all rules that cause
disparate impact seem likely to erode local autonomy and could
provoke unintended consequences, such as toxic classroom
environments.

In short, zero tolerance policies are bad, willy-nilly
expulsions are bad, abjectly racial policies are bad—but federal
education mandates are also (often) bad.