As Andrew Coulson explained, the federal Justice Department and Department of Education have sent out a “Dear Colleague” letter discouraging schools from pursuing strict discipline policies against student misbehavior, especially against “routine” or “minor” infractions; Education Secretary Arne Duncan cited tardiness and disrespect as examples of the latter.
Assuming that the federal government has somehow acquired the legitimate constitutional authority to begin dictating the fine points of disciplinary policy to local schools in the first place—a big if—it might seem at first that much of this is innocuous. Some early press coverage, for example, makes it sound as if the letter is mostly aimed at obtaining a reconsideration of zero‐tolerance policies (long criticized by libertarians) as well as the sorts of suspensions and expulsions that are based on far‐fetched dangers like finger guns or forbidden hugs.
Unfortunately, there’s much more. The letter represents the culmination of a years‐long drive toward imposing tighter Washington oversight on school discipline policies that result in “disparate impact” among racial or other groups. Policies that result in the suspension of differentially more minority kids, or special‐ed kids, will now be suspect—even if the rate of underlying behavior is not in fact uniform among every group. (Special‐ed kids, for example, include many placed in that category because of emotional and behavioral problems that correlate with a higher likelihood of acting out in misbehavior. Boys misbehave more than girls.)
In 2012 Senate testimony, Andrew Coulson noted:
- Compared with the alternatives, the use of out‐of‐school suspensions appears to improve the learning environment for other (non‐disciplined) students by protecting them from disruption.
- Zero‐tolerance policies were adopted in the first place in part as a way for administrators to try to defend themselves against disparate‐impact charges. In other words, the new supposed remedy (disparate‐impact scrutiny) helped cause the disease to which it is being promoted as the cure.
If the policy helps speed the correction of some overly harsh, mechanical school policies (both under the zero‐tolerance rubric and otherwise), it may have some positive side effects. But the disparate‐impact premise is a pernicious one that’s sure to create many new problems of its own.
C/P and adapted from Overlawyered.