Quote:In 2014, then-President Barack Obama’s Education Department released school-discipline guidelines that insisted schools must discipline students of different races at the same rate, even if students of a particular race misbehave more often.

In 2018, President Donald Trump’s administration rejected those guidelines, providing a statement to Education Week that said: “In too many instances … the previous administration’s discipline guidance often led to school environments where discipline decisions were based on a student’s race and where quotas became more important than the safety of students and teachers. The Department’s decision to rescind that guidance makes it clear that discipline is a matter on which classroom teachers and local school leaders deserve and need autonomy. The Secretary has continued to encourage local school leaders to implement discipline reforms that they believe will foster improved outcomes for their students.”

Now, President Joe Biden’s Education Department is expected to reinstate those same race-based discipline guidelines, which civil rights attorney Hans Bader described as “unconstitutional racial quotas.”

Bader wrote that the guidelines were discussed at a May 11 event facilitated by the Education and Justice Departments. Speakers suggested Biden not only reinstate the Obama-era guidelines, but expand them. As Bader noted, the Obama guidelines “included a controversial ‘Dear Colleague Letter’ that told school systems they could be investigated by the Education Department for higher black suspension rates, even if suspensions were simply the result of ‘neutral,’ ‘evenhanded’ application of school discipline rules, rather than veiled racism.” Those who spoke in favor of expanding the Obama-era guidelines focused on “intersectionality,” or how one person can belong to multiple minority groups, such as a black transgender youth. Bader wrote that one transgender advocate who spoke at the event “viewed metal detectors and gun bans as unfair to transgender youth, given that they are disproportionately bullied and feel the need to bring guns to school to defend themselves.”

Bader also noted that multiple studies have shown that certain races have higher incidence of misbehavior – for a variety of factors, such as poverty. Further, the attorney wrote, basing discipline decisions on race is unconstitutional:

Because misbehavior rates are not the same for different racial groups, requiring schools to suspend all racial groups at the same rate would be an illegal racial quota. The federal appeals court in Chicago overturned a provision requiring a school district not “to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” It ruled such “racial disciplinary quotas” are illegal, and “violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty.” (See People Who Care v. Rockford Board of Education (1997).

Speakers at the event also claimed black students were more likely to be harshly disciplined for “minor, nonviolent, subjective infractions,” but as Bader pointed out, discipline data debunks the claim.

“The federal appeals court in Philadelphia pointed out in 1996 that ‘statistical data’ showed larger differences in discipline rates by race for major, ‘very objective’ offenses than for minor, ‘less objective’ offenses. Like several other courts, it did not accept the idea that higher black discipline rates are due to racism in the schools,” Bader wrote.