In January 2014, the Obama administration’s Departments of Justice and Education, acting together, sent every school district in the country a letter warning local officials to avoid racial bias when suspending or expelling students. The letter said that African Americans receive about 35 percent of one-time suspensions and about 36 percent of expulsions, even though they account for only about 15 percent of students attending public schools. The departments, citing the Civil Rights Act of 1964, gave the school districts “guidance on how to identify, avoid, and remedy discriminatory discipline,” telling them they risked legal action if school disciplinary policies had “a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.”
Despite the “Dear Colleague” greeting at the beginning of the letter, the document has more the odor of diktat than collegiality. At a press conference on the subject, then–Attorney General Eric Holder explained that guidance was needed because current disciplinary policies, “however well-intentioned they might be, make students feel unwelcome in their own schools; they disrupt the learning process.” Secretary of Education Arne Duncan claimed that racial discrimination in the administration of discipline is “a real problem today — it’s not just an issue from 30 or 40 or 50 years ago.”
Law professor Richard A. Epstein, however, questions the legal basis for the federal guidance. He says it “represents the worst in federal policy on K–12 education” in that it uses a dubious, extreme interpretation of the Civil Rights Act, for which there is no clear legal precedent, “to federalize all issues of discipline in the nation’s schools.”
But whatever its legal basis, does the Obama administration’s new policy have broad-based support? To find out, we at the Harvard Program on Education Policy and Governance have asked nationally representative cross-sections of parents, teachers, and the general public (as part of the ninth annual Education Next survey, conducted in May and June of this year) whether they support or oppose “federal policies that prevent schools from expelling or suspending black and Hispanic students at higher rates than other students.” Only 23 percent of parents favor the new policy, while 54 percent oppose it, with the remainder responding that they neither support nor oppose the idea. Among the public as a whole, opposition is just about as large, with 51 percent opposing the “no disparate impact” policy, and just 21 percent backing the idea.
A majority in favor of federal involvement in school discipline cannot be found among either Democrats or Republicans. Only 29 percent of Democrats like the new federal ruling, while barely 11 percent of Republicans give it their support.
Teachers are even more opposed to federal involvement in school discipline.
Teachers are even more opposed to federal involvement in school discipline. No less than 59 percent of teachers oppose federally mandated “no disparate impact,” while only 23 percent say they favor it.
Within the African-American community, a plurality of support for the federal policy can be found — 41 percent in favor, 23 percent opposed. But whites are overwhelmingly against an expanded federal role in setting school-discipline standards: Just 14 percent favor the new federal policy, while 57 percent oppose it. Among Hispanic respondents, those against federal “guidance” outnumber supporters by 44 percent to 31 percent.
Given the strong opposition to the policy among parents, teachers, and the general public, the federal government would be wise to drop further efforts to impose racially based rules for suspension and expulsion rates. But civil-rights attorneys at the Departments of Justice and Education are known for their activism, and a committed President Obama is eager to use all his putative executive power, whether or not it is well grounded in statutory law or judicial precedent. So the “Dear Colleague” letter may yet be followed up by stronger federal action. Should that happen and should school districts resist the pressure, they are likely to find a sympathetic audience both within and without the teaching profession.