Prediction: Racial Quota for School Discipline Will Aggravate Zero Tolerance

Barbara Hollingsworth | January 14, 2014 | 2:04pm EST
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Education Secretary Arne Duncan (U.S. Dept. of Education)

( -- The Obama administration’s new “guidance package” aimed at reducing out-of-school suspensions and eliminating racial disparities in school disciplinary proceedings will not reduce or eliminate widely criticized “zero tolerance” policies but exacerbate them instead, according to a former Education Department lawyer.

“The irony is the more overbroad and sweeping and draconian your disciplinary rules, the less disparate impact you have, and they’re telling the schools you must get rid of your disparate impacts,” Hans Bader, now a senior attorney at the Competitive Enterprise Institute (CEI), told

A letter sent last week by U.S. Department of Education officials to school boards and administrators of the nation’s public schools stated that “students of certain racial or ethnic groups tend to be disciplined more than their peers."

“Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense — such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform; corporal punishment policies that allow schools to paddle, spank, or otherwise physically punish students; and discipline policies that prevent youth from returning from involvement in the justice system from reenrolling in school.

"Additionally, policies that impose out-of-school suspensions or expulsions for truancy also raise concern because a school would likely have difficulty demonstrating that excluding a student from attending school in response to the student's effort to avoid school was necessary to meet an important educational goal," the letter said. (See DOE Dear Colleague letter.pdf)

In a joint appearance with Education Sec. Arne Duncan to promote the new guidelines at a Baltimore high school last week, Attorney General Eric Holder also took aim at zero tolerance policies, stating that they “make students feel unwelcome in their own schools....Routine school discipline infractions should land students in the principal's office, not in a police precinct."

But Bader pointed out that that much-maligned zero tolerance policies were adopted by school districts precisely to protect themselves against charges of racial discrimination.  He characterized the new guidelines as a racial quota system that will inevitably result in harsher discipline for all students.

“These ideologues created Zero Tolerance Land because their disparate impact nonsense is what incentivized the schools to adopt them in the first place,” Bader told

“You really need a zero tolerance policy if you’re a school official because that reduces the risk of being accused of discrimination. You can say, ‘I treated every single student who had some type of not-permitted drug in school exactly the same way: I suspended or expelled all of them, whether it was, you know, marijuana, or heroin or Midol or something. And I treated the whites exactly the same as the blacks and because I disciplined so many people, I even got a fair number of white people.

“And it reduces their disparity, it gets rid of any individual differential treatment, it bullet-proofs their ability to avoid intentional discrimination charges, and it reduces their chance of being accused of disparate impact. That’s what zero tolerance does for you.

“And now Holder and the others are grandstanding and acting like they were the first people ever to realize that zero tolerance policies were bad, when it was in response to their kind of politically correct micro-management that made many school officials adopt these polices because these policies reduced relative racial disparities.”

Accusing administration officials of “talking out of both sides of their mouths,” Bader added that Holder and Duncan “are complaining about some of the very phenomena they and their ideological ilk caused through their obsession with the numbers and disparate impact and different percentages of different groups ending up in the principal’s office.”

“Essentially they’re scapegoating the principal for these different infraction rates that reflect societal realities. It’s not the school official’s fault that you have kids growing up in households where’s there’s not much discipline or order,” Bader told

“The PR spin on this is that they’re taking aim at overly harsh punishments, but the underlying reality is that the disparate impact theory that they’re interpreting Title VI (of the Civil Rights Act) to include itself incentivizes overly broad, overly harsh, and overly rigid disciplinary policies, because if you subject everybody to the exact same draconian punishment, no one can say they were treated differently,” he pointed out.

“They claim they’re just interpreting federal law as it is,” Bader added, but said Education Department officials are trying to use a regulation to “undermine Title VI of the statute, which says you can’t use race at all.” However, he predicted that “they’ll get away with it” because school districts will be threatened with a loss of federal funds if they do not comply with the new disciplinary guidelines.

“Another irony is that of course they’re never going to apply this to gender where there actually might be some evidence that teachers occasionally have a bias against boys,” Bader said. “They’re only applying this to race where it serves their politically correct agenda.”

The CEI attorney says that schools will eventually clamp down even harder on all students to protect themselves, including those who would not have been considered disciplinary problems in the past.

“As a practical matter, the school systems will engage in federal racial preferences in student discipline, and temporarily some of them will cut back on harsh discipline because, you know, the administration makes it sound like harsh discipline is what annoys them. But that’s only temporary,” Bader predicted.

“In the long run, they’re going to be more rigid in how they discipline people, because as I said, zero tolerance rules have less disparate impact than more nuanced rules and they’re less likely to give rise to discrimination charges because you treat everybody the same, and you have somewhat less relative bottom-line racial disparity because so many people are tossed into the disciplinary hopper.”

Because just “sheer raw percentages,” and not evidence of intentional racial discrimination, is enough to trigger a charge of disparate impact, Bader accused the Obama administration of “playing a cynical game” and putting the nation’s schools in a no-win situation.

“If they get rid of these zero tolerance policies, you know what the Education Department will turn right around and do in five or 10 years? They’ll say you’re leaving too much discretion in the hands of the principal.

“If you look at disparate impact case law in workplaces, there’s not a single successful challenge I know of to a zero tolerance workplace policy for disparate impact…What the lawyers do is, they force zero tolerance polices effectively because they sue over leaving subjective discretion in the hands of the manager. That’s what the Wal-Mart case was all about….

“It’s not like you can drop the zero tolerance policy and they won’t sue over disparate impact. They just sue you for leaving too much discretion. They sue you for the exact opposite thing they were complaining about earlier.”

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