The U.S. Commission on Civil Rights calls attention to pervasive racial disparities in student discipline in a new report, but is drawing criticism for a more controversial conclusion.
If true, that would mean systemic factors — including bias on the part of teachers, principals and others — explain the discipline disparities in their entirety. But there was little if any evidence in the report to back up the conclusion that there are no racial disparities in behavior.
“My very strong belief is that all of us have implicit bias. No one is exempt,” said the commission’s chair, Catherine E. Lhamon, who led the Office for Civil Rights at the Education Department during the Obama administration.
Other elements of the report are grounded in significant evidence, including its conclusion that students of color are disciplined at higher rates than their white peers and given harsher punishments for the same violations. The report also looked at students with disabilities, and students of color who have disabilities, and found harsher discipline for these groups.
Students with disabilities are about twice as likely to be suspended compared with those who do not have disabilities, the report found. Students of color with disabilities were more likely than white students to be expelled without educational services, it said.
The report also found that black, Latino and Asian students were more likely than white students to attend a school with a sworn law enforcement officer but not a school counselor. In the 2015-2016 school year, the report said, there were 27,000 schools that reported having an officer and just 23,000 who reported having a social worker.
The question of disparities in discipline has been a hot-button issue during the Trump administration. In December, the administration rescinded documents meant to guide schools in handling discipline. That Obama-era effort was aimed at reducing widespread racial disparities in how students are suspended, expelled and otherwise punished.
The guidance, which was not binding, put school systems on notice that they could be violating federal civil rights law if students of color were disciplined at higher rates than white students. It laid out scenarios and explained how they would be viewed by federal authorities. And it offered suggestions for alternatives to discipline that could foster positive school climates.
The Commission on Civil Rights recommended the Education Department again offer guidance on how schools can comply with federal nondiscrimination laws. It also advised that teachers be given resources and training to ensure there is no discrimination in discipline, and that Congress provide funding to help states ensure all schools have counselors.
Ahead of the report’s release, it was the conclusion about the underlying rates of misbehavior that stirred the most controversy.
Lhamon and her aides pointed to a few spots in the 224-page report to back up the claim that there are no underlying differences in student behavior. But those citations did not offer such evidence. One set of data referenced in the report showed the opposite, documenting small but statistically significant differences in behavior of black and Hispanic students, compared with whites.
Experts say it is unclear whether or why students of color may be more likely to display behavior problems. Possible explanations include the impact of poverty, family structure and systemic bias faced throughout life.
One of the commissioners who voted against adoption of the report, Gail Heriot, said she was disturbed by the finding that students of color do not commit more offenses warranting discipline than their white peers.
“The report provides no evidence to support this sweeping assertion and there is abundant evidence to the contrary,” Heriot, a law professor at the University of San Diego, wrote in her dissent. She said that denying that black and Hispanic students misbehave more often is a “slap in the face to teachers” because it suggests they are singling out students of color for punishment much more often without evidence.
She added that the commissioners who voted for the report had “misread” studies that find discrimination may account for some — but not all — of the discipline disparity. “To my knowledge, no researcher makes such a claim,” she wrote.
Asked about this, Lhamon recast the report’s finding to say the magnitude of the discipline disparities cannot be explained by behavioral differences alone.
“The Commission’s finding continues to be grounded in the data that reports that the statistical differences in reported discipline experienced by students of color is not explained by differences in behavior,” she said in an email.
Heriot was also critical of the findings about students with disabilities, saying that many of these students who are disciplined have disabilities that make them more prone to misbehavior. That, she said, explains some of the data showing they are more likely to be punished.
The report was approved by the commission on a 6 to 2 vote. Those voting for its adoption were appointed by Democrats, and the two voting against were appointed by Republicans. Lhamon responded to that split by saying the commission’s bipartisan makeup was a strength.
“People bring very strong views on the topic and have a forum in which to express them,” she said.