A statue of Thomas Jefferson stands in front of the Rotunda at the University of Virginia in Charlottesville on Friday June 10, 2016. (Photo by Norm Shafer/ For The Washington Post).

A new federal analysis of data on how students are disciplined in K-12 schools found that black children were far more likely than their white peers to suffer consequences for their actions in 2013-14, and the report noted that “implicit base” may be a cause.

Such K-12 data is routinely collected and analyzed by the federal government but the same thing doesn’t happen in higher education. In this post, Ben Trachtenberg, an associate professor of law at the University of Missouri, explains why he thinks that’s a problem.

Trachtenberg has published  work in the Florida Law Review, the Oregon Law Review, the Hastings Law Journal, the Nebraska Law Review, the New York Times, and the ABA Journal, among other publications. And he has won a number of teaching awards. In 2012, he received the Gold Chalk Award for excellence in teaching from the University of Missouri Graduate Professional Council.  In 2014, he won the Provost’s Outstanding Junior Faculty Teaching Award, and in 2015, he received the Husch Blackwell Distinguished Faculty Award from the School of Law.

By Ben Trachtenberg

The University of Virginia has observed racial disparities in its student discipline system for decades, but most colleges and universities do not even bother to collect data that would allow them to discover similar problems. Meanwhile, as elementary and secondary schools grapple with data showing how implicit bias causes black students to be disciplined at schools far more often than whites, colleges and universities refuse to examine bias on their own campuses.

For years, the U.S. Department of Education has collected and published data showing racial disparities in K-12 student discipline. Higher education institutions, by contrast, mostly do not keep (much less share) data on the demographics of students failing university discipline. In a recent paper, I document reasons to believe that university discipline may discriminate, and I suggest that increasingly muscular Title IX enforcement (launched for laudable reasons in response to serious, real problems) may exacerbate the problem.

The first reason for worry is straightforward. If we see bias in K-12 discipline, and we see bias in the criminal justice system, why wouldn’t we expect to find bias in campus discipline systems? After all, university students, staff, and faculty have the same biases and blind spots observed off campus, and racial bias is well documented in other areas of higher education.

For example, in one study, professors receiving unsolicited requests for advice were much more likely to respond to messages from white students than from students of other races. (The emails were sent by researchers and were identical other than the names of fictitious senders, who were given names that accorded with racial stereotypes, such as “Lamar Washington” and “Brad Anderson.”)

In addition, studies of K-12 discipline have found greater racial disparities for vague offenses (such as “disrespect”) than for clear-cut violations like smoking. One theory is that when teachers use subjective judgments to decide whether a student’s disrespect merits punishment, implicit racial bias affects the results. Even if most or all teachers try to treat everyone fairly, unconscious attitudes toward students of different races lead to more black students with suspensions.

In the university context, we have some offenses that are clear-cut, such as serving alcohol to underage students. And we have others that are less clearly defined, such as sexual harassment. Defining harassment is complicated enough in the workplace. On a college campus, where one cannot easily separate one’s “job” from one’s “home,” it seems quite likely that unconscious biases will affect which students are reported for harassment.

Keep in mind that the racial disparities observed at the University of Virginia relates to its Honor System, not its Title IX process. In other words, even for academic dishonesty, which in many cases is fairly straightforward to diagnose, UVA finds black students (and international students) facing disproportionate charges. When we inject America’s racialized attitudes toward sex and dating into the mix, perhaps even more disparity will result.

I am not alone in worrying about racial bias in campus discipline. Students alleging racial discrimination in their own university punishments have filed lawsuits against Amherst College, the University of Pennsylvania, and other schools. Universities may eventually reveal in discovery the statistics they have so far kept hidden (or uncollected).

Of course, perhaps I am mistaken, and the data will show that college students of all races face institutional discipline at similar rates. That would be excellent news. For now however, universities seem to believe that by not collecting data, they can avoid reckoning with possible racial injustice.

In other areas, universities are making real efforts to confront racial bias. For example, when I served on the committee that vetted candidates for my university’s recent chancellor search, committee members attended a presentation on how racial and gender biases can affect evaluations of possible hires. Student orientation at Mizzou includes information about cultural competency and the value of meeting students from different backgrounds. And universities work constantly to recruit classes boasting diverse members.

University professors have conducted important research about racial bias in K-12 school discipline. It’s time for us to consider whether we have problems even closer to home.