An epistemological and Biblical analysis: Charter Schools are the Devil

Differential Discipline as a Civil Rights IssueS. Rich

ASLS 601: Contemporary Issues in Urban Education

Ripped from the Headlines:Upper Dublin School District Monday, November 23, 2015: Upper Dublin (Pennsylvania) parents filed a

complaint (through the Public Interest Law Center of Philadelphia) with the Department of Education’s Office of Civil Rights.

Allegations included: During the 2014-2015 school year, black enrollment in the Upper Dublin School

District represented 7.3% of students. Those students received nearly 45% of out-of-school suspensions.

During the 2013-2014 school year, black students received 48% of out-of-school suspensions.

During the 2012-2013 school year, black students received 63% of out-of-school suspensions.

Ripped from the Headlines:Upper Dublin School District Monday, November 23, 2015: Upper Dublin (Pennsylvania) parents filed a

complaint (through the Public Interest Law Center of Philadelphia) with the Department of Education’s Office of Civil Rights.

Allegations included: During the 2014-2015 school year, no black students were enrolled in gifted-

education programs at the elementary level. No black students were enrolled in gifted-education programs in sixth grade

either. Some data (some anecdotal) suggests that black students are being

recommended for honors classes at lower rates than are white students.

Part I: Legal Foundations

Laws under which civil-rights suits have been filed…

The 14th Amendment

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14th Amendment to the U.S. Constitution, was passed by the Congress in 1866. It was ratified by a sufficient number of states in 1868.

The Civil Rights Act of 1866: Section 1

“… citizens, of every race and color […], shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens […], any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Civil Rights Act of 1866 was passed to clarify the intent that all citizens were supposed to have equal access to all legal rights (and punishments) as white people.

The law did exempt untaxed Indians and those who’ve lost legal rights after committing a crime.

The Civil Rights Act of 1866: Sections 2+

“… any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.”

“… it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act.”

The law made it a misdemeanor to refuse rights, or to provide different rights, in violation of Section 1.

It also made it criminal to interfere with an investigation into violations of Section 1, and went so far as to give the President the right to use the Army, Navy, or state militias to enforce Section 1.

The Civil Rights Act of 1871

“... any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States shall... be liable to the party injured.”

The Civil Rights Act of 1871 permitted civil remedies against acts of discrimination.

The Civil Rights Act of 1964

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race-based discrimination in programs which involve Federal backing; this includes public-education.

Part II: Scope of the Problem

How significant is the question of differential discipline in schools?

Skiba et al., 2011

A study of over 4000 K-9 schools in the 2005-2006 academic year found significant differences in discipline referral by race.

School

White Students Black Students

Enrollment

Referrals

Enrollment

Referrals

K-6 45.5% 34.3% 25.8% 43.0%

6-9 54.5% 33.6% 21.9% 41.7%

Butler et al., 2012

A study of a school district with 44 schools, serving 32,183 students, also found significant disparities.

Students Referrals

Exclusionary

Sanctions

Black students 76.7% 80.9%

White students 23.3% 19.1%

Additional Statistics As many as one in five black students are suspended in a given academic

year.(Gregory, Skiba, & Noguera, 2010)

This phenomenon happens even in high-performing schools, where black students are suspended at rates more than double their white classmates.(Gregory, Cornell, & Fan, 2011)

One study found that the exclusionary sanctions given to Black students in one school district resulted in more days missed (3,714) than there were Black students enrolled (3,587).(Lewis, Butler, Bonner III, & Joubert, 2010)

Maryland-SpecificThese numbers exclude Special-Education students.

It seems inconceivable that black students should be more than twice as likely to deserve disciplinary sanctions.

Student 2009-2010 2010-2011 2011-2012

% suspended

Days

% suspended

Days

% suspended

Days

Black 9.3% 3.9 9.1% 4 8.8% 3.9

White 3.8% 3.2 3.7% 3.1 3.2% 3.5

Maryland-Specific In the 2011-2012 academic year, black students in Baltimore City received

exclusionary punishments 2.93 times as often as white students did.

In the 2011-2012 academic year, black students in Baltimore County received exclusionary punishments 2.79 times as often as white students did.

Part III: Court Responses to SuitsThe Courts have not been supportive of claims of discrimination.

Plessy v. Ferguson

“Slavery implies involuntary servitude -- a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services.”

Plessy v. Ferguson (1896) held that discriminatory laws were Constitutional.

Justice Henry Billings Brown noted that they did not violate the Fourteenth Amendment because discriminatory laws were clearly not re-instituting slavery.

Plessy v. Ferguson

“It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.” Plessy v. Ferguson (1896) held

that discriminatory laws were Constitutional.

Justice Joseph Philo Bradley as well argued that not all acts of discrimination were covered by the Fourteenth Amendment.

Plessy v. Ferguson

“We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” One last quote from the Plessy v.

Ferguson decision.

Brown v. Board of Education

“We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

The Brown v. Board of Education of Topeka decision in 1954 reversed the Plessy v. Ferguson decision. It declared that racial discrimination in public education was not Constitutional.

The term “Separate but Equal” was used in the dissent in Plessy v. Ferguson.

Hawkins v. Coleman

This 1972 case alleged that discipline (suspensions and corporal punishment) were dispensed in ways which were racially discriminatory and violated due-process requirements.

The Court’s statistical consultant found that in all areas there was a statistically significant difference between black and white discipline.

Year White Students Black Students

Enrollment

Suspensions

Enrollment

Suspensions

1972-1973

50.4% 30.2% 38.7% 60.5%

1973-1974

47.2% 31.4% 40.9% 59.4%

Hawkins v. Coleman

“Having determined there is a significant disparity between the blacks and whites disciplined, it now becomes necessary to determine the reasons for this disproportion. An examination of suspension and corporal punishment data for the years 1972-73 and the first half of 1973-74 shows that 60% were for such offenses as truancy, class cutting, talking back to the teacher, or other non-violent conduct.

“As a part of his investigation Dr. Kestler visited six schools where white students outnumber black students. It was his conclusion from his visits and his calculations that the DISD applied discipline in a racially biased manner. Dr. Kestler noted there was a substantial reliance upon non-violent ‘offenses’ as a justification for suspension when, in fact, such conduct may be a pivotal ethnic characteristic. The primary reasons, he said, for student suspension are ones that are highly susceptible of selective perception and selective prosecution.”

A separate expert opinion presented that institutional racism was likely the root of the disparity.

He also noted that most of the offenses resulting in discipline are subjective and this potentially capricious.

Hawkins v. Coleman

“The defendants presented no evidence to rebut the testimony [of the expert witnesses] that racism exists within the DISD and contributes to the suspension of black students… Defendants offered no evidence to establish that any administrator is currently assigned the responsibility of implementing a remedy that will eliminate the current racial application of the suspension policies. Although … DISD administrators and officials have been aware of the problem since the compilation of the 1971-72 school year suspension statistics, no affirmative countervailing action has been taken.”

The school district did not rebut.

Hawkins v. Coleman

“No court can decree a change in attitude. That is something within the individual. Put briefly, there must be a real effort on the part of everyone involved to accentuate the positive while at the same time eliminating the negative effects of ‘white institutional racism’… While not attempting to dictate the details of an affirmative program this Court does direct the DISD to review its present program and to put into effect an affirmative program aimed at materially lessening ‘white institutional racism’ in the DISD.”

“This Court will not detail such a program as the Court has no intention of taking from the School Board or the Superintendent and other officials the running of the schools.”

The Court declined to order any specific remedy. It directed the school district only to review and improve its policies.

Sweet v. Childs This Florida case alleged disproportionate

discipline, stemming from fights and racial confrontations in January of 1972. Plaintiff failed to respond consistently to motions, and the case was ultimately dismissed with a summary judgment in favor of the school district.

The court based their reasoning on the fact that the suspension procedures did permit due process, with expulsion hearings scheduled in advance, with students provided the opportunity to be present and to present witnesses.

This case has become significant because it established that to allege that racially discriminatory practice must come from a racially discriminatory intent.

“In Florida, the State Board of Education and the county school boards are both constitutionally created. Statutory law vests the State Board with overall policy-making authority, while the local school boards are invested with authority to adopt rules and regulations for the ‘control, discipline, and suspension of pupils’ and to ‘decide all cases recommended for dismissal.’ As pointed out by the district court, finally, the Florida Supreme Court has viewed the area of student "conduct and discipline" as "vested primarily in the county boards.’”

Tasby v. Estes

“Finally, the plaintiffs contend that the DISD's administration of student discipline unconstitutionally discriminates against black students. In their view, statistical evidence showing disproportionate punishment of black students in the DISD and prior judicial findings of racially discriminatory enforcement of disciplinary procedures combine to establish a prima facie case against the school district…

“Official conduct is not unconstitutional merely because it produces a disproportionately adverse effect upon a racial minority. The decisions of the Supreme Court in many contexts reiterate the basic equal protection principle that the uneven consequences of governmental action claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.”

Filed in 1979, again against the Dallas Independent School District, alleging discriminatory discipline practices and due-process violations.

The Court determined that there were no due-process concerns.

However, this case cemented that statistical information is not sufficient, even if overwhelming. There must be intent to discriminate.

Alexander v. Sandoval

“Second, it is similarly beyond dispute—and no party disagrees—that [the Civil Rights Act of 1964] prohibits only intentional discrimination.”

This 2001 Supreme Court decision (in a non-education context) does cement that discriminatory practices must have discriminatory intent in order to be unconstitutional.

Alexander v. Sandoval

“Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under [the Civil Rights Act of 1964].  We therefore hold that no such right of action exists.”

The case also eliminated the previously-understood right to sue privately for violations under the Civil Rights Act of 1964.

Where to go from here?