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Excerpted From: Erik J. Girvan, Towards a Problem-solving Approach to Addressing Racial Disparities in School Discipline under Anti-discrimination Law, 50 University of Memphis Law Review 995 (Summer, 2020) (371 Footnotes) (Full Document)
For countries like the United States, in which power theoretically rests with the people, it is critical that all citizens be educated so that, whatever their background, they have an equal opportunity to become responsible, productive, successful, and engaged members of society. If we take this goal seriously, our legal system should require districts and schools to actively identify threats to equal educational opportunities, and it should facilitate and support efforts by schools and districts that attempt to reduce or eliminate those threats.
Racial disparities in exclusionary school discipline pose a serious threat to equal educational opportunity. Across the United States, black students are disciplined at much higher rates than students from other racial and ethnic groups. A substantial body of research indicates that these disparities contribute to black students' increased risk for a variety of negative short-term and long-term educational and life outcomes, including poor academic engagement and performance, dropping out of school, under- or un-employment, and involvement with the criminal justice system. Further, while suspensions and expulsion from school may occasionally be necessary in order to preserve a safe, structured learning environment, research suggests that exclusionary discipline is often used unnecessarily and excessively. Schools can increase equity in educational opportunity by adopting policies that target the factors that contribute to students' violations of their schools' behavioral expectations and that address the overuse of exclusionary responses by teachers and administrators.
Federal anti-discrimination law provides some protection against racial disparities in school discipline. The primary sources of federal anti-discrimination law, however, are designed to address only the most direct and overt causes of such disparities. In doing so, they are too narrowly focused to require schools, districts, and states to consider the broad range of factors that may contribute to racial disparities in school discipline. And, as negatively framed prohibitions, anti-discrimination law does not facilitate, and may actually inhibit, efforts to develop and implement changes that are likely necessary to actually reduce or eliminate the disparities where they are found.
Anti-discrimination law could more effectively address complex racial issues like disparities in exclusionary school discipline if it created an affirmative duty to engage in a problem-solving approach focused on goals related to achieving equity. The question is, would it be feasible to do so? I argue that it is. To support the argument, I draw on the example and experience of the Individuals with Disabilities Education Act (IDEA). Since 2004, the IDEA has required states to use a problem-solving approach to identify and address “significant disproportionality” in discipline outcomes of students with disabilities based on their race. The basic framework of the IDEA can serve as an example for implementation of a broader problem-solving approach for anti-discrimination law. Experience implementing the framework, however, has also highlighted practical, legal, and methodological issues inherent in the assessment of racial disparities and evaluation of interventions to address them. Any effort to move anti-discrimination to law towards a similar framework must resolve these issues. Accordingly, building on research on measures of and approaches for resolving racial disparities in discipline, I propose an alternative approach. Using national school discipline data collected by the Office of Civil Rights in the 2013-14 and 2015-16 school years, I also show how this approach could operate in practice to make antidiscrimination law more effective at addressing these issues.
In Part I, I briefly review research on the extent, impacts, and causes of racial disparities in school discipline and the limitations of anti-discrimination law that might otherwise help address it. Part II describes the general structure of a problem-solving framework, how the IDEA applies such a framework to address racial discipline disparities, and the approaches states adopted to assessing racial disparities under the IDEA, including some of the problems with the approaches. Building on Part II, Part III discusses how the sheer variety of and specific methods incorporated into the state approaches to assessing racial disparities undermined the effectiveness of IDEA's problem-solving approach, the subsequent adoption by the United States Department of Education (DOE) of a standard method for identifying where interventions were needed, and some primary legal and methodological issues raised by the DOE's standard methodology. Finally, informed by the IDEA's experience, Part V presents an alternative method for identifying significant disproportionality and evaluating the efficacy of interventions, a method that also addresses the legal and methodological issues faced by the IDEA. In doing so, I demonstrate how anti-discrimination law might be made more effective at supporting equal educational opportunity by proscribing a problem-solving approach for addressing complex and persistent racial issues like disparities in school discipline.
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Racial disparities in exclusionary school discipline pose a serious threat to equal educational opportunity. The primary sources of federal anti-discrimination law, however, are designed to deter only the most direct and overt causes of racial discrimination. Meaning, they are not designed to effectively respond to this threat. Antidiscrimination law could more effectively address complex racial issues like disparities in exclusionary school discipline if it adopted a problem-solving approach. Since 2004, the IDEA has required states to use a problem-solving approach to identify and address “significant disproportionality” in discipline outcomes of students with disabilities based on their race. The basic framework of the IDEA appears to work well and thus, can serve as an example for implementation of a broader problem-solving approach for anti-discrimination law. Experience implementing the framework, however, has also raised practical, legal, and methodological issues regarding the assessment of racial disparities and evaluation of responses to them. In response, I propose and illustrate the operation of an alternative approach to identifying LEAs with significant disproportionality that addresses these concerns using a cluster of three measures. While this is a far cry from specific legislation, it does demonstrate that anti-discrimination law could be made more effective at supporting equal educational opportunity by addressing complex and persistent racial issues like disparities in school discipline.
Associate Professor, University of Oregon School of Law.
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