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Exposing the Myths Opposing Restorative Discipline in Oakland Unified School District

November 1, 2012

Rebecca Kelly Arnold

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On September 27, 2012, the Oakland Unified School District (OUSD) and the U.S. Department of Education (ED) negotiated a Voluntary Resolution Plan (VRP) to address the harsh and disproportionate discipline of Black students in the District.

In a recent article, “Obama Administration Imposes Racial Quotas on School Discipline in Oakland,” Hans Bader raises specific concerns about ED’s creation of what he deems “racial quotas” for the District. He also demonstrates skepticism as to the inaccuracy of racial disparities in school discipline and the role of the government in addressing those disparities.

We believe that every student is entitled to equal access to quality education regardless of race; therefore, a claim that this opportunity is being intentionally manipulated through government mandate is a serious assertion that must be addressed. This posting will explain the requirements of the VRP and address the inaccuracies of Bader’s article.

What Does the Voluntary Resolution Plan Require?

The VRP does not in any implied or express terms require the district to stop punishing Black students who are in violation of school rules or to excessively punish White students. The VRP does recognize a disproportionate number of Black students being removed from school and require an overall transformation of the discipline policies that will reduce exclusionary discipline for all students with the goal of decreasing the racial disparity in school discipline.

The investigation of OUSD by ED concluded that Black boys in Oakland were being suspended six times the rate of White boys. Among the Black male students suspended multiple times, 44 % were removed solely for the infraction of “defiance of authority.” Additionally, while no White students were expelled from OUSD in 2011-2012, Black students accounted for 61% of the students who were expelled, which is more than double the percentage of their enrollment in the district.

The VRP addresses this issue by focusing on replacing suspensions with restorative justice and positive behavior intervention practices. The policies under the VRP promote personal accountability among all students. Student training “will emphasize not only the consequences and procedures associated with non-compliance with the disciplinary code, but also provide guidance and positive reinforcement regarding appropriate behavioral standards, including resources to assist in developing self-management skills.” This strategy will improve behavior and cooperation for all students. These practices have seen reductions in out-of-school discipline in other states. For example, Denver Public Schools’ use of restorative justice practices has resulted in a 40% reduction in out-of-school suspensions. In West Philadelphia High School, there was 50 % decrease in suspensions, along with a 52 % reduction in violent and serious acts during the 2007-2008 school year due to implementation of restorative justice practices.

As OUSD voluntarily moves forward with its new discipline policies, ED will monitor the District’s progress. ED will not be responsible for developing or implementing the new policies.

Debunking Bader’s Myths

MYTH # 1: Black Students Misbehave More Than Their White Peers

Bader claims that racial disparities in student discipline rates “reflect higher rates of violence and other disruptive conduct among African-Americans,” which he supports by discussing an article that puts forth homicide rates for varying races ages 14-17.  In addition to embracing disturbing racial stereotypes, this assertion ignores evidence that the offenses that are most often triggering disproportionate exclusionary discipline are non-violent.

Numerous studies confirm that Black students are no more likely than students of other races to commit serious offenses that require removal from school. Daniel J. Losen and Jonathan Gillespie, Opportunities Suspended: The Disparate Impact of Disciplinary Exclusion from School (noting that “research on student behavior, race, and discipline has found no evidence that the over-representation of Blacks in out-of-school suspension is due to higher rates of misbehavior”); The Council of State Governments & Public Policy Research Institute, Breaking Schools’ Rules: A Statewide Study of How Discipline Relates to Student Success and Juvenile Justice Involvement (finding in an analysis of Texas’ student population that “African-American students were no more likely than students of other races to commit serious offenses that mandate that a student be removed from the campus”). 

What Leads to Disproportionality?

Bader contends that acknowledging inequity in the fact that discipline is given out unevenly must be a subtle accusation of “racism;” however, the issue is more complex. Vagueness in school policy as to what triggers removals from the classroom allows personal perceptions to infiltrate discipline decisions involving discretion. Research shows that Black students are disproportionately disciplined for subjective school code violations while their White peers are more likely to be suspended for mandatory offenses.  In OUSD, for example, witnesses stated that discretion involved in identifying disruptive or defiant behavior contributed to inconsistent practices among staff and allowed for the possibility of cultural misinterpretation of behavior and bias to play a role in the discipline process. This is also seen with non-subjective violations.  For example, a North Carolina study on first-time violations illustrates that Black students were significantly more likely to be suspended for minor infractions than White students:

MYTH # 2: School Exclusion Teaches Moral Values and Promotes Accountability for Misbehavior

Bader asserts “discipline is a valuable form of instruction that teaches students essential moral values, and how to interact properly with others.” Despite this, he advocates against evidence-based policies and in favor of exclusionary discipline, such as suspensions and expulsions, that he believes will benefit Black students. This is inconsistent with research that demonstrates punitive discipline is ineffective in supporting positive behavior in students.

Exclusionary discipline does not instruct students on responsibility or promote an understanding of appropriate behavior. In fact, the Centers for Disease Control & Prevention found that students removed from school are more likely to be retained, drop out of school, become teen parents, and engage in delinquent behavior.  

MYTH # 3: Violent Students Will Remain in the Classroom under the Voluntary Resolution Plan

Bader voices concerns regarding the “violence and disorder” that can occur if students who pose a danger to others are not removed from the classroom. He points to a story of “one kid (scrawny 7th grader) [who] had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races,” and the failure of school administrators to punish the violent student because of a supposed “racial quota” policy. Based on this idea, he also expresses alarm that “the Obama Administration is . . . discouraging school districts from disciplining violent or disruptive Black students.”

It must be noted that while the district is generally required to consider non-exclusionary discipline for school code violations, this is not required if  “the safety of students and/or staff is threatened or the behavior in question is such that the disruption to the educational environment can only be remedied by such a referral for removal from the school.” To be clear: the VRP in no way requires the district to endure violent or dangerous behavior from any student regardless of race.

MYTH # 4: The Voluntary Resolution Plan Policies are Racial Quotas in All But Name

Bader acknowledges that there are no set percentages or stated racial preferences in the VRP, but labels the agreement as “racial quotas in all but name,” citing to a case, Monterey Mech. Co. v. Wilson, which explains that even an aspirational goal can be unconstitutional if it “imposes mandatory requirements with concreteness” and is neutral in writing but strives “to meet percentage goals.” By doing so, Bader mischaracterizes the VRP because the targeted reductions are not shooting for a percentage reduction requiring manipulation of discipline practices for satisfaction. Given that there are no percentages or a specified racial balance to be achieved, the District will not be pressured to punish more White students or less Black students in order to reach some target rate for discipline.

To support his conclusion that the VRP requires racial quotas, Bader cites to US Supreme Court precedent. Bader correctly notes that the Court has rendered racial quotas unconstitutional under the Equal Protection Clause of the federal constitution. His analysis misses the mark, however, in that the goals of the VRP do not either implicitly or expressly call for any quota or percentage to be reached by OUSD regarding discipline among the races. 

What is a Racial Quota?

As defined by Oxford Dictionaries, a quota is “a fixed minimum or maximum number of a particular group of people allowed to do something.” The U.S. Supreme Court has articulated what this means in a legal context.

For example, in Richmond v. J.A. Croson, the Court explains that a “set aside” plan that requires a specified percentage based on race violates Equal Protection. The Court explains in Regents of Univ. of Cal. v. Bakke, that an unconstitutional racial quota is one which “insulate[s]” all non-minority candidates from competition for certain seats. In Gratz v. Bollinger, Justice O’Connor notes that a school cannot create a “non-individualized, mechanical” system that prescribes “automatic” action with a student “based on his or her race.” If OUSD adopted a mechanical discipline process that insulated Black students from punishment in order to achieve a specified percentage or racial balance, it would likely be unconstitutional. There is no such percentage or fixed number prescribed by the VRP. 

What Protections are in Place to Prevent a De Facto Quota System?

Bader’s worry that these goals of reducing school exclusion for students with disabilities, Latinos, and African Americans will become quotas is a fear rooted in the means of applying this agreement. In order to quell these fears, it is important to recognize two significant aspects of how the VRP will function: (1) discipline policies will be grounded in research and will not be based on a student’s race and (2) the VRP requires transparency in discipline data and a mechanism for reporting discrimination complaints.

The VRP requires OUSD to work with “experts, students, certified and classified staff, site and District level administrators parents, and community stakeholders” to implement restorative discipline practices that align with the school culture, values and goals and seek to reduce overall suspension rates. 

Under the VRP, “the District will develop a means to inform the public on data on the use of suspensions and expulsions, disaggregated by race, ethnicity, sex, and disability,” among other factors. In addition, informational parent programs will provide parents the opportunity to raise concerns or suggestions regarding the improvement of the District’s disciplinary policies, including any issue in connection with fairness and non-discrimination. Parents may also file complaints regarding the implementation of discipline policies with OUSD.

MYTH # 5: A Showing of Disparate Impact Is Not a Valid Example of Racial Discrimination

Bader questions the constitutionality of disparate impact analysis as a basis for the compliance review of OUSD’s policies, contending that “the Constitution does not forbid disparate impact.” However, the Supreme Court has permitted disparate impact as a means of demonstrating racial discrimination, and ED is responsible for creating regulations to protect individuals against the disparate impact of policies and practices that may seem neutral on their face.

Bader relies on Washington v. Davis for the proposition that a claim of disparate impact cannot violate the Equal Protection Clause. However, while the Court noted that a disparate impact alone will not support a discrimination claim, “disproportionate impact is not irrelevant” in determining racial discrimination. The Court emphasized that “a statute otherwise neutral on its face must not be applied . . . as to discriminate on the basis of race.” 

Bader erroneously argues that ED lacked sufficient grounds to conduct a compliance review of OUSD under Title VI because Alexander v. Sandoval held that “disparate impact does not violate Title VI at all.” In fact, Alexander v. Sandoval, held only that an individual person may not bring a discrimination claim based on disparate impact under Title VI. An agency was presumed to have the authority to promulgate disparate impact regulations.

The Lawyers’ Committee applauds ED for its leadership in working with OUSD to address the troubling disparities in educational opportunity produced by OUSD’s discipline policies. We are not misled or discouraged by the misinformation of critics such as Bader, and we hope other districts pursue similar restorative practices.

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