Given a choice between following the law, and doing what a bureaucrat with power over them wants, many people will do what the bureaucrat wants, and ignore the law. That seems to be the lesson of the Minneapolis school system’s decision to adopt race-based school discipline.
The Minneapolis Star Tribune reports that “Minneapolis public school officials are making dramatic changes to their discipline practices by requiring the superintendent’s office to review all suspensions of students of color.” The Minneapolis school system will require prior review before “every proposed suspension of black, Hispanic or American Indian students” can occur, which means the superintendent may “take those suspensions back to” those recommending a suspension to “probe and ask questions.”
Meanwhile, suspensions of white and Asian students will occur without any impediment or scrutiny from the superintendent. This differential treatment is as unconstitutional as giving blacks two opportunities to pass their driving test, and Asians only one opportunity.
This is part of a larger push by the Minneapolis schools to impose racial quotas on suspensions, reportedly to resolve an investigation by the Education Department’s Office for Civil Rights. Minnesota Public Radio reports that “MPS must aggressively reduce the disproportionality between black and brown students and their white peers every year for the next four years. This will begin with a 25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.” Some other school districts investigated by the Education Department have also adopted such “targeted reductions” by race.
Such racial-percentage rules violate the Seventh Circuit Court of Appeals’ unanimous ruling in People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997), which struck down as a violation of the Constitution’s equal protection clause a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” That court ruling also explicitly rejected the argument that such a rule is permissible to prevent disparate impact. I discuss the unconstitutionality of such rules, and why they are based on multiple misinterpretations of Title VI, at greater length in The Daily Caller, at this link.
Reason magazine says that “The new policy is the result of negotiations between MPS and the Department of Education's Office for Civil Rights.” If that’s true, that doesn’t make it any less unconstitutional: The Education Department's Office for Civil Rights, where I used to work, cannot order schools to violate constitutional rights. The courts made this clear in 1978 when they ruled that the Office for Civil Rights had violated the First Amendment by pressuring the East Baton Rouge Parish School Board into kicking out the Ku Klux Klan because of its racist views. (See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board). And in White v. Lee (2000), a federal appeals court allowed individual federal civil-rights officials to be sued for interpreting the Fair Housing Act in a way that violated the Constitution.
But in the real world, what school districts care about most is what the Education Department wants, not what’s constitutional. The amount of money a school district would have to pay in damages to a suspended white or Asian student who proves he was treated worse than a similarly situated black student is probably pocket change compared to the millions of dollars a school district court would lose if the Education Department decided to cut off its federal funds for a supposed violation of Title VI of the Civil Rights Act.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.