10/15/2010 05:59 pm ET | Updated May 25, 2011

Dismal Impact

If schools discipline more blacks or Hispanics than white students, federal officials warn they'll use "disparate impact analysis" to charge civil rights violations, reports Education Week.

Under "disparate impact," schools can be in violation if discipline policies affect one racial group more than others, even if there's no evidence of unequal treatment for the same offense or an intent to discriminate. An education agency would be found out of compliance if an equally sound policy would have less of a disparate impact, Russlyn Ali, an Education Department official, told Ed Week.

U.S. Secretary of Education Arne Duncan said at a conference he was "deeply troubled by rising discipline rates and disparities in discipline" in the nation's schools. The department has launched compliance reviews in the Christina School District in Wilmington, Del.; the Salamanca City (N.Y.) Central School District; Winston-Salem/Forsyth (N.C.) County Schools; San Juan (Utah) School District; and Rochester (Minn.) Public Schools. All involve both different-treatment and disparate-impact analyses.

Roger Clegg, president of Center for Equal Opportunity, warned the policy could push schools to manipulate the data rather than enforce rules fairly.

"In education, with respect to discipline, my concern would be that school districts are afraid they will be hauled before a court or some administration agency and threatened with a loss of federal funding whenever they have a racial imbalance of one kind or another," he said. He explained that educators might become hypersensitive to students' race or ethnicity in discipline decisions, resulting in disciplining some students who shouldn't be and not disciplining others who deserve it.

In most districts, suspension rates are much higher for black and Hispanic students. Denver Public Schools changed its policies in response to complaints from a local community group, says Allegra "Happy" Haynes, the chief community-engagement officer.

The district implemented a "discipline ladder," for example, that spelled out the level of the disciplinary action students would receive for specific kinds of infractions, such as chewing gum in class or talking back to teachers. The policy emphasized that students should receive out-of-school suspensions or be referred to police only for serious misconduct, such as causing harm to someone in a fight.

The result was that referrals to law-enforcement officers dropped by 63 percent and out-of-school suspensions declined by 43 percent in the district from the 2008-09 school year to the 2009-10 school year, she said.

Denver's policy seems to make sense: Why kick kids out of school or call in the police, unless it's necessary to maintain safety? But it doesn't make Hispanics as likely to be suspended as Asian-Americans or whites. For that matter, boys are far more likely to get in trouble than girls. Should the rules be changed to tolerate boy-typical misbehavior?

The "different treatment" rule, used in the Bush administration, is simple: The black kid who curses the teacher shouldn't get a harsher punishment than the white kid who curses the teacher. It doesn't matter if blacks are more likely to curse and therefore to get in trouble. The behavior is what counts.

When student misbehavior is tolerated, the impact is dismal. Teachers are forced to spend their time and energy on classroom management, not instruction. Teachers burn out quickly, quit and are replaced by novices, who are even less capable of teaching in the midst of chaos. Students who want to learn don't get much chance. The wild kids who get away with it pay in the long run because they don't learn self-control, a critical life skill, much less reading, writing, arithmetic, history or science.

All the high-achieving, high-poverty schools teach students to follow the rules so they can learn in a safe, orderly atmosphere.