Under pressure from the Education Department, which investigated it over “racial disparities” and “disparate impact,” the Oakland, California, school system has agreed to impose “targeted reductions” in “suspensions for African American students, Latino students, and students receiving special education services; and African American students suspended for defiance.” See Agreement to Resolve Oakland Unified School District, OCR Case No. 09125001, page 14, Section VIII(c)(iii).

These “targeted reductions” are racial quotas in all but name. (“Disparate impact” is when a process affects one racial group more than another, despite having no racist motive, such as when whites have higher average scores than minorities on a standardized test.) The Oakland case is just “the first of some 20 federal investigations into racial disparities in school districts’ disciplinary practices,” which may lead to racial quotas in school discipline in many other school systems (and eventually perhaps in colleges as well).

Contrary to the Education Department’s demands, the federal appeals court in Chicago has said that schools cannot use racial targets or quotas for school discipline, since that violates the Constitution’s Equal Protection Clause. See People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997). That court ruling also said that a school cannot use race in student discipline to offset racial disparities not rooted in school officials’ racism (so-called “disparate impact”).

Racial “disparities” or “disparate impact” in student discipline rates are not the product of racism by school officials, but rather reflect higher rates of violence and disruptive conduct among African-American students. Nationally, “the homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined.” In the Chicago schools, which used to be headed by Obama’s Education Secretary, “25 times more black Chicago students than white ones were arrested at school,” between September 2011 and February 2012.

The Supreme Court’s decision in United States v. Armstrong emphasized that crime rates are not the same for different races, and that racial disparities in crime rates and conviction rates are not proof of racial discrimination. Stopping school officials from disciplining black students who violate school rules just because they previously disciplined more black than white students is as crazy as ordering police to stop arresting black criminals just because they previously arrested more blacks than whites.

Using race in student discipline, as Oakland has agreed to do, also violates Article I, Section 31 of the California Constitution, which forbids all “racial preferences,” regardless of whether they are permitted by federal law. That includes racial preferences in student discipline. (This provision, known as Proposition 209, was upheld by the federal appeals court with jurisdiction over California, in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), and it resulted in the invalidation of many state affirmative action programs in Connerly v. State Personnel Board.)

At a widely-read education blog, a teacher described the violence and disorder that occurred when her school adopted racial quotas in school discipline:

I was the homeroom teacher in an incident in a school that tried to implement just this criteria for discipline. One kid (scrawny 7th grader) had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races. The little kid was suspended before his copious blood had been cleaned up off the floor. The big kid never did have ANY punishment – that particular ethnic group had been disciplined too many times.

Need I mention that it was a tough month, as word quickly spread that violence against the “under-disciplined” ethnic group was treated as a freebie?

Heedless of such consequences, the Obama Administration is pressuring school districts not to suspend violent or disruptive black students if they have already disciplined “too many” black students, as Heather Mac Donald notes in a recent issue of the Manhattan Institute’s City Journal.

The Obama administration argues that higher minority suspension rates presumptively violate Title VI of the Civil Rights Act by constituting “disparate impact,” even though the Supreme Court ruled in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. (The Supreme Court ruled in the Sandoval case that individuals cannot sue schools over “disparate impact” under Title VI. The Obama Administration takes the position that while Title VI statute itself doesn’t reach disparate impact, its regulations implementing the statute do. The Sandoval decision said that people cannot cite those regulations to sue over “disparate impact” under Title VI, and expressed doubt about those regulations’ validity, noting that they are in “considerable tension with the rule” that Title VI “forbids only intentional discrimination.” Federal appeals courts have also said that people cannot invoke those disparate-impact regulations to sue under other laws, such as Section 1983, either, since they do not create any enforceable rights.)

Even where statutes expressly authorize lawsuits over “disparate impact,” such as in the workplace, Supreme Court justices have recently questioned the constitutionality of using racial preferences or classifications to eliminate such disparate impact. In the Supreme Court’s decision in Ricci v. DeStefano, the Supreme Court ruled that a mere prima facie case of disparate impact is not justification for race-based action, and Justice Scalia lamented the looming “war between disparate impact and equal protection” guarantees contained in the Constitution.

Racial disparities in suspension rates are not the product of racial favoritism by teachers towards their own race, or hostility by teachers towards non-whites. For example, Asians have much lower infraction rates than whites, notes MacDonald, even though far more school teachers are white than Asian (and even though many categories of Asian immigrant children are far more likely than whites to grow up in poverty).

Racial disparities in suspension rates do not demonstrate discrimination under the Constitution, either. For example, the Supreme Court said that it is “completely unrealistic” to argue that minorities should be represented in each field or activity “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).) In an earlier ruling, the Supreme Court emphasized that it is “unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” (See Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 992 (1988).)

The Constitution does not forbid the “disparate impact” that the Education Department seeks to purge from the schools. The Supreme Court made that clear in Washington v. Davis, 426 U.S. 229, 248 (1976), where it noted that it cannot be denied “that a whole range of tax, welfare, public service, regulatory, and licensing statutes” are “more burdensome to the poor and to the average black than to the more affluent white,” yet they are still constitutional despite their manifest disparate impact.

Writing in City Journal in Summer 2006, former educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what the Obama administration is now demanding) led him to engage in unfair racial discrimination against students:

More than 25 years ago, when I was dean of boys at a high school in northern Queens, we received a letter from a federal agency pointing out that we had suspended black students far out of proportion to their numbers in our student population. Though it carried no explicit or even implicit threats, the letter was enough to set the alarm bells ringing in all the first-floor administrative offices. . .

There never was a smoking-gun memo . . . but somehow we knew we had to get our numbers “right”—that is, we needed to suspend fewer minorities or haul more white folks into the dean’s office for our ultimate punishment.What this meant in practice was an unarticulated modification of our disciplinary standards. For example, obscenities directed at a teacher would mean, in cases involving minority students, a rebuke from the dean and a notation on the record or a letter home rather than a suspension. For cases in which white students had committed infractions, it meant zero tolerance. Unofficially, we began to enforce dual systems of justice. Inevitably, where the numbers ruled, some kids would wind up punished more severely than others for the same offense.

Disciplining a minority student for misconduct is not racism, nor is it harmful to minorities in the long run; instead, discipline is a valuable form of instruction that teaches students essential moral values, and how to interact properly with others (a skill that a kid will someday need to handle a job). Depriving disruptive or violent minority students of such discipline based on their race is itself a form of racial discrimination, since it deprives them of “equal access” to an essential educational “benefit,” namely, moral instruction and instruction in how to get along with others. See Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999)(civil rights laws forbid denying students access to an educational “benefit” based on their sex or race). Employers require their employees to follow rules and get along with co-workers, not exhibit “defiance” towards superiors, and expect them to have “soft people skills,” all traits that are instilled through discipline in school and in the home.

Moreover, black students themselves will suffer if schools are prevented from adequately disciplining other black students, such as those who commit acts of violence, since violence is usually committed against other members of the perpetrator’s own race. Giving black students special treatment in discipline is an example of the “soft bigotry of low expectations” that undermines educational achievement among African-Americans.

In the long run, the Education Department’s stance will also affect higher education. That’s because the Education Department applies the same disparate-impact regulations to colleges as grade schools, and there are big racial disparities in college disciplinary systems as well. (For example, 40 percent of the students kicked out of the University of Virginia for cheating when I was a student there were black, far higher than their percentage in the overall student body. At the time, students speculated that this disparity existed because academically-struggling students were more likely to cheat in order to pass, and academically-struggling students were disproportionately African-American).