Gender and Race Quotas for School Discipline?

by Hans Bader

Does anyone seriously doubt that boys misbehave more than girls in school? Until recently, no one would have disputed that, as surveys of students show that boys get into fights at twice the rate girls do. In those same surveys, conducted by the National Center for Education Statistics, Blacks say they get into fights at more than twice the rate Whites do on school grounds.

But the nation’s Democratic attorney generals either don’t know about, or don’t believe, these surveys. Instead, they seem to believe that every racial or sexual group misbehaves at exactly the same rate. Every single Democratic state attorney general in America — all 24 of them, including Virginia Attorney General Mark Herring — recently cited the higher discipline rates of Blacks and boys, as causes for alarm, in a May 24 letter to the Education Secretary and U.S. Attorney General.

The letter urged the Biden administration to reinstate and expand the Obama administration’s school-discipline guidance, which encouraged schools to suspend Blacks and Whites at the same rate, to target not just statistical disparities based on race, but also disparities based on gender, sexual orientation, gender identity or disability.

The attorney generals complain that civil-rights “data has long documented disparities based on sex, with male students facing exclusionary discipline at significantly higher rates than female students.” They also complain that “‘Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their [W]hite peers—but [B]lack students, Latino students, and Native American students in the aggregate receive substantially more school discipline than their [W]hite peers.'”

This latter sentence claiming that “Students of color … do not commit more disciplinable offenses” is a quote from a misleading report by the U.S. Commission on Civil Rights. But that claim was not true. Indeed, as The Washington Post noted in 2019, “One set of data referenced in the report showed the opposite.” The Civil Rights Commission’s chairwoman at the time, who is now President Biden’s nominee to head the Education Department’s Office for Civil Rights, “pointed to a few spots” in the Commission’s report to “claim that there are no underlying differences in student behavior. But those citations did not offer such evidence,” said The Post.

Yet the Biden administration repeated the Commission’s false claim about students of color not committing more offenses, in a June 8 notice published in the Federal Register. That notice likewise cited the Civil Rights Commission’s “‘finding that: Students of color as a whole … do not commit more disciplinable offenses,'” in a “Request for Information” to the public about school discipline policies and how the federal government should regulate them.

But surveys of students by the National Center for Education Statistics show big differences between boys and girls, and Blacks and Whites, in terms of how often they get into fights on school grounds. For example, in 2015, 10.3% of boys, and 5.0% of girls, said they had gotten into a fight on school grounds in the last 12 months. And 11.4% of blacks did so, compared to 5.2 percent of whites. (See National Center for Education Statistics, Indicators of School Crime and Safety: 2016, pg. 87, Figure 13.2 (race), pg. 89, Figure 13.3 (gender)).

Thus, boys get into fights at over twice the rate girls do, and Blacks get into fights at more than twice the rate that Whites do.

Various socioeconomic reasons may explain why black students get into fights at a higher rate. As the liberal Brookings Institution pointed out in 2017, “black students are also more likely to come from family backgrounds associated with school behavior problems” including “single-parent families.” Blacks are more likely to live in poverty, which is linked to more misbehavior in school, according to the National Center for Education Statistics. It noted that serious “discipline problems” were much more common in schools with many poor kids than in schools with few kids in poverty, and frequent “verbal abuse of teachers” occurred at nearly five times the rate there.

Real world data also suggests males misbehave more than females: 92% of the U.S. prison population is male.

Because misbehavior rates are not necessarily the same for different racial groups, requiring schools to suspend all racial groups at the same rate is considered an illegal racial quota. In 1997, an appeals court overturned a rule requiring a school district not “to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” It ruled such “racial disciplinary quotas” are illegal, and “violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty.”

Even if misbehavior rates differ, differences in discipline rates can also result from other factors. Racism could also play some role in higher black discipline rates. A 2017 study looked at the Louisiana schools, where black students are suspended at much higher rates than whites for both intra-racial fights, and interracial fights. The study found no racial bias in discipline for intra-racial fights, but did find that “black students receive slightly longer suspensions after interracial fights.” In short, it illustrated that both racial differences in rates of misbehavior, and racism by school officials, played a role in differences in discipline rates for Blacks and Whites — although differences in misbehavior rates appear to have played by far the larger role than racism. (See Nathan Barrett, et al., Disparities in Student Discipline by Race and Family Income (Education Research Alliance, 2017)).

On the other hand, a 2014 study in the Journal of Criminal Justice concluded that higher black suspension rates are entirely due to higher rates of misconduct among blacks, not racism. (See John Paul Wright, et al., Prior problem behavior accounts for the racial gap in school suspensions, Journal of Criminal Justice, Vol. 42, pp. 257-266).

Hans Bader is an attorney living in Northern Virginia. This column was published originally in Liberty Unyielding.