Loudoun’s “Anti-Racism” Discriminates against Whites

Loudoun public school administrative building

by Hans Bader

The Loudoun County Public Schools (LCPS) are planning to impose illegal racial preferences in student discipline, and have already made changes to school admission policies that are being challenged in court. The district also plans to restrict teachers’ out-of-school speech, by punishing them for speech that disagrees with school policies, and by punishing teachers who fail to report such speech by their peers. These speech restrictions are vague, viewpoint-discriminatory, and violate the First Amendment. Some of the speech they restrict is also protected against discipline by civil-rights laws. Yet, they may be adopted on October 12.

The schools’ “Action Plans to Combat Systemic Racism” focus on the “disruption and dismantling” of school systems, such as discipline, that fail to generate “equitable outcomes.” “Equitable outcomes” does not mean equal treatment, but rather, each racial group receiving the same statistical outcome. For example, discipline processes that lead to a higher proportion of one racial group being disciplined than another are not considered “equitable” even if each individual student is treated the same.

The Action Plans, which will likely be formally approved this month, say “LCPS will implement measures to reduce racial/ethnicity discipline disproportionality.” That includes the “Development and provision of ongoing interventions for Black and Hispanic students who are engaging in behaviors that might lead to suspensions.” So Black and Hispanic students will be given opportunities to avoid suspension that are not available to white or Asian students.

That racial preference in discipline violates the civil-rights laws. The Supreme Court ruled that an employer couldn’t fire only white employees, not black employees, for theft. (See McDonald v. Santa Fe Trail Transportation Co. (1976)).

Anti-retaliation laws give teachers the right to criticize this racial preference in discipline. 42 U.S.C. 1981 forbids retaliation against people who complain of discrimination. (See CBOCS West, Inc. v. Humphries (2008)).

For example, a man was allowed to sue after being disciplined for opposing his employer’s affirmative action policy, even though the policy turned out to be legal. See Sisco v. J.S. Alberici Co. (1981).

Similarly, federal law forbids retaliation against teachers who complain of discrimination against students. See Jackson v. Birmingham Board of Education (2004).

The fact that Loudoun County is seeking to reduce racial “disproportionality” by giving black and Hispanic students special treatment is not a legal justification for it.

“Disproportionality” in discipline is not the same thing as discrimination. As the appeals court in Richmond has explained, such a “disparity does not, by itself, constitute discrimination.” (Belk v. Charlotte-Mecklenburg Board of Education (2001)).

Indeed, banning all disproportionality is an illegal racial quota. Judges struck down a rule that forbade a “a school district to refer a higher percentage of minority students than of white students for discipline,” calling that a quota. (See People Who Care v. Rockford Board of Education).

So Loudoun County’s racial preference is not being used to “remedy” discrimination. Disproportionality in discipline is the result of different racial groups having different rates of misbehavior. As education expert Michael Petrilli notes, “In 2015, high school students were asked if they had been in a fight on school property at any time in the past 12 months. African American students were 2.2 times more likely to say yes than white students — 11.4 percent to 5.2 percent.” (Loudoun County’s suspension rates are lowest for Asian, not white, students, an additional sign that the disparities aren’t due to racism or favoritism toward whites).

Loudoun County’s draft “Professional Conduct” policy restricts teachers’ speech. It defines forbidden “discriminatory comments” to include “speech” outside of school that is “motivated in whole or in part by a bias against an individual’s” religion, “sexual orientation,” “gender identity,” “pregnancy,” “childbirth,” “marital status,” etc.  So if a religious teacher, in her own home, criticizes someone for being a devil-worshipper, or for an out-of-wedlock pregnancy, or entering into a same-sex marriage, that could violate the rule. Punishing such expression could violate Virginia religious-freedom laws.

This speech restriction also violates the First Amendment, which does not allow blanket bans on politically-incorrect or even racist speech outside the workplace. For example, the First Amendment protected a cop’s off-duty blackface performances. (See Berger v. Battaglia (1985)). A Fairfax County teacher was allowed to sue after being disciplined for satirizing a discrimination complaint. (See Seemuller v. Fairfax County School Board (1988)). And a professor successfully challenged his punishment over writings that denigrated black people. (Levin v. Harleston (1992)).

The draft policy also bans “any comments” that “are not in alignment with the school division’s commitment to action-oriented equity practices, and which … create a breach in the trust bestowed upon them as an employee of the school division. This includes on-campus and off-campus speech.” Public employees are  not entitled to express views that “are not in alignment” with the government’s, such as disagreeing with Loudoun County’s controversial focus on “equity” and group outcomes, rather than equal treatment of individuals. Judges ruled that an “assistant fire chief in charge of personnel” could express opinions at odds with “city policy on affirmative action” to a minority group, without being fired. (See Meyers v. City of Cincinnati (1991)).

Loudoun’s policy is incredibly vague. Public employees can’t be punished under such a vague policy. (See Cohen v. San Bernardino Valley College (1996)).

The draft policy bans speech “undermining the views, positions, goals, policies or public statements of the Loudoun County School Board or its Superintendent when such comments or conduct create the reasonable apprehension of a disruption or disrupt” its efficiency. This is also a viewpoint-based, vague restriction on speech, punishing disagreement with the County’s “views” and “positions.” Two appeals courts say public employers can’t use “disruption” as an excuse for singling out particular viewpoints for punishment. (See Locurto v. Safir (2001); American Postal Workers Union v. U.S. Postal Service (1987)).

This sweeping ban punishes speech that does not cause actual disruption or threaten significant disruption, even though, as judges have noted, the “questions how we teach the young, what we teach them, and the environment in which we teach them are of the most central” importance. Even if such speech were not protected by the First Amendment, it would be protected by the anti-retaliation laws (like Title VI) when it criticizes racial preferences.

The draft policy also prohibits “the use of racial insults or slurs regardless of intent. For example, it is unacceptable to use a racial insult or slur in responding to or addressing a situation in which an individual has used a racial insult or slur.

That could punish simply quoting someone else’s use of a racial slur, such as by a student or in a classic novel like Mark Twain’s “Huckleberry Finn.” That violates free speech. Judges ruled a teacher had the right to use the N word in discussing its historical use. (See Hardy v. Jefferson Community College (2001)).

At the K-12 level,  it is likely that a teacher’s in-class use of the N word in a lecture can be restricted by a school, because the public schools can control the instruction their students receive. But using it for non-racist reasons in other settings, such as out of class, would remain protected by the First Amendment in most cases. Yet such use is forbidden by the proposed policy.

Hans Bader is an attorney living in Northern Virginia. This column is republished with permission from Liberty Unyielding.

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26 responses to “Loudoun’s “Anti-Racism” Discriminates against Whites

  1. Baconator with extra cheese

    I can’t wait until those who virtue signal from the highest mountains and demand a vicious cancel culture figure out NO ONE can live up to these standards.

  2. James Wyatt Whitehead V

    The superintendent that preceded Eric Williams was a true champion of excellence in education. Dr. Edgar Hatrick grew up in rural Ashburn, Va. He was a teacher, administrator, and long time superintendent. He oversaw a tremendous transformation of a rural school district into a nationally ranked powerhouse in education. In just five short years, Eric Williams has taken a flagship school district to the brink of cultural revolution. The consequences will be felt for generations.

    I miss having coffee at Johnson’s House of Beef in Leesburg with Ed and many long time Loudoun residents. He understood the past and he knew what was best for the present and future. A great big tall man with a gentle understanding of how to make tomorrow a better day for young people.

  3. And there are those who question the value of tenure. Why I’ll even wager the author of this piece has done so.

  4. I will split with Mr. Bader on this one; that is, agree with some of what he says and disagree with other parts. As a lawyer, he knows that there is, in law, a concept of “equity” that does not mean “equal”, but is more akin to “fair and just”. So, “equitable outcomes” in school discipline does not mean, necessarily, equal or even proportional, but fair. There is a body of research that strongly indicates that Black students are punished more often, and more severely, than white students for the same offense. For example, a study of Louisiana schools found that, in situations involving a fight between a white and a black student, the black student got a longer suspension. In North Carolina, Black students were disciplined by white teachers for “willful defiance” more often than by Black teachers, even in the same school. https://www.brookings.edu/research/disproportionality-in-student-discipline-connecting-policy-to-research/

    As for the restrictions on the speech of teachers, I agree with Mr. Bader that these proposals are restrictive of their constitutional and statutory rights. The only time a school should be able to sanction a teacher for her speech would be situations in which the teacher was representing the school.

    • “The only time a school should be able to sanction a teacher for her speech would be situations in which the teacher was representing the school.”

      Does a teacher “represent” the school during instruction, or is it at that time that the teacher repesents the body of knowledge?

  5. You correctly cite studies from Louisiana and North Carolina finding instances of apparent discrimination, and this is troubling. There are also studies finding an absence of discrimination in school systems elsewhere.

    Even where it exists, racial bias appears to play a much smaller role in school discipline than student behavior. Looking at the studies as a whole, the school-discipline researcher Max Eden states that the “best conclusion that can be drawn from the research literature, then, is that school administrators treat students fairly, and that teacher bias may play a small role in disciplinary disparities, but that they are largely driven by differences in student behavior.”

    But even where discrimination persists, it is not the primary cause of the disproportionality in discipline rates. As Eden notes, in the North Carolina study, “the difference was not large; the researchers estimate that having all-black rather than all-white teachers reduced the risk of being suspended by two percentage points.”

    In the Louisiana study, researchers found no racial bias in discipline for fights between members of the same race, as opposed to fights between blacks and whites — that is, a black kid fighting with a black kid was punished no more than a white kid fighting with a white kid. For most offenses, as opposed to interracial fights (which don’t account for most fights), discipline appears to have been non-discriminatory.

    The differences in misbehavior rates appear to be real, according to students themselves. As Eden points out, “According to national surveys, black students are more likely to say they’ve been in a fight at school than white students (15.5 percent vs. 6.5 percent), to skip school (9 percent vs. 4.9 percent), and to arrive late to class (20.9 percent vs. 12.2 percent).”

    “And whereas advocates claim that the gap is driven by “subjective” offenses especially prone to biased teacher discretion, the data suggest that this isn’t so. In Louisiana schools, for example, which are approximately half black and half white, black students are suspended relatively more frequently than white students for the “objective” offense of fighting (467,074 vs. 125,606) than for the “subjective” offense of disrespecting authority (393,442 vs. 131,529).”

    Taking into account prior rules violations also provides a non-discriminatory explanation for differences in suspension rates, Eden says: “In 2014, John Paul Wright factored in teacher assessments of student behavior from earlier grades and found that doing so completely accounted for the racial gap in school suspensions.” That study is in the Journal of Criminal Justice.

  6. re: ” As a lawyer, he knows that there is, in law, a concept of “equity” that does not mean “equal”, but is more akin to “fair and just”. So, “equitable outcomes” in school discipline does not mean, necessarily, equal or even proportional, but fair. ”

    Bader is not the only one who purposely misinterpretes it. It’s pretty rampant right here in BR.

    I want to point out also that from what I understand – ALL the Virginia Governor Schools are going to some kind of lottery for admission AND the highly lauded Success Academies in New York also operate by lottery.

    I’m NOT in favor of using lottery to admit kids who are not qualified but I do think setting a bar for “qualified” should be wider than narrow scope STEM performance.

    We’ve had folks right here in BR argue that “liberal arts” gives a broad-based background for success in a variety of fields in the economy.

    Not everyone is going to be a scientist or engineer and the reality is the economy wants a lot more diversity than such science and engineering.

    Why should that be the “bar” that limits advanced studies for kids who have talents in other areas?

    Take James, who participates here. His field of expertise is History. Kids who have shown talent at history and other subjects – have no relevance in Governors Schools like Loudoun? It’s STEM or else?

    • Ibrahim X. Kendi equates equity with proportionality.

      Since his is the movement we are discussing, why don’t we stick with his definition, even though by your standards he is clearly “intentionally misunderstanding” its meaning.

  7. “Loudoun’s “Anti-Racism” Discriminates against Whites”

    This should surprise no one. One of the key ideals of the “anti-racist” movement is discrimination against whites.

    • If you are playing 1-on-1 with Michael Jordon, a level court is not the issue, but the hoop you are defending had better be 3 feet off the floor and the hoop he’s defending should be 10 feet in diameter if you’re to have any chance at all.

  8. Seems like if it is REALLY true that Loudouns Anti-Racism policies REALLY DO “discriminate” then they’re gonna be in trouble with the Feds.

    Right? So what policies actually do discriminate against whites? Are there real specific examples beyond just slinging the phrase around ?

    Gonna claim that a lottery does that?

    • Larry, read my recent post under the Asian item where I explain what FCPS’s lottery is. I don’t know what LCPS does, although it did complain to FCPS that the latter’s proposed changes that it would impose on LCPS students was unclear and unfair.

  9. So if we go through 20 years of this approach, and in 2040 the economic statistics are the same, and the rich are still rich (having continued their exodus from public schools) and the poor are still poor, what’s next?

    • Maybe compare to Lyndon Johnson and his war on poverty – and his establishment of Medicare and Medicaid.

      Did that “work” ?

      😉

    • Depends on the racial demographics of the rich, now don’t it.

      Given money as the great equalizer (not Colt) then it could take a whole lot longer than one generation.

      Of course, white folks can always pay reparations and be done with all of this.

  10. It is about Poverty not Race.

    • And poverty has a dependency on race, so no.

      • No. No it does not. If this is such a cruelly racist country and economy, how do you explain the wealth and educational success that does exist in the Black community, the Asian community, the South Asian community. Lots of anti-Semitism around but largely that is based on jealousy of the wealth and success of the Jews in this country, isn’t it? And there remain plenty of poor people who are of European heritage. Sorry, but the problem is more complicated. Didn’t mention the Latin American immigrants but I bet their economic demographics have radically improved over recent decades, as well, except for those just arrived.

  11. If you take the AEI, TJI and other right-leaning think tanks standard canard on poverty – their standard is like saying because congestion still exists that VDOT has ‘failed” or similar for crime… etc, i.e. “we still have crime despite billions/trillions spent on police”.

    If you actually want to look at real things like health care for folks over 65 or folks in poverty- i.e. Medicare and Medicaid – there is no question that the depth of poverty has been affected. It does not mean that poverty has been eradicated – but that’s the typical canard.

  12. Hans Bader says: “The Loudoun County Public Schools (LCPS) are planning to impose illegal racial preferences in student discipline, and have already made changes to school admission policies that are being challenged in court.”

    It is a hard to imagine that the State of Virginia, specifically the Attorney General’s office backed by the Governor, would force upon Loudoun County, Va., public policies and laws that would pit races one against the other, stacking kindling that is likely to ignite a race war. That is exactly what is happening now in Loudoun County by government diktat. Expect it to spread throughout Virginia.

    Hans Bader says: “The district also plans to restrict teachers’ out-of-school speech, by punishing them for speech that disagrees with school policies, and by punishing teachers who fail to report such speech by their peers. These speech restrictions are vague, viewpoint-discriminatory, and violate the First Amendment. Some of the speech they restrict is also protected against discipline by civil-rights laws. Yet, they may be adopted on October 12.”

    It is a hard to imagine that the State of Virginia, specifically the Attorney General’s office backed by the Governor, would force upon Loudoun County, Va. public policies and laws that would chill, and indeed prohibit, free speech, including speech against unconstitutional laws, stacking kindling that is likely to ignite a regime of terror against its citizens. That is exactly what is happening now in Loudoun County by government diktat. Expect it to spread throughout Virginia.

  13. Going back and re-reading, I did get abit off track in this thread and I apologize for that. Bader did allude to a lawsuit against the schools over admission policies to the Academies. But he also addressed school discipline and free speech and I focused mostly on the school admission policies.

    I realize in making this apology, it will surely bring the “not the only thing you get off track on by far” dogs down on me.

    so be it. 😉

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