MDHRs Controversial Approach to Discipline (Part I)

In recent months, the Minnesota Department of Human Rights has launched a statewide effort to demand that dozens of public school districts sign agreements ceding a large measure of school board authority to the Department.  MDHR's approach has been the subject of two competing opinion pieces in the Strib.  Katherine Kersten, in her article "Undisciplined Chaos," has launched a diatribe against MDHR's approach.  In a counterpoint, Commissioner Casselius defends the MDHR approach in her article "What Katherine Kersten can't grasp about schools, but readers should."  

I believe that the debate over disproportional discipline needs a deeper and more  probing discussion than the emotional diatribes written by Kersten and Casselius.  This post, and a few posts to follow, will argue that MDHR is pursing a legally flawed mistaken approach to public school discipline, notwithstanding Commissioner Casslius's impassioned defense. There are multiple issues to consider in approaching this issue of so-called disparate discipline.   

• MDHR's contention that differential discipline rates for students of color proves illegal discrimination is dead wrong.  The law simply does not support the legal contention that statistical disproportionality is alone proof of illegal discrimination. .

• In order to make out a case against a school district MDHR must prove much more than a mere difference in the rate of discipline.  Discipline properly implemented is designed to teach proper behavior.  Its liinguistic derivation comes from the Latin word for instruction.  If behavior is disproportionate, discipline will be correspondingly disproportionate. 
• School districts must address behavior, to the maximum extent possible, with non-exclusionary practices designed to teach and instill better behavior.    Just as schools have an obligation to provide more math instruction  to students who are behind in math, so schools have an obligation to provide more behavioral instruction to students whose behavior is deficient.  
• Schools must combined non exclusionary practices with a panoply of improved instructional practices designed to address the needs of students who are alienated from the school culture.   Their ability to do that is directly related to the level of funding provided for those purposes.  If we want to improve the success rate of students, we need funding for the staff and for the professional development required to make those programs successful. 
• Tolerating sub--par behavior as a solution to disproportionality has been an abject failure in districts across the country that have tried it.   Doing so falls disproportionately on peer students who need most of all, a classroom that displays a culture of learning and respect.  
  

My thesis, then,  is that MDHR is proceeding on a misguided, legally incorrect, form of “disparate impact” claim -- that if a higher percentage of minority students are being disciplined than others it must result from illegal discrimination.  There is no justification, none, in discrimination law for this conclusion.   MDHR and its advocates are asserting that disparate impact can be proven through statistical evidence only and that assertion is deeply wrong.  Let's begin by looking more deeply in this post at the law regarding disparate impact discrimination.  What follows to some extent is an oversimplification, but this is a blog post, not a treatise on the law. 

Disparate impact discrimination is most commonly found in the law of employment discrimination.   The theory prevents employers from adopting policies or practices that disproportionately exclude protected minorities from employment.  The actual  legitimate legal theory of disparate impact offers no support for what MDHR is trying to do in Minnesota.

The easiest example to understand  disparate impact cases may be the use of physical performance requirements for firefighters.    Fighting fires requires a certain level of agility and stamina.   But historically, many fire departments adopted physical requirements that excluded most women even though those requirements were not legitimate criteria for actually fighting fires.  Courts and the EEOC have found that it is an unlawful discriminatory practice to adopt employment criteria that disproportionately impact protected minorities if the criteria are not reasonably necessary business practices.   

The leading disparate case is the 1970 Supreme Court case,  Griggs v. Duke Power.  In many respects, Griggs Power has been limited and its holdings narrowed.  However, the case still provides the best foundation for legitimate disparate impact law.  The Court explained

 In 1955 Griggs Power instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any "inside" department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the "operating" departments.

The Court continued:

The Company then added a further requirement for new employees on July 2, 1965, the date on which Title VII – the federal anti-discrimination law --became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared aptitude tests, as well as to have a high school education.  Neither of the two newly required tests was directed or intended to measure the ability to learn to perform a particular job or category of jobs in the company.

 The Supreme Court held that a case of illegal discrimination could be established by an employment practice that disparately prevented protected minorities from employment, when that practice is not reasonably necessary:

“If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited…. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question…. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract”  

 An employment practice that has a disparate impact is not unlawful per se.   A welder can be required to have a welder’s certificate, even if a smaller percentage of women have those certificates.   A nurse can be required to have a nursing degree, even if fewer men have those degrees.   If a job reasonably requires lifting 100 pounds, that requirement can be imposed even if it has disproportionate impact. There is not a shred of support in discrimination law for a claim that is based solely on disparate impact.  

The law in this field is complex and one cannot do justice to it in a few blog posts. 

However, that brings us to a second seminal Supreme Court case,  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).   In McDonnell Douglas, an employer terminated an employee because of his alleged participation in an illegal civil rights demonstration against the company.  When a new position opened, Green applied for that position and was rejected.   The Supreme Court articulated a multi step test for proof of discrimination based on race in individual suits.    The reason given for the employer’s decision was Green’s misconduct, the Court said.   For that reason, disparate impact law does not apply.

The court below appeared to rely upon Griggs v. Duke Power Co., in which the Court stated: ‘If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.’ 401 U.S., at 431, 91 S.Ct., at 853, 28 L.Ed.2d 158. But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant's personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of ‘artificial, arbitrary, and unnecessary barriers to employment’ which the Court found to be the intention of Congress to remove.

Proof of discrimination in employment practices requires a whole lot more than mere differential impact.   Moreover, the most recent decisions in the Supreme Court have pointed out that there is a constitutional problem with lowering standards for protected minorities, because that can constitute itself illegal discrimination.    Application of the disproportionate impact theory to education is further complicated by the need to protect other students from misbehavior.  Imposing a statistical straitjacket on discipline, without providing the resources to support non-exclusionary programs for students unable consistently to meet behavioral expectations can threaten the rights of other students.   This issue is a whole lot more complicated that some people are making it out to be:  and frankly a department whose expertise is not in education, seems ill suited to understand those issues. 

In the next post, I'm going to describe how advocates for reform in public education have attempted to apply the disparate impact theory to discipline in schools.  

Jerry Von Korff is an attorney at the Rinke-Noonan Law firm.  He's  been a member of the St. Cloud School Board since 2004, where he has served as chair, vice chair, finance chair and in an number of other capacities.   Before practicing law, Jerry got his Masters in Teaching, helped start an upward bound program, and taught social studies and math in Washington, DC and New York.  His interest in public education began as part of his civil rights work during 1964 and 1965 in Northern Mississippi, where he worked on voter education, school integration, and taught in Freedom Schools.