Civil rights commissioners condemn Holder’s decision to discipline students based on race

Robby Soave Reporter
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A few weeks after the federal Departments of Education and Justice sent letters to public schools advising them to discipline misbehaving students more or less harshly according to their race, two members of the U.S. Commission on Civil Rights are denouncing the policy favored by President Barack Obama, Attorney General Eric Holder and Education Secretary Arne Duncan. (RELATED: DOJ to schools: It’s racist to punish students for behaving badly, texting in class)

On Jan. 8, DOJ and DOE informed school districts across the country that they must take proactive steps to ensure that black and Latino students are not being punished in greater numbers than white and Asian students — even if the latter groups were more likely to misbehave. Even seemingly neutral policies — like disciplining all students who came to class late — should be done away with if they result in more black students being punished than white students, according to the letter:

Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race.

But earlier this week, two members of the U.S. Commission on Civil Rights wrote to Holder and Duncan expressing their disagreement with the letter. Both the legal opinion and the policy prescription are wrong, wrote Commissioners Gail Heriot and Peter Kirsanow.

“The [instructions] does not reflect sound policy,” wrote the commissioners, according to a copy of the letter obtained by The Daily Caller. “It is likely to make the nation’s classrooms more chaotic, and thus make it harder for students (especially racial and ethnic minority students) to learn.”

According to Heriot and Kirsanow, the Obama administration’s legal position is wrong. So long as rules are written to be even-handed, they do not violate federal law, even if they result in students of some races being disciplined more frequently than others.

“[Federal law] prohibits only actual discrimination, not neutral policies that have a disparate impact,” they wrote.

Heriot and Kirsanow also advised that the federal government’s instructions to schools would result in chaos, regardless of whether they were legal or not.

“The best evidence shows that differing rates of discipline are not ordinarily due to race discrimination but rather to differing rates of misbehavior,” they wrote.

The letter to Holder and and Duncan represents the position of only the two commissioners, Heriot and Kirsanow. The full commission did not endorse their position.

Several education policy experts, however, previously expressed agreement that the Obama administration’s race-based disciplinary policy would ultimately be bad for schools. (RELATED: Experts slam DOJ letter telling schools to implement race-based punishments)

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