Beyond the Cusp

January 19, 2014

Disparate Impact Meets Zero Tolerance

Thanks to an unprecedented cooperation between the Department of Justice and Education Department crafting a directive rolling out new directives for meting out discipline in schools, we now have competing dictates where enforcing the existent zero tolerance mandates will run headlong into disparate impact guidelines. This new directive details that all discipline must now be measured before application to be able to assure Federal authorities from Departments of Education and Justice that each application will not cause one group of students to have received discipline in greater proportions than any other group. This directive has implications beyond initial impressions as though most have looked at the application of disparate impact would force on disciplining minorities in many city school districts such that outcomes resultant from application of discipline is shared equally across all races. But all previous real world applications of disparate impact have constantly run into problems, many of which were unexpected when this theory was applied, and the same is likely in this application and is probably guaranteed. The real test will come when school systems run into my favorite consequence which lies in wait to despoil even the best of plans, unintended consequences, and this rule is guaranteed to run afoul of this.


One of the earliest attempts to apply the disparate impact guidelines were in criminal applications spurned by statistics which revealed a disproportionally larger number of minorities were being sentenced to prison than were other sectors of society. One of the results from the application of disparate impact guidelines to incarceration rates was a series of legal suits challenging the manner and practices of numerous urban police and justice departments which resulted in forcing the justice systems to release large numbers of convicts and adjust sentencing guidelines in order to equalize incarceration rates to fit the new guidelines. The same results will soon be converging on many schools systems and administrators are going to be challenged in how they keep discipline in their schools. Forget about the usual suspicions of applications of disparate impact and just fathom the coming lawsuits against schools when little Johnny is suspended for fighting and his parents sue over the disparate application of suspensions if boys as compared to girls for fighting. This is a disparity which is both expected and probably nearly universal in its occurrence. Boys tend to settle their differences in a different manner than girls. Simply put, boys tend to use contests of physical prowess to settle differences or taking revenge while girls are far more subtle and inventive in their manners of meting out revenge and settling differences. If school systems are to be required to discipline girls and boys in equal numbers and lengths for fighting then either school officials will need to find inventive ways to discipline more girls for fighting or turn a blind eye to many occasions of fights between boys. But what now happens to that old standby, zero tolerance. Zero tolerance forces school systems to discipline any rule breaking event as if it was the trigger of an apocalypse. The same will apply to disciplining students for disturbing the peace complete with intense screaming and attempted hair pulling. Good luck finding any boys to equal out this category. The schools are going to run directly into the same problems as law enforcement and the courts had when disparate impact guidelines were imposed on arrest, conviction rates and sentencing throughout the United States in the second half of the twentieth century. While we have witnessed some seriously insane applications of zero tolerance when six year old boys are suspended for using finger guns and yelling “bang, bang” and being suspended for using a (pretend) firearm on school grounds, now we will have twice the irony when we also have disparate impact applied in parallel with zero tolerance. One will have to give ground to the other and who knows which one will win out in the school yards across the United States. Let the inanity of insanity begin.


Beyond the Cusp


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