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Meting Out Discipline Fairly

In an ideal world, there would be no need for discipline in classrooms. The curriculum would be so engaging and the instruction so inspiring that students would become engrossed in learning to the point that teachers would never have to worry about miscreant behavior. But that is not the real world of education by a long shot.

The latest reminder was a recent public hearing before the U.S. Commission on Civil Rights. At issue was whether discipline policies now in place in schools across the country have a "disparate impact" on a particular group of students. If it can be shown that any policy has a disproportionate effect on any group, the education agency involved would be found to be out of compliance.

New York City serves as an example. According to a report issued by the New York Civil Liberties Union, black students, who constitute 30 percent of enrollment in New York City schools, accounted for more than half of all suspensions every year from 1999-2000 to 2008-2009 ("Sharp Rise in Suspensions at City's Schools Is Cited," New York Times, Jan. 27). Under the disparate impact rule, New York City schools are on thin ice.

The issue, however, is more complex than it initially appears. Can a school district prevail if it can prove that such suspensions are warranted? In other words, is mere overrepresentation of a particular group by itself actionable? This is the crux of the matter. It has direct implications for classroom teachers. As one urban middle school English teacher put it, if he had to be concerned about disparate impact, he could do nothing and put up with chaos or take early retirement ("Obama Administration's 'Disparate Impact' Policy Draws Criticism," Education Week, Feb. 15).

There is another consideration that I wrote about in the Journal of the American Enterprise Institute ("Rules for Schools: Dealing with Delinquents," Oct. 26). Teachers need legal protection to untie their hands in maintaining order. Ever since the U.S. Supreme Court ruled 5-4 in Goss v. Lopez in 1975 that students have due process rights, teachers have been walking on eggs in handling disruptive students. Only the dissenting opinion by Justice Lewis Powell foresaw the danger of this ruling when he wrote that students who fail to learn the necessity of rules will be handicapped throughout life.

But that ruling was only the beginning. One year later in Wood v. Strickland, the high court said that if teachers knowingly violate any student's due process rights, they can be held personally liable for financial damages. The ruling put teachers completely on the defensive because punitive damages are not covered by the school district or the teachers union under their respective policies.

The U.S. is not alone in facing the dilemma. In 2008, state schools in the U.K. reported that one in ten teachers had been attacked by students, even though the law had been changed in 2006 to give teachers the right to discipline unruly students by using reasonable force.

The concern that restoring authority to teachers in the U.S. would result in granting them unchecked power over a particular group is exaggerated. Courts have overwhelmingly overturned disciplinary decisions when the student is black. In fact, black students have prevailed in 91 percent of their challenges to expulsion, compared to 38 percent of whites.

More to the point, however, the ethnicity or race of a student should not be a consideration whatsoever. Instead, the behavior of a student should be all that matters. Teachers cannot teach and students cannot learn when the overriding concern is disparate impact.

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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