In the New York City school system, the nation’s largest, blacks and Hispanic students are disciplined at a higher rate than white and Asians (“Students of Color are More Likely to Be Arrested in School. That May Change.” The New York Times, Jun. 20). Based on this data alone, critics charge that racism is the reason.
But if that is indeed so, then why does the disparity persist in schools with minority principals and teachers? Why in the world would they be prejudiced against their own kind? I submit that a more likely explanation for the uneven rate is that the behavior of the students warrants it.
In December 2018, a federal commission on school safety agreed when it repudiated disparate-impact analysis. In other words, just because a facially neutral policy results in different disciplinary outcomes does not mean prejudice is the reason.
During the 28 years I taught in the same high school in the Los Angeles Unified School District, teachers walked on eggs when it came to disciplining black and Hispanic students. If anything, there was reverse racism. In light of the legal ramifications, I wouldn’t be surprised if the same thing exists.
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It would be a mistake to always reject disparate-impact evidence as worthless. Likewise, it would be a mistake to ever accept disparate-impact evidence as conclusive — that is, to find discriminatory intent based solely on disparate-impact evidence and w/o considering alternate explanations for the disparate impact.
The courts themselves sometimes get badly tangled up when using disparate-impact analysis.
There are some court decisions that treat disparate-impact evidence as shifting the burden to the accused to provide a plausible alternate explanation for the disparate impact. This is probably the correct approach.
There are other court decisions that treat disparate-impact evidence as shifting the burden to the accused to not only provide a plausible alternate explanation for the disparate impact, but to prove that the alternate explanation was the true reason for the disparate impact. This is probably a bit unfair to the accused.
There are still other court decisions that treat disparate-impact evidence as shifting the burden to the accused to not only provide a plausible alternate explanation for the disparate impact and prove that the alternate explanation was the true reason for the disparate impact but to also prove that this was the only method the accused could have utilized to achieve the accused legitimate objective. This is definitely a lot unfair to the accused.
An example of this last approach would be a court decision holding that a department store violates Title VII if requires all applicants for sales clerk positions to have a college degree. The requirement has a disparate impact — whites are more likely than blacks/Hispanics to have a college degree. The store management probably did not intend to discriminate against black/Hispanic applicants, but rather used the college-degree requirement because the store management thought sales clerks who had college degrees would be better at operating the registers, more likely to show up on time, and less likely to have substance abuse problems — all legitimate alternate explanations for the college-degree requirement. And, the store management can probably prove that these alternate explanations were its true motive. But, the store management probably cannot prove that the college-degree requirement was its only way of identifying clerks who were good at operating registers, likely to show up on time, and unlikely to have substance abuse problems; there are other tools the store management might have used to identify such applicants. These other tools might have been more expensive, more time-consuming, and less reliable. But, very hard to prove any of this. So, under this extreme interpretation of disparate-impact analysis, as a practical matter, the department store would have lost the Title VII lawsuit challenging the college-degree requirement as soon as the plaintiff proved black/Hispanic applicants were less likely to have a college degree than white applicants — even if the store management were all black/Hispanic and even if most of the store’s customers were black/Hispanic.
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Labor Lawyer: Thanks for this clear explanation about disparate impact. It’s hard for lay people to understand the nuances of such rulings, but you’ve done a good job of making sense.
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