An Obama Supreme Court Justice Appointee Could Allow Federal Takeover of Police Departments and School Discipline

Mark Wilson/Getty Images
Mark Wilson/Getty Images

A Washington, D.C. attorney who has practiced both civil rights and constitutional law warns it is possible that Senate confirmation of a left-leaning Obama appointee to the high court could allow the federal government to take over not only police departments, but also all of school discipline in public schools.

Writing at Liberty Unyielding, Hans Bader observes that a high court that leans further left could allow the next administration to use “disparate impact” regulations to essentially take control of the nation’s police forces and school discipline policies based on claims of racism.

Disparate impact theory holds that current practices in law enforcement, school discipline, housing, and other areas – without intention – could result in a statistically disproportionate effect on a protected group of people, and, therefore, could be considered discriminatory and illegal.

Bader cites the example of the Justice Department referencing statistical evidence of racism in Ferguson, Missouri:

Ferguson’s police department was sadly abusive at times, but not usually racist, and…the statistical evidence of racism the Justice Department cited was entirely bogus, and if accepted, would classify every police department in the country as racist, including those run by black police chiefs, in cities with black mayors, and many black police officers). “Disparate impact” regulations ban certain colorblind rules when more offenders are black than white, regardless of the lack of a racist motive. An expansion of the Obama administration’s extremely aggressive disparate-impact rules will make it much harder to proactively police and arrest violent criminals.

Bader asserts that if the Supreme Court does not limit “disparate impact” rules, the U.S. Justice and Education Departments could essentially “radicalize school discipline,” which would result in double standards as to suspensions and other discipline based primarily on race.

For example, just one year after the Obama administration issued new school discipline policies based on the concern that students of color are “disproportionately impacted” by suspensions and expulsions, a journalist proposed the liberal policies–based in social justice ideology–are making schools less safe.

In a column in the New York Post last March, Hoover Institution media fellow Paul Sperry explained that replacing traditional discipline with “restorative justice” and “peer juries” is backfiring, to the extent that many urban school districts are experiencing an increase in violence and disruptions.

“Restorative justice isn’t really punishment at all,” wrote Sperry. “It’s therapy.” And it’s a type of therapy the Obama administration is holding out as the answer to what it considers to be the racist disciplining of black students who are suspended at rates higher than those of white students.

“Racial targets used to address ‘disparate impact’…also impede badly needed school discipline for menacing or disruptive students,” Bader writes. “To a limited extent, the Obama administration has already succeeded in doing this, through consent decrees mandating racial targets for suspensions under Title VI, in several large, heavily-minority school districts.”

He continues:

The Obama Education Department’s authority to even enforce disparate-impact rules is legally questionable at best…It seeks to ban “disparate impact” even though the Supreme Court ruled 5-to-4 in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. (Justice Scalia provided the deciding vote in that case, and his death will no doubt embolden the Obama Administration to flout that ruling even more flagrantly than it already has.).

The Supreme Court ruled in the Sandoval case that people cannot sue institutions over “disparate impact” under Title VI. The Obama administration takes the position that while Title VI statute itself doesn’t reach disparate impact, Title VI regulations can and do (a position that the Sandoval decision did not decide, but described as “strange” in footnote 6 of the Court’s opinion).

Bader cites the example of the Obama Education Department’s assertion that a school could be guilty of discrimination if it punishes students for tardiness if more students of one race than another were tardy, when the school district could have limited the disproportionate impact on that race by altering school policies that made it harder for them to get to class on time.

Rarely shy about using the race card, the Obama administration claimed that such statistical disparities were usually the result of actual intentional discrimination by school officials.

“This claim is in tension with the Supreme Court’s Armstrong ruling. The Supreme Court ruled in United States v. Armstrong (1996) that there is no legal ‘presumption that people of all races commit all types of crimes’ at the same rate, since that is ‘contradicted by’ real world data,” Bader explains. “Yet, curiously, the Obama Education Department treats this false presumption as fact, and insists that there is no evidence of ‘more frequent’ misbehavior by some groups…”

Bader says the Obama administration has cited the work of University of Indiana school psychology professor Russell Skiba for this claim. Skiba – according to Heather MacDonald, writing at National Review, arrived at the conclusion that white students are more often punished for “objective” offenses, and black students for “subjective” offenses. However, once referred to the school principal, white students were found to be expelled at the same rate as black students. Nevertheless, Skiba maintained that there was an intended distinction in the reasons why students were referred for discipline.

In November, former Secretary of Education Arne Duncan used the viral-video incident at Spring Valley High School in Columbia, South Carolina – in which Ben Fields, a white sheriff’s deputy, dragged a disruptive black girl from her seat to the front of the room – to push Obama’s campaign to reduce punishments for black and Latino students.

“The ugly truth – the harsh reality – is that still today in 2015, some children are far more likely to face harsh discipline than others, simply because of their zip code or the color of their skin,” Duncan insisted. “That’s unacceptable and not a reality anybody should be willing to live with.”

Ironically, as Breitbart News reported, despite the Obama administration’s attempt to make the incident about race, hundreds of both black and white students at Spring Valley High walked out in support of Fields, who was fired after the incident.

Nevertheless, Duncan urged that we “take a hard look at ourselves, and our history, and the implicit biases that we all carry.”

“So the only way to get suspension rates to be equal among all racial groups would be to adopt quotas in school discipline that reduce discipline for violent or disruptive minority offenders,” Bader writes. “But reducing discipline for threats, fighting, and classroom disruptions will harm, not help, African-Americans, especially since crime victims are disproportionately the victims of black-on-black violence.”

He adds that such de facto racial quotas will make schools more violent, racially divided, and segregated as well, since they will likely drive out white, Asian, and black middle-class students.

A left-leaning Supreme Court following the death of Scalia, Bader concludes, would be a blow both to crime victims and student safety.


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