Should a school change a race-neutral policy because of its disparate impact on minority students? That is the subject of an excellent blog post by Hans Bader at CEI’s Open Market. It seems the Maryland Board of Education would answer that question in the affirmative. Bader’s post provides persuasive legal arguments against a disparate impact analysis. Allow me to add to that by describing a true scenario concerning a disparate impact problem faced by one high school.
Years ago, I taught earth science at a high school whose attendance policy was that any student who was tardy for class nine times in a grading period would receive a grade of “F.” One quarter, despite being warned and counseled over and over about this policy, a student in my first period class, who I will refer to as Carlos (not his real name), was late to school over nine times. I had attempted to call his home numerous times in the weeks prior, but I always got an anwering machine.
Carlos would never tell me why he was late, he would just look down whenever I asked him. Once he was in class, Carlos was respectful and well-behaved. Something was going on, and I was determined to get to the bottom of it before failing him. To make a long story short, I did discover the problem. It was gangs. To get to school Carlos had to walk a gauntlet of gang members in his Hispanic neighborhood, who loitered there several mornings per week. To avoid being beaten, robbed, or forcibly recruited, Carlos elected most mornings to wait until the various gang members left before leaving his house and going to class. It turns out that other male Hispanic students were late for the same reason.
Was the school guilty of institutional race discrimination by having a school policy that resulted in a disparate impact on Hispanic students? Should the school have eliminated its race-neutral policy to eradicate its effects as some teachers there advocated? Focusing on the disparate impact meant focusing on statistics. To “fix” the statistics, the school could simply repeal the policy that caused the “bad” numbers. Or, perhaps the policy could be amended so that it applied to students of some races, but not others. In the end, we learned through my student’s ordeal that there are often mitigating reasons for a student’s poor conduct. Instead of simply abandoning a legitimate policy, the preferred solution was to understand our students better in order to identify and address the cause of their problems. In this case, that meant notifying authorities that students in certain areas required safe passage to school.
Fortunately, my school did not change its tardiness policy when statistics reflected a disparate impact. The policy served to reinforce an important educational interest that all students be punctual and prepared for class. And I never had to assign that “F” to Carlos.