If You Like Your Fourteenth Amendment, etc.

Our public schools have started making decisions about student discipline on the basis of race. Out-of-school suspensions are out of favor, because of their disparate impact on students of color. It was naïve of me to expect that a formal school committee discussion (a vote, even) would precede an announcement of such import. After all, this is 2014 and lawmaking has moved on from the primitive process of passage, presentment, and enactment into the new constitutional era of Legislation by Presidential Press Release. Sauce for the federal goose being equally appetizing fare for the local gander, if my children’s school system decides to shred the Fourteenth Amendment I should expect to read about it, after the fact, in the newspaper, rather than beforehand in something so passé as, for example, a lawfully posted school committee agenda.  Naïveté must be yet another symptom of my cultural incompetence (Vox Vickery passim).

You may ask, who needs a system of checks and balances, democratic accountability, and all the rest of that lawyerly folderol when we have walking among us experts who know best? I have no reason to doubt the expertise of Superintendent Maria Geryk and Dr. Faye Brady, the two professionals the Daily Hampshire Gazette quotes in its story. But I didn’t get a chance to vote for or against them, and neither did you.

In our hurry to fend off charges of racism we are letting some things slide, things like the rule of law, including but not limited to the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Deciding to reduce or eliminate a form of discipline because so many of the disciplined students are not white is fundamentally unequal, no matter what the Department of Education would have you believe: “Schools… violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race.” Here the administration is unabashedly misrepresenting the law. The Supreme Court has made clear that race-neutral school policies with a supposed disparate impact do not violate federal law, whereas race-based policies would.

Perhaps motivated by the Department’s assertion, Dr. Faye Brady hopes that by renouncing out-of-school detentions, we will exorcise the specter known as “Discipline Disparities.” Although only 7.6% of Amherst-Pelham’s students are Black/African-American according to state figures, 12.7% are Hispanic, and 8.6% are multi-race/non-Hispanic, (in total 29%) students of color make up 58-65% of the students punished with out-of-school detentions.

Do suspensions encourage the suspended students to modify their behavior, and make it easier for other students to learn? Is the school suspending students because they engage in the sort of misbehavior that leads to suspension? These are wrong questions to ask, apparently. Far better, so far as the Disciples of Discipline Disparities in the federal Department of Education are concerned, that you make comparisons more along these lines:

The University of Massachusetts, Amherst, is a community that consists of thousands of undergraduates, graduate students, faculty, and staff. But during the riot known calumniously as the Blarney Blowout the overwhelming majority of the arrestees were male undergraduates, young men in the 18-22 age range. I reviewed the arrest list and found no graduate students, no staff, and no professors. Not so much as one emeritus, or even a librarian. Why the disparity, why the disproportional representation of young men aged 18-22, why the police bias?

You spotted my statistical error, of course.  I am in the wrong universe (in more ways than one, I hear you say). The correct universe is not the University population as a whole, but the rioters. If the rioters had consisted of roughly equal numbers of undergraduates, graduate students, staff, and faculty, we could expect (1) some awkward encounters at Rao’s; (2) at least one additional big-name, top-dollar consultant to conduct the Blarney Blowout post-mortem; and (3) the police to have arrested as many professors as undergrads. The rioters, however, were predominantly 18-23 year old men, hence the arrest figures.

Returning to the discipline matter, there seem to be two possible explanations for the over-representation of Black and Hispanic students in the ranks of the suspended. The first is one that former school-committee member Kathleen Anderson described in the Daily Hampshire Gazette (7/9/14): “white teachers more harshly disciplin[e]… [students] of color for the same or similar behaviors the same white teacher will ignore in white students [and]… white educators continually and persistently demonize students of color.”  If Ms. Anderson is correct, and white teachers are picking on and demonizing students of color, then we had better send all the white teachers off to the Massachusetts Commission Against Discrimination for re-education, then fire the lot and replace them with non-white teachers, who alone are apparently fit to teach non-white students. And somebody should call the board of Amherst A Better Chance and tell them to wind up the program, dissolve the organization, and shutter the ABC House. Then we should inform the Black and Hispanic parents from Springfield and Holyoke whose children are on the School Choice waiting list for Amherst that they need to bale right now, before their kids end up here, in the Aryan Nation’s version of Dotheboys Hall.

Or perhaps Ms. Anderson is wrong. The facts and some deductive reasoning suggest that she is. As Jason L. Riley (author of Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed) observed, “if racial animus toward blacks explains higher black discipline rates, what explains the fact that white kids are disciplined at higher rates than Asian kids? Is the school system anti-white, too?”

So perhaps the real reason for the out-of-school suspension disparity is a misbehavior disparity. We might find out whether that is the case by looking at the correct universe and asking, “What proportion of acts warranting out-of-school suspension are committed by students of color?” Then we could try to figure out why.

Nationwide figures suggest that working-class students of color tend to experience and witness more violence than their white classmates, and are more likely to come from what we used to call broken homes, with all ills attendant thereto. Now, I concede that it is possible that multi-generational poverty and welfare dependency, an absentee father, low expectations, the inculcation of victimhood, and the ever-present threat of potentially fatal violence will have absolutely no effect on a young man’s response to authority in the classroom. Indeed all things are possible to him that believeth. But rather than trust to belief, I would like to see some empirical data.

I realize, merely raising this possibility makes me not merely a cultural incompetent but also – you know what word comes next – a racist. Not in the reasonable and intelligent sense of the word, obviously, but that is not the sense that the word “racist” carries any more.

Speaking of the R word, the three chairs who rebuked Professor Amilcar Shabazz now stand accused of violating the professor’s civil rights, issuing a “threat designed to raise racial tensions and racial fears” and thereby engaging in “a veiled attempt to silence the racial dialogue.” That is according to Stockbridge attorney Mark W. Siegars, who claims to represent “several citizens of and parents of students in the school district.” I did not know you could be a citizen of a student, but acknowledge that I may have missed that class in law school. Anyway, what exactly did the three chairs do to violate Professor Shabazz’s civil rights, attempt to silence the racial dialogue, and raise racial tensions and fears?

To recap, at a meeting of the “equity task force” that he had persuaded the regional school committee to establish, Professor Shabazz referred to an assaulted white student as someone his non-white attackers considered to be “the greatest student racist they could find.” Although he did not announce the white student’s name, Professor Shabazz revealed enough information to violate the victim’s privacy, and based on federal statute and state regulations plus ample precedent, counsel concluded that Professor Shabazz’s statement had exposed the district to legal liability. So the chair of the regional committee and the chairs of the Amherst and Pelham school committees issued a rebuke so as to make clear that Professor Shabazz had not spoken for the district. The purpose of the reprimand was to remove the large “Sue Me” sign Professor Shabazz had stuck on the district’s collective back.

This did not sit well with Professor Shabazz, or with Trevor Baptiste, who decided to call a special meeting of the regional school committee. The rules of the regional school committee provide that the authority to convene special meetings belongs to the chair. On July 14, five individuals who are members of said committee gathered in a room in Pelham at the invitation of Dr. Baptiste, who is not the committee’s chair. He is the vice-chair, certainly, but he is not the chair. Rather than illustrating the distinction between the two offices by way of a lengthy analogy, I mention just two names: Barack Obama and Joe Biden.

Dr. Baptiste asked the various towns to post an announcement that referred to the gathering as a meeting of the committee. The gathering occurred. The five individuals purporting to be the regional school committee purported to repudiate the reprobation. All in all, quite the [insert dysphemism ending in “storm”].

Fans of traditional educational values (e.g. reading, writing, and arithmetic) scanning this squall for some trace of sunshine should note that the regional school committee has, at least, embraced its own version of the 3Rs: Reveal, Reprove, and Repudiate. That is a comfort, albeit very small. But there is another, less factious, reason to avoid becoming too downcast about the July 14 meeting, namely its status as a legal non-event.

The July 14 meeting had all the legal significance of Nantucket’s separate peace treaty with Great Britain during the War of 1812. Note to high-school students: Yes, Nantucket in effect briefly quit the Union but our republic endured, malgré tout.

Despite its curiosity value, Nantucket’s treaty with the British Empire is not a document that tourists will stand in line for hours to ogle, even during this the year of its bicentennial. The dearth of interest may reflect lack of both publicity and legality. International treaties being squarely in the province of the federal government, not the individual states, still less little islands off the coast thereof (no matter how picturesque) the Nantucket-Great Britain concordat of 1814 fell considerably short of what a court of competent jurisdiction would deem lawful.

Readers will recall that it is the President of the United States who signs treaties, subject to Senate approval, not the Nantucket selectmen. The special session of the Nantucket Town Meeting could not confer legality on the instrument signed aboard a H.M.S. Superb on August 28, 1814, not even after voting in favor of neutrality, unilateral disarmament, and withholding taxes from the federal war machine, years before Amherst Town Meeting thought of such things. With the Constitution of the United States in full force and effect, including the parts about treaty-making (art. I, s.8, cl. 3, and art. II, s.2, cl. 2), the islanders’ decisions were not legitimate. Embarrassing, yes; legitimate, no.

So too with the gathering in Pelham Library some 200 years later, and the effort to re-attach that “Sue Me” sign to the regional school committee’s collective back. But litigation abhors a vacuum, so the story does not – must not – end there.

Did I mention what Attorney Siegars’s clients want in order to resolve their civil rights claims short of filing suit? Not much, really. The committee can forestall a legal action by the simple expedient of removing Lawrence O’Brien and Katherine Appy. All the committee has to do, in exchange for a quiet life, is ditch two members, the voters’ popularly elected representatives. Given my line of work I have become somewhat inured to unusual and unrealistic demands, but this one is a doozy.

On the other hand, the demand is not so shocking when you consider the context. Without so much as a town-wide let alone statewide vote, we have permitted school administrators to enact a federal Department of Education policy that bases disciplinary decisions on race, contra the equal protection clause of the Fourteenth Amendment as interpreted by the Supreme Court of the United States. With equal protection getting fed through the shredder, why should we expect to keep our elected representatives?


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