Black Men, Title IX, and the Disparate Impact of Discipline Policies
Civil rights activists and former officials of the Obama administration are concerned that the roll back of the 2014 discipline guidance will “enshrine discrimination” in America’s schools. In the words of DeVos’ predecessors John King and Arne Duncan, the rollback is further evidence that the Trump administration has “turned its back on our most underserved and vulnerable students.” The Obama administration took action when they discovered that Black students were being suspended at three times the rate of white students, according to data collected by the Office of Civil Rights. In their view, disparate numbers of suspensions for students of color or students with disabilities were not acceptable for any reason.
But these same Obama loyalists don’t seem to be worried about another Obama-era policy that has been disproportionately affecting young black men since 2011. But the outsized harm being done to Black college students accused of sexual assault is, by definition, disparate impact and those committed to protecting Obama’s legacy need to decide if they care about that. At the moment, all evidence points to the conclusion that they don’t. On the contrary, they were apoplectic by its recent rollback, tweeting that the action was “cruel” and “part of a pattern of deliberate injustice.” By assailing DeVos’ rollback of both the discipline guidance and the guidance for dealing with sexual assault claims (AKA Title IX), Obama loyalists are trying to have it both ways. And truth be told, it’s easy for them to do that that when almost no one in the media, including reporters, forces them to explain the inconsistency and yes, blatant hypocrisy, of their position.
The 2011 Title IX guidance that changed the way sexual campus assault is adjudicated on college and university campuses has led to a disproportionate number of expulsions and scholarship losses for Black male students. It is an unintended consequence, but not surprising in a context where due process is suspended, and a mere accusation is sufficient for the accused to be presumed guilty. Almost no one wants to talk about the role race plays in allegations of sexual assault but those brave enough to address it are unequivocal about the imbalance they see. While the Office of Civil Rights quite remarkably does not collect any data on race in these kinds of Title IX cases, the anecdotes are consistent and many.
Emily Yoffe, who has written extensively on the issue, shares that while Black men make up only about 6 percent of college undergraduates, they are vastly overrepresented in the cases she has tracked. Self-described feminist and Harvard Law Professor Jeannie Suk Gersen wrote in The New Yorker in 2015 that the administrators and faculty members she’d spoken with who “routinely work on sexual-misconduct cases” said that “most of the complaints they see are against minorities.” And Janet Halley, also a self-described feminist and professor at Harvard Law School said in testimony before Congress that in her experience, “the rate of complaints and sanctions against male (including transitioning to male) students of color is unreasonably high.”
Some might call this disparate impact.
Disparate impact was a driving force in the 2014 discipline guidance issued by the Obama administration. Supporters of the guidance were—and are—passionate about righting this wrong. Their solution was to put schools on notice that they’d be subject to a federal investigation by the Office of Civil Rights if their suspension and expulsion numbers were imbalanced by race or disability status.
There are currently 304 open investigations in 42 states.
Partisan politics, confirmation bias, and tribalism lead even the smartest people to take positions that are completely incongruous if it means supporting their side, lambasting the opposition, and protecting a legacy. If ever there were a figure who brings out this tendency to the extreme in the American people—other than President Trump—it is the Secretary of Education, Betsy DeVos. Since her nomination as secretary, she has been a polarizing figure, and was so before most people even knew what she stood for. Even her predecessors have taken to Twitter to not only criticize not only her work, but also her motives and character.
In recent weeks, both the Obama era Title IX and discipline guidance have found themselves on a seemingly certain path to rescission. Passions run extremely high on both issues and accusations of being “racist” and/or a “rape apologist” are common for anyone who publicly questions either of these Obama policies. But putting aside the emotionally charged nature of the debates over both, one thing is clear: it is impossible to be intellectually honest and support both sets of guidelines.
The Title IX guidelines lowered the evidentiary standard from “clear and convincing” to “preponderance of the evidence,” broadened the definition of sexual assault, and stripped away traditional due process. Since 2011, it has been customary for schools to withhold crucial information about the charges from the accused student. All opportunities for cross examination either by the accused student or an attorney or advisor ceased to exist. So did the right for the accused to examine the evidence against him.
Legal professors and scholars from across the political spectrum have expressed dismay over these Title IX practices, including liberal and feminist icon, Ruth Bader Ginsberg. She was asked about the issue by Jeffrey Rosen in an interview in early 2018:
The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenants of our system, as you know, everyone deserves a fair hearing.
When Rosen asked Ginsburg if some of those criticisms of college codes were valid, her simple response was, “yes.”
As of now, more than 120 Title IX rulings have been overturned or reversed in courts across the country. The judges have most often cited failure to provide due process as the reason.
Doubtless, President Obama and former Education Secretary Arne Duncan had the best of intentions with both sets of guidance. But the consequences of both have brought us to a place that is intellectually untenable for any honest observer: While the discipline guidance set out to ensure that students not be disparately impacted based on their race, the Title IX guidance has actually created a situation of disparate impact in which a disproportionate number of Black men are losing scholarships and being expelled from their colleges and universities—with little access to due process.
If we, as a people, believe it is wrong to support policies that systematically and disproportionately harm students of color, then we can’t be against both the Title IX and Discipline rollbacks. The positions are incompatible.
All the hyperbolic tweets and official statements in the world by former Education Secretaries and potential 2020 presidential candidates don’t change reality. Title IX guidance has resulted in exactly what the discipline guidance was trying to eradicate—disproportionate treatment of Black students. Let’s acknowledge this and move on to better serving students and working to unravel injustice and racism in our schools and institutions of higher education.