(City Journal) -- A federal commission on school safety has repudiated the use of disparate-impact analysis in evaluating whether school discipline is racially biased. The Trump administration should go further, and extirpate such analysis from the entirety of the federal code of regulations, as well as from informal government practice.
Disparate-impact analysis holds that if a facially-neutral policy negatively affects blacks and Hispanics at a higher rate than whites and Asians, it is discriminatory. Noticing the behavioral differences that lead to those disparate effects is forbidden. In the area of school discipline, disparate-impact analysis results in the conclusion that racially neutral rules must nevertheless contain bias, since black students nationally are suspended at nearly three times the rate of white students. In 2014, the Obama administration relied on this methodology to announce that schools that suspended or expelled black students at higher rates than white students were violating anti-discrimination laws.
To understand how counterfactual such an analysis is, consider Duval County, Florida, which has Florida’s highest juvenile homicide rate. Seventy-three children, some as young as 11, have been arrested for murder and manslaughter over the last decade, according to the Florida Times-Union. Black juveniles made up 87.6 percent of those arrests and whites 8 percent.
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