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David Cordell
From the Dallas Express - online "newspaper"
AG Deems Race-Based School Discipline Unlawful
By Jonathan Richie - Senior Staff Writer
Jun 22, 2023
Provisional Attorney General John Scott has issued an opinion concluding that any federal attempt to force Texas schools to institute race-conscious disciplinary policies in the interest of “statistical parity” would violate the law.
Scott was appointed by Gov. Greg Abbott to fill in after Ken Paxton was suspended following impeachment by the House, as reported by The Dallas Express.
The opinion was released in response to a 2021 request by Rep. James White, an East Texas Republican who later resigned from his seat. The request was renewed by Rep. Stephanie Klick (R-Fort Worth) in December 2022.
In White’s original request, he asked the attorney general to consider three main questions. First, he asked whether a Texas school operating under Texas law “may, because of the race, ethnicity, sex or gender of any student, choose what disciplinary action to impose on any student or alter any student-disciplinary decision or action.”
Second, the former representative questioned whether that answer would change “if any Educator chose what disciplinary action to impose on any student or altered any student disciplinary decision or action in order to produce or maintain statistical parity in the allocation of disciplinary actions between groups of students in various racial, ethnic, sex, gender, or disability classifications.”
Lastly, he requested an opinion on what would happen “should the U.S. Department of Education offer ‘guidance’ that it so interprets … Federal law and regulations” in such a way that federal education funding was tied to a definition of discrimination that included the “‘disparate impact’ of facially neutral, even-handedly applied school disciplinary policies on groups of students in different racial, ethnic, sex, gender, or disability classifications?”
In other words, if the federal government attempted to force Texas schools to institute disciplinary policies that sought to ensure specific racial quotas were met when handing down punishments, would that violate Texas equality laws?
White sought to answer the questions himself, writing, “I postulate that … the Texas Equal Rights Amendment and the Texas Education Code … implicitly forbid Educators from, because of the race, ethnicity, sex, gender, or disability status of any student, choosing what disciplinary action to impose on any student.”
“This prohibition applies, even where an Educator would take such action to produce or maintain statistical parity in the allocation of disciplinary actions between groups of students … And nothing the Federal Department of Education chooses to try to do can legally change these obligations,” he concluded.
In his response to Rep. Klick renewing former Rep. White’s request, Provisional AG John Scott concurred with many of White’s legal interpretations.
“Because race is a protected class under the Texas Equal Rights Amendment, any race-based student disciplinary decision cannot stand under that law unless it is narrowly tailored to serve a compelling interest of the school district,” Scott wrote.
However, according to his analysis, “A court would likely conclude that … avoiding a disparate impact cannot serve as a compelling government interest that justified making a race-based student disciplinary decision.”
Scott summarized that ultimately the “Texas Equal Rights Amendment of the Texas Constitution provides that ‘[e]quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.'”
Therefore, he continued, “In applying this provision, the Texas Supreme Court will not uphold a state action based on sex, race, color, creed, or national origin unless it is narrowly tailored to serve a compelling government interest.”
As Scott previously opined, achieving statistical parity regardless of specific action is not a compelling government interest, “Thus, any race-based student disciplinary decision by an educator or school district, whether motivated by guidance from the Office for Civil Rights of the U.S. Department of Education or otherwise, violates state law.”
Supporters of race-influenced approaches to education claim that school administrators do not apply the standards fairly, resulting in higher rates of punishment for minority students.
A 2021 study published in American Psychologist suggested that “Implicit, unconscious racial biases may influence educators’ interpretations of African American youth’s nonviolent and minor behavior as problematic.”
“Recently, scholars have proposed a number of strength-based and culturally responsive approaches to lower rates of discretionary discipline referrals … [A] system in which educators are held accountable for frequent referral rates may help constrain biases that lead to inequitable disciplinary responses,” the study concluded.
Study co-author Ming-te Wang told the American Psychological Association, “… we were not surprised by the findings, considering what we know about the role of racial bias in painting school adults’ views of African American youth as less innocent, older and more aggressive than their white peers.
“Regardless of the behavior that African American youth engage in, that behavior is viewed by educators as more worthy of harsh school discipline like suspension,” she claimed.
The opinion by AG Scott is not a legally binding order but rather his suggestion on how the law would be interpreted and applied in the proposed situations.
The nature of the opinion anticipates a move by the federal government to mandate a particular interpretation of disciplinary policy that might tie federal taxpayer funding for schools to the presence of race-based disciplinary quotas.
President Joe Biden’s administration has shown that it is not shy about attempting to strongarm states into adopting certain policy items by issuing new interpretations of various laws and policies.
AG Scott recently sued the Biden administration over a new interpretation of Title IX that would strip funding from public schools that do not permit biological males to participate in women’s sports, as reported by The Dallas Express. The filing represented the 50th time Texas sued the current federal government.
Recently, Texas won a similar case against the federal administration after it sought to force Texas’ National Guard to receive the COVID-19 vaccine and punish those who refused. The Fifth Circuit Court sustained Texas’ objections, ruling that the president did not have such authority, as The Dallas Express reported.
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