Dangerous Disparate Impact
But there are two issues here: Whether there is “disparate treatment,” that is, whether whites and blacks actually are being treated differently because of their race, or merely “disparate impact,” that is, whether school discipline policies are not written, intended or applied discriminatorily but simply have led to racially disproportionate results.
The Obama administration has made it clear that it will come down on school systems either way. The administration ought to object to disparate treatment, of course, but it is quite wrong to use the disparate-impact approach.
As a policy matter, any use of the disparate-impact approach will drive the regulated entity into doing one of two things, both bad: getting rid of perfectly legitimate policies because they have politically incorrect results or getting rid of the statistical imbalances through the use of surreptitious quotas.