The Trump administration has taken great strides this year to get rid of disparate-impact doctrine—the idea that demographic disparities of any kind are evidence of discrimination, regardless of intent. Another major step was taken on July 23, when the Department of Education announced that it was rescinding decades-old disparate-impact regulations, meaning that the department now requires evidence of discriminatory intent rather than relying on demographic data alone to determine whether a civil rights violation has been committed. Following up, the department sent a Dear Colleague letter to schools on August 18 reminding them that discipline policies must “neither favor nor disfavor” students based on race.
The implications of the administration’s approach are significant, but more work remains—especially at the state level, where many have baked disparate-impact doctrine into their laws.
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Consider school disciplinary policies in Maryland. Answering a comment request, the Maryland State Department of Education (MSDE) said in a July 27 email that it does not anticipate that the federal policy change will affect a 2014 state law that requires districts to submit corrective action plans when the MSDE flags schools for demographically disproportionate discipline. (The MSDE did not respond to my follow-up request for comment on the Dear Colleague letter.)
Maryland state policy simply assumes that any “uneven application of discipline to minority and disabled students” is sufficient to demonstrate “inherent unfairness,” without any further investigation. Flagged schools must submit a plan for reducing disparities within one year and eliminating them within three. Based on public records I obtained for the school years from 2022 through 2024, I estimate that as many as 50 schools could have met the criteria for state-imposed corrective-action plans. In an earlier identification cycle, the department flagged 79 schools for having disproportionate impact on discipline.
After the state flagged several schools in Howard County pre-Covid, the district indicated that it would revise disciplinary referral forms to “decrease disproportional discipline practices and better align with restorative justice framework.” “Restorative justice” supposedly reconciles harm caused by the offender onto the offended through structured conversations, which can include practices like community circles or mediation sessions. Subsequent reports from the district also describe schools setting “specific targets” to reduce office disciplinary referrals for low-income, black, and special-education students: “The goal is to reduce suspensions for the identified student group(s) at a greater rate than overall suspensions.”
Howard County’s public dashboard shows that it aims to reduce and cap overall suspension rates to 1.4 percent by 2029, a target adopted based on “the lowest suspension rate among Maryland school systems.” The district will not change its approach for student groups that are already below the overall suspension rate, such as white and Asian students, so it intends to achieve its goals by reducing suspension rates for black students from 5.9 percent in 2024 to 1.4 percent in 2029.
But just because Maryland schools are reducing disciplinary actions on paper doesn’t mean that student behavior has improved. One parent described violence at a Baltimore middle school as routine, claiming there were “at least four or five fights every day.” A former teacher at Loch Raven High School in Baltimore County also described daily fights and was dragged into a student pile-on when he tried to break one up. An elementary school teacher in Calvert County indicated that schools implementing restorative justice programs focused on interventions like “a conversation circle to talk about feelings” but didn’t enforce consequences for students’ misbehavior—an experience all too typical for such programs.
Maryland isn’t alone. Other states, including California, Connecticut, and Washington, have incorporated disproportionality when addressing school discipline. Ideally, states would rescind these kinds of guidance and policies. But disparate impact has become embedded in education; dislodging it will require making state-level disparate-impact laws risky. The Office of Civil Rights has opened investigations into two districts that allegedly adopted discipline policies in racially conscious ways. Perhaps more investigations should be carried out, targeting schools whose hands are tied by state disparate-impact policies.
Schools should be encouraged to maintain order, an essential component for learning and opportunity. It isn’t right to discipline a student because of his race; it also isn’t right to avoid discipline because of his race.