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complaints to the federal Office for Civil Rights.
(Office for Civil Rights Compliance, Department of
HEW, Washington, D.C. 20202.)
Because we feel the problem of racial discrimination
in the suspension process is so serious and because,
to date, no effective enforcement program has
been established at the federal level to eliminate
such discrimination, we will set forth detailed proposals
for a discussion with HEW's Office for Civil
Rights' officials immediately upon release of this
report.
Section 60I of the Civil Rights Act of 1964 (Title
VI hereafter) bans racial discrimination in any program
financed with federal funds. It also mandates
every agency expending funds for aid to education
to establish regulations, standards and procedures
which will guarantee the cessation of discrimination.
Such standards are to be enforced either through
suits filed by the Justice Department or by the termination
of federal funds following appropriate administrative
hearings.
OCR has established the following Regulation:
(d) Discrimination against children.
No educational agency shall be eligible for
assistance under the Act if, ... it has had or
maintains in effect any practice, policy, or
procedure which results or have resulted
in ...
(4) Imposing disciplinary sanctions, including
expulsions, suspensions, or corporal
or other punishment, in a manner which
discriminates against minority group
children on the basis of race, color, or
national origin. 13G
Although the Regulation is clear, OCR has not
enforced it or Section 601 vigorously, with the re-
136 Regulation, 45 C.F.R. 185.43 (d) (4) (Emergency
School Aid Act).
137 The Supreme Court did so most recently in Turner v.
FOllche, 396 U.S. 346 (1970). While it is true that the Court
rejected statistical evidence as establishing a prima lacie
case of racial discrimination in JeDersoll v. Hackney, 406
U.S. 535 (1972), JeDerson concerned basic decisions by
the state as to the allocation of welfare funds, and plaintiffs
did not offer sufficient proof tbat the classifications
established resled on racially-linked criteria. Where blackwhite
differentials are alleged to rest on "subjective judgment"
or otherwise racially-linked criteria, tben a prima
lacie case is established, "and tbe burden [falls) on the
appelees to overcome it." Turner v. Fouche, supra at 360.
suIts depicted earlier in this chapter. We believe that
discrimination and racial disproportion in school discipline
will end only if school systems are made
aware that real consequences, including the termination
of federal funds, will follow from their illegal
practices. At an absolute minimum, a strong monitoring
program of disciplinary practices and, in tum,
a set of guidelines with which OCR can establish an
internal set of priorities for further investigation and
for bringing legal action against recalcitrant school
systems, must be adopted forthwith. These or similar
guidelines might also be employed voluntarily by
school systems interested in ensuring an end to discrimination.
OCR has argued that effective enforcement of
Title VI, and particularly the holding of compliance
hearings prior to termination of federal funds, is
stymied by extraordinarily high judicial demands in
relation to the burden of proof OCR must maintain.
But courts have been willing to use statistical evidence
of racial discrimination to require the shifting
of the burden of proof so that it becomes the duty
of state officials (or in many cases private employers)
to explain how the statistics could have arisen
in the absence of such discrimination. The Supreme
Court has upheld such a shift of burden. 137
OCR should use its authority to establish guidelines
within which certain statistical distributions will
be presumed to show discrimination and shift the
burden to the school district to demonstrate that
discrimination does not exist.
138 See Chance v. Board 01 Examiners and Board 01 Edllcacalion
01 Ihe Cily 0/ New York, 330 F. Supp. 203
(S.D.N.Y. 1971), aD'd, 458 F.2d 1167 (2d Cir. 1972), and
Hawkins v. Coleman, 376 F.Supp. 1330 (N.D. Texas,
1974). Allhough there are certain problems with chi
square methodology, including the necessity to have relatively
large numbers in one's data base, OCR could establish
this or a imilar test which would be admissible before
courts and administrative officers.
139 A statistician has compared the chi-square methodology
10 the process of studying coin flips. Taken by itself, a
2 percent excess would not be a powerful indicator of
racial bias. On tbe other band, if 15 out of 20 schools
reported such an excess, we would be as curious about the
neutrality of the disciplinary process as we would if a coin
turned up "heads" 15 out of 20 times. If no racial bias is
present, one would expect whites to outnumber blacks,
adjusted for their percentages in the population, at least
as often as the reverse.
149