But school districts expanded Zero Tolerance Policies to include behavior and infractions that pose no safety concerns. Many of these students were suspended and expelled for typical childhood or adolescent misbehavior. When children are suspended or expelled, they are far more likely to drop out of school. Black children, especially black males, are disciplined more often and more severely than any other minority group. Federal laws provide an incomplete patchwork of legal protections against the imposition of harsh school disciplinary measures.
Many federal courts bend over backward to defer to disciplinary decisions by school officials.
Under the adverse impact doctrine, when a racially neutral policy or practice produces a disproportionately harmful impact on students of color, the burden shifts to the school system to justify its policy or practice under a relatively high standard. In 1971, the U. S. Supreme Court adopted the adverse impact doctrine in Griggs v. Duke Power. Because it is often difficult for students and their parents to find attorneys to represent them in court cases, the role of OCR is critically important. Unfortunately, it does not appear that OCR is vigorously applying the adverse impact doctrine in its complaint investigations and findings. While OCR has authority to initiate investigations without waiting for complaints, OCR has not used this power even to look at the educational justification for the disciplinary practices of school systems with the most egregious racial disparities.