Twenty Social Scientists File Amicus Brief in School Discipline Case Using Implicit Bias Research to Reclaim 14th Amendment Protections Against Discrimination

Latino and Black students and their families and local community groups reached a settlement with the Kern High School District (KHSD) about their disproportionate discipline and transfer policies. However, the plaintiffs are appealing the dismissal of the California Department of Education from the lawsuit, arguing that the CDE failed in its independent oversight responsibilities by not acting to remedy the disproportionate discipline.

The state allowed the school district to suspend and expel Latino and Black students in disproportionate numbers. The school reported the highest number of expulsions of any district in the state of California, including school districts with much larger enrollment. KHSD’s average expulsion rate for White students was 18.70 per 1,000 students; for Latino students, 65.85 expulsions per 1,000 students (20.84% higher than the average rate for all students and 352% higher than the average rate for White students); and for African-American students, 110.21 expulsions per 1,000 students (102% higher than the average rate for all students and 589% higher than the average rate for White students).>

The CDE wants to evade its responsibility to provide a high-quality education to these students by asserting that it had no intention to discriminate and no oversight responsibility for this disproportionate discipline. This fig leaf is justified by outmoded Supreme Court law first articulated in the case Washington v. Davis that only intentional bias motivated by racial animus can be considered an equal protection violation. Social scientists and neuroscientists have shown that implicit bias, racial anxiety, and stereotypes are more likely to influence judgment and decision-making when there is discretion.

In October 2017, the plaintiffs filed their opening brief in an appeal against the California Department of Education, which was dismissed as a defendant by the trial court, arguing that the Department must fulfill its independent constitutional and statutory responsibility to ensure that California schools do not discriminate against children of color.

This week, Bakersfield attorney Christie Norris and Berkeley Law dean Erwin Chemerinsky filed an amicus brief in the appeal on behalf of 20 social scientists, academics, and advocates arguing that the California Department of Education should be held accountable for their failure to act.

The state and other entities “allowed the existence of an environment in which implicit bias and staff discretion combined to produce harsher disciplinary outcomes for students of color across the district in violation of their rights,” stated the brief, citing evidence of racial disparities in student discipline and inadequate institutional response. “Disparate impact as a way of proving discrimination is essential because of the evidentiary problems inherent in requiring proof of an expressed purpose to discriminate.”

Erwin Chemerinsky, Dean of Berkeley Law: “Challenging the outdated intent standard articulated in Washington v. Davis is essential if courts are to remain the protectors of rights in our society. Social science has proven that much discrimination is the result of unexamined stereotypes and unacknowledged bias. Having to prove that discrimination is the result of racial animus or is intentional will allow much discrimination to evade judicial scrutiny. That is why I co-authored this amicus brief.”

Dr. Victoria C. Plaut, Professor of Law and Social Science at UC Berkeley: "Social science research over the last several decades has recognized the impact that implicit bias, stereotyping, and racial anxiety can have on children of color in discretionary discipline settings."

Caroline Fredrickson, President of American Constitution Society for Law & Policy: “The amicus brief is a valuable contribution to expanding efforts to reclaim our 14^th Amendment protections. It’s clear that the ‘intent standard’ is outdated and the brief illustrates that point with examples of implicit bias and other mind science concepts. Litigators, judges, law professors, and academics will find the brief useful and worth citing.”

Public schools continue to be plagued by disparities in how students are disciplined by teachers and administrators. These problems are often caused by implicit biases that are unconscious yet no less offensive to Equal Protection norms than explicit or intentional forms of discrimination.

Building on established social science research, the amicus brief summarizes empirical findings on administrative discretion and implicit bias to demonstrate that the racial disparities in school discipline in Kern County violate the Constitutional rights of students of color.

The amicus brief cites scientific research highlighting the extent to which such unintentional disparate outcomes harm children, thus limiting their educational opportunities, in violation of the Equal Protection Clause. The California Department of Education’s failure to properly oversee and remedy this situation should give rise to a judicial intervention.

About the Lawsuit

The 2017 settlement with the Kern High School District (KHSD) Board of Trustees was the result of a three-year court battle to stop years of discriminatory discipline practices that deprived African American and Latino students of their right to an education.

The plaintiffs – Latino and Black students enrolled in the Kern High School District, together with their parents and community activist organizations Dolores Huerta Foundation, National Brotherhood Association, and Faith in Kern -- were represented by a coalition of civil rights lawyers, including California Rural Legal Assistance, Inc. (CRLA), MALDEF (Mexican American Legal Defense and Educational Fund), Equal Justice Society, Greater Bakersfield Legal Assistance, Inc. (GBLA), and Wilson, Sonsini, Goodrich & Rosati, P.C.

The settlement, the first of its kind in California, included an immediate change to discipline practices and an acknowledgment by the school district that students of color face higher rates of discipline than white students. KHSD agreed to implement major policy changes to reduce the disproportionate suspensions, expulsions and involuntary school transfers of African American and Latino students.

About the Discriminatory School Discipline Practices

The Kern High School District, located in California’s Central Valley, has a student population that is 62 percent Latino and 6.3 percent African American. Over the last five years, discriminatory school assignment policies have made it far more likely for Latino and African American students to be suspended, expelled, and assigned to alternative schools operated by the Kern High School District or Kern County Office of Education.

At the time of the lawsuit, the enrollment of African Americans and Latinos in these alternative schools was much higher than their enrollment in the general school population. These students of color are receiving unequal and inadequate education, and the CDE had the power and responsibility to intervene, but did nothing.

The amici curiae included:

• Dr. Modupe Akinola, Sanford C. Bernstein and Co Associate Professor of Leadership and Ethics at Columbia Business School.
• Dr. Elizabeth Aries, Clarence Francis 1910 Professor in Social Sciences (Psychology) at Amherst College.
• Dr. Laura Babbitt, Tufts University.
• Dr. Michael Bader, assistant professor of sociology at American University.
• Dr. Courtney Bonam, Assistant Professor of African American Studies and Psychology at the University of Illinois at Chicago.
•  Dr. Meg A. Bond, Director of the Center for Women & Work and a Professor of Psychology at the University of Massachusetts Lowell.
• Kelly Capatosto, Senior Research Associate at the Kirwan Institute for the Study of Race & Ethnicity.
• Dr. Camille Z. Charles, Walter H. and Leonore C. Annenberg Professor in the Social Sciences, and Professor of Sociology, Africana Studies and Education at the University of Pennsylvania.
•  Dr. Stephanie A. Fryberg, Professor of American Indian Studies and Psychology at the University of Washington.
•  Cheryl. R. Kaiser, Professor and Chair of the Department of Psychology at the University of Washington.
• Garrett Pace, doctoral student at the School of Social Work and Department of Sociology at the University of Michigan.
• Dr. Thomas Pettigrew, Professor Emeritus of Social Psychology at the University of California, Santa Cruz.
• Dr. Victoria C. Plaut, Professor of Law and Social Science and Affiliated Psychology Faculty at the University of California, Berkeley.
• Dr. Jennifer A. Richeson, Phillip R. Allen Professor of Psychology at Yale University.
• Michael Rocque, assistant professor of Sociology at Bates College.
•  Dr. Denise Sekaquaptewa, Professor and Associate Chair of the Department of Psychology, University of Michigan.
•  Kyle Strickland, Senior Legal Analyst at the Kirwan Institute for the Study of Race & Ethnicity.
•  Dr. Linda R. Tropp, Professor of Social Psychology in the Department of Psychological and Brain Sciences and Faculty Associate in the School of Public Policy at the University of Massachusetts Amherst.
• Curtis M. Williams II, Ph.D. candidate in Public Affairs at Rutgers University- Camden.
• Language & Culture Worldwide, Language & Culture Worldwide, a global consulting firm.

Equality and Liberty, Implicit Bias, Racial Justice