SUSPENSION
AND
EXPULSION
OF
BLACK
STUDENTS
FROM
THE
PUBLIC
SCHOOLS:
ACADEMIC
CAPITAL
PUNISHMENT
AND
THE
CONSTITUTION
MARK
G.
YUDOF*
INTRODUCTION
The
relationship
between
law
and
mathematics
has
been
described
as
a
romance"
which
"has
been
for
the
most
part
a
one-sided
affair.
'
Mathe-
maticians
historically have
toyed
with
the
idea
of
bringing
their
discipline
to
bear
on
social
problems
and
their
resolution,
but
lawyers
and
judges
have
proved
to
be
a
recalcitrant
lot.
Many
lawyers
apparently
chose
law
school
to
escape
those
mysteries
of
all
mysteries, mathematics
and
science.
But,
alas,
our
escape
has
proven
to
be
an
illusion.
At
every
turn
we
are
besieged
with
preference
contours,
choice
sets,
random
samples,
and
statistical
proba-
bilities.
2
While
many
of
us
remain
xenophobic
to
the
core,
greeting
with
hostility
each
new
incursion
into
the
world
of
"plausibility,"
"commonsense"
and
"humanistic"
thought,
3
frankness
commands the
admission
that
the
affair
has
become
serious.
The
one-sided
romance
has
developed
into
a
marriage
of
convenience,
or,
reflecting
more
recent
conjugal
innovations,
a
willingness
to
share
the
same
quarters
without the formalities
of
ceremony
and
family
reception.
4
Nowhere
has
the
impact
of
this
new
relationship
been
more
severely
felt
than
with
respect
to
the
developing
law
of
racial
discrimination.
5
It
*
Professor
of
Law,
University
of
Texas at
Austin.
I
wish
to
express my
appreciation
to
Pro-
fessor
David
Kirp
for
his
thoughtful
comments
on
an
earlier
version
of
this
article.
1.
See
Finkelstein,
The
Application
of
Statistical
Decision
Theory
to
the
Jury
Discrimination
Cases,
80
HARV.
L.
REV.
338
(1966).
2.
See
generally
Tribe,
Trial
by
Mathematics:
Precision
and
Ritual
in
the
Legal
Process,
84
HARV.
L.
REV.
1329
(1971).
3.
But
see
note
5
infra.
4.
Professor
Tribe,
while
noting
the -rapidly
growing
interest
in
the
conjunction
of
mathe-
matics
and
the
trial
process,"
has
grave
misgivings
about
the
marriage
of
the
two:
The literature
of
legal
praise
for
the
progeny
of
such
a
wedding
has
been
little
short
of
lyrical.
Surely
the
time
has
come
for
someone
to
suggest that
the
union
would
be
more
dangerous
than
fruitful.
Tribe,
supra
note
2,
at
1393.
5.
See
Bogen
&
Falcon,
The
Use
of
Racial
Statistics in
Fair
Housing
Cases,
34
MD.
L.
REV.
59 (1974);
Dimond,
School
Segregation
in the
North:
There
is
But
one
Constitution,
7
HARV.
Civ.
RIGHTS-Civ.
LIB.
L.
REV.
1
(1972);
Fiss,
A
Theory
of
Fair
Employment
Laws,
38
U.
CHI,
L.
REV.
235, 268-70
(1971);
Fessler
&
Haar,
Beyond
the
Wrong
Side
oJ
the
Tracks:
Municipal
Services
in the Interstices
of
Procedure,
6
HARV.
Civ.
RIGHTs-Civ.
Lia.
L.
REV.
441
(1971);
Finkel-
stein,
supra
note
1.
SUSPENSION
AND
EXPULSION
used
to
be
easy
to
identify
race-conscious
public
policies;
for
usually
state
officials
were
quite
willing
to
articulate
their
racial
biases
and
specifically
incorporate
them
into
state
laws.
But
in
an
age
where
civility
commands
verbal
racial
neutrality
and
where
so
much
progress
has
been
made
toward
racial
justice,
proof
of
discrimination
is
more
complex.
Now
everything
seems
to
turn
on
the
significance
of
numbers.
Has
a
school
system
failed
to
comply
with
its
obligation
to
dismantle
the
dual
school
system
because
there
are
still
some
one
race
schools
in
the
district
or
because
the
relative
percent-
ages
of
blacks
and
whites
in
the
school
district
are
not
reflected
in
each
public
school?'
Has
an
employer
engaged
in
racial
discrimination
because
he
employs
few
blacks?
7
Are
colleges
and
graduate
schools
compelled
or
permitted
to
adopt
affirmative
action
plans
to
increase
minority
enrollments
because
minorities
are
underrepresented
in
the
student
population?
8
Is
the
process
by
which
school
board
members
are
selected
suspect
if
few
blacks
are
appointed
to
the
nominating
panel?
9
In
each
case,
the
question
is
not
whether
there
is
disproportional
representation
between
racial
groups-
there
surely
is:
the
question
is
what
logical
conclusion
should
be
drawn
from
that
fact.
The
law
has
dealt
with
statistical
evidence
bearing
on
racial
discrimina-
tion
in
an
inconsistent
manner.'"
Judges
tell
us
in
jury
discrimination
cases
that
"figures
speak
and
when
they
do,
Courts
listen."'"
The
statistical
show-
ing
that
a
county
has
a
ten
per
cent
black
population
and
yet
not
a
single
black
has
served
on
a
federal
or
state
jury
is
sufficient
to
constitutionally
damn
the
method
of
selecting
jurors.
12
On
the
other
hand,
Justice
Rehnquist
assured
us
in
a
welfare
case
arising
under
the
Equal
Protection
Clause
that
courts
must
be
wary
of
such
"naked
statistical
argument";
for
if
such
statistics
suffice
to
demonstrate
discrimination
or
to
shift
the
burden
of
persuasion
6.
See
Swarm
v.
Charlotte-Mecklenburg
Bd.
of
Educ.,
402
U.S.
1
(1971).
See
also
Wright
v.
City
of
Emporia,
407
U.S.
451
(1972).
See
generally
Kalven,
The
Supreme
Court,
1970
Term-Fore-
word:
Even
When
a
Nation
is
at
War,
85
HARV.
L.
Rtv.
3,
78
(1971).
7.
See,
e.g.,
Griggs
v.
Duke
Power
Co.,
401 U.S.
424
(1971);
Boston
Chapter
N.A.A.C.P.
v.
Beecher,
504
F.2d
1017
(1st
Cir.
1974);
The
Vulcan
Soc'v
v.
Civil
Serv.
Comm'n,
490
F.2d
387 (2d
Cir.
1973);
Chance
v.
Board
of
Examnineis,
330
F.
Supp.
203
(S.D.N.Y.
1971).
of]"d,
458
F.2d
1167
(2d
Cir.
1972);
Note,
Business
Necessitv
Under
Title
VII
(]
the
Civil
Rights
A(
of
1964:
A
No-Alternative
Approach,
84
YALE
L.J.
98
(1974).
8.
See
DeFunis
V.
Odegaard,
82
Wash.
2d
11,
507
P.2d
1169
(1973),
vacated,
416
U.S.
312
(1974)
(per
cutriarn).
See
generally
Kirp
&
Yudof,
DeFunis
and
Beyond,
6
CHANGE
0no.
9,
at
22
(1974);
Ely,
The
Constitutionality
of
Reverse
Racial
Discrimination,
41
U.
CM.
L.
REv.
723
(1974);
O'Neil,
Preferential
Admissions:
Equalizing
the
Access
of
Minority
Groups
to
Higher
Education,
80
YALE
L.J.
699
(1971);
Graglia,
Special
Admission
of
the
"Culturally
Deprived"
to
Lau)
School,
119
U.
PA.
L.
REv.
351
(1970):
Askin,
The
Case
for
Compensatory
Treatment,
24
RUviCERs
L.
R
v.
65
(1969).
9.
See
Mayor
of
Phila.
%,. Educational
Equality
League,
415
U.S.
605
(1974).
10.
This
rather
ad
hoc
approach
toward
probabilistic
proof
is
apparent
in
many
areas
of
the
law.
See
Tribe,
supra
note
2,
at
1343-44.
11.
Brooks
v.
Beto.
366
F.2d
1,
9
(5th
Cir.
1966).
12.
Id.
Page
374:
Spring
1975]
LAW
AND
CONTEMPORARY
PROBLEMS
Moreover,
government
is
not
allocating
a
scarce
resource,
and
thus
there
is
the
grant
classes,
however
lacking
in
racial
motivation
and
however
other-
wise
rational
the
treatment
might
be."
'1
3
In
that
case
the
Texas
legislature
had
disfavored
classes
of
welfare
recipients
in
which
the
proportions
of
blacks
and
Mexican-Americans
were
highest.
Yet
a
court
of
appeals
re-
cently
held
unconstitutional
a
method
of
allocating
municipal
services
which,
although
ostensibly
on
the
basis
of
need
for
the
service,
resulted
in
unequal
services
between
blacks
and
whites.
1 4
Even
in
the
absence
of
proof
of
a
discriminatory
motive,
the
court
required
the
defendants
to
satisfy
a
heavy
burden
to
justify
such
inequalities.
Perhaps
the
principle
underlying
these
cases
is
not
so
difficult
to
dis-
cern.
What
the
courts
may
be
saying
is
that
a
statistical
showing
of
inequalities
between
the
races
in
the
enjoyment
of
public
benefits
is
always
relevant
to
the
disposition
of
the
case.
It
is
sufficient
in
itself,
however,
only
where
the
disproportionality
is
of
such
a
magnitude
as
to
make
any
nonracial
explana-
tion
implausible
or
where,
despite
some
lesser
showing,
there
appears
to
be
no
rational,
racially
neutral
explanation
for
the
pattern
of
allocations.
Thus
the
issue
will
turn
on
the
character
of
the
benefits,
and
statements
with
respect
to
the
probative
impact
of
the
statistical
evidence
are
simply
conclu-
sionary
labels
attached
after
the
court
has
considered
the
likelihood
of
non-
racial
explanations
for
the
state's
classificatory
scheme.
This
standard
reflects
three
related
judgments.
First,
nearly
every
govern-
mental
activity
may
fall
unequally
on
racial
and
economic
groups
within
the
society.
Public
transportation
may
be
more
beneficial
to
low-income
minori-
ties
than
to
middle-income
whites,
just
as
more
whites
may
utilize
public
golf
and
tennis
courts.
There
are
questions
of
need
and
taste
which
must
be
taken
into
account,
and
it
is
unthinkable
that
the
courts
should
mechanically
require
equal
enjoyment
by
racial
groups
with
respect
to
all
government
programs.
Equal
access
on
the
basis
of
relevant
and
racially
neutral
criteria
will
suffice.
Second,
as
Justice
Powell
has
artfully
stated,
there
are
cases
"in
which
it
cannot
be
assumed
that
all
citizens
are
fungible
for
purposes
of
determining
whether
members
of
a
particular
class
have
been
unlawfully
excluded."
'
5
In
the
context
of
jury
selection,
it
may
well
be
the
case
that
most
citizens
are
fungible.
The
standards
for
selection
are
not
so
rigorous
that
a
large
group
of
individuals
is
likely
to
be
found
to
be
incompetent
to
serve.
13.
Jefferson
v.
Hackney,
406
U.S.
535,
548
(1972).
14.
Hawkins
v.
Town
of
Shaw,
437
F.2d
1286
(5th
Cir.
1971),
aff'd
en
banc,
461
F.2d
1171
(5th
Cir.
1972).
See
also
United
Farmworkers
of
Fla.
Housing
Project,
Inc.
%.
City
of
Delray
Beach,
493
F.2d
799
(5th
Cir.
1974).
See
generally
Fessler
&
Haar,
supra
note
5;
Lineberry,
Mandating
Urban
Equality:
The
Distribution
of
Municipal
Public
Services,
53
Trx.
L.
REv.
26
(1974);
Note,
Equalization
of
Municipal
Services:
The
Economics
of
Serrano
and
Shaw,
82
YALE
L.J.
89
(1972).
15.
Mayor
of
Phila.
v.
Educational
Equality
League,
415
U.S.
605,
620
(1974).
See
also
Carter
v.
Jury
Comm'n
of
Greene
County,
396
U.S.
320
(1970);
James
v.
Wallace,
386
F.
Supp.
815
(M.D.
Ala.
1974).
[Vol. 39:
No.
2
SUSPENSION
AND
EXPULSION
to
the
state,
it
"would
render
suspect
each
difference
in
treatment
among
little
need
to
draw
distinctions
on the
basis
of
need,
ability,
or
willingness
to
pay
for
the
service.
On the
other
hand,
the
selection
process
for
adminis-
trative
agencies
involves
wholly
different
considerations
since
there
is a
scarcity
of
opportunities
and
since
personal
characteristics
play
a
large
role
in
the
selection
process.
Under
such
circumstances,
a
"naked"
statistical
pre-
sentation
of
lack
of
black
representation
will
not
carry
the
day
in
the
absence
of
other
indicators
of
racial
discrimination.
Finally,
if
there
are
racially
inno-
cent
reasons
which
explain
the
apparent
disproportionality
in
treatment,
judicial
intervention
is
an
invitation
to
engage
in
reverse
discrimination
against
whites.
Neutral
criteria
must
be
distorted
to
ensure
an absolute
equality
of
outcomes
by
racial
group.
1
6
The
use
of
statistical
evidence,
either
with
respect
to
the
initial
finding
of
a
violation
of
law
or
the
adoption
of
a
remedy,
is
particularly
problematic
in
the context
of
racial
discrimination
suits
involving
primary
and
secondary
public
schools.
There
is
ample
evidence
that
black
students
dispropor-
tionately
suffer
the
burdens
of
public
schooling
while
not
sharing
in its
benefits
in
proportion
to
their
numbers.
Blacks,
as
a
class,
consistently
do
less
well
on
standardized
tests
than
whites.
17
They
are
overrepresented
in
the
lower
ability
groups
in
schools
which
track
their
students.
18
Their
drop-out
rate
(or
push-out
rate,
as
some
critics
assert)
is
much
higher
than
that
for
whites.'
9
In
some
urban
areas,
they
attend
the
oldest
schools
and
are
ex-
posed
to
the
least
experienced
teachers.
20
In
Texas,
for
example,
the
poorest
school
districts,
offering
the
least
adequate
educational
programs,
tend
to
have
large
concentrations
of
black
and
chicano
students.
2
'
There
may
be
some
question
as
to
whether
the
glass
is
half
full
or
half
empty,
whether
progress
has
been
slow
or
dramatic,
whether
rising
expiecta-
tions have
focused
our
attention
on
less
consequential
inequalities.
22
But
surely
there
can
be
no
resistance
to
the
fact
of
inequality.
The
problem
is
what
significance
should
be
attached
to
these
numbers?
Should
we
infer
that
there
is
an
absence
of
equal
opportunity?
That
racism
is
at
work,
and
that
our
institutions
have
failed?
Or
should
the
blame
be
cast
on
the
black
16.
Fiss,
The
Fate
o]
an
Idea
Whose
Time
Has
Come:
Antidiscrimination
Law
in
the
Second
Decade
Alter
Brown
v.
Board
of
Educ.,
41
U.
CHI.
L.
REv.
742, 763
(1974).
17.
U.S.
OFFICE
OF
EDUCATION,
DEP'T
OF
HEALTH,
EDUCATION,
AND
WELFARE,
STUDY
OF
THE
ACHIEVEMENT
OF
OUR
NATION'S
STUDENTS
27
(1973);
C.
JENCKS,
INEQUALITY
81
(1972).
18.
See
D.
KIRP
&
M.
YUDOF.
EDUCATIONAL
POLICY
AND
THE
LAW
657-73
(1974)
[hereinafter
cited
as
EDUCArIONAL
POLICY
AND
THE
LAW];
Kirp,
Schools
as
Sorters:
The
Constitutional
and
Policy
Implications
of
Student
Classiication,
121
U.
PA.
L.
REv.
705
(1973).
19.
See
C.
JENCKS,
supra
note
17;
CHILDREN'S
DEFENSE
FUND
OF
THE
WASHINGTON
RE-
SEARCH
PROJECT,
INC.,
CHILDREN
OUT
OF
SCHOOL
IN
AMERICA
ch.
2
(1974)
[hereinafter
cited
as
CHILDREN
OUT
OF
SCHOOL].
20.
See,
e.g.,
Hobson
v.
Hansen,
269
F.
Supp.
401
(D.D.C.
1967),
aff'd
en
banc
sub
nom.
Smuck
v.
Hobson,
408
F.2d
175
(D.C.
Cir.
1969).
21.
San
Antonio
Independent
School
Dist.
v.
Rodriguez,
411
U.S. 1.
15
n.38
(1973).
22.
See
generally
Glazer,
The
Limits
of
Social
Policy,
in
COMMENTARY
52
(Sept.
1971).
Page
374:
Spring
1975]
LAW
AND
CONTEMPORARY
PROBLEMS
students
themselves
for
being
incapable
or
unwilling
to
seize
the
oppor-
tunities
afforded
them?
Does
not
the
allocation
of
such
blame
to
blacks
con-
tain
the
seeds
of
a
new
racism,
grounded
in
genetic
or cultural
fatalism?
Ultimately,
we
must
ask:
What
can
we
say
about
the
fairness
of
the
processes
by
which
rewards
and punishments
are
distributed
in
the
public
schools
by
virtue
of
the
existence
of
inequalities
in
the
outcomes
of
those
processes?
23
There
are
those
who
would
urge
that
fairness,
defined
in
terms
of
need,
motivation,
and
competence,
must
be
discarded
in
favor
of
a
system
of
mea-
sured
equality
of
outcomes
between
racial
groups.
24
But,
despite
a
recent
intellectual
push
in
that direction,
25
there
appears
to
be
no
societal
consensus
to
abandon
the
liberal
concept
of
distributive
justice.
26
The
probative
value
of
statistical
evidence
of
inequalities
between
the
races
in
the
public
schools
is
at
the heart
of
the
dilemma
posed
by
the
sub-
ject
of
this
article,
the
suspension
and
expulsion
of
black
students
from
recently
desegregated
elementary
and
secondary
schools.
The
fact
is
that
in
many
desegregated
school
systems
blacks
are
excluded
from the
schools
far
more often
than
whites.
27
The
phenomenon
is
largely
limited
to
sec-
ondary
schools
since
roughly
ninety
per
cent
of
all
suspensions
are
imposed
on
children
between
the
ages
of
twelve
and
seventeen.
28
Many
of
those
who
are
suspended
once
find
themselves
suspended
again
and
again.
Even
where
a
black
youngster
is
not
permanently
expelled,
suspension
may
lead
to
the
decision
by
the
student,
in
a
sense
voluntary
but
against
the
background
of
his
prior
difficulties
with
school
authorities,
to
drop
out of
school.
29
In-
evitably,
the
existence
of
this
phenomenon
has
led
to
a
search
to
identify
the
causes
of
black
exclusion,
3
0
and
just
as
inevitably,
the matter
has
wound
its way
to
the
federal
courts
for
resolution."
23.
See
generally
C.
JENCKS,
supra
note
17.
24.
Id.
at
8-11.
See
generally
Yudof,
Equal
Educational
Opportunity
and
the
Courts,
51
TEx.
L.
REv.
411,
420-22
(1973).
25.
See
J.
RAWLS,
A
THEORY
OF
JUSTICE
(1971).
But
see
Simson,
Another
View
of
Rawls's
Theory
of Justice,
23
EMORi
L.J.
473,
491
(1974).
26.
See
Nisbet,
The
Pursuit
of
Equality,
35
PUB.
INTEREST
103
(Spring
1974);
Bell,
On
Meri-
tocracy
and
Equality,
29
PUB.
INTEREST
29
(Fall
1972).
27.
See,
e.g.,
SOUTHERN
REGIONAL
COUNCIL
AND
THE ROBERT
F.
KENNEDY'
MEMORIAL,
THE
STUDENT
PUSHOUT:
VICTIM
OF
CONTINUED
RESISTANCE
TO
DESEGREGATION
6
(1974)
[herein-
after
cited
as
STUDENT
PUSHOUT
REPORT];
CHILDREN
OUT
OF
SCHOOL
ch.
2.
28.
CHILDREN
OUT
OF
SCHOOL
126.
29.
Cf.
Madera
v.
Board
of
Educ.,
267
F.
Supp.
356,
371
(S.D.N.Y.
1967),
rev'd
on
other
grounds,
386
F.2d
778 (2d
Cir.
1967).
30.
See
STUDENT
PUSHOUT
REPORT
17-22;
CHILDREN
OUT
OF
SCHOOL.
31.
See
United
States
v.
Wilcox
County
Bd.
of
Educ.,
494
F.2d 575
(5th Cir.
1974);
Floyd
v.
Trice,
490
F.2d
1154
(8th
Cir.
1974);
Hawkins
v.
Coleman,
376
F.
Supp.
1330
(N.D.
Tex.
1974);
Rhyne
v.
Childs,
359
F.
Supp.
1058
(N.D.
Fla.
1973),
aff'd
sub
nom.
Sweet
v.
Childs,
507
F.2d 675
(5th
Cir.
1975);
Dunlap
v.
Charlotte-Mecklenburg
Bd.
of
Educ.,
367
F.
Supp.
666
(W.D.N.C.
1973);
Tillman
v.
Dade
CountN
School
Bd.,
327
F.
Supp.
930
(S.D.
Fla.
1971).
See
generally
McClung,
The
Problem
of
the
Due
Process
Exclusion:
Do
Schools
Have
a
Continuing
Respon-
sibility
to
Educate
Children
With
Behavior
Problems?,
3
J.
LAW
&
EDUC.
491 (1974).
[Vol. 39:
No.
2