II. Poverty and Disparate Impact Theory
As a matter of civil rights law, the connection between poverty, race and misbehavior must be addressed. As a defense, school districts might simply argue that poverty, not race, is the determining factor underlying disparate impact. Even lacking a convincing policy justification, the regulatory framework does not protect against a disparate impact on students who are poor. Research does show that poverty correlates with an increased risk for suspension (Skiba et al., 2009). But according to the Council of State Governments' study (Fabelo et al., 2011), “when the relationship of socioeconomic status to disproportionality in discipline has been explored directly, race continues to make a significant contribution ... independent of socioeconomic status.”
*395 It is also true that the high correlation of poverty and race makes it difficult to isolate race in relevant research (Losen & Orfield, 2002). Likewise, it is equally difficult to prove that poverty alone explains for all of the observed racial disparities. In an administrative compliance review context, the burden at this stage has traditionally fallen on the school district to prove that what appeared to be a racially disparate impact of a policy or practice can be explained sufficiently by poverty and not race. Assuming that a given school or district has not met the burden of proving that poverty caused the observed racially disparate impact at issue, yet has argued successfully that educational necessity drives the policy or practice, the remaining question is whether equally effective less discriminatory alternatives are available.
