Recent Federal Guidance Details Expectations Regarding Non-Discriminatory Student Discipline

Lozano Smith Client News Brief
January 2014
Number 7

The U.S. Department of Justice, Civil Rights Division, and the U.S. Department of Education, Office for Civil Rights (OCR), issued a "Dear Colleague" letter (Letter) on January 8, 2014, guiding schools on administering student discipline without discriminating against students on the basis of race, color or national origin. The Dear Colleague letter is available here. While "Dear Colleague" letters are non-binding, they communicate details regarding expectations and enforcement under federal laws by the U.S. Department of Justice and OCR.

Notably, the Letter begins with an overview of racial disparities in student discipline and argues that substantial racial disparities evident in research by OCR may indicate that schools are engaging in racial discrimination. OCR's research also indicates that an increasing number of students are losing instructional time due to exclusionary discipline such as out-of-school suspension and expulsion. Similar findings have been made in other studies, driving recent legislative efforts in California to modify student discipline laws such as Assembly Bills 1729 and 2537.

Administration of student discipline may result in unlawful discrimination based on race in two ways: (1) a student is treated differently based on his/her race (disparate treatment); or (2) whether a policy, although neutral on its face, is administered such that there is a disproportionate and unjustified effect on students of a particular race (disparate impact). The Letter contains charts depicting the analysis that the Department of Justice and OCR will use to determine if unlawful discrimination has occurred in one or both ways. We highlight below some of OCR's expectations.

Districts are expected to maintain and produce documentation so investigators can determine whether the administration of student discipline discriminates against students on the basis of race. The Letter identifies the following "non-exhaustive" list of the types of information that investigators have examined when analyzing the possibility of discriminatory discipline: written policies (such as student codes of conduct, parent handbooks and teacher manuals); unwritten disciplinary practices (such as the exercise of discretion by teachers and administrators); data indicating the number of disciplinary referrals to administrators or to law enforcement authorities; discipline incident reports; copies of student discipline records and discipline referral forms; school discipline data broken down by subgroup, offense and other factors; and interviews with students, parents, school staff and law enforcement officers.

The Letter recommends that schools establish a system for monitoring all disciplinary referrals and have a system in place to ensure that staff with authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory matter. Districts with significant numbers of out-of-school suspensions and expulsions may want to review their data to determine whether their discipline policies and practices are having unintended discriminating effects.

For further information regarding the January 8, 2014 Dear Colleague Letter, non-discriminatory student discipline, or student discipline in general,
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.