The Office for Civil Rights of the U.S. Department of Education (OCR) and the Civil Rights Division of the Department of Justice recently released a joint “Dear Colleague Letter” (DCL) providing guidance on administering student discipline without discrimination on the basis of race, color or national origin. (available at http://www.justice.gov/crt/about/edu/documents/dcl.pdf ) The DCL and accompanying resource guide do not create any new legal mandates, but strongly urge schools to redesign their discipline policies and practices in light of recent data. This data, as expressed by Arne Duncan, U.S. Secretary of Education, shows that “exclusionary discipline is applied disproportionately to children of color and students with disabilities… Our department’s Civil Rights Data Collection shows that African-American students without disabilities are more than three times as likely as their white peers to be expelled or suspended.” Because policies establishing “zero tolerance” for certain types of misbehavior are often the cause for exclusionary discipline, the DCL is particularly critical of the use of “zero tolerance.”
The remarks of Attorney General Eric Holder and Secretary Duncan accompanying the release of the DCL, although falling short of explicitly labeling “zero tolerance” policies as per se discriminatory, make it clear that it is their belief that the time has come for schools to seriously reconsider the use of the “zero tolerance” approach to discipline. As Attorney General Holder stated:
“[t]oo often, so-called ‘zero-tolerance’ policies – however well-intentioned – make students feel unwelcome in their own schools. They disrupt the learning process. And they can have significant and lasting negative effects on the long-term well-being of our young people – increasing their likelihood of future contact with juvenile and criminal justice systems… And we’ve seen that the impacts of exclusionary policies are not felt equally in every segment of the population – with students of color and those with disabilities often receiving different and more severe punishments than their peers.”
Secretary Duncan emphasized that when creating a positive school climate, “locally-tailored approaches should be grounded in research and promising practices-- instead of being based on indiscriminate zero tolerance policies, or, at the other extreme, ad-hoc approaches to discipline.”
The DCL reminds public elementary and secondary schools of their legal obligation to prevent and redress racial discrimination in the context of student discipline. It describes the various forms in which racial discrimination may occur, provides examples and explains how complaints are investigated and the kinds of remedies that might be imposed if a school is found to have engaged in such discrimination. One of the more difficult forms of racial discrimination for a school district to respond to is the disparate impact claim. With disparate impact claims, illegal discrimination may be found even where school officials did not intentionally or consciously intend to discriminate against minority students. This is because disparate impact claims may be based entirely on statistical evidence that shows that a facially neutral policy or practice has a disproportionate and thus discriminatory impact on certain student populations. Here, the DCL asserts that “[e]xamples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense.” As outlined in the DCL, disparate impact claims of discrimination based upon race, color or national origin are analyzed by a three part inquiry:
Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? If not, then there is no discrimination. If yes, then ask:
Is the disciplinary policy necessary to meet an important educational goal? If not, then the school has engaged in discrimination. If yes, then ask:
Are there comparably effective alternative policies or practices that would meet the stated important educational goal with less adverse impact or is the important educational goal just a pretext for discrimination? If yes to either question, then the school has engaged in discrimination.
OCR’s “Guiding Principles” and Recommendations for Student Discipline
The publication accompanying the DCL, entitled “Guiding Principles: A Resource Guide for Improving School Climate and Discipline,” provides guidance on developing effective policies and practices to reduce the exclusion of students from school for misbehavior. http://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf Three general areas are examined: (1) focusing on prevention and creating positive climates; (2) developing clear, appropriate and consistent expectations and consequences to address misbehavior; and (3) establishing fairness, equity and constant improvement.
The resource includes guidance such as the following:
Developmentally appropriate and proportional consequences:
Zero tolerance policies “may prevent the flexibility necessary to choose appropriate and proportional consequences.”
“Notably, the [Gun Free Schools Act] does not require that states or schools implement wide-ranging zero-tolerance policies or rely on exclusionary discipline for any other types of student misconduct.”
Appropriate use of law enforcement:
Establish clearly defined roles of Student Resource Officers (SROs) or other security personnel in written agreements or memoranda of understanding with law enforcement authorities. Specify that law enforcement approaches (tickets, arrests, etc.) should only be used as a last resort and never to address non-violent misbehavior that do not pose safety risk.
Focus the SROs role on the promotion of safety. Do not have SROs become involved in routine disciplinary matters.
Rigorously train SROs and school security personnel on topics such as:their proper role, child development and mental health, conflict resolution, student privacy rights, special populations and bias-free policing.
This is just a sampling of the extensive guidance provided by OCR in its “Guiding Principles.” District policy makers and human rights coordinators ought to review the resource directly for a full understanding of OCR’s recommendations.
It should be noted that the DCL and “Guiding Principles” effectively change the legal landscape around “zero tolerance” in student discipline. In other words, by providing a panoply of recommendations that might be characterized as “comparably effective alternative policies” to a policy of “zero tolerance” – one of the three lines of inquiry in a disparate impact claim— the OCR and Department of Justice have effectively set the stage for many forms of “zero tolerance” to be deemed discriminatory (assuming, from the outset, that there is evidence of an adverse impact upon a group of students of a certain race, color or national origin). Therefore, school districts with “zero tolerance” policies should take heed and seriously reconsider continued use of the approach. Failure to do so may leave schools more vulnerable to claims of unlawful discrimination.
 Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, January 8, 2014.
 According to OCR, “[a] commonly accepted definition of a ‘zero tolerance policy’ is one that ‘mandates the application of predetermined consequences, most often severe and punitive in nature, that are intended to be applied regardless of the gravity of behavior, mitigating circumstances, or situational context.’ American Psychological Association Zero Tolerance Task Force. (2006).” Guiding Principles, p. 25, fn. 31.
Guiding Principles, p. 13.