Is the Joint DOJ and OCR Guidance on Discrimination in K-12 Student Discipline a Warning Shot for Colleges and Universities?

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We’ve known it was coming for at least a year, and on January 8, 2014, the U.S. Department of Education’s Office for Civil Rights (OCR), in conjunction with the Civil Rights Division of the U.S. Department of Justice (DOJ), released its first-ever federal policy guidance addressing discipline in elementary and secondary schools. If you’re like most higher education lawyers, you scanned the letter for words like “college,” “university,” and “postsecondary,” then heaved a sigh of relief after confirming that they were not mentioned.

Previous OCR guidance directed toward elementary and secondary education has been known to slip in a reference to colleges and universities. For example, OCR’s 2013 guidance on students with disabilities in extracurricular athletics contained the following two sentences warning colleges and universities that we too were in play:

The…examples offered in this guidance are focused on the elementary and secondary school context. Nonetheless, students with disabilities at the postsecondary level must also be provided an equal opportunity to participate in athletics, including intercollegiate, club, and intramural athletics.

Is this the case with the new policy guidance on nondiscriminatory administration of student discipline? Not so much. The guidance, in the form of a Dear Colleague Letter (DCL), describes how schools can satisfy federal legal obligations to administer discipline without discriminating against students on the basis of race, color, or national origin. It explains federal nondiscrimination requirements under both Title IV of the Civil Rights Act of 1964—which prohibits discrimination on the basis of race, color, sex, religion, or national origin by public elementary and secondary schools and public institutions of higher learning—and Title VI of the Civil Rights Act of 1964—which prohibits discrimination by recipients of federal funds on the basis of race and national origin, including K-12 schools and districts as well as colleges and universities. The guidance also explains the approach the OCR and DOJ will take when investigating complaints of race or national origin discrimination in a school or district’s disciplinary practices.

What is the reason for the new guidance?  According to a January 8, 2014 blog post by Assistant Secretary for the Office for Civil Rights Catherine Lhamon:

federal data from the Department of Education’s Office for Civil Rights (OCR) collected for the 2011-12 school year indicates that students of color disproportionately bear the burden when schools use exclusion as punishment. They are disciplined more harshly and more frequently than other students, resulting in serious, negative educational consequences. For example, black students without disabilities represented 35 percent of students suspended once, 44 percent of those suspended more than once, and 36 percent of students expelled—but only 15 percent of students total in the OCR’s Civil Rights Data Collection.

In addition, OCR states that over 50 percent of students involved in school-related arrests or referred to law enforcement are black or Latino.

The DCL addresses disciplinary disparities based on race, color, and national origin, and hints that sex and disability may not be far behind. Do college and university disciplinary actions reflect the same disproportionality? Federal regulations tie federal funding to myriad reporting requirements, but, currently, there is no government clearing house for postsecondary disciplinary action. Still, Titles IV and VI provide the basis for the new guidance, and both statutes apply to colleges and universities as well as K-12. While the mountain of evidence supporting disparate discipline in the context of K-12 may not be present for colleges and universities, anecdotally, colleges and universities already face claims of disproportionate discipline by students and student organizations. Black fraternities argue that they are disciplined more harshly than similar majority organizations, and students of color say they are disciplined more harshly than others for equivalent disciplinary infractions. The guidance’s purpose is to ensure “fair and equitable discipline policies.” How long will it be before OCR applies the K-12 standards to colleges and universities?

The analytical framework will be familiar to anyone who has worked with disparate treatment and disparate impact, and there’s some good stuff here. The guidance explains the OCR’s and the DOJ’s enforcement authority; provides a comprehensive listing of federal statutes and nondiscrimination requirements applicable to educational institutions, including public and private colleges and universities; reminds us that private entities that carry out school functions under contractual arrangements have the same nondiscrimination obligations as the schools themselves; and clarifies the interplay between the guidance and a school’s obligation to respond to student conduct that constitutes discriminatory harassment or bullying. Best of all, the guidance confirms that the three-part test set forth in McDonnell Douglas Corp. v. Green, a Title VII case,  will be used to determine whether an institution has engaged in prohibited discrimination under Title IV or  VI both in court and in “administrative litigation.”

Per the following excerpts from the guidance, during a compliance review or after receiving a complaint, the DOJ and OCR will examine the following  to determine whether covered entities are complying with their legal obligations:

Disparate Treatment

  • Did the school limit or deny educational services, benefits, or opportunities to a student or group of students of a particular race by treating them differently from a similarly situated student or group of students of another race in the disciplinary process?
  • If students are similarly situated and the school has treated them differently, can the school articulate a legitimate, nondiscriminatory reason for the different treatment?
  • If yes, is the reason articulated a pretext for discrimination?
  • If the nondiscriminatory reason offered by the school is found to be pretextual, the departments would find that the school had engaged in intentional discrimination.

Disparate Impact

  • Has a discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, under a particular policy, are students of one race sanctioned at disproportionately higher rates or more likely to receive longer or more severe punishments?
  • If yes, is the discipline policy necessary to meet an important educational goal?
  • If the policy is necessary to meet an important educational goal, are there comparably effective alternative policies or practices that would meet the educational goal with less of a burden or adverse impact on the disproportionately affected racial group?
  • If yes, the departments would find that the school engaged in discrimination.

These are the same standards that apply to postsecondary institutions and doubtless the same analyses the OCR or DOJ would apply to a disparate treatment or disparate impact claim filed against a college or university.

Lessons Learned

In its January 8, 2014 DCL concerning nondiscriminatory student discipline, the OCR and the DOJ provide guidance and information that would be useful for any higher education institution. The DCL includes an appendix that emphasizes the importance of practical matters such as training, accurate recordkeeping, appropriate use of law enforcement, and nondiscriminatory and fair discipline policies. The DCL sets forth nondiscrimination legal standards, requirements, and analysis so clearly that any higher education attorney or administrator would benefit from reading it, and colleges and universities would be wise to be prepared.