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New School Discipline Guidance from the Office for Civil Rights and DOJ


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Title: New School Discipline Guidance from the Office for Civil Rights and DOJ

New School Discipline Guidance from the Office
for Civil Rights and DOJ
January 24, 2014
Todays Presenters
  • Maree Sneed Partner, Hogan Lovells LLP

Michelle Tellock Associate, Hogan Lovells LLP
Sasha Pudelski Assistant Director of Policy and
Advocacy, AASA
Todays Agenda
  • Overview
  • Dear Colleague Letter Nondiscriminatory
    Administration of School Discipline
  • What does it say?
  • What doesnt it say?
  • How can my district comply?
  • Other Guidance Package resources
  • Pending legislative efforts
  • Q A

Overview School Discipline Guidance Package
  • Joint effort by U.S. Department of Education and
    Department of Justice
  • Released January 8, 2014

Racial discrimination in school discipline is a
real problem today, and not just an issue from 40
to 50 years ago. . . . We must tackle these
brutal truths head onthat is the only way to
change the reality that our children face every
We must never waver in our determination to keep
our schools safe and hold students to a high
standard of accountability . . . . Effective
discipline is, and always will be, a necessity.
But a routine school discipline infraction should
land a student in a principals office not in a
police precinct.
Reactions to the release
There is no question that this federal guidance
comes at a critical time. For far too long, youth
of color have received harsher disciplinary
sanctions that their white peers - even for the
same infractions. Educators and advocates must
now use this guidance as a tool to keep students
in schools where they belong.
Randi Weingarten, President, American Federation
of Teachers
What No Child Left Behind did, as zero-tolerance
policies did, was shine a light on a problem but
solve it with sanctions instead of supports. That
cannot continue. The federal government made many
positive suggestions, but policies in a vacuum
without actual resources and support will not
Leticia Smith-Evans, Interim Director of
Education Practice, NAACP Legal Defense Fund
Behind the Guidance Package The Data
  • In 2011, nationwide
  • 3 million out-of-school suspensions
  • 100,000 students expelled
  • Students lost hundreds of thousands of hours of
    instructional time
  • Students of color, students with disabilities are
    far more likely to be removed from class
  • African-American students are three times more
    likely to be suspended/expelled, often for
    similar offenses
  • Most exclusionary actions are for non-violent
  • Suspensions lead to drop-outs, police contact

Behind the Guidance Package The Law
  • Federal law prohibits public school districts
    from discriminating in the administration of
    student discipline based on certain personal
  • Title IV of the Civil Rights Act of 1964
  • Prohibits discrimination in public elementary and
    secondary schools based on race, color, or
    national origin, among other things
  • DOJ is responsible for enforcing
  • Title VI of the Civil Rights Act of 1964
  • Prohibits discrimination based on race, color, or
    national origin by recipients of Federal
    financial assistance
  • OCR and DOJ are responsible for enforcing

Overview School Discipline Guidance Package
  • The Guidance Package includes five resources
  • Dear Colleague Letter
  • Guiding Principles
  • Directory of Federal School Climate and
    Discipline Resources
  • Compendium of School Discipline Laws and
  • Overview of the Supportive School Discipline

Dear Colleague Letter Legal Background
  • The Dear Colleague Letter does not constitute new
  • The Dear Colleague Letter does not add
    requirements to applicable law
  • The Dear Colleague Letter is a significant
    guidance document
  • Courts would likely show deference to the
    Departments interpretations and guidance

Purposes of the Dear Colleague Letter
  • Assist schools in meeting their obligations under
    federal law to administer student discipline
    without discriminating on the basis of race,
    color, or national origin.
  • Assist schools in providing all students with
    equal educational opportunities through guidance
    on how to identify, avoid, and remedy
    discriminatory discipline.

Purposes of the Dear Colleague Letter (contd)
  1. Explain OCRs Title VI and DOJs Title IV and
    Title VI investigative process, including

The legal framework the Departments use to
consider allegations of racially discriminatory
student discipline practices.
Evidence the Departments may consider in
evaluating a complaint alleging racial
discrimination in the administration of student
If a violation is found, examples of remedies to
provide relief to individual students and
prospective remedies necessary to ensure future
adherence to the requirements of Titles IV and VI.
Purposes of the Dear Colleague Letter (contd)
  • Provide examples of school discipline policies
    and practices that may violate civil rights law
    (What not to do).
  • Describe racial disparities observed by the Civil
    Rights Data Collection and OCR and DOJ
  • Equip school officials with tools to support
    positive student behavior, prevent and address
    misconduct to promote safety and avoid
    discriminatory or inappropriate discipline.

What the Letter says Observations, in brief
  • Titles IV and VI apply to school officials and
    everyone school officials exercise some control
  • Including school resource officers, whether
    through contract or other arrangements
  • Titles IV and VI apply to the whole course of the
    disciplinary process
  • Including initial referral to principals office
  • The Departments are concerned about students
    missing significant chunks of instructional time
  • Data matters

What the Letter says Legal framework
  • Two ways administration of student discipline can
    result in unlawful discrimination
  • Different treatment (intentional
  • Intentionally disciplining students differently
    based on race, or
  • A policy that does not explicitly differentiate
    based on race is administered in a discriminatory
  • Disparate impact
  • A policy that does not mention race and is
    administered in an evenhanded manner has a
    disproportionate and unjustified effect on
    students of a particular race

Example of different treatment
  • A complaint was filed alleging discrimination
    after a school imposed different disciplinary
    sanctions on two students in the sixth grade a
    non-Hispanic student and a Hispanic student who
    engaged in a fight. Both students had similar
    disciplinary histories, having each previously
    received after-school detention for minor
    infractions. The Hispanic student received a
    three-day out-of-school suspension for the
    students involvement in the fight, while the
    non-Hispanic student received a two-day
    out-of-school suspension for the same misconduct,
    raising a concern that the students were treated
    differently on the basis of race.

Evaluating different treatment
Example of disparate impact
  • A school district established a district-wide
    alternative high school to which it assigns
    students with excessive disciplinary records.
    Although only 12 percent of the districts
    students are African-American, 90 percent of
    students assigned involuntarily to the
    alternative high school are African-American. The
    evidence shows that when white and
    African-American students commit similar offenses
    in their regular high schools, the offenses
    committed by the white students have not been
    reflected as often in school records. The
    evidence also shows that some white students are
    not assigned to the alternative high school,
    despite having disciplinary records as extensive
    (in terms of number of and severity of offenses)
    as some of the African-American students who have
    been involuntarily assigned there.

Evaluating disparate impact
Example of disparate impact
  • A school district adopted an elaborate set of
    rules governing the sanctions for various
    disciplinary offenses. For one particular
    offense, labeled use of electronic devices, the
    maximum sanction is a one-day in-school
    suspension where the student is separated from
    his regular classroom but still is provided some
    educational services. The investigation reveals
    that school officials, however, regularly impose
    a greater, unauthorized punishment
    out-of-school suspension for use of electronic
    devices. The investigation also shows that
    African-American students are engaging in the use
    of electronic devices at a higher rate than
    students of other races. Coupled with the
    schools regular imposition of greater,
    unauthorized punishment for using electronic
    devices, therefore, African-American students are
    receiving excessive punishments more frequently
    than students of other races. In other words,
    African-American students are substantially more
    likely than students of other races to receive a
    punishment in excess of that authorized under the
    schools own rules.
  • There is no evidence that the disproportionate
    discipline results from racial bias or reflects
    racial stereotypes. Rather, further investigation
    shows that this excessive punishment is the
    result of poor training of school officials on
    the school rules that apply to use of electronic

Evaluating disparate impact
What the Letter says Evidence
  • Types of information examined
  • Written policies
  • Unwritten disciplinary practices
  • Data indicating number of referrals to
  • Discipline incident reports
  • Copies of student discipline records and
    discipline referral forms
  • School discipline data, disaggregated by
    subgroup, offense, other relevant factors
  • Interviews with students, parents,
    administrators, counselors, SROs and other law
    enforcement, contractors, support staff
  • Data provided by schools through CRDC
  • Other relevant data

What the Letter says Evidence
  • Departments will look carefully at
  • A schools definition of misconduct to ensure
    they are clear and nondiscriminatory
  • The extent to which disciplinary criteria and
    referrals are made for offenses that are
    subjectively defined (e.g., disrespect or
  • Whether there are safeguards to ensure discretion
    is exercised in a nondiscriminatory way

What the Letter says Evidence
  • The Departments expect schools will
  • establish a system for monitoring all
    disciplinary referrals
  • Have a system in place to ensure that staff with
    authority to refer students for discipline are
    properly trained to administer discipline in a
    nondiscriminatory manner
  • take steps to monitor and evaluate the impact of
    disciplinary practices to detect patterns that
    bear further investigation
  • If the Departments determine a school does not
    collect accurate and complete data sufficient to
    resolve an investigation, they may conclude the
    record-keeping process presents concerns
    necessitating imposition of particular
    data-related remedies

What the Letter says Remedies
  • The Departments will attempt to secure a
    voluntary agreement
  • If appropriate, remedy will involve entire
    district, not just an individual school
  • Remedies may include individual relief as well as
    prospective remedies necessary to ensure future
    adherence to the law
  • Remedies vary with facts of case

Examples of remedies
Correcting the records of students who were treated differently Providing compensatory, comparable academic services to students removed from instruction Revising discipline policies to provide clear definitions of infractions to ensure fair and consistent consequences Providing training for school personnel on discipline policies and classroom management techniques Designating a school official as a discipline supervisor Conducting a review of SRO interventions and practices to ensure their effectiveness
What the Letter doesnt say Students with
  • The Dear Colleague Letter doesnt directly
    address discipline issues related to special
    education, but the Departments say guidance on
    that topic is forthcoming, but
  • We have no specific timeline on future guidance
    in this area.

Evidence of significant disparities in the use
of discipline and aversive techniques for
students with disabilities raises particular
concern . . . . The Departments are developing
resources to assist schools and support teachers
in using appropriate discipline practices for
students with disabilities.
What the Letter doesnt say Students with
  • Open questions about Dear Colleague Letter and
    special education include
  • To what extent do IEP services have to continue
    in order for ISS not to count as a true
    short-term removal?
  • When is a series of short-term removals a
    pattern of removals and therefore a change of
  • Will districts be liable for discrepancies in
    rates at which different populations are
    disciplined? See Schenectady (N.Y.) School
    District, 62 IDELR 93 (OCR 10/30/13).

How can my district comply with the DCL?
  • Review existing discipline policies and code of
  • Read the Appendix to the DCL, which contains
    recommendations for developing and implementing
    compliant policies and practices
  • Dont forget about state law, too!
  • Consider what training may be necessary
  • Engage in communications with various
    constituents, including students and parents

Guiding Principle 1 Climate and Prevention
  • Action Steps
  • (1) Engage in deliberate efforts to create
    positive school climates
  • (2) Prioritize the use of evidence-based
    strategies like PBIS
  • (3) Promote social and emotional learning to
    complement academic skills and encourage positive
  • (4) Provide regular training and supports to all
    school personnel
  • (5) Collaborate with local mental health, child
    welfare, law enforcement, and juvenile justice
    agencies to align resources, prevention
    strategies, and intervention services
  • (6) Ensure that any school-based law enforcement
    officers roles focus on improving school safety
    and reducing inappropriate referrals to law

Technical Resources for Principle 1
  • Technical Assistance Center on Positive
    Behavioral Interventions and Supports
  • Practice Guide Reducing Behavior Problems in the
    Elementary School Classroom
  • School Climate Survey Compendium
  • Guide to Assigning Police Officers to Schools

Guiding Principle 2 Clear, Appropriate, and
Consistent Expectations and Consequences
  • Action Steps
  • (1) Set high expectations for behavior and adopt
    an instructional approach to school discipline.
  • (2) Involve families, students, and school
    personnel in the development and implementation
    of discipline policies or codes of conduct, and
    communicate those policies regularly and clearly.
  • (3) Ensure that clear, developmentally
    appropriate, and proportional consequences apply
    for misbehavior.
  • (4) Create policies that include appropriate
    procedures for students with disabilities and due
    process for all students.
  • (5) Remove students from the classroom only as a
    last resort, ensure that any alternative settings
    provide students with academic instruction, and
    return students to their regular class as soon as

Technical Resources for Principle 2
  • Positive School Discipline Course for School
  • Sample Consent Decree - U.S.A. Settlement
    Agreement with School District of Palm Beach, FL
  • Early Warning, Timely Response A Guide to Safe

Guiding Principle 3 Equity and Continuous
  • Action Steps
  • (1) Train all school staff to apply school
    discipline policies, practices, and procedures in
    a fair and equitable manner that does not
    disproportionately impact students of color,
    students with disabilities, or other students at
    risk for dropout, trauma, or social exclusion.
  • (2) Use proactive, data-driven, and continuous
    efforts, including gathering feedback from
    families, students, teachers, and school
    personnel in order to prevent, identify, reduce,
    and eliminate discriminatory discipline and
    unintended consequences.
  • USED Technical Assistance
  • Equity Assistance Centers
  • Forum Guide to Crime, Violence, and Discipline
    Incident Data

Funding to Improve School Climate
  • School Climate Transformation Grants
  • Grants for schools train their teachers and other
    school staff to implement evidence-based
    strategies to improve school climate.
  • Funds would be used to implement data tracking
    systems train the staff to analyze the data and
    select the most appropriate programs to address
    students needs train staff to implement the
    selected programs with fidelity and purchase
    associated programmatic materials.
  • Grantees will collaborate with juvenile justice
    and law enforcement entities to reduce
    unnecessarily harsh discipline actions including
    arrests and juvenile justice system involvement,
    and train school staff in mental health first aid
    to help adults detect and respond to mental
    illness in children and connect them to treatment
  • The School Climate Transformation Grants will
    combine with the Substance Abuse and Mental
    Health Services Administration (SAMHSA) mental
    health first aid grants and the Department of
    Justice (DOJ) Juvenile Justice and Education
    Collaboration Assistance (JJECA) grants to make
    competitive grants to LEAs
  • The Department would give priority in making
    awards to LEAs that enroll large concentrations
    of students from low-income families, though the
    expected number of awards will allow the grants
    to serve all types of communities.

School Discipline in ESEA Reauthorization
  • HR 5 No mention of school discipline/school
  • S. 1094
  • Reinstates/revamps SDFS Program
  • Districts report on in/out-of-school suspensions,
    expulsions, referrals to law enforcement,
    school-based arrests, transfers to alternative
    placements and student detentions for all major
    categories of students
  • States lowest performing schools must review
    disaggregated discipline rates and incorporate
    best practices if found struggling with

AASAs Leadership Responds to School Discipline
  • District leaders recognize the importance of
    providing positive school climates that keep
    students in school and treat students equitably
    when disciplinary matters arise. Unfortunately,
    there is a disconnect in Washington between the
    importance of adopting best practices to support
    positive school climates that reduce discipline
    disparities, and the funding available to
    districts to do this challenging work. Healthy,
    supportive learning environments produce students
    capable of achieving academic excellence. If our
    nation hopes to generate greater numbers of
    students who are successful in a post-secondary
    environment, our leaders must do more than
    incentivize compliance with civil rights laws,
    they must provide the resources to schools and
    the community agencies with which we partner, to
    ensure we can accomplish this goal.

AASA Member Resources
  • Legislative Trends Report documenting the
    discipline policies common across states and
    trends in recent state policy changes (Available
  • Model Code of Conduct Guides for Districts
    (Available 5/15)
  • Help Us Help You! Take our School Discipline
    Survey (3/15)

Questions Answers
Need help? Reach out to us.
  • If you are seeking more information on USED
    technical assistance or federal grants, or would
    like our upcoming Legislative Trends report on
    school discipline policies or a copy of this
    presentation, please email Sasha Pudelski
  • If you wish to receive legal counsel specific to
    your districts needs, please email Maree Sneed or Michelle Tellock

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