Education Law Insights

Tips and Tricks: Avoiding Discriminatory Discipline of Groups of Students

Posted by Jackie Wernz on May 21, 2013

Discriminatory discipline has been a hot topic this year in public schools, and the focus on this topic makes it one that school leaders should not ignore.

A Spotlight on Discriminatory Discipline 

In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.

In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.

In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.

Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.

Tips and Tricks 

Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.

Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above:

  • Know Your Data. Discriminatory discipline is typically not the result of an overt conspiracy, but rather is often the unintended effect of small, often subconscious decisions by individuals throughout the system. So in order to determine if there is a problem, school officials must first collect and review data to determine if there is a disproportionate effect on one group of students. A red flag is where data shows that students of a particular group receive discipline or more harsh discipline more frequently than other groups for comparable misbehavior, especially where students of other groups are of similar ages, have similar disciplinary histories, and attend the same school.
  • Treat Minor Infractions Differently. If your data review shows disproportionate impact on a particular group, consider how employees and officials address minor misbehavior. One school district in Buffalo, New York decided to stop suspending students for minor infractions at all after a student was shot and killed in a drive by shooting while serving an out-of-school suspension for roaming the halls at school. A less-extreme option is to train staff on a continuum of graduated and developmentally appropriate intervention strategies and consequences to be used before removing students from instruction for discipline. Such strategies are often known as Positive Behavioral Interventions and Supports (PBIS), and if they are applied across the board in a fair and consistent manner they can help prevent disproportionate discipline.
  • Who You Gonna Call? Some schools that have disproportionate discipline for some groups may find that defining and even limiting when administrators and officials can call the police on student discipline matters may help balance the numbers for some groups. Police involvement can often escalate a relatively minor incident into something more major.
  • Review and Assess Changes to Determine Success. In the Mississippi case, the district was required to appoint a “PBIS Director” to track and assist with implementation of the PBIS model. The Director analyzes classroom, grade, and school-level discipline data, develops corrective action plans, coordinates professional development on PBIS, and serves as a contact for parent and student complaints regarding discipline. Although most schools need not assign a full time employee to handle such tasks, the types of activities suggested are good ways to address the efficiency of changes implemented over time and provide communication to parents and the community to prevent misunderstandings.
  • Training is Key. Training staff at all levels, from police liaison officers to teachers to administrators, is key to limiting disproportionate discipline. Employees should understand policies and procedures on how discipline is handled, the potential for bias with respect to student discipline and how to prevent it, and how and when to engage families and the community.

Although no steps can prevent a legal challenge, and even after such steps are taken disproportions in the numbers for a school or school district may remain, if school district shows that it has analyzed data and taken steps to address any inconsistencies, it will help if ever necessary to defend against allegations of discriminatory use of discipline. Conducting such an analysis also helps a school district show students, parents, and the community that it takes these concerns seriously and wants to prevent disproportionate discipline in its schools, regardless of the legal risks.

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