Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or national origin. The issue of discriminatory discipline is not new; indeed, the Franczek Radelet Education Insights blog warned about the issue early last year. Moreover, the guidance does not create any new law but rather provides information and examples of the Department’s expectations under existing law. Nonetheless, the new guidance is the first national guidance issued on school discipline and likely will be given some deference by courts interpreting the issue, and so is noteworthy and warrants particular attention from school leaders.
The core of the Department’s guidance can be found in a Dear Colleague Guidance Letter (DCL) that was prepared in conjunction with the Department of Justice. The DCL begins with the recognition that discipline is essential for the operation of safe and orderly schools. The DCL then cites statistics showing that discipline in public schools often falls disproportionately on students in minority groups and documents the harms on those students that results. The DCL warns that federal law prohibits discrimination by public schools in the administration of student discipline based on race, color, and national origin, and that the Department will investigate complaints of such discrimination and may require schools to take steps to remedy any issues it finds.
The DCL describes at length and provides examples of the types of discrimination that the Department investigates (“different treatment” discrimination, which is often thought of as intentional discrimination, and “disparate impact” discrimination, which results when there is not necessarily an unlawful intent behind discrimination but it nonetheless leads to an unlawful impact on a particular group). Notably, the DCL makes clear that discrimination can occur at all levels of the disciplinary chain of command, from the decision of a teacher to send a student out of class to the final disciplinary decision by administration. The DCL also clarifies that school districts can be responsible for discrimination not just by employees, but also by agents such as security guards or even law enforcement.
The appendix to the DCL provides recommendations for school districts, administrators, and teachers on how to avoid illegal discriminatory discipline. These recommendations fall into three categories: (1) climate and prevention, (2) clear, appropriate, and consistent expectations and consequences, and (3) equity and continuous improvement. A Guiding Principles document released with the guidance packet provides a succinct summary of these categories:
First, take deliberate steps to create the positive school climates that can help prevent and change inappropriate behaviors. Such steps include training staff, engaging families and community partners, and deploying resources to help students develop the social, emotional, and conflict resolution skills needed to avoid and de-escalate problems. Targeting student supports also helps students address the underlying causes of misbehavior, such as trauma, substance abuse, and mental health issues.
Second, ensure that clear, appropriate, and consistent expectations and consequences are in place to prevent and address misbehavior. By holding students accountable for their actions in developmentally appropriate ways, students learn responsibility, respect, and the bounds of acceptable behavior in our schools and society. This also means relying on suspension and expulsion only as a last resort and for appropriately serious infractions, and equipping staff with alternative strategies to address problem behaviors while keeping all students engaged in instruction to the greatest extent possible.
Finally, schools must understand their civil rights obligations and strive to ensure fairness and equity for all students by continuously evaluating the impact of their discipline policies and practices on all students using data and analysis.
Another key recommendation is to use law enforcement appropriately. This portion of the DCL and related materials has received significant media attention, including from the ACLU and the Associated Press. As Attorney General Eric Holder explained in a press conference, “A routine school disciplinary infraction should land a student in the principal’s office, not a police precinct.” The DCL recommends, among other things, ensuring that school officials only utilize law enforcement when there are major threats to school safety or serious-school-based criminal conduct that cannot safely and appropriately be managed by the school’s internal discipline policies.
Also key are recommendations that schools monitor the impact of discipline policies before a complaint is filed. The DCL recommends that schools collect and use multiple forms of data, including a discipline incident database, regarding discipline incidents and conducting additional investigation where necessary. Notably, the DCL makes clear that schools are responsible for the following: (i) developing and implementing uniform standards for the content of discipline files, (ii) developing and training staff on uniform standards for entry and maintenance of files, and (iii) keeping data on teacher referrals and discipline to assess whether particular teachers may be referring large numbers of students by race for discipline so that follow up with teachers can be taken as needed.
The guidance package includes, in addition to the DCL and the Guiding Principles document, other resources for schools in implementing fair discipline policies. These include a Directory of Federal School Climate and Discipline Resources and a Compendium of School Discipline Laws and Regulations.
Thanksgiving is not yet here, but school districts across the country already are grappling with an important question regarding later, religious holidays like Christmas. The question: Can religious content be included in winter programming in public schools?
The inclusion of religion-themed content in musical programs and charity drives has been a hot button issue for schools this year. For example, a New Jersey school district recently came under fire for banning all Christian music from its elementary schools’ winter concerts. After pressure from a pro-religion organization, Alliance Defending Freedom, the school district reversed course and said it would allow Christmas songs in the concerts, after all. Similarly, a Colorado school district reportedly broke ties with a Christian organization that collects boxes of toys from students to send to impoverished children overseas. A secular-rights group, the American Humanist Association, fueled the change in policy by challenging the practice through a letter to the school district.
The organizations that either support or challenge the inclusion of religious content in school programming often portray the issue as simple. For instance, the Alliance Defending Freedom recently sent a letter to 13,000 school districts across the country suggesting that the right to include religious content in school musical programs and toy drives is nearly absolute. But as with most constitutional issues in public schools, the reality is that decisions must be made on a case-by-case basis with critical attention to the rights on both sides.
As reported by the Washington Post, President Obama is expected to sign a bill into law encouraging states to require schools to take greater efforts to protect students with food allergies. The bipartisan bill was proposed by Illinois Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) following the deaths of two girls in Illinois and Virginia from severe food allergies.
The bill comes at a time of heightened focus by the media and the government on the issue of childhood allergies. A recent New York Times Sunday Reviewarticle, for instance, delved into the connection between food allergies and the decline of agrarian culture. And the Centers for Disease Control and Prevention recently issued voluntary guidelines for schools regarding managing food allergies in educational programs (more information from the CDC can be found here).
The bill also is in addition to numerous State law requirements for schools regarding allergies. In 2011, for instance, Illinois school districts were first required to implement a food allergy management policy under Illinois law. As one source reports, the Illinois law “allows schools to maintain a supply of epinephrine on site and for school nurses to administer epinephrine to any student suffering from a severe allergic reaction.” The guidelines required under the Illinois law must comport with Illinois State Board of Education and Illinois Department of Public Health guidelines on food allergies that were published in 2010. In all, twenty-seven states reportedly have laws allowing schools to administer epinephrine to students without a prescription.
The bill would expand on state law by offering a financial incentive to states that require schools to do all of the following:
- Allow a wider array of trained school personnel to administer epinephrine to students reasonably believed to be having an anaphylactic reaction;
- Maintain a supply of epinephrine in a secure location that is easily accessible to trained personnel of the school for the purpose of administration to any student of the school reasonably believed to be having an anaphylactic reaction; and
- Have in place a plan for having on the premises of the school during all operating hours one or more individuals who are trained personnel to administer epinephrine.
Notably, although many students with severe food allergies bring their own epinephrine injectors to school, the bill reportedly nonetheless would help numerous children who do not know they have life threatening allergies. Approximately a quarter of recent administrations of epinephrine in the school setting involved students who were not previously aware of their allergies and so would not have had a personal supply of epinephrine.
If the bill is signed into law, additional state action will be required for the mandates of the bill to reach school districts. Even if a state implements the mandates of the bill, moreover, other issues relating to food allergies in schools – such as specifics of education and training, implementation of individualized health care and food allergy action plans, procedures for responding to life-threatening reactions to food, and protocols to avoid exposure to food allergens – are not covered by the bill and so will remain subject to state law or, where there is none, school district discretion.
In an earlier blog post, we addressed whether an Ohio school district violated the First Amendment by hanging a portrait of Jesus in a middle school. The portrait allegedly was a gift to the school board by a Christian student club and had been hanging in the school district’s schools since the 1940s. In February, the school board voted to allow the picture to remain despite a lawsuit filed by the ACLU and the Wisconsin-based Freedom from Religion Foundation (FFRF). The school board said that the portrait is not owned by the school but rather belongs to a Christian student club, and that removing it might violate the First Amendment rights of the students in the club.
The parties reportedly reached a tentative agreement months ago when, in April, the school board took the picture down. The legal fight was rekindled, however, when the ACLU and FFRF learned that the school district continued to keep the portrait in its high school building in an area visible to those entering an art-storage area, and displayed the picture on a school lawn during a prayer meeting. After a flurry of more legal filings, the school district decided to settle, agreeing to remove the picture from its school buildings, to pay each of the anonymous students who brought the complaint $3,000, and to pay the ACLU and FFRF $80,000.
As we pointed out in our earlier blog post, there are a number of key takeaways that school leaders can glean from this case.
Courts are generally skeptical of religious displays, including religious works of art, that appear to be school-sponsored speech unless there is a clear secular purpose behind the display. A secular purpose might include a display including art work from a number of religions or examples of historical figures. A court also may be concerned if only one religion, such as Christianity, is represented. When the religious speech purportedly is that of a student or students, the issue becomes more difficult. Whether it is a posting by a student group, a student submission to a class or contest that includes religious content, student speech with religious undertones at a talent show or a graduation or other assembly, or the reading of prayers by students at a football game, there are a myriad of legal rules and challenges of which school leaders should be aware. The Ohio settlement makes clear that balancing these rules and challenges can be difficult, and sometimes costly.
Illinois recently joined twenty other states and the District of Columbia in legalizing medical marijuana. Four other states are considering passing similar legislation in the near future. How do primary and secondary schools adapt when the state allows employees and students to legally possess and use marijuana for medical purposes? The following are a few issues that K-12 schools may face.
Drug Possession and Use
What if an employee or student shows up at school, on a school bus, or at a school-related event with marijuana? Or uses marijuana at those places? When caught, the individual presents a doctor’s prescription for the drug. Is the prescription a get-out-of-jail-free card for school discipline?
The Ninth Circuit Court of Appeals joined a growing number of federal courts of appeals that have addressed when public schools can discipline students for off-campus, online misconduct. The case involved multiple threats by a Nevada high school student, made on his own computer on his own time, that he would commit a school shooting. The court held that the school’s discipline of the student did not violate his constitutional rights, but took care to make clear that its holding was limited to threats of serious school violence. The court saved for another day the more difficult issue of when other types of non-threatening off-campus, online misconduct – such as harassment or bullying of staff or other students – can be the subject of school discipline.
In Wynar v. Douglas County School District, a student of Douglas High School in Minden, Nevada sent a number of troubling instant messages through MySpace to classmates from his home computer. In the messages, he bragged about having a stockpile of weapons, threatened to shoot and “take out” particular students on the anniversary of the Columbine school shooting, and boasted that his victims would outnumber those in the Virginia Tech shooting – the deadliest school shooting to date. After some of the student’s friends reported the messages to school authorities, school officials interviewed the student, who admitted that he wrote the messages but claimed they were a joke. The school district expelled the student for 90 days for violating a policy against threatening other students. The student sued, arguing that his off-campus speech was protected by the First Amendment of the U.S. Constitution. (more…)
This month, two courts issued dramatically different opinions about whether school districts can prohibit breast cancer awareness bracelets reading “I ♥ boobies” without running afoul of students’ First Amendment free speech rights. In both cases, the school districts argued that they could prohibit the speech in the school context based on the 1986 Supreme Court case Bethel School District v. Fraser. In Fraser, the Court upheld the suspension of a high school student for making a speech full of sexual innuendos during a school assembly. The Fraser Court held that the discipline did not violate the student’s First Amendment rights, and that opinion has been interpreted to authorize school discipline of lewd, vulgar, obscene, indecent, or patently offensive speech in the school environment. (more…)
As reported by Franczek Radelet attorney Scott Warner and FR LEADS Fellow Kent Sparks (a law student at the Michigan State University College of Law) in a recent FR Alert, the U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague Letter last week for secondary schools about how Title IX relates to pregnant and parenting students. OCR reminded schools that Title IX protects pregnant and parenting students from sex discrimination. In an accompanying pamphlet, OCR outlined the various requirements that public schools must respect with respect to pregnant and parenting students. For more information on the DCL, you can access the FR Alert here.
The big news this week in education is the U.S. Supreme Court’s 7-1 decision in Fisher v. University of Texas. In Fisher, the Court held that the lower court should not have taken at face value the University’s claim that it needed to use race in admissions decisions. The Court remanded the decision to the lower court to decide whether the University can establish that its consideration of race is narrowly tailored. Specifically, the University must show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The decision was a higher education decision, but there are important takeaways for primary and secondary schools, as well.
The U. S. Supreme Court has declared unconstitutional a portion of the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union between one man and one woman. The Court’s 5-4 vote in U.S. v. Windsor will reach well beyond the case of Edith Windsor, a New York widow, who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009. The Windsor decision means that same-sex couples who are legally married now must be treated the same under federal law as married opposite-sex couples. What does that mean for school districts? My colleagues, Jeff Nowak and Veronica Silva, provide their take on this decision’s impact on employers, including public schools, in a recent FR Alert.