Last year, I blogged about the impact of a higher education Supreme Court diversity case, Fisher v. University of Texas on K-12 schools. As discussed in that blog, although the decision was a higher education decision, it raised important takeaways for primary and secondary schools wishing to use race as a factor in admission or assignment decisions. As also reported in that blog, the Court remanded the decision to the lower appellate court, the Fifth Circuit Court of Appeals, to decide whether the University could establish that its consideration of race in the case was narrowly tailored. Specifically, the Supreme Court directed the University to show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The Court also directed the Fifth Circuit to apply “exacting scrutiny” to the decision and not to defer too heavily to the University about the necessity of relying on race.
As Jennifer Smith from our firm reported late last week in an FR Alert, the Fifth Circuit recently ruled on the remanded case, and found that the University properly used race as a factor in a “holistic review” in the admissions process. As Jennifer explained:
The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”
The case does not constitute a major change in the law in this area, and the takeaways from our previous blog remain relevant for K-12 school leaders. Specifically, race can still be used as a factor in admissions or assignment decisions, although only where great pains are taken to establish the necessity of such use. Legal counsel for the student in the case have vowed to appeal, though, and it is uncertain if the Supreme Court would agree with the Fifth Circuit if it took the case on for review. As always, school leaders should consult with legal counsel and take care when using race in any admissions or assignment decisions in light of the flurry of legal activity in this area in the courts.
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.
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: