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:
The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.
In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”
The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.
As Education Week recently reported, the Eighth Circuit Court of Appeals has held that two high school students from Missouri were unlikely to establish a First Amendment violation for discipline based on an inflammatory website they posted off-campus on their own time. In S.J.W. v. Lee’s Summit R-7 School District, the court approved of the school’s discipline even though the bulk of the disruption caused by the website was the result of a post by an unrelated third party. The Court also rejected yet another attempt by proponents of student speech such as the American Civil Liberties Union (ACLU), to argue that all off-campus student speech should be off limits for discipline by public schools. The case provides guidance to school leaders on the challenging question of when discipline is warranted for off-campus, online misconduct by students.
In December, 2011, two male high school honor students, who were twin brothers, posted racially and sexually charged slurs on a website. The website – northpress.tk – was reportedly created on a Dutch server that could not be found on a Google search. The boys took this step with the intent of limiting access to six or seven friends and preventing the website from reaching a broader school audience.
A third, unrelated student added a post titled with the N-word which was accessed by multiple students at school and led to a disruption in school that one teacher compared to the aftermath of the September 11 attacks. As the brothers alleged in their complaint, the twins were not aware of the post, which was only on the site for approximately 12 hours before being removed by the third student. The twin brothers were nonetheless suspended, first for 10 days and then for 180 days, when the school found out about the website and a disruption ensued. The boys’ school gave them the option to attend an alternative school, but their parents reportedly filed a lawsuit in March because they believed the academics and extracurricular activities at the alternative school were not up to their standards.
A federal District Court determined that, although the website created a substantial disruption, the students were likely to succeed on the merits of their First Amendment claim and were entitled to an injunction. This decision was important because, with the injunction and the long life-span of federal trials, the students were likely to graduate before the trial court weighed in with a more permanent decision. The Eight Circuit, however, disagreed and held that the students were not likely to succeed on the merits of their claim and, so, were not entitled to an injunction. (more…)