The U.S. Department of Education has issued a “dear colleague” letter offering guidance to school districts concerning student discipline policies and their implementation, and asserting the Department’s position that these policies must not be applied in a discriminatory manner. The new guidance which relates to the fair and nondiscriminatory treatment of students among schools that are recipients of federal aid, clarifies how districts can meet their obligations under Title IV and Title VI of the federal Civil Rights Act of 1964.

The Department of Education letter, citing the Civil Rights Data Collection conducted by the Office of Civil Rights, states that students of certain racial and ethnic groups tend to be disciplined more than their peers.  Secretary Arne Duncan’s letter notes that the increasing use of discipline such as suspensions, expulsions and referrals to law enforcement creates “the potential for significant, negative educational and long-term outcomes….”

Secretary Duncan’s letter discusses both intentional discrimination as well as the disparate impact of facially neutral school policies that have the effect of discriminating against students.  Both of which will be seen as violations of federal law.

In determining whether a facially neutral policy has an unlawful disparate impact, the Departments of Education and Justice will engage in a three-part inquiry.

(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with other students?  If yes, then (2) is the discipline policy necessary to meet an important education goal?  If not, then the Departments would find that the school has engaged in discrimination.  If yes, then (3) are there comparably effective alternative policies or practices that would meet the school’s stated goal with less of a burden on the affected racial group, or is the school’s proffered justification a pretext for discrimination?  If the answer is yes to either of these questions, then it will result in a finding that the school has engaged in discrimination.

The increased use of school resource officers (“SRO”) in the wake of Newtown and other school shootings is addressed by the “dear colleague” letter, which cautions that the requirements of Titles IV and VI apply both to school officials and everyone that school officials exercise control over, including SROs.  Schools cannot divest themselves of responsibility for discrimination by relying of SROs, security companies or law enforcement officials.

In light of an increased focus on school discipline policies and practices, school districts are well advised to take a close look at its discipline polices and protocols, as well as data on the application of student discipline.