Equity in School
Discipline:
A Close Look at the New
DOJ/ED Guidance
Alabama Association of School Boards
Summer Conference June 21, 2014
Sonja Trainor, Director, Council of School Attorneys
National School Boards Association
Here’s the Trailer
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NSBA: Who we are and what we do
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The New NSBA
The NSBA Legal Advocacy Agenda
COSA and Your Role in the New NSBA
The DOJ/ED Dear Colleague Letter on Racial
Disparities in Student Discipline
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The Issue
What Did DOJ/ED Say?
What Does this Mean?
Who Does this Affect?
What Should School Boards Do?
NSBA: What We Do
The New NSBA
“With local governance and public
education facing mounting challenges,
the National School Boards
Association is charting a course of a
stronger advocacy role and even more
powerful service to, and partnership
with, its state association members.”
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Advocacy
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Services
http://www.nsba.org/About/NSBAGovernance/New-NSBA/NewNSBA-Brochure.pdf
A Snapshot of the
NSBA LEGAL ADVOCACY
AGENDA
NSBA Amicus Program – FY 14
NSBA participated in 8 cases in SCOTUS and
other federal and state courts. NSBA vetted over
20 cases for possible participation.
• NSBA was able to secure pro bono services from
COSA members and respected Supreme Court
litigators to draft the brief in 6 of these cases.
• NSBA had 32 co-signers on its briefs this year,
including 9 state associations.
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NSBA Amicus Briefs online
NSBA Legal Advocacy – Talking to the
Fed
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Department of Education
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IRS
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NSBA responded to DCL on SWD in extracurricular
athletics (April 2013)
NSBA Comments to ED’s March 2014 Data Collection
Request on the Impact of Professional Development on
Fourth Grade Student Achievement in Fractions (April
2014)
Comments on proposed ACA regulations (March, 2013
USDA
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Comments on Local School Wellness Policy Implementation
under the Healthy, Hunger-Free Kids Act of 2010
This is an
ACTIVE ADMINISTRATION
This is an Active
Administration!
9
NSBA Council of School
Attorneys
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The mission of the NSBA Council of School
Attorneys is to support school attorneys in
their representation of public school boards
by providing leadership in legal advocacy for
public schools.
COSA members are actively
engaged in NSBA’s advocacy
efforts.
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Amicus Committee
Amicus Writing
Working Groups
COSA Board of Directors
State Association Counsel Committee
EQUITY IN SCHOOL
DISCIPLINE: THE ISSUE
“. . . racial discrimination in
school discipline is a real
problem.”
Using Civil Rights Data Collection numbers,
• Nationally minorities are suspended at
disproportionately higher rates than nonminorities
• African-American students three times more
likely to be suspended than white students
• African-American students are 15% of students in
the CRDC, but
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35% of students suspended once
44% of students suspended more than once
A real problem, cont’d
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50% of students involved in school-related
arrests or referred to law enforcement were
African-American or Hispanic
The effect of suspension and school absence on
academic achievement, graduation, substance
abuse, criminal activity, etc.
“The school to prison pipeline”
Keep in mind . . .
… They are the Office for Civil Rights (ED) and Civil
Rights Division (DOJ)
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You know this data, you know your district’s
data.
Everyone wants the situation improved.
EQUITY IN SCHOOL
DISCIPLINE: WHAT DID
DOJ/ED SAY?
The Jan. 2014 DCL
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Racial disparities in student discipline rates can
violate federal law—Titles IV and VI of the Civil
Rights Act of 1964
What we may have considered an educational
issue, DOJ/ED are now presenting as a legal issue,
DOJ/ED presents an extensive legal analysis to
make the case for less out of school suspension,
and increased focus on climate and training.
Jan. 2014 DCL – Key Points
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The Departments may examine the entire
disciplinary process, from office referrals to
expulsions
The Departments expect districts to maintain
thorough discipline records data, disaggregated
by subgroups, for examination
SROs and other contractors covered
Jan. 2014 DCL – Key Points
DOJ/ED identify 2 types of illegal discrimination
1. Different Treatment (Intentional Discrimination)
2. Disparate Impact
Different Treatment
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A policy that is discriminatory on its face
A neutral policy that school administrators
implement in a discriminatory manner
A neutral policy that is selectively enforced
A neutral policy adopted with intent to target a
particular race of students
Staff acting with racially discriminatory motives,
e.g. use of slurs
Different Treatment
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The Departments will judge school district on:
• Direct evidence of discrimination;
or, absent that,
• Circumstantial evidence of discrimination.
Different Treatment Test
(Used with Circumstantial
Evidence)
1. Did the school limit or deny educational services,
benefits, or opportunities to a student or group of
students of a particular race by treating them
differently from a similarly situated student or group
of students of another race in the disciplinary process?
No = no discrimination.
Yes = continue.
Different Treatment Test
(Used with Circumstantial
Evidence) cont’d
2. Can the school articulate a legitimate,
nondiscriminatory reason for the different treatment?
No = departments could find discrimination.
Yes = continue.
Different Treatment Test
(Used with Circumstantial
Evidence) cont’d
3. Is the reason articulated a pretext for discrimination?
No = no discrimination.
Yes = finding of intentional discrimination.
The Departments may
consider other circumstantial
evidence:
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Disciplinary practices that disproportionately
impact students of a particular race
A history of discriminatory conduct toward
members of a student’s race
Inconsistent application of disciplinary practices
to students of different races
I.E., DATA COMPARISON
Disparate Impact
Exists when a school evenhandedly implements a
facially neutral policy or practice that, although
not adopted with the intent to discriminate,
nonetheless has an unjustified effect of
discriminating against students on the basis of
race.
Disparate Impact
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Examples of areas of concern to Depts.:
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Mandatory punishments (zero tolerance policy)
Corporal punishment
Suspensions as a penalty for truancy
Denying admission after police or juvenile justice
involvement
Disparate Impact Test
1. Has the discipline policy resulted in an adverse
impact on students of a particular race as
compared with students of other races?
No = no discrimination.
Yes = continue.
Disparate Impact Test
2. Is the discipline policy necessary to meet an
important educational goal?
No = finding of discrimination.
Yes = continue.
Disparate Impact Test
3. Are there comparably effective alternative policies
or practices that would meet the school’s stated
educational goal with less of a burden or adverse
impact on the disproportionately affected racial
group, or is the school’s proffered justification
a pretext for discrimination?
No to either question: likely no finding of
discrimination.
Yes to either question: finding of discrimination.
DOES CONTEXT MATTER?
The Departments proclaim that
“Context Matters,” but how exactly
will “context” be assessed and
valued?
Information examined in an investigation:
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written policies, codes of conduct, parent
handbooks, and teacher manuals
unwritten disciplinary practices
data on referrals
discipline incident reports
copies of student discipline records and
discipline referral forms
disaggregated discipline data
interviews with students, staff, parents, etc.
school district’s CRDC data
More on school district recordkeeping
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“If a school does not collect accurate and
complete data to resolve an investigation, or
the Departments are unable to obtain the
necessary information…..
the Departments may conclude that the school’s
recordkeeping process presents concerns.”
What does this mean?
What records do they want?
And even more on school
district record-keeping
If dissatisfied with district records, the
Departments may:
• Direct the content of discipline records
• Direct the process of recordkeeping
• Direct staff training
• Direct that teacher referrals be maintained
• Direct the collection of discipline data on
races
When the Departments look at statistical data to
determine a violation, will they compare discipline
numbers against the racial make-up of the individual
school, the district or the community at large?
Is there an acceptable variance? (i.e. you can go 10
miles over the speed limit w/o a ticket)
Will they consider improvement trends?
Is it a one year or multi-year assessment?
Key Issues for DOJ/ED
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The Departments will closely examine the student
code of conduct and how offenses are defined.
The Departments strongly disfavor “subjective
offenses,” e.g., “Disrespect”, “Insubordination.”
The Departments will will analyze referrals for
subjective offenses.
The Departments want safeguards to ensure that
discretion is exercised in a nondiscriminatory
manner.
The Departments want training of all staff involved in
discipline
The Departments appear to be very critical
of broadly defined disciplinary codes. How
specific must a definition be to meet the
Departments’ standards? E.g., what’s a
satisfactory definition of “disrespect for
authority?”
Potential Remedies
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Provide compensatory academic services
Revise policies and practices
Implement new teaching strategies focusing on
positive student behaviors
Train staff on classroom management
Provide school supports for disruptive students
Ongoing monitoring
WHO DOES THIS DCL
AFFECT?
Who is affected?
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School administrators
Superintendents
Staff Development Facilitators
Guidance Counselors
Pupil Personnel Workers
School Resource Officers
School attorneys
Community
SCHOOL BOARDS
WHAT SHOULD SCHOOL
BOARDS DO?
What Should School Boards
Do?
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Take DOJ/ED’s message if not their means
Addressing disproportionality in student
discipline is the educationally right thing to do
School attorneys will wrestle with the difficult
questions raised by the new interpretation of law
and its general explanation
School board’s role is to set policy and
educational direction—Set the tone
What Should School Boards
Do?
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Know your discipline data
Receive regular staff reports on student
discipline, disaggregated by subgroup
Ensure that data is regularly monitored by staff
and identified patterns or problems addressed
As appropriate, act at the Board level on data
that reflects a problem
What Should School Boards
Do?
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Review your discipline policies and terms
Review your district’s recordkeeping practices
Review your staff training
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Cultural awareness; consistency of referrals
Study and use the Departments’ Appendix of
over 50 programmatic recommendations
Remember that “context matters”—do not
establish discipline quotas
Q&A
Please Feel Free to Contact
Me!
Sonja Trainor
Director, Council of School Attorneys
National School Boards Association
1680 Duke St.
Alexandria, VA 22314
703.838.6155
strainor@nsba.org
Working with and through our State
Associations, to advocate for equity and
excellence in public education through school
board leadership.
www.nsba.org