On January 8, 2014, the U. S. Department of Justice and the U.S. Department of Education "(Department") jointly issued a Dear Colleague Letter with the stated goal "to assist public elementary and secondary schools in meeting their obligations under federal law to administer student discipline without discriminating on the basis of race, color or national origin." The letter is 31 pages and includes an appendix of recommendations, data which was collected, and anecdotal examples from Department investigations to find that "racial discrimination and school discipline is a real problem." Also issued on the same date was a letter from Arne Duncan, the Secretary of Education, which addresses and provides extensive information on the Department's "Guiding Principles" relative to school discipline.
Both of these letters will require careful analysis by schools and their counsel. The Dear Colleague letter draws specific attention to lost instructional time due to exclusionary discipline, the need for fair and equitable discipline policies, and the importance of giving school officials tools to support positive student behaviors. There is also a detailed explanation of legal obligations such as the difference between different treatment and disparate impact. Both letters specifically state safe and orderly educational environments, as well as schools which are nurturing and positive are crucial to good education. The Dear Colleague letter is very critical of disparities in student discipline rates, zero tolerance policies, and what has been termed the "school to prison pipeline."
The legal framework primarily relies upon Title IV and Title VII, both of which protect students from discrimination based on race in connection with all academic, educational, extracurricular and other school programs. Additionally, these statutes not only cover school officials, but also everyone school officials exercise some control over, whether through contract or other arrangement, including school resource officers. Additionally, the two statutes cited protect students over the entire course of the disciplinary process, which includes behavior management in the classroom, as well as referral to an authority outside the classroom because of misconduct, i.e., the principal. This referral step was specifically cited as being a crucial step in the student discipline process and subject to criticism when used excessively or in a discriminatory manner.
The Letter provides a detailed summary of the analysis that either the Department of Justice or the Office of Civil Rights will utilize in determining whether students have been disciplined differently based on race. This includes analysis of whether students were similarly situated but suffered different discipline, the reasons that a school may have for such differences, and whether the reasons appeared to be sound or were a "pretext" for discrimination. This analysis will also include a review of policies to determine whether they are racially neutral, have a disparate impact on certain groups, and/or whether they are administered appropriately.
In Secretary Duncan's letter and the Guiding Principles which were attached, there was a very clear statement that the Department views suspensions and expulsions as only a last resort which should be limited to appropriately serious infractions. Additionally, great emphasis was placed on training staff with alternative strategies for addressing problem behaviors so that all students may remain in the classroom engaged in instruction.
Both of the letters provided significant information on the sources on which they were based, as well as information for schools in developing the policies and training necessary to meet the obligations of non-discriminatory school discipline.
Dear Colleague letters such as these must be taken very seriously. They clearly demonstrate the objectives which will be utilized by the Office of Civil Rights in dealing with complaints. Schools are urged, in connection with their counsel, to begin to develop the type of policies, training, etc., as well as record keeping that is necessary to comply with the requirements of these letters.