If yes, then the Departments would find that the school had engaged in discrimination.
3. Examples
This Section provides practical examples of situations in which the Departments might find, consistent with the principles set forth in the previous Sections, that violations of Title IV or Title VI have been established. These examples are intended to be illustrative, not exhaustive. We encourage school districts to contact us for technical assistance in applying this guidance to their particular situations.
A complaint was filed alleging discrimination after a school imposed different disciplinary sanctions on two students in the sixth grade – a non-Hispanic student and a Hispanic student – who engaged in a fight. Both students had similar disciplinary histories, having each previously received after-school detention for minor infractions. The Hispanic student received a three-day out-of-school suspension for the student’s involvement in the fight, while the non-Hispanic student received a two-day out-of-school suspension for the same misconduct, raising a concern that the students were treated differently on the basis of race.
Based on these facts and circumstances, the Departments would make an initial determination that the students were similarly situated, as they were involved in the same incident and have similar discipline records. If the school provided evidence of facts and circumstances surrounding the incident that would constitute a legitimate, nondiscriminatory reason for the different treatment, such as evidence that it disciplined the Hispanic student more severely because the student instigated the fight and directly threatened school officials who tried to break up the fight, then these facts and circumstances might constitute a nondiscriminatory reason for the different treatment. 24 If a nondiscriminatory reason for imposing a different sanction on either student were not identified, the Departments could find that the school had violated Titles IV and VI.
If a legitimate, nondiscriminatory reason for the different sanction were identified, the Departments would probe further to determine whether the reason given for the enhanced sanction was a pretext for racial discrimination. In making this determination, the Departments would request and consider information such as witness statements, codes of conduct, and student disciplinary records. The Departments would then evaluate, among other things, whether the school conformed to its written policies; whether the Hispanic student did, in fact, instigate the fight; and whether the school had previously imposed a higher sanction on non-Hispanic students who had instigated fights.
If the Departments found a violation, among the individual remedies that might be required would be the revision of the Hispanic student’s school records to delete the record of additional punishment and the provision of compensatory educational services to remedy missed class time. 25 The Departments could also require systemic relief, such as training of decision makers and changing disciplinary procedures to prevent different treatment in the future.
A district’s code of conduct specifies three different categories of offenses, ranging from Level 1, or minor behavior offenses, to Level 3, which covers the most serious conduct. 26 The code of conduct gives school officials the discretion to select among a range of penalties identified for each category of offense. A complainant alleges that her eighth-grade son, who is African-American, was referred to the office at his school and received a one-day in-school suspension for “use of profane or vulgar language” – a Level 1 offense – during a class period. The disciplinary sanction imposed was within the permissible range for Level 1 offenses. The student has had no previous discipline incidents. A white student at the same school and with a similar disciplinary history also committed a Level 1 offense: “inappropriate display of affection” while on the school bus. While the parent of the white student was called, the student received no additional disciplinary sanction.
The fact that the school characterized both types of misconduct as Level 1 offenses indicates that the school itself believes that the misconduct warrants similar disciplinary responses. Based on these facts and circumstances, the Departments would make an initial determination that these students were similarly situated because they engaged in comparable conduct as defined by the school – misconduct classified as a Level 1 offense – and had similar disciplinary records.
The school would be asked whether it had a reason (such as the context or circumstances for these incidents) that would justify treating the students differently for Level 1 offenses. In this case, the school gave teachers and administrators a list of factors to consider when deciding whether to enhance or reduce disciplinary sanctions. Some of the factors relevant to Level 1 offenses were: whether the student’s misconduct interrupted the learning process; whether the student had been previously disciplined for the same offense; whether the student accepted responsibility for the misconduct; and whether the student could demonstrate that he or she tried to avoid the situation that resulted in the misconduct. The school provided evidence that the parent of the African-American student previously received a telephone call about her son’s prior use of profane or vulgar language in the classroom. The school also determined that the different locations of the offenses, e.g., on the bus as compared to in the classroom, resulted in different levels of disruption to learning.
The school’s reasons for treating the students differently would be sufficient under these facts and circumstances, unless the Departments found that the proffered reasons were a pretext for discrimination. In this instance, if school officials gave conflicting accounts of why the African-American student received a higher sanction, or if the school’s records showed that it rarely distinguished misbehavior on the bus from misbehavior in the classroom in determining sanctions, the Departments could determine that the alleged nondiscriminatory explanation was pretextual.
If the school had not provided a nondiscriminatory reason for imposing a different sanction on the African-American student, or if the purported nondiscriminatory reason were found to be pretextual, the Departments would find that the school had violated Titles IV and VI. In that case, the Departments would seek individual and/or systemic relief.
A complainant alleges that Native-American students are treated differently from their non-Native-American peers at a school that contracts with a school safety officer to secure the entrances and exits of the school building, patrol the halls, and maintain safety on the school grounds. The investigation reveals that the school safety officer, when he was posted for security at the main entrance, treated Native-American students differently from other students. The school’s rules require that when a student arrives at the entrance less than five minutes late, the student should be allowed to go directly to class, whereas when a student arrives more than five minutes late, the student should be sent to the office before going to class. The school safety officer, however, had a practice of detaining for several minutes some Native-American students (but not any other students) who arrived less than five minutes late, and then sending them to the office. The school safety officer, who was not an employee of the school, offered no justification for the differential treatment and declined to speak with investigators or explain himself to the school.
Because a school is responsible for discrimination by parties with whom it contracts or to whom it otherwise delegates responsibility for aspects of the school’s programs or functions, the conduct of the school safety officer would raise an inference of racial discrimination by the school. If the school could not provide a nondiscriminatory reason for the different treatment of Native American students by the school safety officer, or if the reason were found to be pretextual, the Departments would find that the school had violated Titles IV and VI.
A school district established a district-wide alternative high school to which it assigns students with extensive disciplinary records. Although only 12 percent of the district’s students are African-American, 90 percent of students assigned involuntarily to the alternative high school are African-American. The evidence shows that when white and African-American students commit similar offenses in their regular high schools, the offenses committed by the white students have not been reflected as often in school records. The evidence also shows that some white students are not assigned to the alternative high school, despite having disciplinary records as extensive (in terms of number of and severity of offenses) as some of the African-American students who have been involuntarily assigned there. Based on these facts and circumstances, if the school district could not provide a legitimate, nondiscriminatory reason for the different treatment or the reason provided were pretextual, the Departments would find that the school district had violated Titles IV and VI.
A school district’s discipline code allows for a one-day suspension of all students who commit the offense of “acting in a threatening manner.” Statistical data demonstrate that under this provision of the code, a school in the district suspends African-American students disproportionately relative to their enrollment at the school. During the investigation, the Departments find that the discipline code provision lacks a clear definition of the prohibited conduct, and that the school has suspended African-American students under the provision for a broad range of actions, including congregating in groups in the hallways, talking too loudly, or talking back when admonished by the teacher. Further, the evidence indicates that white students engaging in comparable conduct are more likely to be charged with lower-level violations of the discipline code, such as “no hall pass” and “classroom disruption.” These offenses do not lead to suspension and are more likely to result in after-school detention.
Based on this evidence, the Departments would probe further and ask the school whether it had a nondiscriminatory reason for the pattern of different treatment, such as additional circumstances or specific, objective factors that led decision makers to consider certain instances of misbehavior more threatening than other instances of similar misbehavior. If a nondiscriminatory reason were not identified (for instance, if the school provided only a statement from a teacher that the teacher felt more threatened by the conduct of the African-American students, without providing a reasonable basis to conclude that the behavior at issue actually was more threatening), or if the purported nondiscriminatory reason were found to be pretextual, the Departments would find the school in violation of Titles IV and VI, and seek individual and/or systemic relief.
Such remedies could consist of one or more of the following: (1) providing clear definitions and examples of threatening actions for which students may be suspended (including specifying the conduct that does not warrant a suspension); (2) requiring the administrator(s) to make specific findings prior to imposing the sanction of suspension, e.g., determining that the behavior in question falls within the scope of the prohibited conduct, and/or determining that other means of addressing student behavior are not feasible or repeatedly failed to bring about appropriate conduct; (3) providing teachers and administrators with training on how to administer the policy fairly and equitably; and/or (4) providing teachers with training in classroom management techniques and effective behavioral interventions that give them appropriate and culturally responsive tools to interpret and address the underlying behaviors.
A school district adopted an elaborate set of rules governing the sanctions for various disciplinary offenses. For one particular offense, labeled “use of electronic devices,” the maximum sanction is a one-day in-school suspension where the student is separated from his regular classroom but still is provided some educational services. The investigation reveals that school officials, however, regularly impose a greater, unauthorized punishment – out-of-school suspension – for use of electronic devices. The investigation also shows that African-American students are engaging in the use of electronic devices at a higher rate than students of other races. Coupled with the school’s regular imposition of greater, unauthorized punishment for using electronic devices, therefore, African-American students are receiving excessive punishments more frequently than students of other races. In other words, African-American students are substantially more likely than students of other races to receive a punishment in excess of that authorized under the school’s own rules.
There is no evidence that the disproportionate discipline results from racial bias or reflects racial stereotypes. Rather, further investigation shows that this excessive punishment is the result of poor training of school officials on the school rules that apply to use of electronic devices.
Under these circumstances, the Departments could find a violation of Title VI. Although there is no finding of intentional discrimination, the misapplication of the discipline rules by school officials results in an adverse impact (disproportionate exclusion from education services) on African-American students as compared with other students. Because this practice has an adverse racial impact, the school must demonstrate that the practice is necessary to meet an important educational goal. The school cannot do so, however, because there is no justification for school officials to disregard their own rules and impose a punishment not authorized by those rules.
Additional training for school officials, clarification of the rules, and the immediate collection and review of incident data to prevent unauthorized punishments might be required to eliminate the disparate impact going forward. Among the individual remedies that might be required are revision of students’ school records and compensatory educational services to remedy missed class time.
A middle school has a “zero tolerance” tardiness policy. Students who are more than five minutes tardy to class are always referred to the principal’s office at a particular school, where they are required to remain for the rest of the class period regardless of their reason for being tardy. The school also imposes an automatic one-day suspension when a student is recorded as being tardy five times in the same semester. Additional tardiness results in longer suspensions and a meeting with a truancy officer.
The evidence shows Asian-American students are disproportionately losing instruction time under the school’s “zero tolerance” tardiness policy, as a result of both office referrals and suspensions for repeated tardiness.
An investigation further reveals that white and Hispanic students are more likely to live within walking distance of the school, while Asian-American students are more likely to live farther away and in an area cut off by an interstate highway that prevents them from walking to school. The majority of Asian-American students are thus required to take public transportation. These students take the first public bus traveling in the direction of their school every morning. Even though they arrive at the bus stop in time to take the first bus available in the morning, they often are not dropped off at school until after school has begun.
As justification for the “zero tolerance” tardiness policy, the school articulates the goals of reducing disruption caused by tardiness, encouraging good attendance, and promoting a climate where school rules are respected, all of which the Departments accept as important educational goals. The Departments would then assess the fit between the stated goals and the means employed by the school – including whether the policy is reasonably likely to reduce tardiness for these students under these circumstances. Assuming there was such a fit, the Departments would then probe further to determine the availability of alternatives that would also achieve the important educational goals while reducing the adverse effect on Asian-American students (e.g., aligning class schedules and bus schedules, or excusing students whose tardiness is the result of bus delays). If the Departments determine that a school’s articulated goal can be met through alternative policies that eliminate or have less of an adverse racial impact, the Departments would find the school in violation of Title VI and require that the school implement those alternatives.
B. Information the Departments Consider
During an investigation, the Departments will examine facts and information related to a school’s discipline approach. The following is a non-exhaustive list of the types of information the Departments have examined when investigating the possibility of discriminatory discipline: written policies (such as student codes of conduct, parent handbooks, and teacher manuals) and unwritten disciplinary practices (such as exercises of discretion by teachers and school administrators); data indicating the number of referrals to administrators charged with implementing student discipline and/or to law enforcement authorities; discipline incident reports; copies of student discipline records and discipline referral forms; school discipline data disaggregated by subgroup, offense, other relevant factors (such as the time of incident, place of incident, whether more than one student was involved in an incident, the students’ prior disciplinary infractions, the person(s) who referred a student for discipline); and interviews with students, parents, administrators, teachers, counselors, school resource officers and other law enforcement officers, relevant contractors, and support staff. The Departments also will review and analyze information provided by schools through the CRDC, if applicable, and other relevant data.
The Departments will look carefully at, among other things, a school’s definitions of misconduct to ensure they are clear and nondiscriminatory, the extent to which disciplinary criteria and referrals are made for offenses that are subjectively defined (e.g., disrespect or insubordination), and whether there are safeguards to ensure that discretion is exercised in a nondiscriminatory manner. In addition to establishing a system for monitoring all disciplinary referrals, the school should have a system in place to ensure that staff who have the authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory manner. Schools should thus take steps to monitor and evaluate the impact of disciplinary practices to detect patterns that bear further investigation.
C. Importance of Appropriate Record Keeping
The Departments expect schools to cooperate with investigations and, upon request, to provide records that will enable the Departments to ascertain whether the administration of student discipline policies and practices complies with the requirements of Titles IV and VI. If the Departments determine that a school does not collect accurate and complete data to resolve an investigation, and/or the Departments are unable to obtain the necessary information through interviews or other means, the Departments may conclude that the school’s record-keeping process presents concerns.
To address these concerns, the Departments may require, for example, that the school begin keeping the necessary information to determine if the school is meeting its Title VI obligations and not discriminating against students in the administration of its discipline policies. 27 A non-exhaustive list of data-related remedies required of schools found to be in noncompliance with Title VI includes the following: developing and implementing uniform standards for the content of discipline files; developing and training all staff on uniform standards for entry, maintenance, updating and retrieval of data accurately documenting the school’s discipline process and its implementation, including its racial impact; and keeping data on teacher referrals and discipline, to assess whether particular teachers may be referring large numbers of students by race for discipline (and following up with these teachers, as appropriate, to determine the underlying causes).
D. Remedies
If the Departments conclude that a school is in violation of Title IV or Title VI in the administration of student discipline, the Departments will attempt to secure the school’s voluntary agreement to take specific steps to remedy the identified violation before seeking redress in court or through an administrative hearing. If appropriate under the circumstances, the Departments will involve the entire district, and not just an individual school, in the agreement. The remedy sought would be aligned with the Departments’ findings and could include individual relief to students who were subjected to racial discrimination, and also prospective remedies that are necessary to ensure the school’s (and district’s) future adherence to the requirements of Titles IV and VI. Such remedies may include the following:
Remedies will necessarily vary with the facts of each case; in all instances, however, the remedies must fully and effectively address the school’s discriminatory actions and ensure future compliance with Titles IV and VI. 29 If the Departments enter into a resolution agreement with a school, they will monitor the school’s compliance with the agreement to ensure the school is meeting the requirements of Titles IV and VI when administering student discipline.
CONCLUSION
The Departments are committed to promoting effective and appropriate school discipline policies and practices that create a safe and inclusive environment where all students can learn and succeed. As part of this commitment, we will enforce Federal laws to eliminate unlawful racial discrimination in school discipline. In addition to investigating complaints that have been filed, both Departments are collaboratively and proactively initiating compliance reviews nationwide focused on student discipline. Finally, the Departments will continue to provide technical assistance to schools on the adoption and administration of discipline policies consistent with their obligations under Federal civil rights laws.
Thank you for your efforts to ensure that the nation’s students are provided with equal educational opportunities. If you need technical assistance, please contact the OCR regional office serving your State or territory by visiting http://www.ed.gov/about/offices/list/ocr/index.html or call OCR’s Customer Service Team at 1‑800-421-3481. You may contact DOJ’s Civil Rights Division, Educational Opportunities Section, at education@usdoj.gov, or 1-877-292-3804.
We look forward to continuing our work together to ensure equal access to education and to promote safe school environments for all of America’s students.
/S/
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Catherine E. Lhamon
Assistant Secretary
Office for Civil Rights
U.S. Department of Education