Published Online: January 14, 2014
Published in Print: January 15, 2014, as Federal Guidance Urges Schools to Shift From 'Zero Tolerance'

Feds Call for School Discipline to Be More Evenhanded

Newly issued discipline guidance from the U.S. departments of Education and Justice urges school leaders to draft and apply rules in a way that is fair to all racial and ethnic groups and to ease up on zero-tolerance policies the agencies' leaders said have led to unnecessarily high rates of suspensions and expulsions.

The guidance marks the first time a presidential administration has addressed rates of discipline that are disproportionately high for some racial groups and overly broad policies that too frequently remove students from the classroom for nonviolent incidents, such as dress-code violations, federal officials said.

The guidance directs school leaders to honor their obligations under Title IV and Title VI of the federal Civil Rights Act of 1964, which relate to nondiscriminatory treatment by schools and recipients of federal aid. Schools are required under the laws to consider whether their student discipline policies are drafted and implemented fairly and consistently and whether they may have a "disparate impact" on certain student groups, the guidance says. Higher rates of suspensions and expulsions among certain student groups cannot be explained away by assuming higher rates of misbehavior among those students, U. S. Attorney General Eric Holder and U.S. Secretary of Education Arne Duncan said as they unveiled the new guidance here last week at Frederick Douglass High School.

Although black students represented 15 percent of students in national data collected by the Education Department's office for civil rights in 2012, they made up 35 percent of students suspended once, 44 percent of those suspended more than once, and 36 percent of students expelled, Mr. Duncan said. The agency has also found widely varying suspension and expulsion rates between states, he added.

"That huge disparity is not caused by differences in children but by differences in training, professional development, and discipline policies," Mr. Duncan said. "It is adult behavior that needs to change."

'A Strong Message'

The guidance—which includes a "Dear Colleague" letter to educators and a catalog of state-level discipline policies—stems from the work of the Supportive School Discipline Initiative, a collaboration launched by the two agencies in 2011.

Civil rights groups and supporters of reworking school discipline practices applauded the guidance.

"All children deserve access to a quality education, but, too often, children of color are pushed out of the classroom through harsh school disciplinary policies, " Judith Browne Dianis, a co-director of the Advancement Project, a civil rights organization, said in a statement. "Discrimination in school discipline is a major problem deserving of focused attention."

Some administration critics said it was unfair to assume discriminatory policies led to differing discipline rates. They warned the new guidance may cause some educators to ignore bad behavior they would have previously punished. And national educator groups said some schools lack the financial resources to implement the changes suggested by the guidance, such as preventative school climate initiatives led by social workers and school counselors—posts that have been removed from some districts' budgets.

"The federal government made many positive suggestions, but policies in a vacuum without actual resources and support will not succeed," American Federation of Teachers President Randi Weingarten said in a statement.

Mr. Duncan said his agency budget proposal for the 2014 fiscal year calls for $50 million in School Climate Transformation Grants. But there is no guarantee that Congress will fund that request.

The National School Boards Association supports "zero tolerance for discriminatory practices in public schools," but it is concerned the guidance may serve as an unfunded federal mandate. In a statement, the group said it is studying whether the guidance is an "expansive interpretation of the law" that will usurp local control.

Examining Policies

The guidance does not constitute new federal regulations, Mr. Duncan and Mr. Holder said. Rather, it is designed to assist districts in meeting existing obligations under federal civil rights laws. The leaders assured educators that they would continue to investigate allegations of Title IV and Title VI violations triggered by complaints from parents, students, and community members, and that they may also initiate investigations through regular compliance-monitoring activities.

Schools can violate the laws if their policies unfairly target specific student groups in word or in application, the guidance says. For example, a dress-code rule might target clothing that school officials associate with a particular racial group without a legitimate educational justification for doing so.

Even disciplinary policies drafted without discriminatory intent may violate federal laws if they disproportionately affect students from certain racial groups, the guidance says. In such cases, educators should be ready to demonstrate that the disciplinary measure is "necessary to meet an important educational goal" and that they considered alternatives, the document says.

Related Blog

The guidance also suggests there are times when schools may be justified in meting out different punishments for students who appear "similarly situated" apart from their race. For example, a Hispanic student who fought with a non-Hispanic peer may receive a harsher punishment if he or she threatens educators who try to disrupt the fight.

But districts are also responsible for ensuring that rules are applied fairly, the guidance says. For example, a district may violate the civil rights rules if it suspends black students for "acting in a threatening manner" after they talk back to an adult if it labels similar behavior from white students as "classroom disruption," an offense that carries a lighter penalty, the guidance says.

Schools found to violate Title IV or Title VI will be subject to remedies, which could include correcting the records of students deemed to be unfairly punished, revising discipline policies, training for school personnel, and annual reviews of discipline practices, the guidance says.

"We want to build pathways to success rather than pipelines to the criminal justice system," Mr. Holder said.

Vol. 33, Issue 17, Page 7

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