Educationcounsel/Discussion Draft/January 21, 2014

EDUCATIONCOUNSEL/DISCUSSION DRAFT/JANUARY 21, 2014

U.S. Department of Education and U.S. Department of Justice School Climate & Discipline Guidance: High Level Summary and Analysis

GLSEN strongly believes that exclusionary discipline in schools, such as suspension and expulsion, causes significant harm to students by reducing educational opportunities, contributing to an unsafe school climate, and pushing more children and youth into the juvenile justice system. Further, LGBT youth are often disproportionately subject to such exclusionary discipline and thereby becoming overrepresented in the "school-to-prison pipeline." The U.S. Departments of Education and Justice recently released guidance to help schools better address school climate and discipline matters, but unfortunately did not specifically recognize or address the impact of this persistent national problem on LGBT children and youth. While the new guidance represents an important step forward, the absence of clear advice to help LGBT students demonstrates a clear need to continue efforts to educate federal, state and local leaders about the nuance of state and local school discipline issues. This document briefly summarizes the new guidance, which though imperfect from an LGBT perspective, provides important advice for school leaders that will nonetheless benefit many LBGT students.

Introduction and Overview

On January 8, the Department of Education and Department of Justice released guidance and informational resources on "Improving School Climate & Discipline." Secretary of Education Arne Duncan and Attorney General Eric Holder held a joint event to unveil the new guidance and to emphasize the need to reduce the use of exclusionary discipline - which was described as having a disproportionate impact on students of color and students with disabilities – and to create and maintain a safe and positive school climate, in which effective teaching and learning can take place.

The guidance does not create any new obligations or requirements for states or local school districts, but rather is non-regulatory guidance intended to assist public elementary and secondary schools to administer student discipline without discriminating on the basis of race, color or national origin. The resource packet is also designed to engage all stakeholders – state and local officials and school administrators, school staff, parents, students and others – to work together toward creating and maintaining a safe and supportive school environment.

The packet of resources[1] released by the Departments contains:

1)  a "Dear Colleague" guidance letter (DCL) which sets out the school districts' existing legal obligations under federal law not to discriminate when administering student discipline and how to meet those obligations;

2)  a "Guiding Principles document that set out three key guiding principles and specific action steps recommended to districts on how best to improve school climate and thereby reduce exclusionary discipline, which has been found to be discriminatory;

3)  a Directory of Federal School Climate and Discipline Resources;

4)  an online Compendium of School Discipline Laws and Regulations, which catalogs and compares relevant laws from across the country; and

5)  an Overview of the Supportive School Discipline Initiative, which sets out recent federal efforts on this issue.

The guidance package, and specifically the Dear Colleague letter setting out the school districts' legal obligations under federal law, is framed explicitly to address discrimination on the basis of race. The letter acknowledges that the analytical framework also could apply to discrimination on other prohibited grounds, and specifically references in a footnote, discrimination on the basis of sex under Title IV and Title IX, but also cautions that the other grounds implicate different statutes and sometimes different legal analyses.[2] Aside from the brief mention in the footnote in the Dear Colleague Letter regarding prohibited discrimination on the basis of sex, the materials include no further analysis of discriminatory administration of discipline on the basis of sex and no explicit reference to discrimination on the basis of sexual orientation, gender identity or gender expression.

Guiding Principles Resource Guide

The Guiding Principles document issued by the Department of Education sets out non-regulatory guidance, based on emerging research and best practices, to assist states and local school districts to improve school climate and discipline, and thereby reduce the likelihood of exclusionary and potentially discriminatory discipline practices.[3] The document is designed to provide a framework of principles and accompanying action steps to engage all stakeholders – state and local officials and school administrators, charter school operators, school staff, parents, students and others – to work together towards creating and maintaining a safe and supportive school environment where effective teaching and learning can occur.

The Guidance is organized around three main “Guiding Principles,” each of which has specific action steps for states/districts/schools:

1.  Climate and Prevention: Schools that foster positive school climates can help to engage all students in learning by preventing problem behaviors and intervening effectively to support struggling and at-risk students.

2.  Expectations and Consequences: Schools that have discipline policies or codes of conduct with clear, appropriate, and consistently applied expectations and consequences will help students improve behavior, increase engagement, and boost achievement.

3.  Equity and Continuous Improvement: Schools that build staff capacity and continuously evaluate the school’s discipline policies and practices are more likely to ensure fairness and equity and promote achievement for all students.

The Need for Guidance – Disparities in Administration of School Discipline

The Dear Colleague letter demonstrates the need for this guidance on school climate and discipline through data collected by the Civil Rights Data Collection (CRDC), conducted by the Department of Education's Office of Civil Rights (OCR). That data reveals that students of color tend to be disproportionately subject to discipline and referral to law enforcement than their white peers. The Department cites multiple studies and research showing that such a disparity is not explained by more frequent or more serious misbehavior by students of color and acknowledges that discrimination in school discipline is a real problem that must be addressed.

The Departments also emphasize the harm to students that is caused by exclusionary discipline. For example, the CRDC data reveals an increase in missed instructional time and other studies show a correlation between exclusionary discipline and serious long-term outcomes, such as likelihood of dropping out, substance abuse and involvement in the juvenile justice system, among others.

The Departments' Enforcement Framework and Activities

The Dear Colleague Letter sets out the ways in which the federal laws prohibiting racial discrimination are enforced. Title IV and Title VI prohibit discrimination based on certain personal characteristics, including race, in school activities, which includes the administration of discipline. The Departments of Justice Civil Rights Division (DOJ) and the Department of Education's Office for Civil Rights (OCR) are responsible for enforcing these federal laws. The Departments commence investigations in response to complaints that they receive from students, parents and others about possible racial discrimination and also engage in regular compliance monitoring activities, which may lead to an investigation based on reports of racial disparities.

The Departments point out that federal law applies to actions by all school officials and those whom the officials have control over, including school resource officers. This is important to note in the context of the administration of discipline and the "school-to-prison" pipeline, because schools are increasingly utilizing school resource officers to intervene in incidents of misconduct. Therefore, the school districts are responsible to prevent any discriminatory actions by school resource officers under their control.

Legal Framework:

The materials provide the legal framework and specific examples of what would be discriminatory administration of discipline. When investigating complaints of unlawful discrimination based on race, they look for either (1) "different treatment" based on the student's race, which is considered intentional discrimination; or (2) facially neutral policy that had a "disparate impact" on students of a particular race. The Departments emphasize that for both inquiries, in addition to the particular facts and circumstances of the incident itself, analysis of the data regarding the impact of the policies and practices on particular student groups is important to the determination of whether unlawful discrimination occurred.

1.  Different Treatment

Under Title IV and Title VI, it would be unlawful for the schools to have discipline policies that treat students differently according to their race – either because the policy explicitly stated that students of a particular race were to be discipline differently or because the policy was neutral, but was administered differently based on the students' race. The Departments provided these examples of this type of discrimination:

n  Similarly situated students of different races are disciplined differently for the same offense

n  Selective enforcement of the discipline policy, which can occur when an administrator chooses not to enforce the discipline policy for students of a particular racial group, but enforces it consistently against students of another racial group

n  Adoption of a facially neutral discipline policy with the intent to target students of a particular race, such as prohibiting a particular style of clothing under the dress code that the school officials were typically worn by students of a particular race, as a means of penalizing that group of students without a legitimate school objective for the policy.

The Departments also provided the specific inquiry used in examining whether discrimination under the "different treatment" analysis occurred:

"(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? . . . If the students are similarly situated and the school has treated them differently, then:

(2) Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? If not, the Departments could find that the school has intentionally discriminated on the basis of race. If yes, then:

(3) Is the reason articulated a pretext for discrimination? . . . If the non-discriminatory reason offered by the school is found to be pretextual, the Departments would find that he school had engaged in intentional discrimination."[4]

2.  Disparate Impact

It would also be a violation of federal law if school discipline policies had the unjustified, albeit unintentional, effect of discriminating against students of a particular racial group, which is called "disparate impact."

The Departments provided the specific inquiry utilized to determine whether a facially neutral policy has a "disparate impact" on the basis of race:

"(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities . . . If there were an adverse impact, then:

(2) Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the Departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:

(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? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school had engaged in discrimination."[5]

Information Considered in the Investigations:

The Departments provide a "non-exhaustive list" of information that they examine in the course of an investigation, including but not limited to written policies, unwritten practices, school discipline data, copies of student discipline records, interviews with relevant witnesses, as well as data obtained through the CRDC.

The Departments also highlight several important factors that they examine, such as the school's definition of different types of misconduct and whether those definitions are "subjectively defined" (i.e. disrespect or insubordination), and if so, whether there are protections against those being discriminatorily applied. The Departments encourage districts to have systems in place to monitor disciplinary referrals, to ensure that staff who administer discipline are properly trained to do so in a non-discriminatory manner, and to monitor the impact of disciplinary practices to detect any potentially problematic patterns.

Remedies and Recommendations

The materials explain both what can be done once unlawful discrimination has been found by the Departments, which ranges from individual remedies for individual students to corrective systemic action on a school or district-wide basis, and also recommendations for concrete steps that districts can take in order to try to prevent discriminatory administration of discipline from occurring in the first place.

The recommendations are consistent with the more comprehensive document issued by the Department of Education as part of the school climate & discipline guidance packet, "Guiding Principles: A Resource Guide for Improving School Climate & Discipline."

Possible Funding

In addition to investments made in 2012 and 2013 through the Race to the Top competition, the Center on Great Teachers and Leaders, and the National Forum for Youth Violence Prevention grants, the President's FY 2014 budget request included additional funding for new programs to help schools improve conditions for learning. Specifically, the Administration requested an additional $50 million for a new School Climate Transformation Grant to be administered by the Department of Education.[6]

Since the release of the guidance packet, Congress approved and the president signed the Fiscal Year '14 budget for the U.S. Department of Education. The measure provided a $25 million increase for the Safe and Drug-Free Schools national activities account. Under the provisions of the spending bill, the Department of Education must submit an operating plan for use of these funds to the House and Senate Appropriations Committees by mid-February. That plan will reflect the Department’s school climate priorities and therefore may contain some funding for states and districts to support this work.