USED and US DOJ Release New School Discipline Guidance

Date: January 08, 2014

Superintendents should pay special attention to the new guidance released today by the U.S. Departments of Education and Justice. The new guidance will require superintendents, school boards and other local school leaders to examine whether their administration of school discipline results in the a student being subject to “different treatment” based on the student’s race or “disparately impacts” a particular group of students. The disparate impact concerns should be of particular consideration to district leaders as a school with a policy that imposes mandatory suspension, expulsion or citation upon any student who commits a specified offense (i.e. being tardy to class, being found insubordinate, etc.) could disproportionally impact a group of students from a particular race and therefore be grounds for an OCR investigation on the basis of noncompliance with Title IV. This is a new standard districts must apply when reviewing their school discipline data, policies and practice and one that will likely require new and considerably increased vigilance by school officials when disciplining students.

AASA’s Executive Director Daniel Domenech said the following about the guidance: “This new guidance is very far-reaching and could create a significant burden for schools districts to ensure they are not in violation of Title IV. While AASA does not question the authority of USED and US DOJ to issue this guidance, we believe compliance with it will require some districts to dramatically change their policies and practices and with limited resources this will prove very challenging.”

Here are a few other key aspects of the guidance:

  • The Departments highlighted that school resources officers, security guards and other law enforcement personnel who exercise some control over discipline are the responsibility of district leadership and the Departments can hold schools accountable for discriminatory actions taken by these parties.
  • The guidance also states that districts that impose out of school suspensions and expulsions for truancy could be in violation of Title IV as they would fail to meet a legal standard demonstrating that excluding a student from attending school in response to the student’s efforts to avoid school was necessary to meet an important educational goal.
  • The guidance also states that poor record-keeping of student discipline data can constitute a violation of Title IV.
  • The guidance contains numerous examples of the criteria OCR uses to determine discriminatory practices by districts and the legitimate nondiscriminatory reasons districts must present in order to be found in compliance. For example, a district with a zero tolerance policy for tardiness is found to suspend a higher number of Asian American students for tardiness. An investigation reveals that Asian American students live farthest from school and experience heavy traffic delays on the bus en route to school. As a result, they are frequently tardy. The district would have to demonstrate that the school’s articulated goal of reducing disruption and promoting attendance could not be achieved in another way. 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.

The guidance also contains information the Departments will request during an investigation and the process of remedying any noncompliance. The Appendix contains best practices that districts may implement that could allow districts to identify, avoid and remedy any discriminatory discipline based on race, color or national origin.

We will be holding a webinar for AASA members on January 24thto ensure superintendents understand how to comply with the guidance with esteemed legal expert, Maree Sneed. Register for the webinar here: