Dear Colleague Letter on School Discipline

The Department of Education, Office of Civil Rights (OCR) and Department of Justice (DOJ) joint “Dear Colleague” letter threatens schools with their own disciplinary actions if student discipline results in a disparate impact on any race, regardless of the merits of the underlying disciplinary decisions. Unless school districts demonstrate that the policy is absolutely essential to satisfying an important educational goal, districts can be penalized for using neutral disciplinary policies that result in an “adverse impact” on students of any race. This flies in the face of the Supreme Court’s ruling that disparate impact does not violate Title VI for federal funding recipients.

Schools are forced to choose between unenviable options. They can eliminate infractions that result in greater disciplinary action for one race, which would increase the prevalence of the undesired behavior. They can over-enforce disciplinary policies against students from racial groups that have fewer disciplinary problems, which clearly is unjust. Or, they can continue the policy and risk being sanctioned if they cannot adequately justify the policy to OCR and DOJ. Ironically, the proliferation of zero-tolerance school disciplinary policies predictably resulted from OCR’s prior micromanagement of school disciplinary procedures, wherein OCR threatened to penalize schools for failing to discipline students when they should have known about bullying and sexual harassment, even if it occurred away from school.