The Education Civil Rights Alliance



December 18, 2018Dear Local and State Education Leadership:On behalf of several of the nation’s leading civil rights organizations that engage in education litigation and are committed to protecting the civil rights of all students, we write to condemn the decision of the “Federal Commission on School Safety” and Education Secretary Betsy DeVos that the 2014 Dear Colleague Letter (DCL) on Nondiscriminatory Administration of School Discipline should be rescinded. The DCL addressed racial discrimination in school discipline and sought to assist public elementary and secondary schools in meeting their obligations under federal law to administer student discipline without discrimination. In doing so, it clarified the legal analysis of both different treatment and disparate impact discrimination in the application of school discipline and invited schools around the country to address disciplinary cultures that deprive students of equal educational opportunities and safe and healthy learning environments.By clarifying the legal obligations for schools and providing valuable resources to foster positive, supportive school cultures, the DCL helped create safer schools for our students. Federal data from the Institute of Education Sciences (IES) show that students attended safer schools in 2015, after the guidance was released, than they did in 2013, before the guidance was released. IES provided more than twenty measures of school climate and safety and, by nearly every measure, safety and order either improved or stayed the same. Moreover, several measures of dangerous or troublesome behaviors declined, including bullying, fighting, and victimization of students.In writing and sharing this letter, we wish first and foremost to stress that, despite the imminent rescission of the DCL, federal anti-discrimination law is not changing. Any school with discipline policies or practices that discriminate against children based on race, ethnicity, national origin, sex, or disability will continue to be in violation of the law. As a result, all schools must continue to administer discipline in a nondiscriminatory manner and develop evidence-based alternatives to exclusionary discipline. Such evidence-based practices are not just useful for compliance with the law, but also encompass educational best practices and help create safe, nurturing, and successful environments for our students to learn and grow. Should schools fail to uphold the law, our organizations stand ready, individually and collectively, to take action to enforce well-established law on school discipline, protect our nation’s students from unlawful discrimination, and promote evidence-based best practices.Racial Discrimination and Disproportionality in the Application of School Discipline is Well-DocumentedAs the DCL plainly stated, “racial discrimination in school discipline is a real problem.” Such discrimination has long been confirmed by research and was reaffirmed recently by the Government Accountability Report on “Discipline Disparities for Black Students, Boys, and Students with Disabilities” released in April 2018. Data from the Department of Education’s Civil Rights Data Collection (CRDC) found that during the 2015-2016 school year, Black children represented 16 percent of enrolled students, but 39 percent of students who received an out-of-school suspension. The DCL noted that “in our investigations we have found cases where African-American students were disciplined more harshly and more frequently because of their race than similarly situated white students.”Yet research shows there is no evidence that students of color misbehave more than white students. Students of color are often disproportionately disciplined for minor, subjective offenses such as disobedience and disruptive behavior, enforcement of which is left up to the discretion of school staff, administrators, and school police who may be more likely to negatively interpret the behavior of certain racial and ethnic groups based on their own conscious or unconscious bias. Ultimately, this racial disproportionality in discipline has serious short- and long-term consequences for these students as well as their schools. The suspended students lose valuable classroom instruction and are at far greater risk of becoming involved with the juvenile and criminal justice systems. The negative impacts of these suspensions are not limited to the excluded students – schools with higher levels of exclusionary discipline have been shown to have decreased academic achievement for students who are not excluded. These school exclusions poison school culture and climate and prevent schools from developing the supportive, safe environment necessary for all students to flourish.Federal Anti-Discrimination Law Has Not ChangedWhile the DCL provided important guidance and information on best practices for schools and families on federal protections against discrimination, rescinding the DCL does not change federal anti-discrimination law. Schools remain obligated to eliminate unjustifiable discipline policies that have disparate effects on students of color. Federal law continues to require them to develop and administer discipline policies in ways that do not discriminate against children based on their race, ethnicity, national origin, sex, or disability. Race, Ethnicity or National OriginTitle VI of the Civil Rights Act of 1964 and its implementing regulations prohibit states, districts, and public schools from discriminating on the basis of race, color, or national origin. It applies to all academic, educational, extracurricular, athletic, and other programs and activities of any school that accepts federal funding and covers school officials and all people that these officials exercise some control over, including school resource officers (SROs). As a result, schools cannot divest themselves of responsibility for the nondiscriminatory administration of student discipline by relying on SROs, school district police officers, contract or private security companies, security guards or other contractors, or law enforcement personnel. Schools are accountable for discriminatory actions taken by these parties.The administration of student discipline can result in unlawful discrimination based on race through policies and practices that intentionally discriminate (“different treatment”) or those that have an unjustifiable, adverse, and unlawful disparate impact on students (“disparate impact”). Different treatment most often occurs when students of different races in similar situations are disciplined differently for the same offense. It can also occur when a facially neutral policy is selectively enforced against students of one race, but not another. Disparate impact discrimination occurs when a policy is neutral on its face—meaning that the policy itself does not mention race—and may be administered in an evenhanded manner, but has a disproportionate and unjustified effect on students of a particular race. Title VI’s implementing regulations specifically prohibit disparate impact discrimination.SexWhile the DCL explicitly addresses only racial discrimination, its framework, examples, and resources also apply to other types of prohibited discrimination in schools, including discrimination based on sex. Far too often, girls, particularly girls of color, are discriminated against by school discipline policies. According to OCR, among the 2.6 million students suspended each year, black girls are six times more likely than white girls to be suspended and are also more likely to receive multiple suspensions than any other gender or race of students. Such discrimination, however, is prohibited and remains illegal under Title IX of the Education Amendments of 1972.DisabilityStudents with disabilities are also often subjected to discriminatory disciplines policies in schools. Such students are more than twice as likely to be suspended than those without and are also suspended for longer durations. They make up two-thirds of students who are secluded from their classmates or restrained to prevent them from moving, yet compose just 12% of the overall student population. Such discrimination against students with disabilities is prohibited and remains illegal under Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and the Individuals with Disabilities Education Act.Schools Should Continue to Comply with Anti-Discrimination Law and Educational Best PracticesDespite the rescission of the DCL, schools should continue administering their discipline policies in fair, nondiscriminatory ways and developing positive alternatives to exclusionary discipline. Schools should continue utilizing the resources and suggestions included in the guidance package to create more trusting, safer school cultures and better the education of their students, particularly students of color. Positive Behavior Interventions & Supports (PBIS), trauma-informed care, and other evidence-based and promising means of creating and maintaining supportive school environments are recommended in the 2014 guidance package. Other promising supports, such as restorative practices, should be used as well. Schools should continue to have monitoring systems for all disciplinary matters and referrals and train staff to administer student discipline in a fair, nondiscriminatory manner. They must also monitor and periodically reevaluate their discipline and school climate policies and practices to ensure they are nondiscriminatory, build positive school culture, and further their academic goals. Collecting multiple forms of data, including school climate surveys, incident reports, and other measures are necessary to remain in compliance with the law and maintain a safe, inclusive and positive educational environment.Civil Rights Organizations that Engage in Education Litigation Will Protect Students from Illegal and Discriminatory Discipline Policies in their SchoolsWhile the U.S. Departments of Education and Justice will have signaled their unwillingness to continue defending our students’ civil rights by rescinding this DCL, the civil rights organizations that engage in education litigation will do no such thing. We are dedicated to defending the civil rights of all students and will take action to ensure that schools and districts comply with well-established federal law protecting against discrimination based on race, ethnicity, national origin, sex, or disability. All students deserve an equal opportunity to learn and grow in school. Illegal and discriminatory discipline policies prevent that fair chance for all. Our children are safer when they are engaged in their school community, not wrongly disciplined and removed from the classroom. Fair and equitable discipline policies, together with appropriate training for teachers and the necessary funding of support staff, will create safe, inclusive, and positive school climates necessary for all children to learn and grow.We remain committed to creating equitable, safe schools for all students and welcome the opportunity to partner with schools, districts and states for the betterment of our children. For any questions or for additional information, please contact Miriam Rollin, Director of the Education Civil Rights Alliance, at 202-868-4783 or mrollin@.Respectfully,American Civil Liberties UnionBazelon Center for Mental Health LawEqual Justice SocietyLawyers’ Committee for Civil Rights Under Law (National)NAACP Legal Defense FundNational Center for Youth LawNational Disability Rights NetworkNational Education AssociationNational Women’s Law CenterSouthern Poverty Law Center ................
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