Wednesday, January 8, 2014
Federal Guidance on Racial Disparities in Discipline Released, Calls for Vigilance in Enforcing Disparate Impact and Limiting Zero Tolerance
The new discipline guidance from the Departments of Justice and Education is now available here. The guidance breaks its analysis into disparate treatment (treating minority students and whites differently in terms of discipline) and disparate impact (a facially neutral policy that results in racially disparate outcomes). The first amounts to identifying and stopping intentionally discriminatory discipline. There is not much new here, but the point appears to be to encourage district to recognize that they may be treating similarly situated students differently without realizing it.
The disparate impact analysis is where the controversy abounds. It is directed at bringing down racial disparities in discipline even if there is no clear evidence of disparate treatment. I would posit there there is not any new substance in the guidance here either, but there is transparency and a clear signal that the Departments are serious about enforcing the substance. The guidance spells out very clearly how they will address racial disparities:
In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry
(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 no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. 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 justification 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.
The report also focuses in on zero tolerance as one of the problematic sources of disparate impact and questions whether such policies for minor misbehavior are necessary to achieve educational goals. The report also goes into depth in explaining what the remedies it might require for call for violations.