MISSOURI ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS Guidance on the Administration of Student Discipline October 6, 2015 Lawrence J. Wadsack and Emily M. Slaten Lashly & Baer, P.C.

Topics of Discussion: Key Documents Suspension Overview: Educational and Social Justice Concerns Legal Concerns Office of Civil Rights’ Standards, Investigations, and Remedies School District Strategies Questions and Comments

Key Documents

Key Documents: UCLA, The Center for Civil Rights Remedies, “Are We Closing the School Discipline Gap?” (Feb. 2015) Reporting trend analysis of suspension rates at elementary and secondary levels based on federal data U.S. Departments of Justice and Education, “Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline” (Jan. 8, 2014)  

Suspension Overview: Educational and Social Justice Concerns

Suspension Data Generally 3.5 million students suspended out-of-school in 2011- 2012 Of 3.5 million suspended, 1.55 million suspended at least twice 18 million days of instruction lost in one school year 1 in 3 students suspended at some point between kindergarten and 12th grade Suspension rates 3-5x higher at secondary level  

Effects of Suspension Significant, negative educational and long-term outcomes  “school-to-prison pipeline” Damage to student performance and diminished educational engagement Links to higher dropout and delinquency rates Economic costs for suspended students and society Dropouts cost hundreds of thousands of dollars over the student’s lifetime If dropout rate reduced by half, net benefit to public of nearly $90 billion a year

Racial Disparities in Suspension Disproportionate effect of discipline policies on non-white races Numerous reports highlight racial disparities in school suspension Civil Rights Data Collection (CRDC) – mandatory federal data collection Demonstrates that students of certain racial or ethnic groups disciplined more than peers

Racial Disparities in Suspension (cont.) Although African American students make up 15% of students in CRDC, they make up: 35% of students suspended once 44% of students suspended more than once 36% of students expelled Over 50% of students who were involved in school-related arrests or referred to law enforcement were Hispanic or African American Raise concerns that may be engaging in racial discrimination in violation of civil rights laws

Missouri Suspension Missouri – No. 1 for largest gap in elementary school suspension of African American elementary students compared to white elementary students Suspend 14.3% of African American students at least once in 2011-2012, compared to 1.8% of white students 12.5 more African American elementary students suspended than white per 100 enrolled Missouri – No. 4 at secondary level

Legal Concerns

Legal Concerns Federal law prohibits public schools from discriminating in the administration of student discipline based on certain personal characteristics: Title IV of Civil Rights Act – race, color, or national origin, among others Title VI of Civil Rights Act – race, color or national origin (recipients of federal financial assistance)

Enforcement Efforts Depts. of Education and Justice investigate student discipline policies and practices for possible racial discrimination in student discipline Complaints from students, parents, community or others; public reports; or part of regular compliance monitoring Office of Civil Rights (OCR) widespread enforcement efforts: Sept. 2009 – July 2012  821 discipline-based complaints and compliance reviews 789 resolved  55 agreements to address policies/practices

OCR Standards, Investigations, and Remedies

Standards of Discrimination Administration of school discipline can result in unlawful discrimination based on race in two ways: Different Treatment – a student is subjected to different treatment based on the student’s race Disparate Impact – a policy is neutral on its face (i.e., does not mention race) and is evenhandedly administered but has a disparate impact (i.e., a disproportionate and unjustified effect) on students of a particular race

Different Treatment OCR will typically ask 3 questions to determine whether a school intentionally discriminated in the administration of student discipline: 1. Did the school limit or deny educational services 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? 2. Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? 3. Is the reason articulated a “pretext for discrimination?”

Different Treatment (cont.) Policy that is discriminatory on its face Neutral discipline policy administered in discriminatory manner Similarly situated (i.e., comparable in relevant respects) students of different races are disciplined differently for same offense Selective enforcement of facially neutral policy against students of one race Adopt facially neutral policy to target students of particular race

Disparate Impact OCR will use the following three-part inquiry to assess whether a facially neutral policy has an unlawful disparate impact: 1. Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? 2. Is the discipline policy necessary to meet an important educational goal? 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?

Disparate Impact (cont.) Examples may include: Policies that impose mandatory suspension, expulsion, or citation Policies that prevent youth returning from involvement in the justice system from reenrolling in school Policies that impose out-of-school suspension or expulsion for truancy raise concerns because of difficulty in demonstrating that necessary to meet important educational goal

Disparate Impact Compared to Title VI Court Action To prevail on a discrimination claim under Title VI, the plaintiff must show that the school: Had actual knowledge; Was deliberately indifferent; The harassment was so severe, pervasive and objectively offensive; That victim was deprived access to the educational benefits or opportunities provided by the school district

Investigations and Information Considered Under both inquiries, statistical analysis regarding impact of discipline policies and practices is important indicator of violations Investigate all relevant circumstances Expect schools to cooperate with investigations and provide records If determine that school does not collet accurate and complete data to resolve an investigation or if unable to obtain necessary information, may conclude that record-keeping presents concerns May require school to begin keeping necessary information

Investigations and Information Considered (cont.) Written policies (student codes of conduct, handbooks, manuals, etc.) Unwritten disciplinary practices Data indicating number of referrals Discipline incident reports Copies of discipline records and discipline referral forms Discipline data disaggregated by subgroup, offense or other relevant factors Interviews

Remedies Individual relief and prospective remedies Correct records of students Provide compensatory academic services Revise disciplinary policies Develop and implement strategies for teaching that encourage positive behavior and utilize exclusionary discipline as last resort Training on revised policies and classroom management School-based supports for struggling students

Remedies (cont.) Designate discipline supervisor Conduct and review comprehensive needs assessments Create plan for improving teacher/student relationships and on-site mentoring programs Comprehensive review of SRO interventions and practices to assess effectiveness If resolution agreement, monitor compliance with agreement to ensure meeting requirements of Titles IV and VI when administering student discipline

School District Strategies – What can you do now?

Dear Colleague Letter Recommendations School- and/or District-wide approach to classroom management Training on de-escalation approaches that decrease classroom disruptions and utilize exclusionary disciplinary sanctions as last resort Training on discipline policy and administering discipline fairly and equitably Training on how to apply subjective criteria in making disciplinary decisions Cultural awareness training

Dear Colleague Letter Recommendations (cont.) Discipline policies to include range of measures to improve behavior before disciplinary action Develop or revise disciplinary policies to clearly define offense categories and base disciplinary penalties on specific and objective criteria whenever possible Ensure sanctions proportionate to misconduct Review standards for disciplinary referrals to include procedures

Dear Colleague Letter Recommendations (cont.) Regular evaluation of school’s discipline policies and practices and other school-wide behavior management approaches to determine if affecting students of different racial or ethnic groups equally: Students with different personal characteristics disproportionately disciplined? Certain types of offenses more commonly referred? Specific teachers or administrators more likely to refer?

Dear Colleague Letter Recommendations (cont.) Collect information surrounding all discipline incidents, including office referrals and discipline incidents not resulting in sanctions Time, data, and location Offense type Penalty imposed; report to law enforcement Demographic information If disparities identified, modify to ameliorate root cause of disparities

Restorative Justice Hot topic in school discipline reform Dear Colleague Recommendation: “Involve students and student advocates in maintaining a safe, inclusive, and positive educational environment through programs such as peer mediation, and restorative justice, as appropriate” Treats student misbehavior as harm committed against interpersonal relationships

Restorative Justice (cont.) Zero tolerance policies  remove students who have caused harm Restorative justice  involves students in constructive dialogue with others to repair relationships and learn from mistakes Most commonly used practice in school setting is the “circle” Students sit face-to-face Time intensive, personal, and emotionally challenging

Restorative Justice (cont.) Positive effects: Improved relationships on campus Increased student accountability Reductions in rates of suspension, expulsion and criminal referrals Obstacles: Adolescents’ age and emotions Power dynamics and interpersonal politics Support from stakeholders at all levels

Questions or Comments? www.lashlybaer.com Lawrence J. Wadsack Lashly & Baer, P.C. Attorney at Law 714 Locust Street St. Louis, MO 63101 Direct: (314) 436-8357 E-Mail: lwadsack@lashlybaer.com Emily M. Slaten Lashly & Baer, P.C. Attorney at Law 714 Locust Street St. Louis, MO 63101 Direct: (314) 436-8361 E-Mail: eslaten@lashlybaer.com www.lashlybaer.com