Equity in School Discipline: A Close Look at the New DOJ/ED Guidance Alabama Association of School Boards Summer Conference June 21, 2014 Sonja Trainor, Director, Council of School Attorneys National School Boards Association

Here’s the Trailer NSBA: Who we are and what we do The New NSBA The NSBA Legal Advocacy Agenda COSA and Your Role in the New NSBA The DOJ/ED Dear Colleague Letter on Racial Disparities in Student Discipline The Issue What Did DOJ/ED Say? What Does this Mean? Who Does this Affect? What Should School Boards Do?

NSBA: What We Do The New NSBA “With local governance and public education facing mounting challenges, the National School Boards Association is charting a course of a stronger advocacy role and even more powerful service to, and partnership with, its state association members.”

The New NSBA Advocacy Legislative Legal Public Member Services NSBA-Brochure.pdf

NSBA LEGAL ADVOCACY AGENDA A Snapshot of the

NSBA Amicus Program – FY 14 NSBA participated in 8 cases in SCOTUS and other federal and state courts. NSBA vetted over 20 cases for possible participation. NSBA was able to secure pro bono services from COSA members and respected Supreme Court litigators to draft the brief in 6 of these cases. NSBA had 32 co-signers on its briefs this year, including 9 state associations.

NSBA Amicus Briefs online

NSBA Legal Advocacy – Talking to the Fed Department of Education NSBA responded to DCL on SWD in extracurricular athletics (April 2013) NSBA Comments to ED’s March 2014 Data Collection Request on the Impact of Professional Development on Fourth Grade Student Achievement in Fractions (April 2014) IRS Comments on proposed ACA regulations (March, 2013 USDA Comments on Local School Wellness Policy Implementation under the Healthy, Hunger-Free Kids Act of 2010

This is an ACTIVE ADMINISTRATION This is an Active Administration! 9

NSBA Council of School Attorneys The mission of the NSBA Council of School Attorneys is to support school attorneys in their representation of public school boards by providing leadership in legal advocacy for public schools.

COSA members are actively engaged in NSBA’s advocacy efforts. Amicus Committee Amicus Writing Working Groups COSA Board of Directors State Association Counsel Committee

EQUITY IN SCHOOL DISCIPLINE: THE ISSUE

“... racial discrimination in school discipline is a real problem.” Using Civil Rights Data Collection numbers, Nationally minorities are suspended at disproportionately higher rates than non- minorities African-American students three times more likely to be suspended than white students African-American students are 15% of students in the CRDC, but 35% of students suspended once 44% of students suspended more than once

A real problem, cont’d 50% of students involved in school-related arrests or referred to law enforcement were African-American or Hispanic The effect of suspension and school absence on academic achievement, graduation, substance abuse, criminal activity, etc. “The school to prison pipeline”

Keep in mind... … They are the Office for Civil Rights (ED) and Civil Rights Division (DOJ) You know this data, you know your district’s data. Everyone wants the situation improved.

EQUITY IN SCHOOL DISCIPLINE: WHAT DID DOJ/ED SAY?

The Jan DCL Racial disparities in student discipline rates can violate federal law—Titles IV and VI of the Civil Rights Act of 1964 What we may have considered an educational issue, DOJ/ED are now presenting as a legal issue, DOJ/ED presents an extensive legal analysis to make the case for less out of school suspension, and increased focus on climate and training.

Jan DCL – Key Points The Departments may examine the entire disciplinary process, from office referrals to expulsions The Departments expect districts to maintain thorough discipline records data, disaggregated by subgroups, for examination SROs and other contractors covered

Jan DCL – Key Points DOJ/ED identify 2 types of illegal discrimination 1. Different Treatment (Intentional Discrimination) 2. Disparate Impact

Different Treatment 1. A policy that is discriminatory on its face 2. A neutral policy that school administrators implement in a discriminatory manner 3. A neutral policy that is selectively enforced 4. A neutral policy adopted with intent to target a particular race of students 5. Staff acting with racially discriminatory motives, e.g. use of slurs

Different Treatment The Departments will judge school district on: Direct evidence of discrimination; or, absent that, Circumstantial evidence of discrimination.

Different Treatment Test (Used with Circumstantial Evidence) 1.Did the school limit or deny educational services, benefits, or opportunities 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? No = no discrimination. Yes = continue.

Different Treatment Test (Used with Circumstantial Evidence) cont’d 2.Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? No = departments could find discrimination. Yes = continue.

Different Treatment Test (Used with Circumstantial Evidence) cont’d 3.Is the reason articulated a pretext for discrimination? No = no discrimination. Yes = finding of intentional discrimination.

The Departments may consider other circumstantial evidence: Disciplinary practices that disproportionately impact students of a particular race A history of discriminatory conduct toward members of a student’s race Inconsistent application of disciplinary practices to students of different races I.E., DATA COMPARISON

Disparate Impact Exists when a school evenhandedly implements a facially neutral policy or practice that, although not adopted with the intent to discriminate, nonetheless has an unjustified effect of discriminating against students on the basis of race.

Disparate Impact Examples of areas of concern to Depts.: Mandatory punishments (zero tolerance policy) Corporal punishment Suspensions as a penalty for truancy Denying admission after police or juvenile justice involvement

Disparate Impact Test 1.Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? No = no discrimination. Yes = continue.

Disparate Impact Test 2.Is the discipline policy necessary to meet an important educational goal? No = finding of discrimination. Yes = continue.

Disparate Impact Test 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? No to either question: likely no finding of discrimination. Yes to either question: finding of discrimination.

DOES CONTEXT MATTER?

The Departments proclaim that “Context Matters,” but how exactly will “context” be assessed and valued?

Information examined in an investigation: written policies, codes of conduct, parent handbooks, and teacher manuals unwritten disciplinary practices data on referrals discipline incident reports copies of student discipline records and discipline referral forms disaggregated discipline data interviews with students, staff, parents, etc. school district’s CRDC data

More on school district record- keeping “ If a school does not collect accurate and complete data to resolve an investigation, or the Departments are unable to obtain the necessary information….. the Departments may conclude that the school’s recordkeeping process presents concerns.” What does this mean? What records do they want?

And even more on school district record-keeping If dissatisfied with district records, the Departments may: Direct the content of discipline records Direct the process of recordkeeping Direct staff training Direct that teacher referrals be maintained Direct the collection of discipline data on races

When the Departments look at statistical data to determine a violation, will they compare discipline numbers against the racial make-up of the individual school, the district or the community at large? Is there an acceptable variance? (i.e. you can go 10 miles over the speed limit w/o a ticket) Will they consider improvement trends? Is it a one year or multi-year assessment?

Key Issues for DOJ/ED The Departments will closely examine the student code of conduct and how offenses are defined. The Departments strongly disfavor “subjective offenses,” e.g., “Disrespect”, “Insubordination.” The Departments will will analyze referrals for subjective offenses. The Departments want safeguards to ensure that discretion is exercised in a nondiscriminatory manner. The Departments want training of all staff involved in discipline

The Departments appear to be very critical of broadly defined disciplinary codes. How specific must a definition be to meet the Departments’ standards? E.g., what’s a satisfactory definition of “disrespect for authority?”

Potential Remedies Provide compensatory academic services Revise policies and practices Implement new teaching strategies focusing on positive student behaviors Train staff on classroom management Provide school supports for disruptive students Ongoing monitoring

WHO DOES THIS DCL AFFECT?

Who is affected? School administrators Superintendents Staff Development Facilitators Guidance Counselors Pupil Personnel Workers School Resource Officers School attorneys Community SCHOOL BOARDS

WHAT SHOULD SCHOOL BOARDS DO?

What Should School Boards Do? Take DOJ/ED’s message if not their means Addressing disproportionality in student discipline is the educationally right thing to do School attorneys will wrestle with the difficult questions raised by the new interpretation of law and its general explanation School board’s role is to set policy and educational direction—Set the tone

What Should School Boards Do? Know your discipline data Receive regular staff reports on student discipline, disaggregated by subgroup Ensure that data is regularly monitored by staff and identified patterns or problems addressed As appropriate, act at the Board level on data that reflects a problem

What Should School Boards Do? Review your discipline policies and terms Review your district’s recordkeeping practices Review your staff training Cultural awareness; consistency of referrals Study and use the Departments’ Appendix of over 50 programmatic recommendations Remember that “context matters”—do not establish discipline quotas

Q & A

Please Feel Free to Contact Me! Sonja Trainor Director, Council of School Attorneys National School Boards Association 1680 Duke St. Alexandria, VA

Working with and through our State Associations, to advocate for equity and excellence in public education through school board leadership.