What About the New School Discipline Guidance
In January 2014, the U.S. Departments of Education and Justice released a joint School Discipline Guidance addressing the discrimination students are facing in American public schools due to School discipline policies. The key evidence used to make this argument came two years earlier when the U.S. Department of Education’s Office for Civil Rights’ Data Collection Project (Project) collected thousands of data points from every school in America.
The Data Collection Project
The Project’s findings were used to both investigate complaints received by the Office for Civil Rights as well as to inform Attorney General Holder’s and Secretary Duncan’s strategy on how schools can better align their discipline policies and practices to respect student’s civil rights. School leaders should be aware this biennial data collection project is happening again this year and the data submitted is not without effect.
The Project is one of transparency and charter schools are subject to it. Data is collected from every public school in the U.S. with the intention of better informing the decisions of policymakers and regulatory agencies impacting student equity.
Related Read: Tax Exempt Bond Financing for Charter Schools
At the time of this writing, it is October and according to the Department of Education’s timeline, the earliest opportunity to begin submitting data by Local Education Agencies has come. Starting back in 2012, every public school serving any grade, preschool through twelfth, is required to comply with the data submission, including charter, district, and alternative schools.
The Project is intended to generally track three key student-equity issues
- school climate and discipline disparities;
- teacher resource and equity, including teacher experience, salary, and non-instructional personnel in schools (counselors, and the like); and
- student enrichment programs, including access to college, SAT/ACT scores, AP courses, interscholastic athletics, and honors programs.
The data is then disaggregated according to race and gender to identify equity disparities among different student subpopulations.
When you look at how subpopulations are treated across schools, the impetus for the DOE/DOJ Guidance becomes clear. African-American boys and girls are disproportionately suspended (2.8 times more likely than white peers). Students with disabilities are two times more likely to be suspended than their non-IDEA peers. 70% of students referred to law enforcement for school-related infractions were Hispanic or African-American (combined, these populations only made up 42% of the sample). Keep in mind these are averages “ some districts/schools had far more egregious disparities.
Impact on Charter Schools
The Guidance is clear “ charter schools must have nondiscriminatory student discipline policies implemented in a nondiscriminatory manner. The Guidance draws a distinction familiar in the area of employment law: disparate treatment and disparate impact. Under Title IV and VI of the Civil Rights Act as well as under Arizona law, charter schools must create and enforce a nondiscriminatory student discipline policy.
When the school is developing its policy, the Guidance reminds us to keep the Civil Rights Act overlay in mind, instructing schools that their Policy shall neither
1. Effect different treatment
Disparate Treatment is pretty simple. Is the school’s policy facially neutral to a student’s race, sex, disability, and ELL status? Schools may not intentionally discipline students differently on these bases.
2. Have a disparate impact on students based on race, sex, disability, or English language learner status.
Disparate Impact is more complex. Here we are concerned with how a facially neutral policy is actually implemented. In real life, it tends to look like two students of different races, committing the same or similar offenses, yet receiving different punishments (assume they have similar disciplinary histories).
Schools combat disparate impact by holding professional development sessions teaching teachers and staff how policies in the student handbook are to take life in the school building; but, too few schools use data to inform these PD sessions. Schools essentially build their own student behavior precedent by taking action in response to student misbehavior.
Words on a page are generally quite vague “ insubordination “ but as educators, we know insubordination takes many different forms (here is a good article on how some states are dealing with this). Actions the school takes in response to each behavior along the spectrum of that was rude to you’re suspended should be intentional, strategic, and tracked over time. Schools must remain mindful of potential student discipline inequities because the Project will look at that data.
Student misbehavior can quickly become a major liability for schools. We all know educators have a duty to provide a safe learning environment. What may be forgotten in the heat of the moment, is schools also have a duty to not discriminate against students when trying to create that environment.
Every school must submit data to the Project. Schools need to look at their student discipline policies and practices each year to be sure they comply with state and federal laws and then teach their staff what is and is not acceptable. When was the last time your school took time to reflect on this?
Ellis Carter is a nonprofit lawyer with Caritas Law Group, P.C. Ellis advises nonprofit and socially responsible businesses on corporate, tax, and fundraising regulations. Ellis is licensed to practice in Washington and Arizona and advises nonprofits on federal tax and fundraising regulations nationwide. Ellis also advises donors with regard to major gifts. To schedule a consultation with Ellis, call 602-456-0071 or email us through our contact form.