Moore Sparks, LLC

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A. Different Treatment The clearest type of different treatment discrimination would be a policy that was discriminatory on its face one that has language explicitly requiring students to be disciplined differently based on their race. The most common type of different treatment discrimination occurs when similarly situated students of different races are disciplined differently for the same offense. Another type of prohibited intentional discrimination is selective enforcement when a school official overlooks the violation of a policy committed by a student who is a member of one race group while enforcing the policy against a student(s) who is a member of another racial group. Different treatment discrimination also occurs when a school adopts a neutral policy with the intent to target students of a particular race - this is so even if the school punishes students of other races under the new policy. B. Disparate Impact Schools violate the law when they equally implement facially neutral policies and practices that are adopted without the intent to discriminate, but have the effect of discriminating against students on the basis of race. 2. Avoidance Schools should establish a system for monitoring all disciplinary referrals, have a system in place to ensure that staff who have the authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory manner, and take steps to monitor and evaluate the impact of disciplinary practices to detect patterns that would avoid investigation. The type of information that the DOJ and DOE have examined during an investigation for discriminatory discipline include: written policies, which include

January 2014

US DOJ and DOE Issues Guidance Letter on Nondiscriminatory Administration of School Discipline
the definitions of misconduct, the subjectivity of disciplinary criteria, and the safeguards in place to ensure that discretion is taken in administering discipline; unwritten disciplinary practices; the number of referrals to administrators or law enforcement; discipline incident reports; student discipline records and discipline referral forms; school discipline data disaggregated by subgroup, offense, other factors; information provided by schools through the CRDC; and interviews with students, parents, administrators, etc. If an investigation takes place, the DOJ and DOE will expect the school to cooperate and provide records that will enable the departments to ascertain whether the administration of student discipline is in compliance. Examples of data required for schools include: developing and implementing uniform standards for discipline files; developing and training all staff on uniform standards for entry, maintenance, updating, and retrieval of data and its racial impact; and keeping data on teacher referrals and discipline to assess whether particular teachers are possibly referring large numbers of students by race for discipline. 3. Remediation If the DOJ and/or the DOE determine that a school is exercising discriminatory discipline, the departments will attempt to remedy the identified violation before seeking redress in court or through an administrative hearing. If appropriate, the departments will involve the entire district in the agreement. The remedy will vary with the facts of each case; however, the remedy must completely and effectively address the discriminatory action and could include individual relief to students and prospective remedies to ensure future compliance.

On January 8, 2014, the U.S. Department of Justice (DOJ) and the U.S. Department of Education (DOE) issued a guidance letter to assist public elementary and secondary schools to meet obligations under federal law to administer student discipline without discriminating on the basis of race, color, or national origin. The guidance letter addresses how to (1) identify; (2) avoid; and (3) remedy discriminatory discipline to provide all students with equal educational opportunities. 1. Identification The administration of student discipline can result in unlawful discrimination based on race in two ways: (A) if a student is subjected to different treatment based on the students race; and (B) if a policy is neutral on its face and is administered in a fair manner, but has a disparate impact and effect on students of a particular race.

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The guidance letter can be found at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague -201401-title-vi.pdf.