Client Alert Newsletter .pdf

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Moore Sparks, LLC

Client alert

January 2014

US DOJ and DOE Issues Guidance Letter on Nondiscriminatory Administration of School Discipline
A. Different Treatment

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.


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
student’s 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.

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.

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.

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.

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.

2. Avoidance

3. Remediation

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.

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.

B. Disparate Impact

The type of information that the
DOJ and DOE have examined during an
investigation for discriminatory discipline
include: written policies, which include

303 Peachtree Street NE
Atlanta, GA 30308

The guidance letter can be found at:

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