9/8/2014

1

DOJ/OCRs Dear Colleague Letter Re: Nondiscriminatory Discipline -

What was NOT Shared about Students with

Disabilities! Sue Gamm, Esq.

SueGamm@aol.com

Public Consulting Group

February 11,2013

Background

Dear Colleague Letters: Purpose

Policy guidance to provide information to schools about legal obligations

Gives public information about civil rights

Does not add legal requirements

Provides information/examples regarding how DOJ/OCR evaluate compliance

9/8/2014

2

Dear Colleague Letter: Nondiscriminatory Discipline

Shares information about Federal obligations to administer student discipline without discrimination

Based on race, color or national origin (Title VI-OCR/Title IV-DOJ)

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf

Race discrimination guidance, includes students with disabilities

Does not address discrimination based on disability or race/disability

Refers to IDEA & specific discipline requirements and 504/ADA generally

2011/12

Civil Rights

Data Collection http://ocrdata.ed.gov/

6

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdfhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf

9/8/2014

3

Of all CRDC students, 12% w/IEPs

Students with IEPs reflect:

19% of in-school suspensions

20% of 1 out-of-school suspensions

25% of multiple out-of-school suspensions

19% of expulsions

23% of referrals to law enforcement

23% of school-related arrests

Of 14% combined IEPs/504 , students w/disabilities reflect nearly 76% of adult physical restraints

RISK RATIOS for Students w/IEPs

0.61

0.74

0.47

0.44

0.54

1.05

0.88

0.82

0.93

1.02

2.11

1.20

2.94

2.79

2.05

0.00 0.50 1.00 1.50 2.00 2.50 3.00

School-related arrests

Referrals to law enforcement

Expulsions

>1 out of school suspension

1 out of school suspension

African American Hispanic White

PREMISE OF GUIDANCE

Discipline disparity rates may be caused by range of factors

BUT: research suggests substantial disparities not explained by more frequent/more serious misbehavior by students of color

Potential for significant, negative educational & long-term outcomes

Removals Can contribute to "school to prison pipeline"

9/8/2014

4

Studies Suggest Correlation

Exclusionary discipline policies/practices &

Serious educational, economic & social problems

Including

School avoidance

Diminished educational engagement

Decreased academic achievement

Increased behavior problems

Increased likelihood of dropping out

Substance abuse

Involvement with juvenile justice systems

Legal Analysis

Different Treatment/ Intentional Discrimination

Neutral policy administered differently with patterns of race, color, national origin

Selective enforcement

Racial slur when disciplining a student (could suggest racial animus)

9/8/2014

5

Is there legitimate, nondiscriminatory reason for different treatment?

Is reason a pretext for discrimination?

If so then

Reason doesnt explain actions

Witnesses contradict reason for disparity

Students of other races received different sanctions for similar infractions

Sanctions dont conform to those permitted or discipline policy

Problem When

Policy/practice has greater impact on students of particular race

History of discriminatory conduct toward members of student's race

Administrative history behind disciplinary policy/decision

Inconsistent application of disciplinary policies/practices to students of different racial backgrounds

9/8/2014

6

Disparate Impact

Significant disproportionate data &

No intent to discriminate, but unjustified effect

Is neutral policy necessary to meet important educational goal?

Are there comparably effective alternative policies/practices to meet educational goal with smaller burden/adverse impact on racial group?

Potential Issues Tardiness

Cellular phone

Insubordination

Acting out

Not wearing proper school uniform

Corporal punishment: paddle, spank, other physical punishment

Prevent reenrollment of youth returning from justice system

OSS for truancy

9/8/2014

7

Example 1

Two students (non-Hispanic & Hispanic) fought. Hispanic student received 3-day OSS & non-Hispanic student received 2-day OSS.

Reason? Hispanic student instigated fight & threatened officials trying to break it up.

Pretextual? Conflicting witness statements, vague written policies, history of higher sanctions on Hispanic students who instigated fights & threatened officials.

Potential Remedies? Delete Hispanic students additional punishment, compensatory educational services, train decision makers, change disciplinary procedures, etc.

Example 2

Code of conduct has sanctions w/ranges at each Level. AA student with no previous incidents got 1-day ISS for Level 1 use of profane or vulgar language. White student with same history charged with Level 1 inappropriate display of affection while on school bus. Parent was called no other sanctions.

Reason? List of factors to consider for penalty interruption of learning, previous discipline for same offense, accepted responsibility, tried to avoid situation, etc.

Pretextual? Conflicting accounts for AAs penalty, records reflect similar sanctions for class & bus, etc.

Example 3

Discipline code permits 1 day OSS for acting in a threatening manner. AA students suspended at disproportionately high rate. Code has vague definition for threatening leading to broad range of actions (congregating in hall, talking too loudly, talking back to teacher, etc.) White students more likely charged with lesser offense (no hall pass, classroom disruption) get detention.

Reason? E.g., specific objective factors related to threat level or teacher feeling of threat without reasonable basis for conclusion, etc.

Pretextual? Expressions of bias, documentation does not support reasons

9/8/2014

8

Potential Remedies?

1. Provide clear threat definitions/examples (including what is not)

2. Require specific findings (determining behavior is prohibited, alternative actions not feasible, repeated offense, etc.)

3. Training on fair/equitable policy administration -&/or

4. Training: classroom management techniques/effective behavioral interventions, and appropriate/culturally responsive tools to interpret/address underlying behaviors

Example 4 Students >5 minutes late always referred to office for remainder of class period regardless of reason. After 5 tardies/semester, 1 OSS. Longer suspensions after more tardiness. Hispanic students disproportionately losing instructional time. They are more likely to live farther from school, cut off by highway & take public transportation. First bus drop off is late.

Reason? Reduce tardiness disruption, encourage good attendance & promote respectful climate for rules.

Alternatives with Less Adverse Racial Impact? Aligning class & bus schedules, excusing students whose tardiness is result of bus delays.

Dear Colleague Letter & Students w/Disabilities

9/8/2014

9

SSP Framework

Indicator 4a & 4b: For districts with significant discrepancies for at least 3 years .

Policies, procedures, practices contributing to disparity

about 42 IDEA discipline rules

do not comply w/requirements regarding development/implementation of IEPs

Use of pbis

Procedural safeguards

NOT relevant to significantly discrepant suspension rates

9/8/2014

10

Is there legitimate, nondiscriminatory reason for different treatment?

Is reason a pretext for discrimination?

If so then

Reason doesnt explain actions

Witnesses contradict reason for disparity

Students without IEPs/other disability group &/or other races received different sanctions for similar infractions

Sanctions dont conform to those permitted or discipline policy

Problem When

Disparate Impact

No intent to discriminate, but unjustified effect

Has policy adversely impacted students of disability &/or one race?

Is policy necessary to meet important educational goal?

Are there comparably effective alternative policies/practices to meet educational goal with smaller burden/adverse impact on disability &/or racial group?

9/8/2014