1. MISSOURI ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS Guidance on the Administration of Student Discipline October 6, Lawrence J. Wadsack and Emily M. Slaten Lashly & Baer, P.C.

2. Topics of Discussion: Key Documents
Suspension Overview: Educational and Social Justice Concerns
Legal Concerns
Office of Civil Rights’ Standards, Investigations, and Remedies
School District Strategies
Questions and Comments

3. Key Documents

4. Key Documents:
UCLA, The Center for Civil Rights Remedies, “Are We Closing the School Discipline Gap?” (Feb )
Reporting trend analysis of suspension rates at elementary and secondary levels based on federal data
U.S. Departments of Justice and Education, “Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline” (Jan. 8, )

5. Suspension Overview: Educational and Social Justice Concerns

6. Suspension Data Generally
3.5 million students suspended out-of-school in
Of 3.5 million suspended, 1.55 million suspended at least twice
18 million days of instruction lost in one school year
1 in 3 students suspended at some point between kindergarten and 12th grade
Suspension rates 3-5x higher at secondary level

7. Effects of Suspension
Significant, negative educational and long-term outcomes  “school-to-prison pipeline”
Damage to student performance and diminished educational engagement
Links to higher dropout and delinquency rates
Economic costs for suspended students and society
Dropouts cost hundreds of thousands of dollars over the student’s lifetime
If dropout rate reduced by half, net benefit to public of nearly $90 billion a year

8. Racial Disparities in Suspension
Disproportionate effect of discipline policies on non-white races
Numerous reports highlight racial disparities in school suspension
Civil Rights Data Collection (CRDC) – mandatory federal data collection
Demonstrates that students of certain racial or ethnic groups disciplined more than peers

9. Racial Disparities in Suspension (cont.)
Although African American students make up 15% of students in CRDC, they make up:
35% of students suspended once
44% of students suspended more than once
36% of students expelled
Over 50% of students who were involved in school-related arrests or referred to law enforcement were Hispanic or African American
Raise concerns that may be engaging in racial discrimination in violation of civil rights laws

10. Missouri Suspension
Missouri – No. 1 for largest gap in elementary school suspension of African American elementary students compared to white elementary students
Suspend 14.3% of African American students at least once in , compared to 1.8% of white students
12.5 more African American elementary students suspended than white per 100 enrolled
Missouri – No. 4 at secondary level

11. Legal Concerns

12. Legal Concerns
Federal law prohibits public schools from discriminating in the administration of student discipline based on certain personal characteristics:
Title IV of Civil Rights Act – race, color, or national origin, among others
Title VI of Civil Rights Act – race, color or national origin (recipients of federal financial assistance)

13. Enforcement Efforts
Depts. of Education and Justice investigate student discipline policies and practices for possible racial discrimination in student discipline
Complaints from students, parents, community or others; public reports; or part of regular compliance monitoring
Office of Civil Rights (OCR) widespread enforcement efforts:
Sept – July 2012  821 discipline-based complaints and compliance reviews
789 resolved  55 agreements to address policies/practices

14. OCR Standards, Investigations, and Remedies

15. Standards of Discrimination
Administration of school discipline can result in unlawful discrimination based on race in two ways:
Different Treatment – a student is subjected to different treatment based on the student’s race
Disparate Impact – a policy is neutral on its face (i.e., does not mention race) and is evenhandedly administered but has a disparate impact (i.e., a disproportionate and unjustified effect) on students of a particular race

16. Different Treatment
OCR will typically ask 3 questions to determine whether a school intentionally discriminated in the administration of student discipline: 1. Did the school limit or deny educational services 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? 2. Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? 3. Is the reason articulated a “pretext for discrimination?”

17. Different Treatment (cont.)
Policy that is discriminatory on its face
Neutral discipline policy administered in discriminatory manner
Similarly situated (i.e., comparable in relevant respects) students of different races are disciplined differently for same offense
Selective enforcement of facially neutral policy against students of one race
Adopt facially neutral policy to target students of particular race

18. Disparate Impact
OCR will use the following three-part inquiry to assess whether a facially neutral policy has an unlawful disparate impact: 1. Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? 2. Is the discipline policy necessary to meet an important educational goal? 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?

19. Disparate Impact (cont.)
Examples may include:
Policies that impose mandatory suspension, expulsion, or citation
Policies that prevent youth returning from involvement in the justice system from reenrolling in school
Policies that impose out-of-school suspension or expulsion for truancy raise concerns because of difficulty in demonstrating that necessary to meet important educational goal

20. Disparate Impact Compared to Title VI Court Action
To prevail on a discrimination claim under Title VI, the plaintiff must show that the school:
Had actual knowledge;
Was deliberately indifferent;
The harassment was so severe, pervasive and objectively offensive;
That victim was deprived access to the educational benefits or opportunities provided by the school district

21. Investigations and Information Considered
Under both inquiries, statistical analysis regarding impact of discipline policies and practices is important indicator of violations
Investigate all relevant circumstances
Expect schools to cooperate with investigations and provide records
If determine that school does not collet accurate and complete data to resolve an investigation or if unable to obtain necessary information, may conclude that record-keeping presents concerns
May require school to begin keeping necessary information

22. Investigations and Information Considered (cont.)
Written policies (student codes of conduct, handbooks, manuals, etc.)
Unwritten disciplinary practices
Data indicating number of referrals
Discipline incident reports
Copies of discipline records and discipline referral forms
Discipline data disaggregated by subgroup, offense or other relevant factors
Interviews

23. Remedies Individual relief and prospective remedies
Correct records of students
Provide compensatory academic services
Revise disciplinary policies
Develop and implement strategies for teaching that encourage positive behavior and utilize exclusionary discipline as last resort
Training on revised policies and classroom management
School-based supports for struggling students

24. Remedies (cont.) Designate discipline supervisor
Conduct and review comprehensive needs assessments
Create plan for improving teacher/student relationships and on-site mentoring programs
Comprehensive review of SRO interventions and practices to assess effectiveness
If resolution agreement, monitor compliance with agreement to ensure meeting requirements of Titles IV and VI when administering student discipline

25. School District Strategies – What can you do now?

26. Dear Colleague Letter Recommendations
School- and/or District-wide approach to classroom management
Training on de-escalation approaches that decrease classroom disruptions and utilize exclusionary disciplinary sanctions as last resort
Training on discipline policy and administering discipline fairly and equitably
Training on how to apply subjective criteria in making disciplinary decisions
Cultural awareness training

27. Dear Colleague Letter Recommendations (cont.)
Discipline policies to include range of measures to improve behavior before disciplinary action
Develop or revise disciplinary policies to clearly define offense categories and base disciplinary penalties on specific and objective criteria whenever possible
Ensure sanctions proportionate to misconduct
Review standards for disciplinary referrals to include procedures

28. Dear Colleague Letter Recommendations (cont.)
Regular evaluation of school’s discipline policies and practices and other school-wide behavior management approaches to determine if affecting students of different racial or ethnic groups equally:
Students with different personal characteristics disproportionately disciplined?
Certain types of offenses more commonly referred?
Specific teachers or administrators more likely to refer?

29. Dear Colleague Letter Recommendations (cont.)
Collect information surrounding all discipline incidents, including office referrals and discipline incidents not resulting in sanctions
Time, data, and location
Offense type
Penalty imposed; report to law enforcement
Demographic information
If disparities identified, modify to ameliorate root cause of disparities

30. Restorative Justice Hot topic in school discipline reform
Dear Colleague Recommendation: “Involve students and student advocates in maintaining a safe, inclusive, and positive educational environment through programs such as peer mediation, and restorative justice, as appropriate”
Treats student misbehavior as harm committed against interpersonal relationships

31. Restorative Justice (cont.)
Zero tolerance policies  remove students who have caused harm
Restorative justice  involves students in constructive dialogue with others to repair relationships and learn from mistakes
Most commonly used practice in school setting is the “circle”
Students sit face-to-face
Time intensive, personal, and emotionally challenging

32. Restorative Justice (cont.)
Positive effects:
Improved relationships on campus
Increased student accountability
Reductions in rates of suspension, expulsion and criminal referrals
Obstacles:
Adolescents’ age and emotions
Power dynamics and interpersonal politics
Support from stakeholders at all levels

33. Questions or Comments? www.lashlybaer.com Lawrence J. Wadsack
Lashly & Baer, P.C.
Attorney at Law
714 Locust Street
St. Louis, MO 63101
Direct: (314)
Emily M. Slaten
Lashly & Baer, P.C.
Attorney at Law
714 Locust Street
St. Louis, MO 63101
Direct: (314)