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DOJ/OCRs Dear Colleague Letter Re: Nondiscriminatory Discipline -
What was NOT Shared about Students with
Disabilities! Sue Gamm, Esq.
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
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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/
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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
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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"
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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)
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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
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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
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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
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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
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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
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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?
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