**UNDER REVIEW. This document and the underlying issues are under review by the U.S. Department of Education and the U.S. Department of Justice (as of July 30, 2021).  The December 21, 2018 Dear Colleague Letter that rescinded this document is also under review.  The Department of Education’s Office for Civil Rights has published a Request for Information soliciting written comments from the public regarding the administration of school discipline in schools serving students in pre-K through grade 12.  OCR and the Civil Rights Division of the Department of Justice are committed to ensuring that all students are able to learn and thrive in a safe and non-discriminatory environment.  Please note that this notation does not have the effect of reinstating this guidance.**
**U.S. Department of Justice***Civil Rights Division*

**U.S. Department of Education***Office for Civil Rights*

**Notice of Language  Assistance****Dear Colleague Letter on  the****Nondiscriminatory Administration  of School Discipline**

**Notice of  Language Assistance:**   If you have difficulty understanding English, you may, free of charge, request  language assistance services for this Department information by calling  1-800-USA-LEARN   (1-800-872-5327)  (TTY: 1-800-877-8339), or email us at: Ed.Language.Assistance@ed.gov. **Aviso a  personas con dominio limitado del idioma inglés:** Si  usted tiene alguna dificultad en entender el idioma inglés, puede, sin costo  alguno, solicitar asistencia lingüística con respecto a esta información  llamando al 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o envíe un  mensaje de correo electrónico a: Ed.Language.Assistance@ed.gov.  **給英語能力有限人士的通知****:**  如果您不懂英語, 或者使用英语有困难,您可以要求獲得向大眾提供的語言協助服務,幫助您理解教育部資訊。這些語言協助服務均可免費提供。如果您需要有關口譯或筆譯服務的詳細資訊,請致電 1-800-USA-LEARN (1-800-872-5327)  (聽語障人士專線:   1-800-877-8339),或電郵: Ed.Language.Assistance@ed.gov.。 **Thông báo dành cho những người có khả  năng Anh ngữ hạn chế:**  Nếu quý vị gặp khó khăn trong việc hiểu Anh  ngữ thì quý vị có thể yêu cầu các dịch vụ hỗ trợ ngôn ngữ cho các tin tức của  Bộ dành cho công chúng. Các dịch vụ hỗ trợ ngôn ngữ này đều miễn phí. Nếu quý  vị muốn biết thêm chi tiết về các dịch vụ phiên dịch hay thông dịch, xin vui  lòng gọi số 1-800-USA-LEARN (1-800-872-5327) (TTY:      1-800-877-8339), hoặc email: Ed.Language.Assistance@ed.gov. **영어********미숙자를********위한********공고****:**  영어를 이해하는 데  어려움이 있으신  경우, 교육부  정보 센터에  일반인 대상  언어 지원  서비스를 요청하실  수 있습니다.  이러한 언어  지원 서비스는  무료로 제공됩니다.  통역이나 번역  서비스에 대해  자세한 정보가  필요하신 경우,  전화번호 1-800-USA-LEARN (1-800-872-5327)  또는 청각  장애인용 전화번호  1-800-877-8339 또는 이메일주소 Ed.Language.Assistance@ed.gov 으로  연락하시기 바랍니다.**Paunawa sa mga  Taong Limitado ang Kaalaman sa English:**  Kung nahihirapan kayong  makaintindi ng English, maaari kayong humingi ng tulong ukol dito sa  inpormasyon ng Kagawaran mula sa nagbibigay ng serbisyo na pagtulong kaugnay ng  wika.  Ang serbisyo na pagtulong kaugnay  ng wika ay libre. Kung kailangan ninyo ng dagdag na impormasyon tungkol sa mga  serbisyo kaugnay ng pagpapaliwanag o pagsasalin, mangyari lamang tumawag sa  1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o mag-email sa: Ed.Language.Assistance@ed.gov. **Уведомление для лиц с ограниченным знанием английского языка:**  Если вы испытываете трудности в понимании английского  языка, вы можете попросить, чтобы вам предоставили перевод информации, которую  Министерство Образования доводит до всеобщего сведения. Этот перевод  предоставляется бесплатно. Если вы хотите получить более подробную информацию  об услугах устного и письменного перевода, звоните по телефону 1-800-USA-LEARN (1-800-872-5327) (служба для слабослышащих:  1-800-877-8339), или отправьте сообщение по адресу: Ed.Language.Assistance@ed.gov.

**U.S. Department of Justice***Civil Rights Division*

**U.S. Department of Education***Office for Civil Rights*

January  8, 2014

Dear Colleague:

The U.S. Department of Education and the U.S.  Department of Justice (Departments) are issuing this guidance to assist public elementary  and secondary schools in meeting their obligations under Federal law to  administer student discipline without discriminating on the basis of race,  color, or national origin.  The  Departments recognize the commitment and effort of educators across the United  States to provide their students with an excellent education.  The Departments believe that guidance on how  to identify, avoid, and remedy discriminatory discipline will assist schools in  providing all students with equal educational opportunities.1

The Departments strongly support schools in their  efforts to create and maintain safe and orderly educational environments that  allow our nation’s students to learn and thrive.  Many schools have adopted comprehensive,  appropriate, and effective programs demonstrated to: (1) reduce disruption and  misconduct; (2) support and reinforce positive behavior and character  development; and (3) help students succeed.   Successful programs may incorporate a wide range of strategies to reduce  misbehavior and maintain a safe learning environment, including conflict  resolution, restorative practices, counseling, and structured systems of  positive interventions.  The Departments  recognize that schools may use disciplinary measures as part of a program to promote  safe and orderly educational environments.

Regardless of the program adopted, Federal law  prohibits public school districts from discriminating in the administration of  student discipline based on certain personal characteristics.  The Department of Justice’s Civil Rights  Division (DOJ) is responsible for enforcing Title IV of the Civil Rights Act of  1964 (Title IV), 42 U.S.C. §§ 2000c *et  seq.*, which prohibits discrimination in public elementary and secondary  schools based on race, color, or national origin, among other bases.  The Department of Education’s Office for Civil  Rights (OCR) and the DOJ have responsibility for enforcing Title VI of the  Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d *et seq.*, and its implementing regulations, 34 C.F.R. Part 100, which  prohibits discrimination based on race, color, or national origin by recipients  of Federal financial assistance.   Specifically, OCR enforces Title VI with respect to schools and other  recipients of Federal financial assistance from the Department of Education.2

The Departments initiate investigations of student  discipline policies and practices at particular schools based on complaints the  Departments receive from students, parents, community members, and others about  possible racial discrimination in student discipline.3  The Departments also may initiate  investigations based on public reports of racial disparities in student  discipline combined with other information, or as part of their regular  compliance monitoring activities.

This  guidance will help public elementary and secondary schools administer student  discipline in a manner that does not discriminate on the basis of race.  Federal law also prohibits discriminatory  discipline based on other factors, including disability, religion, and sex.4  Those prohibitions are not specifically addressed  in this guidance because they implicate separate statutes and sometimes  different legal analyses (although this guidance applies to race discrimination  against all students, including students of both sexes and students with  disabilities).  Schools are reminded,  however, that they must ensure that their discipline policies and practices  comply with all applicable constitutional requirements and Federal laws,  including civil rights statutes and regulations.

**OVERVIEW OF RACIAL  DISPARITIES IN THE ADMINISTRATIONOF SCHOOL DISCIPLINE**

The  Civil Rights Data Collection (CRDC),5 conducted  by OCR, has demonstrated that students of certain racial or ethnic groups6 tend to be disciplined more than their peers.   For example, African-American students without disabilities are more  than three times as likely as their white peers without disabilities to be  expelled or suspended.  Although African-American  students represent 15% of students in the CRDC, they make up 35% of students  suspended once, 44% of those suspended more than once, and 36% of students  expelled.  Further, over 50% of students who  were involved in school-related arrests or referred to law enforcement are  Hispanic or African-American.

The Departments recognize that disparities in  student discipline rates in a school or district may be caused by a range of  factors.  However, research suggests that  the substantial racial disparities of the kind reflected in the CRDC data are  not explained by more frequent or more serious misbehavior by students of  color.7  Although statistical and quantitative data  would not end an inquiry under Title IV or Title VI, significant and  unexplained racial disparities in student discipline give rise to concerns that  schools may be engaging in racial discrimination that violates the Federal civil  rights laws.  For instance, statistical evidence  may indicate that groups of students have been subjected to different treatment  or that a school policy or practice may have an adverse discriminatory impact.  Indeed, the Departments’ investigations, which  consider quantitative data as part of a wide array of evidence, have revealed racial  discrimination in the administration of student discipline.  For example, in our investigations we have  found cases where African-American students were disciplined more harshly and  more frequently because of their race than similarly situated white students.  In short, racial discrimination in school  discipline is a real problem.

The CRDC data also show that an increasing number of  students are losing important instructional time due to exclusionary  discipline.8  The increasing use of disciplinary sanctions  such as in-school and out-of-school suspensions, expulsions, or referrals to  law enforcement authorities creates the potential for significant, negative  educational and long-term outcomes, and can contribute to what has been termed  the “school to prison pipeline.”  Studies  have suggested a correlation between exclusionary discipline policies and  practices and an array of serious educational, economic, and social problems,  including school avoidance and diminished educational engagement;9 decreased academic achievement;10 increased behavior problems;11 increased likelihood of dropping out;12 substance abuse;13 and involvement with juvenile justice systems.14

As a result, this guidance is critically needed to  ensure that all students have an equal opportunity to learn and grow in  school.  Additionally, fair and equitable discipline policies are an important  component of creating an environment where all students feel safe and welcome.  Schools are safer when all students feel comfortable  and are engaged in the school community, and when teachers and administrators  have the tools and training to prevent and address conflicts and challenges as  they arise.  Equipping school officials  with an array of tools to support positive student behavior – thereby providing  a range of options to prevent and address misconduct – will both promote safety  and avoid the use of discipline policies that are discriminatory or  inappropriate.  The goals of equity and school safety are thus  complementary, and together help ensure a safe school free of discrimination.

This guidance summarizes schools’ obligations to  avoid and redress racial discrimination in the administration of student  discipline.  It provides a detailed  explanation of the Departments’ investigative process under Title IV and Title  VI, including the legal framework within which the Departments consider  allegations of racially discriminatory student discipline practices, and examples  of school disciplinary policies and practices that may violate civil rights  laws.  In the Appendix to this guidance,  the Departments have provided a set of recommendations to assist schools in  developing and implementing student discipline policies and practices equitably  and in a manner consistent with their Federal civil rights obligations.  These recommendations are intended to be  illustrative, not exhaustive.  The  Departments are available to provide technical assistance to support school  efforts to cultivate an environment in which all students are safe and have  equal educational opportunities.15

**THE DEPARTMENTS’  INVESTIGATIONS AND ENFORCEMENT ACTIONSUNDER TITLE IV AND TITLE VI**

**A. Legal Framework**

Titles  IV and VI protect students from discrimination based on race in connection with  all academic, educational, extracurricular, athletic, and other programs and  activities of a school, including programs and activities a school administers  to ensure and maintain school safety and student discipline.  When schools respond to student misconduct, Titles  IV and VI require that the school’s response be undertaken in a racially  nondiscriminatory manner.

These  statutes cover school officials and everyone school officials exercise some  control over, whether through contract or other arrangement, including school  resource officers.  Schools cannot divest  themselves of responsibility for the nondiscriminatory administration of school  safety measures and student discipline by relying on school resource officers,  school district police officers, contract or private security companies,  security guards or other contractors, or law enforcement personnel.  To the contrary, the Departments may hold  schools accountable for discriminatory actions taken by such parties.16

Titles IV and VI protect students over the  entire course of the disciplinary process, from behavior management in the  classroom, to referral to an authority outside the classroom because of  misconduct –  a crucial step in the  student discipline process  – to  resolution of the discipline incident.  In  their investigations of school discipline, the Departments have noted that the  initial referral of a student to the principal’s office for misconduct is a  decision point that can raise concerns, to the extent that it entails the  subjective exercise of unguided discretion in which racial biases or  stereotypes may be manifested.  If a  school refers students for discipline because of their race, the school has  engaged in discriminatory conduct regardless of whether the student referred  has engaged in misbehavior.  And even if  the referrals do not ultimately lead to the imposition of disciplinary  sanctions, the referrals alone result in reduced classroom time and academic  instruction for the referred student.  Furthermore,  if a sanction from a discriminatory referral becomes part of the student’s  school record, it could potentially enhance the penalty for subsequent  misconduct and follow the student throughout the student’s academic career.  Therefore, it is incumbent upon a school to  take effective steps to eliminate all racial discrimination in initial  discipline referrals.

The administration of student discipline can result  in unlawful discrimination based on race in two ways: first, if a student is  subjected to *different**treatment* based on the student’s race, and second, if a policy is  neutral on its face – meaning that the policy itself does not mention race – and  is administered in an evenhanded manner but has a *disparate impact, i.e.*, a disproportionate and unjustified *effect* on students of a particular  race.  Under both inquiries, statistical  analysis regarding the impact of discipline policies and practices on  particular groups of students is an important indicator of potential violations.  In all cases, however, the Departments will  investigate all relevant circumstances, such as the facts surrounding a  student’s actions and the discipline imposed.  

**1.  Different Treatment**

Both  Title IV and Title VI prohibit schools from intentionally disciplining students  differently based on race.17  The clearest case of intentional  discrimination would be a policy that was discriminatory on its face: one that  included explicit language requiring that students of one race be disciplined  differently from students of another race, or that only students of a  particular race be subject to disciplinary action.

More  commonly, however, intentional discrimination occurs when a school has a  discipline policy that is neutral on its face (meaning the language of the  policy does not explicitly differentiate between students based on their race),  but the school administers the policy in a discriminatory manner or when a  school permits the *ad hoc* and  discriminatory discipline of students in areas that its policy does not fully  address.

Such  intentional discrimination in the administration of student discipline can take  many forms.  The typical example is when  similarly situated students of different races are disciplined differently for  the same offense.  Students are similarly  situated when they are comparable, even if not identical, in relevant  respects.  For example, assume a group of  Asian-American and Native-American students, none of whom had ever engaged in  or previously been disciplined for misconduct, got into a fight, and the school  conducted an investigation.  If the  school could not determine how the fight began and had no information  demonstrating that students behaved differently during the fight, *e.g.*, one group used weapons, then the  school’s decision to discipline the Asian-American students more harshly than the  Native-American students would raise an inference of intentional discrimination.

Selective  enforcement of a facially neutral policy against students of one race is also  prohibited intentional discrimination.  This  can occur, for example, when a school official elects to overlook a violation  of a policy committed by a student who is a member of one racial group, while  strictly enforcing the policy against a student who is a member of another  racial group.  It can occur at the  classroom level as well.  The Departments  often receive complaints from parents that a teacher only refers students of a  particular race outside of the classroom for discipline, even though students  of other races in that classroom commit the same infractions.  Where this is true, there has been selective  enforcement, even if an administrator issues the same consequence for all  students referred for discipline.

Intentional  discrimination also occurs when a school adopts a facially neutral policy with  the intent to target students of a particular race for invidious reasons.  This is so even if the school punishes students  of other races under the policy.18  For example, if school officials believed  that students of a particular race were likely to wear a particular style of  clothing, and then, as a means of penalizing students of that race (as opposed  to as a means of advancing a legitimate school objective), adopted a policy  that made wearing that style of clothing a violation of the dress code, the  policy would constitute unlawful intentional discrimination.

Lastly,  intentional discrimination could be proven even without the existence of a  similarly situated student if the Departments found that teachers or  administrators were acting based on racially discriminatory motives.  For example, if a school official uttered a  racial slur when disciplining a student, this could suggest racial animus, supporting  a finding that the official intended to discriminate based on a particular  student’s race.

Whether the Departments find that a school has  engaged in intentional discrimination will be based on the facts and  circumstances surrounding the particular discipline incident.  Evidence of racially discriminatory intent  can be either direct or circumstantial.  Direct  evidence might include remarks, testimony, or admissions by school officials  revealing racially discriminatory motives.  Circumstantial evidence is evidence that  allows the Departments to infer discriminatory intent from the facts of the  investigation as a whole, or from the totality of the circumstances.  

Absent direct evidence of intentional discrimination  based on race, the Departments examine the circumstantial evidence to evaluate  whether discrimination has occurred.  The  Departments typically ask the following questions to determine whether a school  intentionally discriminated in the administration of student discipline (see  also Illustration 1, page 10): 

(1) Did the school limit or deny educational  services, benefits, or opportunities 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?  (As noted above, students are similarly  situated when they are comparable (even if not identical) in relevant respects,  for example, with regard to the seriousness of the infraction committed and  their respective disciplinary histories.)   If no, then the Departments would not find sufficient evidence to  determine that the school has engaged in intentional discrimination.  If the students *are* similarly situated and the school has treated them differently,  then:

(2) Can the school articulate a legitimate, nondiscriminatory  reason for the different treatment?  If  not, the Departments could find that the school has intentionally discriminated  on the basis of race.  If yes, then:

(3) Is  the reason articulated a pretext for discrimination?19  Some of the circumstances where the  Departments may find that the school’s stated reason is a pretext – in other  words, not the true reason for the school’s action – are: the asserted reason  does not explain the school’s actions; witnesses contradict the school’s stated  reason for the disparity, exposing such reason as false; students of other  races have received different sanctions for similar instances of misbehavior;  or the sanctions imposed do not conform to the school’s permitted discipline  sanctions in its written discipline policy.   If the nondiscriminatory reason offered by the school is found to be pretextual,  the Departments would find that the school had engaged in intentional  discrimination.

In evaluating claims under this analysis, the Departments may also consider other circumstantial  evidence to determine whether there was discriminatory intent underlying a  school’s administration of discipline.   Such circumstantial evidence may include, but is not limited to, whether  the impact of a disciplinary policy or practice weighs more heavily on students  of a particular race; whether there is a history of discriminatory conduct  toward members of a student’s race; the administrative history behind a  disciplinary policy or decision; and whether there had been inconsistent  application of disciplinary policies and practices to students of different  racial backgrounds.20

**Illustration 1: Different Treatment Flowchart**

(Para-1)

Did  the  school limit or  deny educational services, benefits, or opportunities 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?  Students are similarly situated when  they are comparable (even  if not identical) in  relevant respects; for  example,  with regard  to the seriousness of the infraction  committed and their  respective  disciplinary histories.
(Para-2)      
If no, then the Departments would  not find sufficient evidence to determine that the school has engaged in  intentional discrimination.
(Para-3)       
If the students are similarly situated and  the  school has treated them differently, then can the school articulate a legitimate, nondiscriminatory reason for the different treatment?

 
  (Para-4)        
If not, the Departments could find that the school has intentionally discriminated on the basis of race.

 

 

 

 

 

 

 

(Para-5)

If yes,  is the reason articulated a pretext for discrimination? Some of the  circumstances where the Departments may find that the school’s stated reason is  a pretext – in other words, not the true reason for the school’s action –  are:  the asserted reason does not  explain the school’s actions; witnesses contradict the school’s stated reason  for the disparity, exposing such reason as false; similar instances of  misbehavior by students of other races have received different sanctions; or  the sanctions imposed do not conform to the school’s permitted discipline  sanctions in its written discipline policy.

 
 
(Para-6)

If  the reason is not a pretext for discrimination, then the Departments would  likely find that the school has not engaged in discrimination.    

 

 

 
 
(Para-7)

If the  nondiscriminatory reason offered by the school is found to be pretextual, the  Departments would find that the school had engaged in intentional  discrimination.

**2. Disparate Impact**

Schools  also violate Federal law when they evenhandedly implement facially neutral  policies and practices that, although not adopted with the intent to  discriminate, nonetheless have an unjustified effect of discriminating against  students on the basis of race.  The  resulting discriminatory effect is commonly referred to as “disparate impact.”21

In determining whether a facially neutral policy has  an unlawful disparate impact on the basis of race, the Departments will engage  in the following three-part inquiry (see also Illustration 2, page 13).  

(1) Has the discipline policy resulted in an adverse  impact on students of a particular race as compared with students of other  races?  For example, depending on the  facts of a particular case, an adverse impact may include, but is not limited  to, instances where students of a particular race, as compared to students of  other races, are disproportionately:  sanctioned  at higher rates; disciplined for specific offenses; subjected to longer  sanctions or more severe penalties; removed from the regular school setting to  an alternative school setting; or excluded from one or more educational  programs or activities.  If there were no  adverse impact, then, under this inquiry, the Departments would not find sufficient  evidence to determine that the school had engaged in discrimination.  If there were an adverse impact, then:

(2) Is the discipline policy necessary to meet an  important educational goal?22  In conducting the second step of this  inquiry, the Departments will consider both the importance of the goal that the  school articulates and the tightness of the fit between the stated goal and the  means employed to achieve it.  If the  policy is not necessary to meet an  important educational goal, then the Departments would find that the school had  engaged in discrimination.  If the policy  is necessary to meet an important  educational goal, then the Departments would ask:

(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?23  If the answer is yes to either question, then  the Departments would find that the school had engaged in discrimination.  If no, then the Departments would likely not find  sufficient evidence to determine that the school had engaged in discrimination.

Examples of policies that can raise disparate  impact concerns include policies that impose mandatory suspension, expulsion, or  citation (*e.g.*, ticketing or other  fines or summonses) upon any student who commits a specified offense – such as  being tardy to class, being in possession of a cellular phone, being found  insubordinate, acting out, or not wearing the proper school uniform; corporal  punishment policies that allow schools to paddle, spank, or otherwise  physically punish students; and discipline policies that prevent youth  returning from involvement in the justice system from reenrolling in school.  Additionally, policies that impose  out-of-school suspensions or expulsions for truancy also raise concerns because  a school would likely have difficulty demonstrating that excluding a student  from attending school in response to the student’s efforts to avoid school was necessary  to meet an important educational goal.

**Illustration 2:  Disparate Impact  Flowchart**

(Para-1)

Has the discipline  policy resulted in an adverse impact on students of a particular race as  comparedwith students of  other races?  For example, under a  particular policy are students of one race sanctioned at disproportionately  higher rates, or more likely to receive longer or more severe punishments?

 

(Para-2)      

If no,  then the Departments would not find sufficient evidence to determine that the  school had engaged in discrimination. 
(Para-3)      
If yes,  is the discipline policy necessary to meet an important educational goal?   In conducting the second step of this  inquiry, the Departments will consider both the importance of the goal that the  school articulates and the tightness of the fit between the stated goal and the  means employed to achieve it.

 
  (Para-4)          
If the policy is not necessary to  meet an important educational goal, then the Departments would find that the school had  engaged in  discrimination.

 

 

(Para-5)

If the  policy is necessary to meet an important educational goal, then 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?

 
 
(Para-6)

If no,  then the Departments would likely not find sufficient evidence to determine  that the school had engaged in discrimination.

 
 
(Para-7)

If yes, then the Departments  would  find  that the school had engaged  in discrimination.

**3. Examples**

This Section provides practical examples of  situations in which the Departments might find, consistent with the principles  set forth in the previous Sections, that violations of Title IV or Title VI  have been established.  These examples  are intended to be illustrative, not exhaustive.  We encourage school districts to contact us  for technical assistance in applying this guidance to their particular  situations.

*Example 1*

A complaint was filed alleging  discrimination after a school imposed different disciplinary sanctions on two  students in the sixth grade – a non-Hispanic student and a Hispanic student – who  engaged in a fight.  Both students had similar  disciplinary histories, having each previously received after-school detention  for minor infractions.  The Hispanic  student received a three-day out-of-school suspension for the student’s  involvement in the fight, while the non-Hispanic student received a two-day  out-of-school suspension for the same misconduct, raising a concern that the  students were treated differently on the basis of race.

Based on these facts and circumstances, the  Departments would make an initial determination that the students were similarly  situated, as they were involved in the same incident and have similar  discipline records.  If the school provided  evidence of facts and circumstances surrounding the incident that would  constitute a legitimate, nondiscriminatory reason for the different treatment,  such as evidence that it disciplined the Hispanic student more severely because  the student instigated the fight and directly threatened school officials who  tried to break up the fight, then these facts and circumstances might constitute  a nondiscriminatory reason for the different treatment.24  If a nondiscriminatory reason for imposing a  different sanction on either student were not identified, the Departments could  find that the school had violated Titles IV and VI.

If a legitimate, nondiscriminatory reason for the  different sanction were identified, the Departments would probe further to  determine whether the reason given for the enhanced sanction was a pretext for  racial discrimination.  In making this  determination, the Departments would request and consider information such as  witness statements, codes of conduct, and student disciplinary records.  The Departments would then evaluate, among  other things, whether the school conformed to its written policies; whether the  Hispanic student did, in fact, instigate the fight; and whether the school had  previously imposed a higher sanction on non-Hispanic students who had  instigated fights.

If the Departments found a violation, among the  individual remedies that might be required would be the revision of the  Hispanic student’s school records to delete the record of additional punishment  and the provision of compensatory educational services to remedy missed class  time.25  The Departments could also require systemic  relief, such as training of decision makers and changing disciplinary  procedures to prevent different treatment in the future.

*Example 2*

A  district’s code of conduct specifies three different categories of offenses,  ranging from Level 1, or minor behavior offenses, to Level 3, which covers the  most serious conduct.26  The code of conduct gives school officials  the discretion to select among a range of penalties identified for each  category of offense.  A complainant  alleges that her eighth-grade son, who is African-American, was referred to the  office at his school and received a one-day in-school suspension for “use of  profane or vulgar language” – a Level 1 offense – during a class period.  The disciplinary sanction imposed was within  the permissible range for Level 1 offenses. The student has had no previous  discipline incidents.  A white student at  the same school and with a similar disciplinary history also committed a Level  1 offense: “inappropriate display of affection” while on the school bus.  While the parent of the white student was  called, the student received no additional disciplinary sanction.

The fact that the school characterized both types of  misconduct as Level 1 offenses indicates that the school itself believes that the  misconduct warrants similar disciplinary responses.  Based on these facts and circumstances, the  Departments would make an initial determination that these students were  similarly situated because they engaged in comparable conduct as defined by the  school – misconduct classified as a Level 1 offense – and had similar  disciplinary records.

The school would be asked whether it had a reason  (such as the context or circumstances for these incidents) that would justify  treating the students differently for Level 1 offenses.  In this case, the school gave teachers and  administrators a list of factors to consider when deciding whether to enhance or  reduce disciplinary sanctions.  Some of  the factors relevant to Level 1 offenses were: whether the student’s misconduct  interrupted the learning process; whether the student had been previously disciplined  for the same offense; whether the student accepted responsibility for the  misconduct; and whether the student could demonstrate that he or she tried to  avoid the situation that resulted in the misconduct.  The school provided evidence that the parent  of the African-American student previously received a telephone call about her  son’s prior use of profane or vulgar language in the classroom.  The school also determined that the different  locations of the offenses, *e.g*., on the  bus as compared to in the classroom, resulted in different levels of disruption  to learning.

The school’s reasons for treating the students  differently would be sufficient under these facts and circumstances, unless the  Departments found that the proffered reasons were a pretext for discrimination.   In this instance, if school officials  gave conflicting accounts of why the African-American student received a higher  sanction, or if the school’s records showed that it rarely distinguished  misbehavior on the bus from misbehavior in the classroom in determining  sanctions, the Departments could determine that the alleged nondiscriminatory  explanation was pretextual.

If  the school had not provided a nondiscriminatory reason for imposing a different  sanction on the African-American student, or if the purported nondiscriminatory  reason were found to be pretextual, the Departments would find that the school had  violated Titles IV and VI.  In that case,  the Departments would seek individual and/or systemic relief.

*Example 3*

A complainant alleges that Native-American students  are treated differently from their non-Native-American peers at a school that contracts  with a school safety officer to secure the entrances and exits of the school  building, patrol the halls, and maintain safety on the school grounds.  The investigation reveals that the school  safety officer, when he was posted for security at the main entrance, treated  Native-American students differently from other students.  The school’s rules require that when a student  arrives at the entrance less than five minutes late, the student should be  allowed to go directly to class, whereas when a student arrives more than five  minutes late, the student should be sent to the office before going to  class.  The school safety officer,  however, had a practice of detaining for several minutes some Native-American  students (but not any other students) who arrived less than five minutes late,  and then sending them to the office.  The  school safety officer, who was not an employee of the school, offered no  justification for the differential treatment and declined to speak with  investigators or explain himself to the school.

Because a school is responsible for discrimination  by parties with whom it contracts or to whom it otherwise delegates responsibility  for aspects of the school’s programs or functions, the conduct of the school safety  officer would raise an inference of racial discrimination by the school.  If the school could not provide a  nondiscriminatory reason for the different treatment of Native American  students by the school safety officer, or if the reason were found to be  pretextual, the Departments would find that the school had violated Titles IV  and VI.

*Example 4*

A school district  established a district-wide alternative high school to which it assigns  students with extensive disciplinary records.   Although only 12 percent of the district’s students are  African-American, 90 percent of students assigned involuntarily to the  alternative high school are African-American.   The evidence shows that when white and African-American students commit  similar offenses in their regular high schools, the offenses committed by the  white students have not been reflected as often in school records.  The evidence also shows that some white  students are not assigned to the alternative high school, despite having disciplinary  records as extensive (in terms of number of and severity of offenses) as some  of the African-American students who have been involuntarily assigned there.  Based on these facts and circumstances, if  the school district could not provide a legitimate, nondiscriminatory reason  for the different treatment or the reason provided were pretextual, the  Departments would find that the school district had violated Titles IV and VI*.*

*Example 5*

A school district’s discipline code allows for a  one-day suspension of all students who commit the offense of “acting in a  threatening manner.”  Statistical data demonstrate that under this  provision of the code, a school in the district suspends African-American  students disproportionately relative to their enrollment at the school.   During the investigation, the Departments find that the discipline code  provision lacks a clear definition of the prohibited conduct, and that the  school has suspended African-American students under the provision for a broad  range of actions, including congregating in groups in the hallways, talking too  loudly, or talking back when admonished by the teacher.  Further, the  evidence indicates that white students engaging in comparable conduct are more  likely to be charged with lower-level violations of the discipline code, such  as “no hall pass” and “classroom disruption.”  These offenses do not lead  to suspension and are more likely to result in after-school detention.

Based on this evidence, the Departments would probe  further and ask the school whether it had a nondiscriminatory reason for the  pattern of different treatment, such as additional circumstances or specific,  objective factors that led decision makers to consider certain instances of  misbehavior more threatening than other instances of similar misbehavior.   If a nondiscriminatory reason were not identified (for instance, if the school  provided only a statement from a teacher that the teacher felt more threatened  by the conduct of the African-American students, without providing a reasonable  basis to conclude that the behavior at issue actually was more threatening), or  if the purported nondiscriminatory reason were found to be pretextual, the  Departments would find the school in violation of Titles IV and VI, and seek  individual and/or systemic relief. 

Such remedies could consist of one or more of the  following: (1) providing clear definitions and examples of threatening  actions for which students may be suspended (including specifying the conduct  that does not warrant a suspension); (2) requiring the administrator(s) to make  specific findings prior to imposing the sanction of suspension,*e.g.,* determining that the behavior in question falls within the scope of the  prohibited conduct, and/or determining that other means of addressing student  behavior are not feasible or repeatedly failed to bring about appropriate  conduct; (3) providing teachers and administrators with training on how to  administer the policy fairly and equitably; and/or (4) providing teachers with  training in classroom management techniques and effective behavioral  interventions that give them appropriate and culturally responsive tools to  interpret and address the underlying behaviors.  

*Example 6*

A school district adopted an elaborate set of rules  governing the sanctions for various disciplinary offenses.  For one particular offense, labeled “use of  electronic devices,” the maximum sanction is a one-day in-school suspension  where the student is separated from his regular classroom but still is provided  some educational services.  The  investigation reveals that school officials, however, regularly impose a  greater, unauthorized punishment – out-of-school suspension – for use of  electronic devices.  The investigation  also shows that African-American students are engaging in the use of electronic  devices at a higher rate than students of other races.  Coupled with the school’s regular imposition  of greater, unauthorized punishment for using electronic devices, therefore,  African-American students are receiving excessive punishments more frequently  than students of other races.  In other  words, African-American students are substantially more likely than students of  other races to receive a punishment in excess of that authorized under the  school’s own rules.

There is no evidence that the disproportionate  discipline results from racial bias or reflects racial stereotypes.  Rather, further investigation shows that this  excessive punishment is the result of poor training of school officials on the  school rules that apply to use of electronic devices.

Under these circumstances, the Departments could find  a violation of Title VI.  Although there  is no finding of intentional discrimination, the misapplication of the discipline  rules by school officials results in an adverse impact (disproportionate exclusion  from education services) on African-American students as compared with other students.  Because this practice has an adverse racial  impact, the school must demonstrate that the practice is necessary to meet an  important educational goal.  The school  cannot do so, however, because there is no justification for school officials  to disregard their own rules and impose a punishment not authorized by those  rules.

Additional training for school officials, clarification  of the rules, and the immediate collection and review of incident data to  prevent unauthorized punishments might be required to eliminate the disparate  impact going forward.  Among the  individual remedies that might be required are revision of students’ school  records and compensatory educational services to remedy missed class time.

*Example 7*

A middle school has a “zero tolerance” tardiness policy.   Students who are more than five minutes  tardy to class are always referred to the principal’s office at a particular  school, where they are required to remain for the rest of the class period  regardless of their reason for being tardy.   The school also imposes an automatic one-day suspension when a student is  recorded as being tardy five times in the same semester.  Additional tardiness results in longer  suspensions and a meeting with a truancy officer.

The evidence shows Asian-American students are  disproportionately losing instruction time under the school’s “zero tolerance”  tardiness policy, as a result of both office referrals and suspensions for  repeated tardiness.

An investigation further reveals that white and  Hispanic students are more likely to live within walking distance of the  school, while Asian-American students are more likely to live farther away and  in an area cut off by an interstate highway that prevents them from walking to  school.  The majority of Asian-American  students are thus required to take public transportation.  These students take the first public bus traveling  in the direction of their school every morning.   Even though they arrive at the bus stop in time to take the first bus available  in the morning, they often are not dropped off at school until after school has  begun.

As justification for the “zero tolerance” tardiness  policy, the school articulates the goals of reducing disruption caused by  tardiness, encouraging good attendance, and promoting a climate where school  rules are respected, all of which the Departments accept as important educational  goals.  The Departments would then assess  the fit between the stated goals and the means employed by the school – including  whether the policy is reasonably likely to reduce tardiness for these students  under these circumstances.  Assuming  there was such a fit, the Departments would then probe further to determine the  availability of alternatives that would also achieve the important educational goals  while reducing the adverse effect on Asian-American students (*e.g*., aligning class schedules and bus  schedules, or excusing students whose tardiness is the result of bus delays).  If the Departments determine that a school’s  articulated goal can be met through alternative policies that eliminate or have  less of an adverse racial impact, the Departments would find the school in  violation of Title VI and require that the school implement those alternatives.

**B.  Information the Departments Consider**

During an investigation, the Departments will  examine facts and information related to a school’s discipline approach.  The following is a non-exhaustive list of the  types of information the Departments have examined when investigating the  possibility of discriminatory discipline: written policies (such as student  codes of conduct, parent handbooks, and teacher manuals) and unwritten  disciplinary practices (such as exercises of discretion by teachers and school  administrators); data indicating the number of referrals to administrators  charged with implementing student discipline and/or to law enforcement  authorities; discipline incident reports; copies of student discipline records  and discipline referral forms; school discipline data disaggregated by  subgroup, offense, other relevant factors (such as the time of incident, place  of incident, whether more than one student was involved in an incident, the  students’ prior disciplinary infractions, the person(s) who referred a student  for discipline); and interviews with students, parents, administrators,  teachers, counselors, school resource officers and other law enforcement  officers, relevant contractors, and support staff.  The Departments also will review and analyze  information provided by schools through the CRDC, if applicable, and other  relevant data.

The Departments will look carefully at, among other  things, a school’s definitions of misconduct to ensure they are clear and  nondiscriminatory, the extent to which disciplinary criteria and referrals are  made for offenses that are subjectively defined (*e.g.*, disrespect or insubordination), and whether there are  safeguards to ensure that discretion is exercised in a nondiscriminatory  manner.  In addition to establishing a  system for monitoring all disciplinary referrals, the school should 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.  Schools should thus take steps  to monitor and evaluate the impact of disciplinary practices to detect patterns  that bear further investigation.

**C. Importance of Appropriate Record Keeping**

The Departments expect schools to cooperate with  investigations and, upon request, to provide records that will enable the  Departments to ascertain whether the administration of student discipline  policies and practices complies with the requirements of Titles IV and VI.  If the Departments determine that a school  does not collect accurate and complete data to resolve an investigation, and/or  the Departments are unable to obtain the necessary information through  interviews or other means, the Departments may conclude that the school’s  record-keeping process presents concerns.

To address these concerns, the Departments may  require, for example, that the school begin keeping the necessary information  to determine if the school is meeting its Title VI obligations and not  discriminating against students in the administration of its discipline  policies.27  A non-exhaustive list of data-related remedies  required of schools found to be in noncompliance with Title VI includes the  following: developing and implementing uniform standards for the content of  discipline files; developing and training all staff on uniform standards for  entry, maintenance, updating and retrieval of data accurately documenting the  school’s discipline process and its implementation, including its racial impact;  and keeping data on teacher referrals and discipline, to assess whether  particular teachers may be referring large numbers of students by race for  discipline (and following up with these teachers, as appropriate, to determine  the underlying causes). 

**D. Remedies**

If the Departments conclude that a school is in  violation of Title IV or Title VI in the administration of student discipline,  the Departments will attempt to secure the school’s voluntary agreement to take  specific steps to remedy the identified violation before seeking redress in  court or through an administrative hearing.   If appropriate under the circumstances, the Departments will involve the  entire district, and not just an individual school, in the agreement.  The remedy sought would be aligned with the  Departments’ findings and could include individual relief to students who were subjected  to racial discrimination, and also prospective remedies that are necessary to  ensure the school’s (and district’s) future adherence to the requirements of  Titles IV and VI.  Such remedies may  include the following:
- correcting the records of students who were treated differently regarding the infraction and sanction imposed;
- providing compensatory, comparable academic services to students receiving in-school or out-of-school suspensions, expelled, placed in an alternative school, or otherwise removed from academic instruction;
- revising discipline policies to provide clear definitions of infractions to ensure that consequences are fair and consistent;
- developing and implementing strategies for teaching, including the use of appropriate supports and interventions, which encourage and reinforce positive student behaviors and utilize exclusionary discipline as a last resort;
- providing training for school personnel on revised discipline policies and classroom management techniques;
- providing school-based supports for struggling students whose behavior repeatedly disrupts their education and/or the education of other students;28 
- designating a school official as a discipline supervisor to ensure that the school implements its discipline policies fairly and equitably;
- conducting and/or reviewing comprehensive needs assessments to ensure they are effective in measuring the perceptions  of students and other members of the community in connection with the administration of school discipline, and using the results of these assessments to make responsive changes to policies and practices;
- at least annually, conducting a forum during the school day that provides students, teachers and administrators the opportunity to discuss matters relating to discipline and provide input on the school’s discipline policies;
- developing a training and information program for students and community members that explains the school’s discipline policies and what is expected of students in an age-appropriate, easily understood manner;
- creating a plan for improving teacher-student relationships and on-site mentoring programs; and
- conducting an annual comprehensive review of school resource officer interventions and practices to assess their effectiveness in helping the school meet its goals and objectives for student safety and discipline.

Remedies will necessarily vary with the facts of  each case; in all instances, however, the remedies must fully and effectively  address the school’s discriminatory actions and ensure future compliance with  Titles IV and VI.29  If the Departments enter into a resolution  agreement with a school, they will monitor the school’s compliance with the  agreement to ensure the school is meeting the requirements of Titles IV and VI  when administering student discipline.

**CONCLUSION**

The Departments are committed to promoting effective  and appropriate school discipline policies and practices that create a safe and  inclusive environment where all students can learn and succeed.  As part of this commitment, we will enforce  Federal laws to eliminate unlawful racial discrimination in school  discipline.  In addition to investigating  complaints that have been filed, both Departments are collaboratively and  proactively initiating compliance reviews nationwide focused on student  discipline.  Finally, the Departments  will continue to provide technical assistance to schools on the adoption and  administration of discipline policies consistent with their obligations under  Federal civil rights laws.

Thank  you for your efforts to ensure that the nation’s students are provided with equal  educational opportunities.  If you need  technical assistance, please contact the OCR regional office serving your State  or territory by visiting http://www.ed.gov/about/offices/list/ocr/index.html or call OCR’s Customer Service Team at 1‐800-421-3481.  You may contact DOJ’s Civil Rights Division,  Educational Opportunities Section, at education@usdoj.gov,  or 1-877-292-3804.

We look forward to continuing our work together to  ensure equal access to education and to promote safe school environments for  all of America’s students.

Sincerely,

**/S/**

 

 **/S/**

**Catherine E. LhamonAssistant SecretaryOffice for Civil RightsU.S. Department of Education**

 

**Jocelyn Samuels Acting Assistant Attorney    General  Civil Rights Division  U.S. Department of Justice**

**APPENDIX**

**Recommendations  for School Districts, Administrators, Teachers, and Staff**

The U.S. Department of Education and the U.S.  Department of Justice (Departments) are committed to working with schools,  parents, students, stakeholder organizations, and other interested parties to  ensure that students are not subjected to racially discriminatory discipline  policies and practices.  This appendix  supplements the Dear Colleague Letter concerning discrimination on the basis of  race, color, or national origin in school discipline issued by the Departments  on January 8, 2014.  We hope the  following list of recommendations, which are based on a review of a broad  spectrum of our cases, will assist schools to identify, avoid, and remedy  discriminatory discipline based on race, color, or national origin.

These recommendations are intended to be  illustrative.  They are not intended to  be exhaustive or exclusive; do not address recommendations specifically  targeted at preventing discriminatory discipline that is based on prohibited  grounds other than race, color, or national origin; and may not be applicable  to every specific factual setting in a particular school.1  Additionally, these recommendations do not  constitute legal advice, and schools that choose to implement one or more of  these recommendations might still be found to be in violation of Federal  law(s).  For additional information,  research, and resources in these three areas relating more generally to  improving school climate and discipline policies and practices, see the Guiding  Principles Resource Guide released by the U.S. Department of Education on January  8, 2014.

**I. Climate and Prevention**

**(A)Safe, inclusive, and positive  school climates that provide students with supports such as evidence-based  tiered supports and social and emotional learning.**
Develop and implement a comprehensive, school- and/or district-wide approach to  classroom management and student behavior grounded in evidence-based  educational practices that seeks to create a safe, inclusive, and positive educational environment.
Ensure that appropriate student behavior is positively reinforced.  Such reinforcement could include school-wide  tiered supports, including universal, targeted, and intensive supports, to  align behavioral interventions to students’ behavioral needs.
Encourage students to accept responsibility for any misbehavior and acknowledge their responsibility to follow school rules.
Assist students in developing social and emotional competencies (*e.g.*, self-management, resilience, self-awareness, responsible decision-making) that help them redirect their energy, avoid conflict, and refocus on learning.
Refer students with complex social, emotional, or behavioral needs for psychological testing and services, health services, or other educational services, where needed.
Ensure that there are sufficient school-based counselors, social workers, nurses, psychologists, and other mental health and supportive service providers to work with students and implement tiered supports.  Involve these providers in addressing disciplinary incidents; preventing  future disciplinary concerns; reintegrating students who are returning from suspensions, alternative disciplinary schools, or incarceration; and maintaining a safe, inclusive, and positive educational environment.
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.

**(B) Training and professional development for all school personnel**
Provide all school personnel, including teachers, administrators, support personnel,  and school resource officers, with ongoing, job-embedded professional development and training in evidence-based techniques on classroom management,  conflict resolution, and de-escalation approaches that decrease classroom disruptions and utilize exclusionary disciplinary sanctions as a last resort.
Train  all school personnel on the school’s written discipline policy and how to administer discipline fairly and equitably.  Facilitate discussion for all school  personnel of the school’s discipline policies and the faculty’s crucial role in creating a safe, inclusive, and positive educational environment.
Provide training to all school personnel on how to apply subjective criteria in making disciplinary decisions.
Provide cultural awareness training to all school personnel, including training on working with a racially and ethnically diverse student population and on the harms of employing or failing to counter racial and ethnic stereotypes.
Establish procedures to assess the effectiveness of professional development approaches in improving school discipline practice and staff knowledge and skills.
Establish procedures for school administrators to identify teachers who may be having difficulty managing classrooms effectively, preventing discipline problems from occurring, or making appropriate disciplinary referrals, and to provide those  teachers with assistance and training.
Ensure that appropriate instruction is provided to any volunteer on a school’s campus regarding the school’s approach to classroom management and student behavior.

**(C) Appropriate use of law enforcement**
Clearly define and formalize roles and areas of responsibility to govern student and school interaction with school resource officers and other security or law enforcement personnel.
Document the roles and responsibilities of school resource officers and security or law  enforcement personnel in a written agreement or memorandum of understanding  between the school and appropriate law enforcement and/or related agencies.
Ensure that school resource officers and other security or law enforcement personnel effectively support school climate and discipline goals by promoting a safe,  inclusive, and positive learning environment, and mentoring and otherwise supporting the education of students.
Provide opportunities and approaches for school resource officers and other security or law enforcement personnel, school personnel, students, and parents to develop a  trusting and positive relationship with one another.
Ensure that school personnel understand that they, rather than school resource  officers and other security or law enforcement personnel, are responsible for administering routine student discipline.
Establish procedures and train school personnel and school volunteers on how to  distinguish between disciplinary infractions appropriately handled by school  officials versus major threats to school safety or serious school-based criminal conduct that cannot be safely and appropriately handled by the school’s internal disciplinary procedures, and how to contact law enforcement when warranted.
Regularly meet with school resource officers and other security or law enforcement personnel who work in the school  to ensure that they receive training to work effectively and appropriately with elementary and secondary students.  Such training may include instruction in bias-free policing, including instruction on implicit bias and cultural competence; child and adolescent development and age appropriate responses; practices demonstrated to improve school climate;  restorative justice techniques; mentoring; classroom presentation skills;  conflict resolution; privacy issues; and working collaboratively with school administrators.
Ensure compliance with the Family Educational  Rights and Privacy Act (FERPA) if school resource officers or other security or law enforcement personnel are permitted access to personally identifiable  information from students’ education records, such as disciplinary records.2
Collect data and monitor the actions that school resource officers and other security or law enforcement personnel take against students to ensure nondiscrimination.

**II.  Clear, Appropriate, and Consistent Expectations and Consequences**

**(A) Nondiscriminatory, fair, and age-appropriate discipline policies**
Ensure that school discipline policies specifically and positively state high  expectations for student behavior, promote respect for others, and make clear  that engaging in harassment and violence, among other problem behaviors, is unacceptable.
Ensure that discipline policies include a range of measures that students may take to improve their behavior prior to disciplinary action.
Develop or revise written discipline policies to clearly define offense categories and  base disciplinary penalties on specific and objective criteria whenever  possible.  If certain offense categories have progressive sanctions, clearly set forth the range of sanctions for each infraction.
Ensure that the sanctions outlined by the school’s discipline policies are proportionate to the misconduct.
Review standards for disciplinary referrals and revise policies to include clear definitions of offenses and procedures for all school personnel to follow when making referrals.
Clearly designate who has the authority to identify discipline violations and/or assign penalties for misconduct.
Ensure that the school’s written discipline policy regarding referrals to disciplinary  authorities or the imposition of sanctions distinguishes between those students  who have violated the school’s discipline policy for the first time and those students who repeatedly commit a particular violation of the discipline policy.
Ensure that appropriate due process procedures are in place and applied equally to all students and include a clearly explained opportunity for the student to appeal the school’s disciplinary action.

**(B) Communicating with and engaging school communities**
Involve families, students, and school personnel in the development and implementation of discipline policies or codes of conduct and communicate those policies  regularly and clearly.
Provide the discipline policies and student code of conduct to students in an easily  understandable, age-appropriate format that makes clear the sanctions imposed  for specific offenses, and periodically advise students of what conduct is  expected of them.
Put protocols in place for when parents  and guardians should be notified of incidents meriting disciplinary sanctions to ensure that they are appropriately informed.3
Post all discipline-related materials on district and school websites.
Provide parents and guardians with copies of all discipline policies, including the  discipline code, student code of conduct, appeals process, process for re-enrollment, where appropriate, and other related notices; and ensure that  these written materials accurately reflect the key elements of the disciplinary approach, including appeals, alternative dispositions, time lines, and provisions for informal hearings.
Translate all discipline policies, including the discipline code and all important documents related to individual disciplinary actions, to ensure effective  communication with students, parents, and guardians who are limited English  proficient.  Provide interpreters or other language assistance as needed by students and parents for all  discipline-related meetings, particularly for expulsion hearings.4
Establish a method for soliciting student,  family, and community input regarding the school’s disciplinary approach and  process, which may include establishing a committee(s) on general discipline policies made up of diverse participants, including, but not limited to students, administrators, teachers, parents, and guardians; and seek input from parents, guardians, and community leaders on discipline issues, including the written discipline policy and process.

**(C) Emphasizing positive interventions over student removal**
Ensure that the school’s written discipline policy emphasizes constructive interventions over tactics or disciplinary sanctions that remove students from regular academic instruction (e.g., office referral, suspension, expulsion, alternative placement, seclusion).
Ensure that the school’s written discipline policy explicitly limits the use of out-of-school suspensions, expulsions, and alternative placements to the most severe disciplinary infractions that threaten school safety or to those circumstances where mandated by Federal or State law.
Ensure that the school’s written discipline policy provides for individual tailored intensive services and supports for students reentering the classroom following a disciplinary sanction.
Ensure  that the school’s written discipline policies provide for alternatives to  in-school and out-of-school suspensions and other exclusionary practices (*i.e.,* expulsions).

**III. Equity and Continuous Improvement**

**(A) Monitoring and self-evaluation**
Develop a policy requiring the regular evaluation of each school’s discipline policies and practices and other school-wide behavior management approaches to determine  if they are affecting students of different racial and ethnic groups  equally.  Such a policy could include requiring the regular review of discipline reports containing information necessary to assess whether students with different personal characteristics (*e.g.,* race, sex, disability, and English learner status) are disproportionately disciplined, whether certain types of  disciplinary offenses are more commonly referred for disciplinary sanctions(s),  whether specific teachers or administrators are more likely to refer specific  groups of students for disciplinary sanctions, and any other indicators that may reveal disproportionate disciplinary practices.
Establish a means for monitoring that penalties imposed are consistent with those specified in the school’s discipline code.
Conduct a periodic review of a sample of discipline referrals and outcomes to ensure consistency in assignments.
**(B) Data collection and responsive action**
Collect and use multiple forms of data, including school climate surveys, incident  data, and other measures as needed, to track progress in creating and maintaining  a safe, inclusive and positive educational environment.5
Collect complete information surrounding all discipline incidents, including office referrals and discipline incidents that do not result in sanctions.  Relevant data elements include information  related to the date, time, and location of the discipline incident; the offense type; whether an incident was reported to law enforcement; demographic and other information related to the perpetrator, victim, witness, referrer, and  disciplinarian; and the penalty imposed.  Ensure that there are administrative staff who understand how to analyze and interpret each school’s discipline data to confirm that data are accurately collected, reported, and used.6
Create and review discipline reports to detect patterns that bear further investigation, assist in prioritizing resources, and evaluate whether a school’s discipline and behavior management goals are being reached.
If disparities in the administration of student discipline are identified, commit the school to a plan of action to determine what modifications to the school’s discipline approach would help it ameliorate the root cause(s) of these  disparities.
Develop a discipline incident database that provides useful, valid, reliable, and timely discipline incident data.7
Provide  the school board and community stakeholders, consistent with applicable privacy laws and after removing students’ identifiable information, with disaggregated discipline information to ensure transparency and facilitate community  discussion.
Make statistics publicly available on the main discipline indices disaggregated by school and race.
Maintain data for a sufficient period of time to yield timely, accurate, and complete statistical calculations.
In addition to the Federal civil rights laws, ensure that the school’s discipline policies and practices comply with applicable Federal, State, and local laws, such as IDEA  and FERPA.

1 The Departments have determined that this Dear Colleague Letter is a  “significant guidance document” under the Office of Management and Budget’s  Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25,  2007), *available at*http://www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf.  This and other policy guidance is issued to  provide recipients with information to assist them in meeting their  obligations, and to provide members of the public with information about their  rights, under the civil rights laws and implementing regulations that we  enforce.  The Departments’ legal  authority is based on those laws.  This  guidance does not add requirements to applicable law, but provides information  and examples to inform recipients about how the Departments evaluate whether  covered entities are complying with their legal obligations.  If you are interested in commenting on this  guidance, please send an e-mail with your comments to OCR@ed.gov, or write to the following address:  Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue,  S.W., Washington, D.C. 20202. 2 The Department of Justice enforces Title VI with respect to schools, law  enforcement agencies, and other recipients of Federal financial assistance from  DOJ; DOJ’s Office for Civil Rights at the Office of Justice Programs (OJP OCR)  is the principal DOJ office that enforces Title VI though its administrative  process.  *See*http://www.ojp.usdoj.gov/about/ocr/pdfs/OCR_TitleVI.pdf.  DOJ also  enforces Title VI upon referral from another Federal funding agency, or through  intervention in an existing lawsuit.  DOJ  also coordinates the enforcement of Title VI government-wide. 3 Throughout this guidance, “race” or “racial” includes race, color, or national  origin; “policy” or “policies” includes policies and procedures; “school” or  “schools” includes an elementary or secondary school, a school district, or a  local educational agency (LEA) that is a recipient of Federal financial  assistance, including a charter or “alternative” school that is a recipient of  Federal financial assistance.  The terms  “program” and “programs” and “programs or activities” and “programs and  activities” are used in a colloquial sense and are not meant to invoke the  meaning of the terms “program” or “program or activity” as defined by the Civil  Rights Restoration Act of 1987   (CRRA).  Under the CRRA, which  amended Title VI, Title IX of the Education Amendments of 1972 (Title IX), and  Section 504 of the Rehabilitation Act of 1973 (Section 504), the term “program  or activity” and the term “program,” in the context of a school district, mean  all of the operations of a school district.   42 U.S.C. § 2000d  - 4a(2)(B); 20 U.S.C. § 1687(2)(B); 29 U.S.C. § 794(b)(2)(B).4 While this guidance explicitly addresses only race discrimination, much of the  analytical framework laid out in this document also applies to discrimination  on other prohibited grounds.  Title IV  also prohibits discrimination on the basis of sex and religion by public elementary  and secondary schools.  Title IX prohibits  discrimination on the basis of sex by recipients of Federal financial  assistance in their education programs or activities.  20 U.S.C. §§ 1681 *et seq.*Section 504 prohibits disability discrimination by  recipients of Federal financial assistance, and Title II of the Americans with  Disabilities Act of 1990 (Title II) prohibits disability discrimination by  public entities, including public school districts, in their services,  programs, and activities.  29 U.S.C. §  794; 42 U.S.C. §§ 12131 *et seq.*   Section 504 and Title II and their implementing regulations provide  certain protections when students with disabilities are disciplined.  Part B of the Individuals with Disabilities  Education Act (IDEA) provides Federal funds to State educational agencies and through  them to local educational agencies to assist in the provision of special  education and related services to eligible children with disabilities.  The IDEA contains specific provisions  regarding the discipline of students with disabilities who are or may be  IDEA-eligible and requires an analysis of discipline data disaggregated by race  and ethnicity as well as possible review and revision of policies, practices,  and procedures.  *See, e.g.*, 20 U.S.C. §§ 1412(a)(22), 1415(k), 1418(d); 34 C.F.R. §  300.530(e)-(g).  Additional information  about Part B of the IDEA is available at http://idea.ed.gov.  5 The CRDC is a mandatory data collection authorized under Title VI, Title IX,  and Section 504, the regulations implementing those statutes, and the  Department of Education Organization Act, 20 U.S.C. § 3413.  Since 1968, the CRDC (formerly the Elementary  and Secondary School Survey) has collected data on key education and civil  rights issues in our nation's public schools.   Unless otherwise noted, statistics referenced in this letter are drawn  from unpublished (as of January 8, 2014) data collected by the CRDC for the  2011-12 school year.  Additional  information and publicly available data from the CRDC can be found at http://ocrdata.ed.gov.6 While this document addresses race discrimination against all students,  including students with disabilities, evidence of significant disparities in  the use of discipline and aversive techniques for students with disabilities  raises particular concern for the Departments.   For example, although students served by IDEA represent 12% of students  in the country, they make up 19% of students suspended in school, 20% of  students receiving out-of-school suspension once, 25% of students receiving  multiple out-of-school suspensions, 19% of students expelled, 23% of students  referred to law enforcement, and 23% of students receiving a school-related  arrest.  Additionally, students with  disabilities (under the IDEA and Section 504 statutes) represent 14% of  students, but nearly 76% of the students who are physically restrained by  adults in their schools.The Departments are developing resources to assist  schools and support teachers in using appropriate discipline practices for  students with disabilities. 7*See generally* Michael Rocque &  Raymond Paternoster, *Understanding the  Antecedents of the “School-to-Jail” Link: The Relationship Between Race and  School Discipline,* 101 J. Crim. L.  & Criminology 633 (2011);Russell  J. Skiba et al., *Race Is Not Neutral: A  National Investigation of African American and Latino Disproportionality in  School Discipline,* 40 Sch. Psychol.  Rev 85 (2011); T. Fabelo, M.D. Thompson, M. Plotkin, D. Carmichael, M.P.  Marchbanks & E.A. Booth, *Breaking  Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’  Success and Juvenile Justice Involvement* (Council of State Governments  Justice Center, 2011); A. Gregory & A.R. Thompson, *African American High School Students and Variability in Behavior  Across Classrooms*, 38 J. Community  Psychol.386 (2010); R.J.  Skiba, R.S. Michael, A.C. Nardo & R.L. Peterson, *The Color of Discipline: Sources of Racial and Gender  Disproportionality in School Punishment,*34 Urban  Rev. 317 (2002); Michael Rocque, *Office  Discipline and Student Behavior: Does Race Matter?* 116 Am. J. Educ. 557 (2010).8 Compare the 1984 CRDC National Estimations to the 2009 CRDC National  Estimations for the category of suspension-out of school. 9 Emily Arcia, *Achievement and Enrollment  Status of Suspended Students: Outcomes in a Large, Multicultural School  District*. 38 Educ. & Urb. Soc’y359 (2006).10*Id.*11 S.A. Hemphill, J.W. Toumbourou, T.I. Herrenkohl, B.J. McMorris & R.F.  Catalano, *The Effect of School  Suspensions and Arrests on Subsequent Adolescent Antisocial Behavior in  Australia and the United States*. 39 J.  Adolescent Health 736 (2006); S.A. Hemphill, T.I. Herrenkohl, S.M.  Plenty, J.W. Toumbourou, R.F. Catalano & B.J. McMorris, *Pathways from School Suspension to Adolescent  Nonviolent Antisocial Behavior in Students in Victoria, Australia and  Washington State, United States*, 40 J.  Community Psychol. 301 (2012).12 Arcia, *supra*; Fabelo et al, *supra*; Linda M. Raffaele Mendez, *Predictors of Suspension and Negative School  Outcomes: A Longitudinal Investigation*, 99 New  Directions for Youth Dev. 17 (2003).  13 S.A. Hemphill, J. A. Heerde, T.I. Herrenkohl, J.W. Toumbourou & R.F.  Catalano, *The Impact of School Suspension  on Student Tobacco Use: A Longitudinal Study in Victoria, Australia, and  Washington State, United States.* 39 Health  Educ. & Behav. 45 (2012).14 V. Costenbader & S. Markson, *School  Suspension: A Study with Secondary School Students*. 36 J. Sch. Psychol. 59 (1998); Fabelo et  al, *supra*.  15 Nothing in this guidance alters a school’s obligation to respond to student  misconduct that constitutes discriminatory harassment.  More information about the applicable legal  standards is included in OCR’s Dear Colleague Letter: Harassment and Bullying (Oct.  26, 2010), *available at**http://*www.ed.gov/ocr/letters/colleague-201010.pdf.  *See also* OCR’s Dear Colleague  Letter: Sexual Harassment and Sexual Violence (Apr. 4, 2011), *available at**http://*www.ed.gov/ocr/letters/colleague-201104.pdf.  When addressing such harassment, a school  should consider incorporating wide-ranging strategies beyond exclusionary  discipline, including, for example, conflict resolution, restorative practices,  and counseling, to help meet its obligations under Federal civil rights laws.16 The nondiscrimination requirements of Titles IV and VI extend to conduct  undertaken by entities that carry out some or all of the schools’ functions  through “contractual or other arrangements.”  *See, e.g.*, 34 C.F.R. §  100.3(b)(1), (2).17 42 U.S.C. §§ 2000c *et seq*.; 42 U.S.C.  § 2000d; 34 C.F.R. § 100.3(a), (b)(1).18*See, e.g.*,*Hunter v. Underwood*, 471 U.S. 222, 227, 231-32 (1985).19*See generally Elston v. Talladega County  Bd. of Educ*., 997 F.2d 1394 (11th Cir. 1993); U.S. Department of Justice, *Title VI Legal Manual* 44-46 (Jan. 11,  2001) (“Title VI Manual”); U.S. Department of Education, Racial Incidents and  Harassment against Students at Educational Institutions, 59 Fed. Reg. 11,448  (Mar. 10, 1994).  *See also McDonnell Douglas Corp. v. Green*, 411 U.S. 792 (1973), a  Title VII case that sets forth a three-part test that also applies in the Title  VI and Title IV contexts.  The *McDonnell Douglas*test applies in court  and administrative litigation to determine whether an institution has engaged  in prohibited discrimination.  20*See,  e.g.*, *Village of Arlington Heights v. Metro.  Hous. Dev. Corp.*, 429 U.S. 252, 265-68 (1977) (identifying a non-exhaustive  list of factors that may serve as indicia of discriminatory intent). 21 Recipients of Federal financial  assistance are prohibited from “utiliz[ing] criteria  or methods of administration which have the effect of subjecting individuals to  discrimination because of their race, color, or national origin, or have the  effect of defeating or substantially impairing accomplishment of the objectives  of the program as respect individuals of a particular race, color, or national  origin.”  34 C.F.R. § 100.3(b)(2); *see also*28 C.F.R. § 42.104(b)(2).  22*See  Elston*, 997 F.2d at 1411-12 (explaining that courts have  required schools to demonstrate an “educational necessity” for the challenged  program, practice, or procedure); Title VI Manual at 51.  23*See Elston*, 997 F.2d at 1413.24 For more information regarding evidence the Departments consider when  conducting an investigation, please consult Section B. 25 For more information on remedies for violations of Titles IV or VI, please  consult Section D. 26 A district can create categories of offenses and penalties as part of its  discipline policy or student code of conduct, as long as the categories  themselves do not reflect racial biases or stereotypes and/or are not based on  race.  Misconduct that is categorized in  a manner that does not align with the severity of the offense (*e.g.*, school-based arrest for a school  uniform violation) may raise an inference of racial discrimination if students  of a particular race are disproportionately disciplined for that offense.27*See*34 C.F.R. §  100.6(b), applying to the Department of Education (“Each recipient shall keep  such records and submit to the responsible Department official or his designee  timely, complete and accurate compliance reports at such times, and in such  form and containing such information, as the responsible Department official or  his designee may determine to be necessary to enable him to ascertain whether  the recipient has complied or is complying” with the Title VI regulations.); *id*. § 100.6(c) (“Each recipient shall  permit access by the responsible Department official or his designee during  normal business hours to such of its books, records, accounts, and other  sources of information, and its facilities as may be pertinent to ascertain  compliance” with the Title VI regulations).  *See also*28 C.F.R. § 42.106(b), applying to DOJ (“Each recipient shall keep  such records and submit to the responsible Department official or his designee  timely, complete, and accurate compliance reports at such times, and in such  form and containing such information, as the responsible Department official or  his designee may determine to be necessary to enable him to ascertain whether  the recipient has complied or is complying” with the Title VI regulations); *id.*§ 106(c) (“each recipient shall permit access by the responsible Department  official or his designee  during normal business hours to such of its books, records, accounts, and other  sources of information, and its facilities, as may be pertinent to ascertain  compliance” with the Title VI regulations); *id.* § 106(d).  If a school has been  previously instructed by the Departments to collect and maintain particular  data, the failure to provide such data would be regarded as a violation of  these provisions and would cause the Departments to presume the missing data  would have supported a finding of a substantive violation. 28 As previously noted, for students with  disabilities, other Federal requirements may apply. 29 The Departments  have entered into settlement agreements and consent decrees to address and  prevent racial discrimination in student discipline.  These documents provide additional examples  of the kinds of remedies that the Departments seek to ensure compliance with  Titles IV and VI, and may be found at http://www.justice.gov/crt/about/edu/documents/classlist.php and http://www.ed.gov/ocr/docs/investigations/index.html.

Appendix Footnotes

1 For specific resources designed to assist schools in developing and implementing  effective prevention and intervention strategies that promote positive student  behavior and in planning and executing dropout prevention strategies,  readers may wish to consult the following  practice guides published by the Department of Education: Epstein, M., Atkins,  M., Cullinan, D., Kutash, K., and Weaver, R. (2008).  *Reducing  Behavior Problems in the Elementary School Classroom: A Practice Guide*(NCEE  #2008-012).  Washington, DC: National  Center for Education Evaluation and Regional Assistance, Institute of Education  Sciences, U.S. Department of Education, *available  at*http://ies.ed.gov/ncee/wwc/publications/practiceguides;  and Dynarski, M., Clarke, L., Cobb, B., Finn J., Rumberger, R., and Smink, J.  (2008).  *Dropout Prevention: A Practice Guide*(NCEE 2008-4025). Washington,  DC: National Center for Education Evaluation and Regional Assistance, Institute  of Education Sciences, U.S. Department of Education, *available at*http://ies.ed.gov/ncee/wwc/publications/practiceguides*.*You  may also wish to consult with regional Equity Assistance Centers that can  assist schools in developing and implementing policies and practices to promote  equitable educational opportunity on the basis  of race, color, national origin, or sex.   Please visit http://www.ed.gov/programs/equitycenters for more information. 2 These requirements are contained in 34 C.F.R. § 99.31(a)(1) and the criteria  set forth in the school’s annual notification of FERPA rights for how to  identify school officials who have legitimate educational interests in  accessing such records.3 To the extent that information about these incidents is included in education  records, parents have the right under FERPA and Individuals with Disabilities  Education Act (IDEA) to inspect and review them.  20 U.S.C. § 1232g(1)(A); 34 C.F.R. § 99.10;  34 C.F.R. § 300.229; 34 C.F.R. § 300.613.   If a student is 18 or over, or in the case of an IDEA-eligible student,  if a student has reached the age of majority as determined by State law, then  the rights accorded to parents under FERPA and the IDEA will transfer to the  student.  For students who hold their own  educational rights, consideration should be given to whether it is appropriate  to notify the parents or the student, or both, of the offense.  *See  generally* 20 U.S.C. § 1232g (d); 34 C.F.R. §§ 99.3, 99.5(a), 99.31; 20  U.S.C. § 1415(m); 34 C.F.R. § 300.520.4 Such language assistance may be required by Title VI; schools have the  responsibility to provide national origin-minority parents who have limited  proficiency in English with meaningful access to information provided to other  parents in a language they understand. 5 In administering a comprehensive needs assessment, school districts must comply  with the Protection of Pupil Rights Amendment (PPRA), which requires, among  other things, that in the event that a survey administered or distributed to  students will contain questions about one or more of eight specified items,  such as the student’s mental or psychological problems, the school district  must:  (1) develop and adopt policies to protect student privacy with  regard to the survey; (2) notify the parents, at least annually at the  beginning of the school year, of the specific or approximate dates that the  survey will be scheduled; and, (3) offer an opportunity for parents to opt  students out of participation in the survey.  *See* 20 U.S.C. §  1232h(c).  The rights provided to parents under the PPRA transfer to the  student when the student turns 18 years old, or is an emancipated minor (under  an applicable State law) at any age.  20 U.S.C. § 1232h(c)(5)(B). 6 Any use and disclosure of personally identifiable information on students from  school discipline data must be consistent with FERPA.7 Assistance in developing such a database is available from the National Forum  on Education Statistics’ report entitled, “Forum Guide to Crime, Violence, and  Discipline Incident Data” (Forum Guide) (May 2011), *available at*http://nces.ed.gov/forum/pub_2011806.asp*.*

 
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