School Discipline and Disparate Impact

A Briefing Before

The United States Commission on Civil Rights

Held in Washington, DC

Briefing Report
Letter of Transmittal

The President

The President of the Senate

The Speaker of the House

Sirs:

The United States Commission on Civil Rights (“Commission”) is pleased to transmit this

report, School Discipline and Disparate Impact. The report is drawn from a briefing that the

Commission held on February 11, 2011 that examined the effect that the U.S. Department of

Education’s Fall 2010 Disparate Impact initiative has had on schools and school districts

across the country. This federal initiative was implemented to look at differences in

discipline outcomes between students of color and other similarly-situated students. The

initiative’s aim is to identify whether the application of exclusionary discipline policies has

had a disparate impact on students of color. During the briefing the panelists, teachers and

administrators from racially diverse public school districts described how their particular

schools have responded to this initiative. The Commission inquired as to whether the schools

have changed their policies and practices and what those changes have been. In addition, the

Commission inquired into whether school districts maintain comprehensive data that allows

them to track the effectiveness of their discipline policies; whether teachers are appropriately

trained to implement these policies; and what other methods are being used by districts to

evaluate the effectiveness of their policies. Finally, the U.S. Department of Education

provided background information on its disparate impact initiative and how the disparate

impact theory is being implemented in its enforcement work.

The briefing identified a common theme among most of the teachers. This is that disciplinary

problems can be greatly reduced through individualized instruction based on the student’s

capabilities, cultural sensitivity or competency, parental involvement and support, and

effective school leadership. School administrators indicated that disciplinary problems could

be reduced through consistent application of a transparent and uniform school-wide

disciplinary policy. Many of the school administrators also indicated that they had

successfully reduced discipline disparities and overall expulsions through the adoption of

nationally-tested behavior management programs.

This report was unanimously approved on October 21, 2011 by Chairman Martin R. Castro,

Vice Chair Abigail Thernstrom, and Commissioners Roberta Achtenberg, Todd Gaziano,

Gail Heriot, Peter Kirsanow, David Kladney, and Michael Yaki.

For the Commission,

Martin R. Castro

Chairman

Table of Contents

Executive Summary.................................................................................................................. 1

Summary of Proceedings .......................................................................................................... 3

Panel 1. Teachers .................................................................................................................. 3

Allen Zollman ................................................................................................................... 3

Andrea Smith .................................................................................................................... 3

Jamie Frank....................................................................................................................... 4

Louise Seng....................................................................................................................... 4

Patrick Welsh.................................................................................................................... 5

Discussion......................................................................................................................... 5

Panel 2. School Administrators............................................................................................. 9

Suzanne Maxey................................................................................................................. 9

Osvaldo Piedra.................................................................................................................. 9

Joseph Oliveri ................................................................................................................. 10

Edward Gonzalez ............................................................................................................ 10

Discussion....................................................................................................................... 11

Panel 3. U.S. Department of Education Official and School Administrators..................... 15

Ricardo Soto.................................................................................................................... 15

Hardy Murphy................................................................................................................. 16

Hertica Martin................................................................................................................. 17

Douglas Wright............................................................................................................... 17

Discussion....................................................................................................................... 18

Speakers’ Written Statements................................................................................................. 23

Panel 1 – Teachers .............................................................................................................. 23

Panel 2 – School Administrators......................................................................................... 31

Panel 3 – U.S. Department of Education Official and School Administrators................... 53

Summary of Law and Background Materials ......................................................................... 72

Commissioner Statements....................................................................................................... 78

Speaker Biographies ............................................................................................................. 122

Appendix A........................................................................................................................... 128

Summary of Public Comment........................................................................................... 128

Public Comment Letters ................................................................................................... 129

Appendix B ........................................................................................................................... 139
USCCR Letter to Schools ................................................................................................. 139

School District Response Letters...................................................................................... 141
1 Executive Summary

Executive Summary

The Commission held a briefing entitled, “School Discipline and Disparate Impact” on

February 11, 2011 to examine the effect of the U.S. Department of Education’s disparate

impact initiative announced in the fall of 2010 for schools and school districts across the

country. The Commission asked teachers and administrators from racially diverse public

school districts how they have responded to the new initiative; specifically, whether their

teachers and administrators have changed their policies and practices as a result, and what

those changes were. The Commission was interested also in whether the districts kept

statistics to track the effectiveness of policies; how they train their teachers in implementing

discipline policies; and what other means the districts used to evaluate whether their policies

worked.

The Commission asked the U.S. Department of Education (ED or Department) to describe

its disparate impact initiative and supply case documents indicating the manner in which the

Department implemented disparate impact theory in its enforcement work. The

Department’s civil rights enforcement unit, the Office for Civil Rights (OCR), provided

documents relating only to closed cases, which showed investigations that proceeded to

resolution based initially on a disparate impact theory. The Department’s policy as stated

during the briefing is that statistically disparate results create a presumption of

discrimination that must be rebutted by the school or district with evidence that the school or

district has a legitimate educational justification and that there are no equally effective

alternative policies that would achieve the school’s educational goals. The Department

indicated that it would continue to use disparate impact theory in its investigations, including

those currently open, in addition to disparate treatment theory.

Teachers appearing before the Commission were Mr. Allen Zollman, Ms. Andrea Smith, Ms.

Jamie Frank, Mrs. Louise Seng, and Mr. Patrick Welsh. Administrators appearing before the

Commission were Ms. Suzanne Maxey, Principal at TC Williams High School in Alexandria

City, Virginia; Dr. Osvaldo Piedra, Assistant Principal, East Lake High School, Pinellas

County, Florida; Mr. Joseph Oliveri, Retired Director of Alternative Schools for the Austin

Independent School District, Texas; Mr. Edward Gonzalez, Associate Superintendent,

Department of Prevention and Intervention, Fresno Unified School District, Fresno County,

California; Dr. Hardy Murphy, Superintendent, Evanston/Skokie District 65, Cook County,

Illinois; Dr. Hertica Martin, Executive Director for Elementary and Secondary Education,

Rochester Public Schools, Olmstead County, Minnesota; and Dr. Douglas Wright,

Superintendent, San Juan School District, Blanding, Utah. Mr. Ricardo Soto, Principal

Deputy Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Department of

Education, appeared for the Department.

Points of agreement among most of the teachers were that disciplinary problems were greatly

reduced among all students by attention to appropriate levels of difficulty in instructional

materials, sensitivity to individual students and their backgrounds, parental involvement and

support, and effective leadership by a school principal. Most, but not all of the teachers
Executive Summary 2

reported no effort by school administrators to interfere with classroom discipline, but some

reported onerous procedural and paperwork burdens before any disruptive student could be

removed from class.

Points of agreement among the school administrators were the importance of the following:

telling students what the rules are; why the school has those rules, what the consequences are

for violating those rules, and being consistent in applying the rules. Also effective in their

view was maintaining an approach that sought ways to change the school to better meet the

needs of the students, rather than inflexibly following a pre-set view or imposing zerotolerance rules that students knew produced unfair results; training teachers in understanding

different cultures and personalities; devising special programs for behaviorally high-risk

students; instituting parent engagement and education programs; and/or adopting one of

several nationally-tested behavior management programs that had reduced disparities and

overall expulsions in other districts.

Two of the speakers (Dr. Wright, San Juan, Utah and Dr. Martin, Rochester, Minnesota)

were administrators from districts currently under investigation by the U.S. Department of

Education’s Office for Civil Rights for possible violations under the new discipline initiative.

Dr. Wright’s district uses nationally-tested behavioral support programs mentioned by other

speakers, expanded the role for guidance counselors, and instituted a student support system;

Dr. Martin’s district uses some of the same techniques and nationally-tested programs

discussed in the briefing.

Mr. Soto of the U.S. Department of Education’s Office for Civil Rights (OCR) provided an

overview the office’s work and mission, which is to ensure equal access to education through

vigorous enforcement of civil rights. Mr. Soto stated that OCR’s disparate impact initiative

stemmed from data showing a sharp increase in the numbers of students nationwide who

were suspended or expelled, which OCR views as an indication of possible violations of Title

VI of the Civil Rights Act of 1964 and addresses using both disparate treatment and disparate

impact theories.
Summary of Proceedings: Panel 1 – Teachers 3

Summary of Proceedings

Panel 1. Teachers

Allen Zollman

Mr. Zollman teaches English as a second language in an urban school to students in fifth

through eighth grades, and also remedial reading and math courses. The student body is

multi-ethnic.

He described his teaching methods developed over the years that blend instruction and

pacing, and have reduced disciplinary problems in his classes. He remarked that accurate

pacing and attention to the appropriate difficulty level of instructional material result in many

fewer behavior problems, many of which result from boredom with already-learned material

or frustration at being presented with material that is too difficult. He testified that he has

never been told to take into account disparate impact on racial groups in his disciplinary

referrals, but if he were, he would have three choices: one, to disregard the directive; two, to

comply and live with the resulting chaos; or three, to stop teaching in a public school.

Mr. Zollman stated that on those occasions calling for a student’s removal from his class

(termed a “referral”), the school’s disciplinary procedures require that a teacher fill out a

two-page form to document the offenses and even so, do not allow removal until the third

infraction. Mr. Zollman testified that on those occasions such procedures resulted in extended

disruptions, particularly since those students (regardless of ethnicity) know of such policies,

take advantage of them to continue their disruptions, and sometimes encourage students to

join in the disruptions who would not otherwise do so. He read aloud excerpts of interactions

that he has set down in writing with students who know well that they may not be removed

immediately. The result on those occasions, according to Mr. Zollman, is that 29 other

children (the remainder of the class) are prevented from learning, which he believed had the

greater disparate impact.

Andrea Smith

Ms. Smith is a sixth-grade mathematics teacher at E.L. Haynes Public Charter School in

Washington, D.C., which has 600 students in grades Pre-Kindergarten through 8th grade. The

student body is 54 percent black, 25 percent Hispanic, 18 percent white, and 3 percent Asian.

62 percent of the students qualify for free or reduced lunch under federal guidelines, and 21

percent are English-language learners.

She told the Commission that data drawn from the school showed that black males and also

special-needs students were disproportionately suspended, but that suspension was not

effective in eliciting better behavior since the same students were repeatedly suspended. The
4 School Discipline and Disparate Impact

school developed a tracking system that gave the teachers suspension data from their classes

on a weekly basis to help get at the causes of disciplinary problems, and developed a

program called “relational trust” to help students understand that their teachers are being fair

when they hold them to high standards in a caring way. The school staff has also participated

in race and equity in education seminars to discuss racial inequities in the school, and to help

the teachers confront any inequities in teaching and school structure.

Ms. Smith related her work experience at other schools, choosing in one case to leave a tightdiscipline school where student/teacher/parent relationships were strained by race, and in

another leaving a school with lax discipline. Although she had not formed conclusions as to

solutions, she did not believe that discipline problems were the result of single-parent

families or deeply ingrained behavior characteristics of any particular student.

Jamie Frank

Ms. Frank has been a teacher in public schools with widely differing economic and racial

characteristics in suburban Washington, D.C. for 11 years, ranging from 80 percent minority

schools to affluent school districts where over 80 percent of school parents were college

graduates. She related the pressure that she believes that teachers now experience to focus on

categories of students targeted as needing attention by laws such as the No Child Left Behind

Act, which sets up adequate yearly progress (AYP) standards for all students, but separates

them under major racial/ethnic headings for reporting purposes.

Her view was that this pressure affected discipline policies as well, and that in some school

districts teachers were ordered to reduce racially-disparate suspensions in spite of threatening

behaviors toward teachers involving weapons. For example, in her school teachers were

ordered to substitute a day of “exclusion” at home for what otherwise would have been a

suspension. Her view was that the schools felt pressured to pass some minority students

through high school regardless of how many days they did not appear for classes to keep

graduation numbers high for each racial group. She testified that reduced disciplinary

standards for some minority students stemmed from policies that prevented removals from

school and substituted “in-school intervention” that did not have to be reported as

suspensions.

Ms. Frank stated that she believes the causes of behavior infractions are socioeconomic, not

race-based, and include the failure of some students’ parents to support them in school

endeavors.

Louise Seng

Mrs. Seng taught for 34 years in an inner city school in Allentown, Pennsylvania, whose

approximately 900 students in grades six, seven and eight were comprised of approximately

90 percent minorities, of which half were Hispanic.
Summary of Proceedings: Panel 1 – Teachers 5

Mrs. Seng stated her commitment to racial equality and also her belief that her colleagues in

the school felt the same. Because of this commitment, she and her colleagues had stayed at

the school in preference to accepting jobs in wealthier schools. Her view was that racial and

ethnic minority students at her school were disciplined more frequently because they often

came from families that had not taught the sort of self-control necessary to thrive in school,

and moreover, where it was considered acceptable to solve problems with violence both at

home and at school. Some of these students lacked basic necessities such as regular bedtimes,

adequate sleep and nutritious meals, and either fell asleep in class or had trouble sitting still.

To address this, Mrs. Seng helped run a conflict resolution program that she believed was

successful in reducing disruptions. She stated that she was never asked by a school

administrator to reduce disparities in discipline rates across racial groups, but that such a

demand would have made it even harder for all students to learn, an unfortunate outcome.

Patrick Welsh

Mr. Welsh has taught English at T.C. Williams High School in Alexandria, Virginia since

1970, published a book, Tales Out of School, and written frequently on education and youth

culture for the Washington Post, USA Today, and the New York Times. He acknowledged

the controversial nature of discipline as it interacts with race, but gave his view that certain

students, chiefly African-Americans who bear the legacy of discrimination and are children

of unmarried teenage mothers, caused disproportionate amounts of disciplinary trouble in his

school. He pointed out that race was less an issue than what he termed an inter-generational

cycle of dysfunction involving poverty, unwed teen pregnancy, and absent fathers.

Mr. Welsh explained that the number of discipline violations in his school has varied a great

deal over the years depending largely on the skill of the principal. He stated that the solution

lies not in civil rights lawsuits, but in interventions by principals and teachers who are good

at dealing with students. He noted that his new school principal, Suzanne Maxey, who was

also a speaker at this briefing, has been successful in reducing disciplinary infractions

through her skill in dealing with students and her visibility throughout the school. By contrast

and prior to her tenure, there were two different principals over four years during which there

were frequent hallway fights that the unsuccessful principals avoided witnessing, with

predictable results.

His view is that even with reductions in disciplinary referrals, certain African-American

students will be disproportionate among that group due to the cycle of dysfunction in their

lives. He added that white administrators who want to move up the career ranks play it safe

by not disciplining adequately, which often results in white parents’ removal of their children

from those schools. Mr. Welsh believes the unfortunate result of the failure to discipline is

that kids who pay the price of chaotic schools are mostly black.

Discussion

Commissioner Kirsanow asked if disciplinary problems had increased over the last 25-30

years, and if so, to what did the panelists attribute the increase?
6 School Discipline and Disparate Impact

Mr. Welsh replied that disciplinary problems had ebbed and flowed depending on the

principal, since some principals has been afraid to confront them, and also he thought that

students were often distracted by their cell phones.

Commissioner Kirsanow then asked the panelists whether the disparity in discipline rates was

a result of racial discrimination or actually merited, and also whether Asian students

presented similar disciplinary problems relative to other minority students.

Ms. Frank responded that in one of her schools, Vietnamese students clashed with

Guatemalan gang members, but where there was a strong administrator conflicts were not

brought inside the school. Weak administrators, on the other hand, were afraid of disparity in

discipline rates being publicized in the Washington Post and declined to impose appropriate

discipline.

Mrs. Seng responded that in her experience, the discipline in her school was merited, and as

for discipline rates of other ethnic groups such as Asians, her view was that regardless of

ethnicity or race, children of new immigrants were not as frequently disciplined because they

came from families that worked hard and expected a lot from their children.

Commissioner Kirsanow asked the panelists what they thought would be the result of

pressure to relax disciplinary standards. Mrs. Seng and Mr. Welsh answered that it would be

negative. No panelists disagreed.

Commissioner Gaziano asked whether boys or girls were the most disruptive. Three panelists

thought girls were significantly more disruptive (Welsh, Seng and Frank).

Commissioner Castro asked whether the panelists had information on harsher punishment of

minorities as compared with white students for the same offense. Ms. Frank responded that in

fact, African-American students were treated more leniently with respect to truancy so the

school could avoid having to report disparities. Commissioner Castro then asked if the

panelists could determine whether a particular teacher or administrator was acting based on

racial discrimination. Mr. Welsh said he did not feel that he could, since in his experience,

some teachers simply did not know how to handle hyper-masculine black students and

unintentionally made things worse.

Commissioner Castro asked about “relational trust” that Ms. Smith had recounted. She

answered that like Mr. Welsh, she could not tell if a teacher was discriminatory, but that

some teachers were more successful with students of different races, a response echoed by

Mr. Zollman.

Commissioner Titus acknowledged the difficulties teachers face, and although disagreeing

with some of the statements by panelists, asked whether they had substantive policy

suggestions. Mrs. Seng suggested sending in researchers as substitute teachers for a week to

see for themselves what was happening. Mr. Welsh doubted that merely a bureaucratic memo

or teacher training could provide a solution. His response was that the curative process was

already going on, and involved continuously trying to find the best principals, better teachers,
Summary of Proceedings: Panel 1 – Teachers 7

and invited Commissioner Titus to substitute-teach in his school. Commissioner Titus

responded that she would be glad to come to the classroom, but wanted insights into how to

fix a systemic problem. Ms. Smith said that teacher training would be part of the solution,

since she had entered the teaching profession through the Teach for America program that

did not prepare her adequately. Mrs. Seng said that perhaps the effort should be directed

specifically to a local school district, since each area had different problems and one solution

would be unlikely to benefit all.

Commissioner Heriot asked for specific information, such as that given by Mr. Zollman, as

to what their procedures were for disciplining students; and Vice Chair Thernstrom added a

question asking to what degree they were confined by legal restrictions.

Ms. Frank said that in her school the administrators were told to reduce their suspension

numbers. As a result, they developed a euphemism --“in-school exclusion or intervention” --

which allowed the school to avoid reporting the data as suspensions. In addition, the teachers

had to fill out a form that required contacting a parent three times before disciplinary action

was possible, and that usually a minority student simply reappeared in school even if parents

did not respond. Student of parents who communicated with the school were more likely to

receive merely lunch detention.

Commissioner Kirsanow asked what the effect of retaining disruptive students was on the

learning experience, and Ms. Frank stated that it was “horrible.” She said that a lax discipline

policy meant that the usual punishment/reward system would not work, regardless of race.

Students with involved parents, on the other hand, usually made better decisions, again,

regardless of race.

Mr. Zollman added that his students tell him that they like the detentions, because they are a

haven of tranquility insulated from the mayhem in the school. Mrs. Seng agreed.

Commissioner Achtenberg observed that any indication of racial prejudice on the part of

schools or teachers would necessitate remedies. Mr. Zollman asked how such prejudice

would be measured, which Commissioner Achtenberg agreed was the difficulty in this area,

and one which the Department of Education was attempting to refine, perhaps inartfully. She

also observed that she would like to hear from scholars and other experts on this topic.

Vice Chair Thernstrom asked panelists to address Commissioner Kirsanow’s question about

any disparities in discipline between Asians and African-Americans or Latinos, whether

current laws impeded effective discipline, and the particular disciplinary problems of

students from chaotic home environments thwarting effective school remedies. Ms. Frank

answered that programs such as the KIPP boarding schools were very successful, but were

not replicable in large numbers. She also said that college-ready academic achievement and

disciplinary problems were connected, and it did not make sense to force all students onto the

same college path when technical or vocational programs might engage certain students

more. She suggested that students might find being paid for achieving high grades an

incentive. Vice Chair Thernstrom observed that panelists had not clarified what exactly
8 School Discipline and Disparate Impact

constituted disciplinary problems. Several panelists stated that disciplinary problems were

defined as major disruptions, not minor infractions such as eating in class.

***
Summary of Proceedings: Panel 2 – School Administrators 9

Panel 2. School Administrators

Suzanne Maxey

Ms. Maxey is the principal of T.C. Williams High School in Alexandria City, Virginia, and

won the Washington Post Distinguished Educational Leadership Award for Montgomery

County Public Schools. Ms. Maxey was also a teacher for fourteen years and a principal in

four schools in two states and three jurisdictions. She referred to her experience in widely

different educational and disciplinary systems as a basis for her comment that the formula for

successful discipline has not changed. She tells students 1) what the rules are, 2) why the

school has those rules, 3) what the consequences are for violating those rules; and requires

her administrators and teachers to be consistent in applying this formula.

Ms. Maxey distinguished certain violations of school rules that administrators have no choice

but to enforce, which include drugs, alcohol, weapons, and fighting. She then described a

very large category, chiefly insubordination, which she considered discretionary. Ms. Maxey

described an example of effective but humane discipline that occurred in her school

involving a student from a low-income family who became disruptive in class because his

week’s lunch money had been stolen. The student was removed from his classroom by the

teacher, but upon discovering the basis for his behavior, Ms. Maxey gave him $20 of her own

money (teachers often do this, she said), took him back to his teacher, and explained what

had happened. He apologized to the teacher, and was readmitted to class.

Ms. Maxey concluded her comments by noting that sometimes teachers do not cooperate

with humane discipline, or sometimes the infraction is so serious that it cannot be ignored,

but good teachers and administrators do impose discipline humanely.

Osvaldo Piedra

Dr. Osvaldo Piedra has taught for over twenty years in public elementary, middle and high

school, and is an assistant principal with East Lake High School in Pinellas County, Florida.

Dr. Piedra presented slides showing discipline policy development processes and also

discipline discrepancy statistics for his school. (His slides are included in his written

statement.)

Dr. Piedra’s slides displayed discipline disparity statistics that he stated were similar to

national-level statistics. These showed that Hispanics, African Americans, males generally,

and low-SES (socio-economic-status) students were referred (removed) disproportionally

compared to the general student body.

He stated that a desegregation lawsuit filed against his county in 1964 resulted in a court

order lifted in the year 2000 when the district achieved unitary status, and that the school has

attempted to close the achievement and discipline gaps between racial and ethnic groups. To

reach these goals, Pinellas County has developed, in conjunction with the University of
Summary of Proceedings: Panel 2 – School Administrators 10

South Florida, a behavior intervention system called “Problem Solving and Response to

Intervention” that informs students ahead of time what is expected of them, and teaches them

models of expected behavior. To assist with this program, the school has computer tracking

systems to determine attendance, tardy attendance, grades and related indicia, so that

appropriate services are targeted to students who need them.

Dr. Piedra stated that his school had successfully implemented a system that shifted its

approach to determining what in the school was not meeting the needs of students, instead of

finding which students were not complying with existing school requirements.

Joseph Oliveri

Mr. Joseph Oliveri is the former principal of the Alternative Learning Center and Director of

Alternative Education for the Austin Independent School District (AISD), serving students in

grades K-12, and co-chair of the Joint City of Austin/AISD Steering Committee on Gang

Activity.

Mr. Oliveri described his 11-year experience as head of six to nine schools (the exact number

varying with the year) to which students were removed, and stated that AISD has removed

African-American students at a rate greater than their representation in the total school

population, although the disparity has decreased over the years. The same disparity was

present for Hispanics, although less so; whites and Asians were removed at a rate lower than

their representation in the student population (the removal rate for Asians was far below).

Mr. Oliveri recommended that Commissioners review a 2010 report entitled, “Texas’

School-to-Prison Pipeline: School Expulsion: The Path from Lockout to Dropout”1 which

found disproportionate minority representation.

Mr. Oliveri told the Commissioners that the disparities were the result in some cases of

prejudice, in others, ignorance of cultural differences, zero-tolerance rules inequitably

applied between races, and removal for -- in his view -- minor infractions such as skipping

classes or truancy. He also stated that disparities in academic skills go with discipline

infractions, and recommended that potential solutions include using community resources

such as mental health and social service agencies, better teacher training, character education,

and use of programs such as Positive Behavior Support mentioned by other panelists.

Edward Gonzalez

Mr. Gonzalez is Associate Superintendent in charge of the Department of Prevention and

Intervention for the Fresno Unified School District, the 4th largest school district in

California. He is a five-time recipient of the Who’s Who Among America’s Teachers honor,

and was chosen as the inaugural National School Administrator of the Year by the School

Library Journal in 2003.

1

http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=380&Itemid

(accessed April 19, 2011).
11 School Discipline and Disparate Impact

Mr. Gonzalez presented his own research findings that looked at six disproportionately

disciplined subgroups in the Fresno District, which he stated has the highest concentration of

poverty in the country. In Fresno schools, African-Americans were referred for expulsion at a

rate three times their population numbers, as were special education, foster care, male and

middle school students. (Mr. Gonzalez’s slides are appended to his written submitted

statement). His slides showed that disparities had somewhat lessened for blacks, special

education, and male students, but rates for foster-care and middle school students had risen.

Middle school students in particular had difficulty adjusting to a new school with a teaching

structure consisting of many different teachers over a school day in place of just one,

resulting in a middle school discipline rate of 40 percent of all expulsion referrals.

He described a class he had instituted, called the Men’s Alliance for behaviorally high-risk

students (mainly African-American and Hispanic), that has reduced the number and length of

suspensions considerably, currently down 45 percent for number of suspensions. He is

planning to expand the program to more schools because of its success. By requiring teachers

to conform to procedural requirements, the school has reduced the number of expulsion

referrals by 20 percent and actual expulsions by 40 percent. Mr. Gonzalez also drew attention

to the disparately low percentages of Hispanics and African-Americans placed in gifted and

talented classes (fewer than 2.5 percent).

As did Ms. Maxey, Mr. Gonzalez emphasized the importance of developing personal

relationships with students. He implements this by talking individually with students in

school; by visiting the barrio, housing projects and alternative placement schools; and by

recognition of students as individuals whether he sees them in school or in their homes.

Discussion

Commissioner (now Chairman) Castro asked for Latino expulsion statistics. Mr. Gonzalez

said that Latinos make up about 63 percent of the district, but have lower referral rates of 58

percent. He added that if African-Americans were removed from the totals, Latinos would

make up a disproportionately high portion of referrals. Commissioner Castro asked Mr.

Gonzalez to comment on a National Council of La Raza report on disparities in incarceration

that showed that Latino youth in the prison system are punished more harshly that white

students, and also an earlier report by the Campaign for Youth Justice showing the same

results for African-American youth. Mr. Oliveri agreed with Commissioner Castro that

patterns in this country have not changed, and that we need to learn more in order to have a

better understanding of other cultures and expectations.

Ms. Maxey added that school expectations of good behavior were skewed in favor of what

was easy for girls, so that boys or students who were more physically active had a hard time

conforming. Also, she agreed with studies showing that personal relationships are much more

important for Latino and African American students, and that some teachers were unable to

adjust to this. Dr. Piedra stated that cultural and language differences of minority parents

resulted in their failure to understand and take advantage of the appeal process after the

imposition of discipline, and in their difficulties resulting from the absence of bilingual
Summary of Proceedings: Panel 2 – School Administrators 12

administrators or bilingual translations. Also problematic for such parents were the

inconvenient hours during which administrators are available.

Commissioner Castro asked whether any of the panelists could offer effective discipline

alternatives that did not have a racially adverse impact. Mr. Gonzalez stated that it was very

important to understand students’ cultures, which would require teacher training and

recruitment of teachers of color. Ms. Maxey pointed out as an example of differences that

non-white parents did not write excuses for student absences, for reasons perhaps relating to

comprehension or multiple jobs. Mr. Oliveri said that existing policies were the best that

could be devised and that over time the numbers would improve.

Commissioner Kirsanow asked Ms. Maxey to expand on her remarks. She stated that the

disparities were a result of black and Hispanic kids being more physically active, needing

more personal interaction with teachers, having dysfunctional families, and even trying to

function when they knew their parents were illegally in this country and had no social

security numbers that would allow them to go to community colleges. Commissioner

Kirsanow followed up his question by asking how she explained the good behavior of kids

who had the same negative influences. She observed that in those circumstances there was

usually a factor such as a strong mother or father in the home who did make the effort to

meet with administrators or teachers, or even teachers who informally took responsibility for

kids by buying their clothes and lunches. For example, she said her football coach provides

his kids free breakfasts in addition to the federal lunch program; coaches them after school;

cooks them dinner and oversees a study hall until 8 pm. That approach has generally resulted

in higher grades among his students.

Commissioner Kirsanow asked if there were statistics on differences in discipline handed out

by teachers to students of a race different from that of the teacher. Mr. Gonzalez replied that

he had not seen such data; Ms. Maxey and Dr. Piedra both said they had. Dr. Piedra stated

that data from his school showed that white teachers were likelier to impose discipline for

offenses that minority teachers would not punish. Ms. Maxey disagreed that it was clear-cut

as to race, instead observing that it was more likely due to the age of the teachers, or whether

they had been trained in European school traditions [that expected obedience to teachers].

Mr. Gonzalez stated that there were many factors that should be considered as leading to the

dysfunction that he witnessed -- many of them historical, such as the legacy of slavery and

discrimination.

Commissioner Heriot asked whether the panelists make it a practice to investigate the facts

before making a decision by speaking to a teacher who has recommended discipline. Ms.

Maxey replied that, ideally, she would do so in addition to speaking with the parents and the

student. Time pressures, however, sometimes prevented it, often with unfortunate results.

Commissioner Heriot asked Mr. Oliveri how he determined that a teacher was meting out

discipline inappropriately by race. Mr. Oliveri answered that he did as much investigating as

he could, and counseled the teacher if necessary. He noted that after adoption of the behavior

support program, they had a systematic way to help teachers work with diverse populations.

Commissioner Heriot asked how to find such data; Dr. Piedra answered that his school
13 School Discipline and Disparate Impact

district housed that information in a central database. Ms. Maxey responded that they did not

keep such data. Mr. Gonzalez offered two suggestions for obtaining data: Dr. Robert Horner

at the University of Oregon who has developed the School-Wide Information System, and

Randy Sprick who developed “Safe and Civil Schools Training” at www.

safeanddrugfreeschools.org. Mr. Oliveri stated that his school district, Austin Independent

School District, also uses the Safe and Civil Schools Training.

Commissioner Titus referred to panelist comments about mental health services and the

DREAM2 Act as important, and asked about how schools are helping special-needs students,

whose challenges are different from some of the problems addressed so far. Mr. Gonzalez

answered that special education students in some districts are 90 percent male, and African

American special education students are particularly numerous in disciplinary actions. Ms.

Maxey stated that from the point of view of a special education student, school is particularly

difficult in that it forces them to do what they are not easily able to do. Mr. Gonzalez

responded that alternate options such as wood shop, metal shop, engines and other such

classes have been removed because of high-stakes testing, resulting in charter schools’

emergence to provide such classes. In his district, they have lost 11,000 students in the last

eight years, in his view, because of the lack of viable options.

Ms. Maxey observed that the No Child Left Behind law has forced schools to address every

subgroup of students, which is good, but has damaged the elective programs, such as

vocational programs that do not figure into preparation for standardized tests. She stated that

there are specialized vocational schools, but in her experience, kids do not want to leave their

friends behind. Dr. Piedra agreed that electives had been negatively affected by the law.

Commissioner Gaziano began his questioning by observing that the impact of not enough

discipline meant that education was disrupted, and asked if there was some way to measure

such disruption. Ms. Maxey responded that the result was measured in fights breaking out,

not data. Mr. Gonzalez stated that another way of measuring is to look at declining

enrollment. Commissioner Gaziano observed that the decline might be for other reasons. Ms.

Maxey stated that in her view, education is an art, not a science, and that good teachers and

administrators should be used as models for others. She also pointed out that at her school the

administrators are balanced by race, sex and age, which was important.

Commissioner Achtenberg posed a hypothetical in which data showed punishment of black

students at disproportionately high levels, whereas white students were treated more

leniently. In that situation, she asked how panelists would change their discipline practices.

Ms. Maxey replied that she would talk individually to the teacher responsible for the

disparity. Mr. Oliveri said that he would first observe the class and then point out to a teacher

that he or she dealt with students differently by race.

Vice Chair Thernstrom observed that there was data on black teachers versus white teachers’

discipline practices that showed that black teachers are even tougher on black kids than white

teachers are. Also, the Vice Chair said that too many principals stay behind closed doors

2

See http://durbin.senate.gov/public/index.cfm/files/serve?File_id=d15181fd-e37b-4ad6-9ca3-c5b2850c140c

(accessed May 23, 2011).
Summary of Proceedings: Panel 2 – School Administrators 14

instead of walking into classrooms and hallways to learn what is going on. She noted that

whether or not some kids are more physically active, they will still have to go out into the

world to work or go on to higher education where there are expectations about behavior that

they will have to meet. For example KIPP schools,3although a success, are so demanding of

teachers that they are not a model that can be scaled up nationally. Ms. Maxey responded that

once she imposed strict discipline about small things, like hats and earphones, she found that

major infractions lessened.

***

3

See http://www.kipp.org. (accessed Sept. 26, 2011).
15 School Discipline and Disparate Impact

Panel 3. U.S. Department of Education Official and School

Administrators

Ricardo Soto

Mr. Ricardo Soto, Principal Deputy Assistant Secretary in the Office for Civil Rights (OCR

or OCR/ED) in the Department of Education (ED or Department) told commissioners that he

had represented school districts on education issues including discipline policies and student

removals before coming to OCR and thus understood schools’ point of view. He provided an

overview of OCR’s work and mission, which is to ensure equal access to education and to

promote educational excellence through vigorous enforcement of civil rights. Although OCR

enforces civil rights laws that prohibit discrimination on the basis of race, color, national

origin, sex, age, and disability, he focused on Title VI of the Civil Rights Act of 1964, which

prohibits discrimination on the basis of race, color or national origin. Title VI extends to all

state education agencies, public K12 schools, public colleges and universities, and

vocational, proprietary, and rehabilitation schools or agencies, plus libraries and museums

receiving federal funding from the U.S. Department of Education.

OCR investigates and resolves discrimination complaints filed by anyone on behalf of those

covered under its civil rights acts, and may also initiate compliance reviews, which involve

more than one school, if OCR finds problems that are particularly acute or widespread. OCR

also issues policy guidance and technical assistance to schools to promote voluntary

compliance. It has twelve regional offices around the country with approximately 600

lawyers, investigators and other staff who have considerable expertise in resolving these

issues. He noted that Secretary Duncan gave a speech in March 2010 announcing a

reinvigorated OCR that would strive to make Dr. King’s dream of a colorblind society a

reality.

Mr. Soto related data gathered by OCR/ED showing almost 250,000 more suspended

students nationwide than just four years earlier, and a 15 percent rise in expelled students. He

stated that OCR viewed these data as an indication of disparate results for minorities that

caused harms such as school dropouts, incarceration, and lessened employment and college

opportunities. OCR also viewed these data as possibly indicating discrimination in violation

of the civil rights laws.

He declined to discuss open cases, but offered an explanation of their legal theories

governing OCR’s enforcement efforts with regard to student discipline. First, he stated that

Title VI requires school disciplinary policies and practices to be consistently applied to

students regardless of race. He stated also that OCR’s Title VI regulations prohibit both

intentional discriminatory treatment on the basis of race, color or national origin and

disparate impact results produced by facially neutral practices or policies for which a school

cannot show a substantial legitimate educational justification or the absence of equally

effective alternative policies.4 OCR does not require for a finding of discrimination that a

4 Mr. Soto cited 34 C.F.R. Section 100.
Summary of Proceedings: Panel 3 – Dept. of Education Official and School Administrators 16

school have the intent to discriminate, but that “the evidence establishes that a facially

neutral discipline policy, practice, or procedure causes a significant disproportionate racial

impact and lacks a substantial legitimate educational justification.”5

Mr. Soto explained further by stating that “even if there is a substantial legitimate

educational justification, a violation may still be established under disparate impact if the

evidence establishes that there are equally effective alternative policies, practices, or

procedures that would achieve the school’s educational goals while having a less significant

adverse impact.”6

He concluded his remarks by stating that the “answer to an equal, unfair, or ineffective

student discipline ... is not to abandon discipline”7or use a single approach for all schools or

students, but to impose discipline in a non-discriminatory manner. He stated that OCR is

using all its tools to help bring this about and is committed to ensuring that all students

receive the best education possible, but he views the increasing numbers of disciplinary

sanctions for subjective offenses as an indication that rules are not imposed fairly.

Hardy Murphy

Dr. Murphy is Superintendent of School District 65, a K-8 district serving approximately

7,000 students in Evanston, Illinois. He described his district as 40 percent white, almost 30

percent African-American, 15 percent Hispanic, and the remainder Asian and others. Of the

African-American students, about 75 percent receive free and reduced lunch benefits. Of the

Hispanic students, about 80 percent receive free and reduced lunch benefits; virtually no

white students receive free or reduced cost lunches.

Dr. Murphy remarked that his district, like many others, faces disparities in educational

outcomes but has won many awards for innovative programs that address these disparities.

Other achievements are the extension of the school day through the teacher negotiation

process, the institution of a behavior management system, programs to keep students in

school, parent engagement and education programs, and sensitivity training for faculty and

staff.

Dr. Murphy described his new teacher appraisal system that tracks individual student

academic growth, and triggers discussions if goals are not met. He does not consider either

being on free and reduced lunch or having problems at home extenuating circumstances, for

example. He stated that a considerable body of research shows that high expectations are

critical for each student, but that teacher understanding of a student’s cultural history helps

considerably by looking at each child positively. As a result, children are more likely to see

classroom experiences as supportive and caring, rather than alienating, which helps to steer

them away from rejection of school and the larger society. Aberrant behavior then becomes a

less practical choice for students and disengagement a less desirable choice for their parents.

5 Briefing Transcript at 136, February 11, 2011.

6

Id.

7

Id.
17 School Discipline and Disparate Impact

He concluded by saying that his district has created a program in which students who would

otherwise be suspended are invited with their parents to come into school and get a day of

counseling with administrators and teachers, and that this program has succeeded in reducing

the number of suspensions.

Hertica Martin

Dr. Hertica Martin is Executive Director for Elementary and Secondary Education in

Rochester Public Schools, Minnesota. She noted that the Rochester Public School District is

one of the five school districts under investigation by the Office for Civil Rights in the

Department of Education.

Her schools have been under reform for the last four years, following a report showing an

over-representation of African American males expelled from school, as shown in the

statistics she provided to the Commission.8The statistics also showed that 29 percent of

those suspended were students with disabilities and most of those were black males. The

district developed a five-year plan to address the disparities, which included initiatives on

efficacy, equity, core strengthening, interventions, and positive behavior/intervention

supports (PBIS). Other programs include training on the “role of whiteness;” impact of race

on learning; “courageous conversations about race;” culturally relevant classrooms; jobembedded coaching; crisis intervention; efficacy for parents, students and staff; and

mentorship for students.

She said that PBIS teaches how to promote appropriate behavior in all students to reduce

disparities, and that PBIS strategies have resulted in a decrease of 363 suspensions and

expulsions over two school years, although disparities remain. The district remains

concerned about the disparities. Dr. Martin gave an example of what not to do: singling out

misbehaving students for humiliation or exclusion, because it results in an escalation of

punishment and denies students the opportunity to learn.

Douglas Wright

Dr. Douglas Wright is Superintendent of Schools for the San Juan School District, Blanding,

Utah. His district is also one of five currently under investigation by OCR/ED. He described

his district in the southeast corner of Utah as very rural and geographically very large, unlike

the other districts represented at the Commission briefing. Due to the approximately 8,000

square-mile-size of his district, it faces unique challenges, such as 2900 students in 12

schools, 52 percent of whom are American Indian chiefly from the Navajo Reservation, but

also including students from two other sovereign Indian tribes. All of these tribes govern

under individual treaties between each tribe and the United States, adding further

administrative complexities. In response, the district has provided training to teachers to help

them become more culturally sensitive, has developed a Navajo language curriculum, and

8 Appended to her written statement, below.
Summary of Proceedings: Panel 3 – Dept. of Education Official and School Administrators 18

helped students to recognize the value of their culture and experiences while fitting into the

larger culture as a whole.

His district has put into effect disciplinary policies and practices that address behavior in the

least oppressive manner possible to protect students and maintain an effective learning

environment. The district uses the PBIS program mentioned by other briefing speakers, and

is also implementing the OLWES Bullying Prevention Program, which together with an

expanded role for guidance counselors in their elementary schools will address discipline

disparities in their system. The hiring of elementary school counselors was the result of

receiving a grant from the Department of Education that will not be renewed due to changes

in grant application rules. Dr. Wright observed that his district would like to see more money

funneled into that program and less into investigations that don’t provide direct services to

students.

Dr. Wright stated that in general, evidence shows that building a system of support rather

than discipline helps students succeed. He remarked that previous speakers had described the

role of principal as more of a counselor, which he agreed was more important than

disciplinary actions.

In answer to the question posed by the Commission’s letter9asking how schools had changed

their policies in response to OCR/ED disparate impact initiative, he stated that his district

reviews its policies and procedures on a regular basis to stay current with best practices and

in compliance with changing laws and regulations. Specifically, his district created a

hierarchy of disciplinary actions that distinguished serious from less serious offenses while

complying with the Safe and Drug-Free Schools and Communities Act of 1994’s zerotolerance policies. The district has also implemented some agreements with the Navajo

Nation to provide school resource counselors, although that has at times created problems

stemming from harsher discipline.

Discussion

Commissioner Gaziano stated his concern with OCR’s interpretation of Title VI as

authorizing disparate impact-based enforcement, noting that several justices in Alexander v.

Sandoval in dicta10 viewed disparate impact regulations as problematic. Aside from such

concerns, however, Commissioner Gaziano stated that OCR could have chosen not to use

disparate impact, since such enforcement created a very heavy burden on schools to justify

disparities in the absence of evidence of actual discrimination. He posited a hypothetical

situation in which fears of OCR enforcement would pressure a teacher to impose less

discipline than justified on one group, resulting in unequal treatment of, or intentional

discrimination against other students, and asking Mr. Soto how this impact would be

measured. Mr. Soto answered that his office did look at racial disparities, but actually

conducted both kinds of investigations, meaning different treatment and disparate impact,

and on occasion did find disparate treatment in discretionary offenses.

9 The letter is reproduced in the Appendix, below.

10 Alexander v. Sandoval, 532 U.S. 275 at 285, 286 (2001).
19 School Discipline and Disparate Impact

Commissioner Gaziano asked specifically what OCR would do if it found that a teacher was

not sufficiently disciplining a student because he or she wanted to get racially equivalent

results that would placate OCR; Mr. Soto responded that no one was suggesting that

discipline should be based on disparate impact theory, just that the district should fairly

implement disciplinary policies and procedures, regardless of race, national origin or color.

Commissioner Gaziano stated that any disparate impact-based enforcement would trigger a

heavy burden on schools. Commissioner Gaziano asserted that Mr. Soto’s written statement

mandated that a school meet this heavy burden of justifying their disparate results, rather

than OCR bearing the burden of showing that the school’s actions were in violation of Title

VI. The Commissioner stated that OCR’s policies in fact created a double burden on schools

by requiring not only an affirmative showing that disparities were the result of fair

procedures but an affirmative showing that there was no equally effective alternative

disciplinary policy that resulted in fewer disparities.

Mr. Soto answered that in OCR’s investigations, disparate results data are used to raise the

issue of a Title VI violation, but that OCR then examines the data for different treatment,

which is typically where it finds a possible violation. At that point OCR again goes back to

whether there is disparate impact.

Commissioner Castro referred to the comments questioning the ultra vires nature of disparate

impact regulations by some justices in the Sandoval majority11 as nonbinding dicta, with

which Commissioner Gaziano agreed. Commissioner Castro then called attention to Mr.

Zollman’s written statement and oral remarks, which posited a conundrum in which a school

had two different disciplinary standards; one in which discipline was imposed entirely based

on equitable treatment for those violations involving serious or criminal offenses; the other

based on disparate impact data and thus sensitive to the race of the violator for those

infractions involving minor offenses. Commissioner Castro asked Mr. Soto if that was what

OCR was advocating. Mr. Soto responded emphatically that OCR was not advocating such a

policy, but in its investigations did find unequal treatment in the imposition of discipline for

lesser, or discretionary violations. In such cases, OCR then attempted to ensure that all

procedures available to some students would be available to all students at all times, and

entered into resolutions with schools that addressed these concerns. Mr. Soto stated that he

applauded the work that other speakers were doing, and acknowledged the sensitivity of the

issues.

Commissioner Castro drew attention to a report by the Commission’s Florida State Advisory

Committee on school discipline that he valued greatly, and recommended that relevant work

of the Commission’s state advisory committees (SACs) be included in the Commissioners’

briefing books in the future. He stated that the Florida SAC report12 found that there was a

pathway to prison in the Duval County schools resulting from suspensions and expulsions

that made it more likely that disciplined students, many of whom were African-American,

would drop out and be at higher risk of incarceration. Commissioner Castro also noted that

the Florida SAC report asserted that school discipline data in that state showed increased

11 The transcript shows the word “dissents” but is likely a typographical error, since the comments were made in

the majority opinion in that case.

12 The report is available from the USCCR’s Robert S. Rankin Memorial Library.
Summary of Proceedings: Panel 3 – Dept. of Education Official and School Administrators 20

disproportion, and also that school behavior codes were written at a comprehension level

beyond that of most students. The SAC’s recommendations were that the Duval County

school board examine the effectiveness of expulsions and zero-tolerance policies, institute

initiatives such as Positive Behavior Supports to replace existing programs, and rewrite the

school code to make it understandable for students at sixth or seventh grade reading levels.

He invited panelists to comment on these proposals.

Dr. Martin said that she had no disagreement with them, but that she recommended

examining why students misbehaved at certain times or in certain teachers’ classrooms, and

whether the misbehavior was due to boredom or being targeted unfairly by a teacher. She

also recommended that teachers be prepared to deal with diverse populations and deal with

each student individually.

Dr. Wright stated that he agreed that providing social support to students, not just discipline,

was key, but that schools needed help from other social service providers. Dr. Murphy

agreed, also pointing to the seminal case of Brown v. Board of Education13 as the beginning

of racial disparities, such as in special education, and stating that those incarcerated are also

disproportionate in disabilities. He praised efforts like the Harlem Children’s Zone14as

models for public education. Commissioner Castro asked that the Florida SAC report be

made part of the public record of the briefing and also any other SAC reports that were

relevant. He also noted that multiple factors appeared to be causative, including poverty, and

asked Dr. Wright to comment.

Dr. Wright answered that poverty was a factor, but in his district (including a portion of the

Navajo Reservation) the long distances that some students had to travel to school were also a

factor. Other factors included, for example, students sent to live with grandmothers or other

relatives unfamiliar with the school system or even students living with parents who had been

separated from their own families very early in life in Bureau of Indian Affairs boarding

schools. He stated that his district was fortunate in having Navajos comprise 25% of the

teaching staff to serve as role models, but more were needed.

Dr. Martin stated that poverty does not affect expectations for learning, pointing to her own

experience coming from a single parent home, and that even in schools that had 90 percent

poverty levels students learned successfully. She recommended studying the successes of

such schools and replicating those strategies. Dr. Martin added that there may be many

reasons for misbehavior that have nothing to do with race.

Commissioner Kirsanow noted that Title VI is different from Title VII, remarking that

disparate impact theory in Title VII serves to ferret out disguised intentional discrimination

that some civil plaintiffs would not have the resources to substantiate through pretrial

discovery. He observed that education civil rights enforcement does not need disparate

impact theory because both schools and OCR have access to data. He asked Mr. Soto what

data OCR currently has showing the effectiveness of OCR’s resolutions in this area. Mr. Soto

answered that OCR does not have such data, but that OCR monitors a district after entering

13 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

14 See http://www.hcz.org (accessed May 17, 2011).
21 School Discipline and Disparate Impact

into a resolution agreement to make sure that the agreement addresses the violations OCR

found. He reiterated that OCR uses both theories in its investigations under Title VI, but that

most cases involve disparate treatment. He added that Assistant Secretary Ali was previously

with the Education Trust in California that collects a great deal of data, and intends to

improve OCR’s data collection to assist in researching these issues.

Commissioner Kirsanow asked Mr. Soto which party to his enforcement proceedings makes

the determination as to the nature of the remedy, or whether it was both OCR and the school

district. Mr. Soto affirmed that it was both.

Commissioner Achtenberg referred to her own experience running a Title VI compliance

group in the fair housing area that used disparate impact theory for help in devising a set of

best practices tailored to the individual case. She asked Mr. Soto how OCR devised specific

plans in their resolution agreements. Mr. Soto answered that he was very familiar with such

plans from his previous work representing school districts in OCR investigations. In his

view, such plans permitted the district to offer alternatives to remedies suggested by OCR,

and in fact allowed flexibility also at earlier stages of the investigation before OCR invoked a

more formal disciplinary process. He added that some districts appreciated OCR’s

identification of disciplinary practices that needed correction.

Commissioner Achtenberg seconded Commissioner Kirsanow’s point about measuring

results with data, which in her view would allay unfounded fears about the imposition of

political correctness for its own sake.

Commissioner Heriot asked for a description of how OCR conducts its individual case

investigations versus compliance reviews of multiple school districts, and whether

compliance reviews encompass more than just discipline.

Mr. Soto answered that compliance reviews do not just encompass one issue, and may be

brought pursuant to many of the statutes that OCR enforces, such as Title VI, Title IX,

Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities

Act. Typically, OCR’s field offices will look at data that is publicly available, including state

websites, and also at OCR’s civil rights data collection that is refreshed every two years.

Then OCR looks at county-wide or school district databases to determine if there is a concern

about the programs and policies of a particular school. Commissioner Heriot asked whether if

OCR found something worth investigating after looking at the data it would decide at that

point to open a compliance review; Mr. Soto answered that was correct. Commissioner

Heriot asked also what OCR’s procedures and approval processes were for opening such

reviews. Mr. Soto responded that the findings are reviewed in OCR headquarters in

Washington, often leading to requests for more information that include the visibility of the

issue in the community. Once that information is received, headquarters officials make a

decision, and the regional office then takes charge of the investigation.

Commissioner Heriot asked whether a recommendation to open an investigation targeted

certain issues such as discipline, or even indicated that discipline was not among the issues to

be examined. Mr. Soto answered that targeting was not always done and that although OCR
Summary of Proceedings: Panel 3 – Dept. of Education Official and School Administrators 22

had opened around 40 compliance reviews, only a very few involved discipline and all are

still open. Commissioner Heriot asked how long the compliance reviews usually take; Mr.

Soto answered that they can take from several months to years. For example, when Assistant

Secretary Ali came to OCR in May 2009 there were several reviews still open from 2007-

2008.

Commissioner Heriot asked whether Mr. Soto had furnished the Commission with the

identities of those school districts that were being investigated with compliance reviews,

since he could not comment on open investigations; he replied that he had done so.15

Commissioner Gaziano commented that he might formulate a letter to OCR, with input from

fellow commissioners. He asked whether OCR was able to collect data that showed that there

was not enough classroom discipline, and how OCR might make such determination based

just on data and documents. Mr. Soto answered that he would defer to his fellow panelists’

greater classroom experience for comments on that question. Dr. Murphy observed that in his

experience, classrooms where there was insufficient discipline would occasion a high number

of parent complaints (Vice Chair Thernstrom interjected that only some schools would show

this) and second, that absenteeism would increase where students would be afraid to come to

school, or if their parents would feel they were unsafe in coming to school.

Commissioner Kirsanow asked Drs. Murphy, Martin and Wright how much of their time was

spent on disciplinary problems. Dr. Murphy answered that it was a small amount because

most students with difficulties did not present disciplinary challenges. He acknowledged a

disproportionate number were African American, but even so were a very small percentage

of students. His view was that in his district most students were behaving well. Dr. Martin

agreed with Dr. Murphy; Dr. Wright commented that because his district had fewer

administrators compared to those of the other panelists he spent between five and ten percent

of his time on discipline.

Commissioner Castro asked if language barriers presented a problem for students in

understanding the codes of conduct. Dr. Wright agreed that this was a problem in his district,

because Navajo was not a written language until recently, and there were family literacy

problems with both Navajo and English language announcements the schools sent home with

students. Dr. Martin added that her district has bilingual specialists who help with

translations. Dr. Murphy’s district translates materials and sends out additional notices that

identify major infractions that will result in suspensions to help alert parents throughout the

year.

Vice Chair Thernstrom then thanked all the panelists for their participation and ended the

briefing.

***

15 See OCR written statement, below.
23 School Discipline and Disparate Impact

Speakers’ Written Statements

Panel 1 – Teachers

Allen Zollman

Remarks for the U. S. Commission on Civil Rights

Hearing on Disparate Impact

February 11, 2011

Good morning. My name is Allen Zollman. I teach English as a Second Language (ESL)

to students in grades five through eight, in an urban Pennsylvania middle school. My regular

classload consists of students from Southeast Asia, West Africa, the Middle East, the West

Indies, and Latin America. In addition to that, I also teach two remedial classes per day—in

reading and in math—to classes more closely representing a cross-section of the school’s

population, which is about 74% African-American, 15% Asian, 6% Latino, 3% white, and

2% ‘other’. Altogether the school has about 325 students, ages 10-14.

My school district has a general discipline policy spelling out a broad framework. There

are also district-level protocols for suspensions and transfers between schools, neither of

which I am involved with. Then each school has specific procedures on which the teachers

are briefed verbally and in writing. Teachers are told that the primary responsibility for

classroom management rests with them, which is normal and reasonable.

For me, discipline does not mean punishment. It means teaching young people to make

good decisions. It means creating the conditions where students will receive meaningful

consequences for behavior—good or bad. It’s a commonsensical notion. We arrive on time,

things run on schedule. We damage somebody’s property, we make restitution. We show off,

we get ‘time-out’. On a deeper level, discipline means providing the necessary order and

conditions for teaching and learning to be possible.

I seldom need to refer a student out for disciplinary support. This is not because my voice

is loud or my personality is forceful. It’s not even that I know a lot of classroom management

techniques, although I do know a few. It’s because generally I am able to keep the students

involved in learning with meaningful content and motivating tasks. It also helps that in my

role I can often control the difficulty level of the material and the pace of instruction. Under

these conditions my own behavior management techniques are usually sufficient for

maintaining order. But sometimes a teacher cannot control the pace of instruction, or the

difficulty level, or how engaging the material is. For example, some courses are scripted and

instruction proceeds in lockstep. For many students, the pace will be too slow and they will
Speakers’ Written Statements – Panel 1 24

become bored. Or the pace will be too fast or the tasks too difficult, and they will become

frustrated.

Some students tolerate boredom or frustration reasonably well, and others do not. When

the instructional task is not well-matched to the general performance level of the class, some

students may start acting out. But even when the instructional tasks are on the whole wellmatched to the level of the class, there will unavoidably be a few students at either end for

whom the material is a little too easy or a little too hard. And this is where they can get into

trouble and make bad choices.

What does it look like when this happens? Pencil tapping, drumming on the desk,

humming, calling out, chatting across the room, dancing in one’s seat, singing, choral

singing, exchanging insults in jest or in earnest, talking back to the teacher, use of profanity,

standing up and telling stories to the class, wandering around the classroom handling objects

or touching other students, leaning into the hall and addressing passers-by, engaging in

horseplay, play-fighting, and real fighting.

When a student disturbs the decorum and instructional progress of a class, is not

responding to requests or reminders, or generally has tried a teacher’s patience to the limit,

the teacher can call the office and request help. This is where the school’s disciplinary

procedures come into play. Before the student can be removed and placed in ‘time out’, the

teacher must prepare a disciplinary referral—what many of us used to call a ‘pink slip’. This

is a two-page form with space for three offenses—not just one—and a checklist of measures

taken by the teacher before issuing this referral. These measures include a private conference

with the student, a change of seat location, a lunch time or after-school detention, or a phone

call to a parent. Sometimes the foregoing strategies are effective, but often they are not. What

is important to note here is that in order to get a disciplinary referral for disruption in my

school, there must be three infractions and they must be documented in writing BEFORE the

student can be removed from the classroom.

I should digress and mention that there is a higher level of offense that receives immediate

attention from administrators and results in immediate removal of the student from the

classroom. Such offenses include possession of a weapon, possession of drugs or alcohol,

aggravated assault, and sexual assault. But for mere disruption, it is no simple thing to have a

student removed at the time of the disruptive behavior. This means that for extended periods

of time, it can happen that very little teaching and learning will take place in a given

classroom.

Acknowledging that my job is to keep students in the classroom and to teach them, let’s

suppose that I have recorded infractions of a particular student over time, and have pursued

the requisite measures: that is, spoken to the student, changed the student’s seat, called the

parent—I do not give detentions, they do not seem to improve behavior—and suppose now

that I have prepared a written disciplinary referral. Under our rules, that student may now be

removed and taken to the room designated for time-out, which we call in-house suspension.

The student may spend one period or more there, and then return to class. A further step may

be a hearing with an administrator, which could lead to an out-of-school suspension. But
25 School Discipline and Disparate Impact

suspensions do not seem to occur very often, and when they do, it seems that several teachers

had independently issued referrals and it all added up. Officially there is a follow-up process

associated with the referral, but in practice I generally do not learn whether a disciplinary

hearing took place, or if it did, what actions were taken. So I cannot comment on discipline

carried out beyond the classroom. I can report that each of the last five principals under

whom I have worked has spoken at faculty meetings of being under pressure from district

administrators to keep the number of suspensions down.

When I need administrative cooperation, I really do need it. Yet the need to build up a

case to refer a misbehaving student and then wait for action at a higher level leaves me

dealing with the problem myself for a while or, more often, persuades me to let things

continue as they are without issuing a referral, in other words, teach through chaos. Indeed,

because of behavior problems, there are times when very little teaching or learning takes

place.

In such an environment, students see few meaningful consequences for their actions, so

they not only continue to misbehave but the behaviors get more brazen, with more and more

students joining in the fun, until even the quote-unquote ‘good’ kids are acting out. They

often become cynical, reminding teachers that nothing will happen to them.

Here is an illustrative dialogue between me and an eighth grade girl who would not stop

talking over me:

Z: You have two choices: either stop talking or I will have you removed.

Girl: I’m going to torture you. I’m doing this because I can’t be removed. I CAN’T be

removed.

The foregoing example contradicts any notion that the student didn’t know what she was

doing or ‘didn’t know better’. The following interchange likewise shows self-awareness and

deliberateness. A boy and girl were involved in an escalating verbal dispute. (BLANK stands

for profanity.)

Z: Tom, if she threatens you, just let me know.

Girl: I just did threaten him. I’m going to smack the BLANK out of him. I’m going to

BLANK him up.

They know when they’re being aggressive, when they’re avoiding demands, when they’re

showing off. And they know when they’re preventing others from learning. They make these

choices—these bad choices. The less we are willing or able to respond, the more they will

control the classroom, the hallways, and the school.

The disciplinary framework, which exists to provide back-up support, strongly encourages

me to deal with problems at my own level. However I have never been told to make

disciplinary referrals with a thought to disparate impact. I am not aware of any change in

policy to this effect.
Speakers’ Written Statements – Panel 1 26

Were I directed to issue discipline referrals to students from different groups

proportionally, it would represent an even greater constraint on effective discipline. In such a

case, I can foresee one of three avenues to pursue:

A) Disregard the directive, refer students as I saw fit, and see what happens—but it would

probably annoy my superiors.

B) Do nothing and live with the chaos, understanding that there would be even more times

when little teaching and learning took place.

C) End my public school teaching career early and pursue other activities where there is

more control over the work situation.

Ultimately, each instance of misbehavior in the classroom is unique and requires a

customized response. It doesn’t matter what the ethnicity of the student is—if a child acts out

and creates a distraction, the other students will not learn. We are talking about disparate

impact. As a teacher, what is the greater disparate impact? When one student can say in

effect, “Cave in to my demands or I will shut you down—and there’s nothing you can do

about it”, then 29 other children will be prevented from learning. That is the greater disparate

impact. Thank you.

Additional comment: suppose we did discipline proportionally by ethnicity. We have

reached the maximum allowable number of referrals with group x for disruptive behaviors.

We will have to stop issuing referrals. Shall we likewise stop when we reached the maximum

number of referrals for serious offenses, like weapons possession, sexual assault, or physical

assault? If we say no—for these offenses there can be no withholding of discipline—then we

have two disciplinary standards, one for minor ‘disruptive’ offenses and another for serious

‘criminal’ ones. This would be an incoherent policy.

Andrea Smith

I am a sixth grade mathematics teacher at E.L. Haynes Public Charter School located in

Northwest Washington, D.C. E.L. Haynes serves 600 students, grades preK-8. Our student

body is 54% African-American, 25% Latino, 18% White, and 3% Asian. In addition, 62% of

Haynes students qualify for free or reduced lunch and 21% are English Language Learners.

Early on this school year, the teaching staff at my school was presented with disaggregated

school wide discipline data. Out-of-school suspension rates for the first quarter of the school

year broken down by race were included in the data. Teachers were asked to reflect with their

colleagues about what the data revealed. We drew several conclusions from that data in a

matter of minutes. First, we were suspending African-American males more than any other

subgroup. We were also suspending students with special needs more than other subgroups.

This meant as teachers we were referring and sending African-American males and students

with special needs out of class more than any other subgroup. Second, we weren’t effectively

engaging and connecting with all students in a way that resulted in equitable academic

outcomes, specifically African American males and special needs students. Finally,

suspension was not an effective consequence as evidenced by repeated suspensions. Recently
27 School Discipline and Disparate Impact

we have started using a new discipline inputting/tracking system at my school. This new

system does allow us to track and disaggregate discipline referrals and consequences on a

weekly basis. Using this data, grade level teams can address discipline trends and try to get at

the root of what is causing and perpetuating these trends.

I believe part of what is causing the disproportionality in student discipline referrals and

suspensions at our school, is what we call at Haynes, “relational trust.” One of the main

predictors of if a student will go to college is positive relationships with their teachers in

middle school. Discipline and relational trust are inextricably linked. In my experience, the

more a student trusts that I will be fair, and hold them to high standards in a firm, yet caring

way, the less discipline issues arise. Relational trust is not a science. Moreover, it plays out in

small ways that few outsiders would note as significant in a classroom. It’s the room to tell a

joke when a student is singing during a lesson instead of confronting the student with a more

abrasive redirection. It’s a greeting at the door, or a question about how Chewy the dog is

doing. It is recognizing what a student needs, even when they don’t know they need it, or

can’t articulate what they need. It’s listening to a student when they come to you with a

problem, or sitting them down to have a conversation just to check in.

One’s racial dispositions can influence relational trust. At my school I have been encouraged

to examine and question how my own racial dispositions affect my teaching and my students.

The E.L. Haynes staff has participated in Race and Equity in Education Seminars in which

we began the conversation about racial inequities in our school. In order to eliminate the

racial achievement gap, I believe we must commit ourselves to addressing racial inequities in

our teaching and school structures. We must face our own racial experiences, and recognize

what we contribute to the racial experiences of our students. As a white teacher, this is a

recognition that is not always easy to make, and is not always clear cut, specifically when it

comes to discipline. I often question if my discipline approach is perceived by a student as

being racially influenced, or creates a learning environment in which the student doesn’t feel

affirmed. I have questioned if I am the best person to be teaching the students in my

classroom.

Unfortunately, my experience has not led me to answers and solutions. It has led me to

conclude that race matters when it comes to student discipline and school culture. I have

chosen to not continue working at schools where I believed student-teacher-parent

relationships were strained in part by race, even though the school was known for having

tight discipline policies. I have also been disheartened working in schools with dismal

discipline and no vision for student success. My experience has also proven to me that

discipline issues in a school are not a result of some student’s not being able to behave or

single parent families. I do know that all students can learn and succeed if they are provided a

positive learning environment in which they are affirmed, challenged, supported, and held

accountable for their actions. In order to address the discipline challenges and

disproportionality of race in discipline referrals, educators must address the issue of race

head-on. We need educators and community members who are committed to having ongoing conversations that address our role in the disparities in student discipline and

achievement in our schools.
Speakers’ Written Statements – Panel 1 28

Jamie Frank

Personal Statement

For the past eleven years I have been a teacher in the suburban DC metro area. Over that time

I have seen significant changes both in the classroom and in the demands placed on teachers.

I have taught in highly diverse schools, where over 80% were minority students. I have also

taught in extremely affluent communities, with over 80% of parents having graduated from

college. These experiences have shown me there is great disparity in the way students are

treated, the expectations held for them, and the measures of success.

No longer can teachers focus on individual student success, we must focus on the

demographic makeup of students, and how they measure on standard-based assessments. We

disaggregate data, focus on students most in academic need, and pay special attention to

those sub-categories that we need to meet AYP. District and school-wide policies are made

to protect those numbers, and to ensure the best possible outcome for each school. Teachers

are taken to task when students are failing, misbehaving in their class, and performing below

the standards.

Expectations are placed on teachers to ensure that the numbers are met, thereby paying

specific focus on those sub-groups (i.e.: Hispanic, African-American, ESL, Special ED, etc.).

This disparity not only impacts the disciplining of these students but the day-to-day

classroom expectations for these students. Their ability to pass the course, the test, or

whatever the measure is for an individual class, teachers are under pressure to ensure that

students succeed. While this may sound like the obvious objective of all educators, the

problem lies in the focus on the test scores, and on the numbers.

Several years ago, I worked at a school that was told by Central Office Superintendents that

they had too many suspensions, and they must creatively discipline students. Specifically the

number of minority suspensions had to be closer to the percentage of the whole student body.

However, the students continued to behave harshly (knives in school, threatening teachers,

disruptive classroom behavior, etc.) and because of the concern over published suspension

numbers, the administrators allowed students to go home, and called it a day of exclusion.

These students would be back in the same classroom the next day. In this situation, the

school continues these practices, and since student graduation rates for minorities are

relatively high, minority students are given a pass when they act up.

I serve on a number of Civic Education boards, and I have heard similar concerns from

teachers around the country. School districts via administrators place huge burdens on

teachers to ensure the numbers allow for AYP; not only in academic achievement but with

attendance, graduation rates, and suspensions. Over the past 3 years, several counties in the

DC metro area have removed their loss of credit policy. The reason for this change has been

due to inequitable distribution of students losing credit for classes, resulting in a failure to

graduate on time, with the majority of students being minority. The purpose of the loss of

credit policy (generally when a student cuts class 5 or more times in a semester) reinforces

the need that students attend class. When attempting to eradicate truancy issues within the
29 School Discipline and Disparate Impact

County, it became apparent that the largest percentage of truancy cases being investigated

were for minority students. Once this was identified, fear of not being racially sensitive arose

and the policies were changes. Currently without the loss of credit, there is no penalty for

failing to attend classes.

Additionally, it is the policy that students are allowed to make up all of the work, re-teaching

and reassessing for the missed days must be done by the teachers, and students can receive

disciplinary actions by administrators if they choose to follow up. All absences whether

excused or unexcused are to be considered the same. The burden of truant students then falls

on the teachers. While statistical evidence shows that this policy was put into effect to ensure

that racial disparity cannot be found for students whom do not attend classes, student

attendance has been significantly impacted with its removal. This policy change was meant

to benefit minority students. At the same time, there has been a State-wide decision to

remove all In-School Suspension programs throughout the State of Maryland. Students

cannot be disciplined by being removed from class (denied their education), thus the policies

have been replaced by non-documented programs like In-school Inclusion or In School

Intervention, all essentially the same, but not listed as suspensions.

From my experience working with students all along the socioeconomic spectrum, I believe

that the real issue lies in the social and economic situation for students. The real issue of

student success, albeit attendance, discipline, or achievement, continues to be

socioeconomics.

Regardless of the race or ethnicity of a student it comes back to the parents, the economic

situation they are in, and the support they provide. In my experience, the focus on which

students get the attention, are disciplined the most, or have the least chance of success does

not reflect a racial divide, as much as an economic one.

I could go on and on of how the need to meet the numbers has affected education but I am

sure you will hear similar tales from many other teachers.

Louise Seng

My name is Louise Seng. I am a resident of Catasauqua, Pennsylvania, and I taught

eighth-grade social studies (Government and Law) at Harrison-Morton Middle School in

Allentown, Pennsylvania for thirty-four years. I retired in 2006. Approximately 900 sixth,

seventh, and eighth grades are enrolled at Harrison-Morton each year, 90% of whom are

racial and ethnic minorities. (The 90% figure includes Asian-American students.) A little

over 50% of the students at Harrison-Morton were Hispanic. The majority of Hispanic

students at Harrison-Morton were of Puerto Rican extraction, but there were also students

from a range of other Latin and South American backgrounds.

Discipline at Harrison Morton was a challenge. In the year before I retired, there were

50 students suspended for a total of 200 infractions -- just during the months before

Christmas.
Speakers’ Written Statements – Panel 1 30

Although I do not have exact data available, I believe that students from racial and

ethnic minority groups were disciplined more frequently than those from other backgrounds.

In my observation, racial prejudice or bias on the part of my fellow teachers or administrators

was not a cause of these disparities in discipline. As far as I was able to tell, all of my

colleagues were committed to racial equality and to equality of opportunity for our students.

Indeed, many of my colleagues chose to teach at Harrison-Morton over wealthier schools

because they were committed to helping students from poor backgrounds succeed against

often long odds.

In my opinion, racial and ethnic minority students were disciplined more frequently

because more of them came from families in which they had not learned the self-discipline

necessary to thrive at school. Some came from families where they observed violence at

home, and they therefore thought that it was acceptable to use violence to solve problems. It

was not terribly unusual, for example, for one student to throw a chair at another during the

middle of class because the second student made a nasty verbal comment. (While I was

usually able to prevent such scuffles from breaking out in my class, other teachers – whether

because of lack of experience or something else – sometimes had more trouble keeping

students in line.) I noticed also that some students came from homes where they weren’t

expected to do homework, or to be home by a certain time, or to go to bed by a certain hour.

Students who had been up or out late would sometimes fall asleep in class or would behave

disruptively simply because they were tired. Some seemed to eat poor diets outside of school,

and I believe that this might have contributed to hyperactive behavior in the classroom.

Getting students to stay focused and pay attention was a constant challenge. Many students

had trouble sitting still and paying attention – again, I suspect because they had not learned

these skills at home.

For several years, I helped run a program called Conflict Resolution that I believed

was effective in reducing discipline problems. My colleagues and I trained students to serve

as peer mediators. The trained peer mediators helped other students to resolve conflicts.

Though the peer mediation program was not always effective at deterring student-to-student

fights, it did prevent some fights from occurring.

During my years teaching, I was never approached by an administrator (or anyone

else) about reducing disparities in discipline. Because I am no longer teaching, I don’t know

exactly how my former school will respond to the new Department of Education initiative. I

do hope that the Obama initiative doesn’t lead to pressure on teachers at Harrison-Morton to

use less discipline. As I said above, maintaining discipline in a school like Harrison Morton

can be challenging. Lowering discipline standards could make it even harder for students

from all racial and ethnic groups to learn, which would be an unfortunate outcome indeed.

***
31 Speakers’ Written Statements – Panel 2

Panel 2 – School Administrators

Osvaldo Piedra

Dr. Osvaldo Piedra, Eastlake High School

The Pinellas County School District, Florida, has taken great steps forward to reduce learning

and discipline gaps among African American and non-African American students. Our

school district, through professional development, has trained teachers, administrators, and

other school personnel in the Response to Intervention (RtI) structure to reduce academic and

behavioral gaps between African American and Non African American students. Currently,

the school district is in its second year of implementing the RtI process through the School

Based Leadership Team (SBLT). Assisting the SBLT to develop strategies to reduce

achievement and behavioral gaps is a new computer data management system that allows

school personnel to track attendance, discipline and academic progress to detect areas of

concern. The SBLT implementing the RtI process develops strategies to help reduce

behavioral and academic gaps by providing the appropriate instructional service to struggling

students.

FloridaRtI.usf.edu

School Based Leadership Team

Big Ideas in PS/RtI

A collaborative project between the Florida Department of Education and the University of South Florida
Speakers’ Written Statements – Panel 2 32

Consensus Building:

Beliefs

• PS/RtI is a General Education Initiative-Not Special

Education

• Improving the effectiveness of core instruction is basic to

this process

• NO Child Left Behind Really Means “NO”

• Assessment (data) should both inform and evaluate the

impact of instruction

• Policies must be consistent with beliefs

• Beliefs must be supported by research

• How do you spell AYP?

Three Tiered Model of School Supports:

Example of an Infrastructure Resource

Inventory

Academic Systems Behavioral Systems

Tier 3: Comprehensive and Intensive

Interventions

Individual Students or Small Group

(2-3)

Reading: Scholastic Program,

Reading, Mastery, ALL, Soar to

Success, Leap Track, Foundations

Tier 2: Strategic Interventions

Students that don’t respond to

the core curriculum

Reading: REACH, Read 180,

CCC Lab Math: Extended

Day

Writing: Small Group, CRISS

strategies, and “Just Write

Narrative” by K. Robinson

Tier 1: Core Curriculum

All students

Reading: Houghton

Mifflin

Math: Harcourt

Writing: Six Traits Of

Writing

Learning Focus Strategies

Tier 3: Intensive Interventions

Individual Counseling

FBA/BIP

Teach, Reinforce, and Prevent (TRP)

Assessment-based

Intense, durable procedures

Tier 2: Targeted Group Interventions

Some students (at-risk)

Small Group Counseling

Check and Connect

Bullying Prevention Program

FBA/BIP Classroom Management

Techniques, Professional Development

Small Group Parent Training, Data

Tier 1: Universal Interventions

All settings, all students

Committee, Preventive, proactive strategies

School Wide Rules/ Expectations Positive

Reinforcement System (Tickets & 200

Club)

School Wide Consequence System School

Wide Social Skills Program, Data

(Discipline, Surveys, etc.) Professional

Development (behavior)

Classroom Management Techniques, Parent

Training
33 School Discipline and Disparate Impact

A Shift in Thinking

The central question is not:

“What about the students is causing the

performance discrepancy?”

but

“What about the interaction of the

curriculum, instruction, learners and

learning environment should be altered

so that the students will learn?”

This shift alters everything else Ken Howell
Speakers’ Written Statements – Panel 2 34

Step 1 - What’s the Problem?

In order to identify a problem, you’ve got to

start with three pieces of data

• Benchmark level of performance

• Student level of performance

• Peer level of performance

The problem is occurring because ________________.

If ____________ would occur, the problem would be reduced.

Goal: The development of hypotheses about probable

causes for the identified problem.

Assessments are then conducted to gather

information to determine which are most / least

likely

Prediction statement:

Step 2- Why is it occurring?
35 School Discipline and Disparate Impact

Step 3- What are we going to do

about it?

• Effective teaching strategies consider

both what to teach and how to teach it.

• Making good decisions will increase

student progress.

• It is critical that the instruction be

matched to the problem.

Howell & Nolet, 2000

Step 4- Is it working?

Goal

Classroom

Intervention

I

Making instructional decisions based on the review and analysis of student data

Progress monitoring always includes graphing

Progress Monitoring

Classroom

Intervention 2
Speakers’ Written Statements – Panel 2 36

Steps in the Problem-Solving

Process

1. PROBLEM IDENTIFICATION

• Identify target skill

• Data- current level of performance

• Data- benchmark level(s)

• Data- peer performance

• Data- GAP analysis

2. PROBLEM ANALYSIS

• Develop hypotheses( brainstorming)

• Develop predictions/assessment

3. INTERVENTION DEVELOPMENT

• Develop interventions in those areas for which data are available

and hypotheses verified

• Proximal/Distal

• Implementation support

4. RESPONSE TO INTERVENTION (RtI)

• Frequently collected data

• Type of Response- good, questionable, poor

Example- Behavior

• Current Level of Performance:

 Complies 35% of time

• Benchmark (set by teacher)

 75%

• Peer Performance

 40%

• GAP Analysis:

 Benchmark/Target Student 75/35= 2.1 X difference SIGNIFICANT GAP

 Benchmark/Peer 75/40= 1.9 X difference SIGNIFICANT GAP

 Peer/Target Student 40/35= 1.1 X difference NO SIGNIFICANT GAP

• Is behavior program effective?

• No, peers have significant gap from benchmark as well.
37 School Discipline and Disparate Impact

Referral Analysis

• 42% Noncompliance

• 30% OffTask/Inattention

• 12% Physical/Verbal

Aggression

• 6% Relational

Aggression

• 10% Bullying

0

5

10

15

20

25

30

35

40

45

1st Qtr 2nd

Qtr

3rd

Qtr

4th

Qtr

Noncompliance

Off Task

Aggression

Rel Aggression

Bullying

Building-Level Behavior

Data

% Building %Referred

Male 50% 80%

White 72% 54%

Hispanic 12% 20%

African American 15% 24%

Other 1% 2%

Low SES 25% 50%

Central Question: For which of

these groups is the discipline

plan inequitable?

0

10

20

30

40

50

60

70

80

90

Behavior Referral Analysis

Building

Referred
Speakers’ Written Statements – Panel 2 38

Final Thoughts

Problem Solving &

Response to Intervention

***
39 School Discipline and Disparate Impact

Joseph Oliveri

Hello, my name is Joseph P. Oliveri and I am a retired administrator from the Austin

Independent School District in Austin, Texas, a district of almost 80,000 students. My

official job title was Director of Alternative Education. I supervised and principaled six (6)

schools. These schools served over 9,000 students during a school year. Travis County

Juvenile Justice and I cooperatively administered two of these schools. Students gained entry

to these schools either by being arrested for offenses committed in the community (short term

lockup) or remanded by a judge (long term lockup). Another school treated alcohol and

substance offenders and was jointly administered by the Phoenix House program and me.

The three other schools were removal schools, DAEPs or Discipline Alternative Education

Programs, solely administered by me and covering all grades, an elementary, middle and

high school.

The focus of my response to you concerns my eleven years of experience with the three

removal schools. Austin ISD has removed African American students at a rate greater than

their representation in total population. This was true all throughout my years of work and

continues today although at lesser rates. Hispanics, who now represent over half of the total

school population, are removed at slightly above their representation in the total population.

Whites have always had removal rates below their representation. My focus is on what we in

Texas call “discretionary removals for serious or persistent misbehavior.” In almost all

offense categories, AAs and special education students lead in the total removals.

A Texas Appleseed report entitled: The Texas’ School-to-Prison Pipeline, School Expulsion:

The Path from Lockout to Dropout (April 2010) states as one of its conclusions:

Disproportionate representation of minority students in disciplinary referrals

has plagued schools since desegregation. Texas Appleseed’s research

supports earlier findings that show that African American students are most

often disciplined for low-level, “subjective” offenses like “serious or

persistent misbehavior.” The impact of disproportionate expulsion is of

grave concern given both the achievement gap for minority students and

their elevated dropout rates. If Texas is serious about addressing the

achievement gap and high dropout rates for minority students, it must take a

close look at the role that disproportionate disciplinary referrals play.

This disparity, in my experience is quite complex to explain. Is it prejudice? Yes, in some

cases it appears that it is. Is it based on ignorance of cultural differences? Yes, in some cases

it may be. Is it based on a strict adherence to “zero tolerance” regulations. Yes, I think it was

more so in the past than it is today, although this is certainly a factor.

I have experienced cases where a White student and an African American committed the

same offense at the same school and the AA was removed and the W student was permitted

to remain on the campus. It happened too often to not make one feel that it may be

symptomatic of other reasons behind the removal. And it contributes to the continued

disparate removal of AAs. The information sources of this apparent prejudice were from the
Speakers’ Written Statements – Panel 2 40

parents of the AA student removed as well as other administrators from the removal school

after I inquired about the removal details.

Another removal I have never understood is the removal of students to the DAEP for cutting

classes or skipping school. To me this is symptomatic of others problems best addressed

within the home school environment.

Disparities in academic abilities often go hand in hand with disparities in discipline. Many

AAs and Hs do come to school without the academic skill set that would put them on par

with their White peers. Sometimes class size and cultural unawareness cause some teachers

to react to their behaviors differently than they would if they were White. Taking the time to

learn about them and their cultural differences is a luxury many teachers feel they cannot

afford to take. So they do what they feel they are paid to do and maintain discipline by

removing the disruptive student.

The problem is that if we do not take other actions, often for this student the cycle repeats its

self over and over until feeling they have no other choice, they drop out of school.

In an earlier report by Texas Appleseed entitled The Texas’ School-to-Prison Pipeline,

Dropout to Incarceration: The Impact of School Discipline and Zero Tolerance (October

2007) states as one of its conclusions:

... Equally troubling are data-driven indicators that the greater predictor of

whether a student will be sent to a DAEP is where he or she attends

school— and not the nature of the offense. Add to this mix some districts’

practice of referring very young children to DAEPs, and it becomes all the

more imperative that, as a state, we assess how these policies contribute to

the “criminalization” of student misbehavior that is removing large numbers

of students from the classroom.

For too many juveniles, their disciplinary removals from school are an

introduction to the “school-to-prison pipeline.” Whether the focus is on

equity and fairness in the discipline process, or the link between discipline

and academic failure or dropout, the numbers reported here are of grave

concern. If Texas wants to meet its stated goals of reducing dropout,

eliminating the achievement gap between white and minority students, and

ensuring that its students are engaged and learning, better ways to maintain

safety and order in classrooms must be found.

Well, if a student does something that calls for their removal, shouldn’t they be removed? Do

we just ignore their behavior just because they are AA? Of course the answer is, “no.” But

we do need to take steps to make informed decisions about an incident, be open to intent and

self-defense as a plausible action, and work quickly to involve parents, even to the point of

formalizing agreements on acceptable school behavior between them, their child and the

school.
41 School Discipline and Disparate Impact

We need to expand our potential solution sources to include links to community mental

health and social service agencies.

We also need to be preemptive in addressing the needs of students who are at risk of

developing problematic behavior that impinge on school safety and learning opportunities for

all students and teachers in the classroom. We need to provide teachers with the specialized

training they need to work with students such as TESA (Teacher Expectations/Student

Achievement) and GESA (Gender/Ethnicity and Student Achievement) training. We need to

establish school-wide and District-wide practices and programs such as Positive Behavior

Support, Character Education and we need to establish means and methods that help students

to build relationships with peers and adults that will secure their future success.

(Note: I’m not sure I will include the following-JPO)

Inclosing, The Texas’ School-to-Prison Pipeline, Dropout to Incarceration: The Impact of

School Discipline and Zero Tolerance (October 2007) suggests a best practice model:

A Multi-layer Approach to Successful School Discipline

Research-based programs exist that are effective in reducing both disciplinary

referrals and school violence. Studies show that successful programs do the

following:

• Target all students;

• Use well-coordinated methods and approaches that are “research-based” and

deemed effective;

• Implement positive behavioral expectations and supports school-wide;

• Provide adequate training and ongoing support to ensure effective

implementation;

• Involve school administrators, teachers, students, parents, mental health

professionals, and community resources; and

• Incorporate regular, rigorous evaluation to determine if the programs to improve

behavior are continuing to work.

And

Promising Practices from:

The Texas’ School-to-Prison Pipeline, Dropout to Incarceration: The Impact of

School Discipline and Zero Tolerance (October 2007)

Reducing Referrals in Austin Schools

Sixty Austin schools—40 elementary schools, 14 middle schools, five high schools,

and the local Disciplinary Alternative Education Program—will implement the

Positive Behavior Support (PBS) program before the end of 2007.

It is a school-wide program—a base upon which to begin building the three-tiered

model discipline program endorsed by the U.S. Department of Education. Ten

schools began using Positive Behavior Support five years ago—and already
Speakers’ Written Statements – Panel 2 42

disciplinary referrals are dropping.

An Austin elementary school with the highest number of discretionary referrals to

the DAEP decreased its referral rate to one of the lowest in the district after

instituting PBS, according to Jane Nethercut, Positive Behavior Coordinator for

Austin ISD.

Data for 2004-05 documents a greater awareness of school rules, a drop in bullying,

and an increased percentage of students reporting they “feel safe” in school on

Austin campuses implementing Positive Behavior Support.

A PBS team on each campus develops global themes for the school—such as “show

respect”—along with a set of behavioral expectations to reinforce those themes. Teachers

and staff discuss these in class, provide examples, and positively reinforce positive

behaviors.

Interventions with students with problem behaviors are creative and individualized. For

example, a student who is physically aggressive at school might be referred to counseling by

an outside group, such as SafePlace, which offers shelter to women who are physically

abused. Another student might be paired with an on-campus mentor who offers advice and

models positive behavior.

Accurate tracking of disciplinary data helps identify repeat offenders and adapt strategies to

reach them.

The Austin school district plans to implement PBS in every school in the district by the year

2010.

***
43 School Discipline and Disparate Impact

Edward C. Gonzalez

Associate Superintendent of the Department of Prevention and Intervention Fresno

Unified School District, Fresno, CA

REPORT TO THE COMMISSION ON CIVIL RIGHTS

February 11, 2011

SECTION 1: DISPROPORTIONALITY

Fresno Unified School District, with an enrollment of 72,000, is the 4th largest District in

California. Demographically, the ethnic make-up of the District is as follows: Hispanic

(62%); Asian-American (13%), White (13%), African-American (10%). Native Americans

and other groups comprise the remainder. One of my primary goals upon arrival in July

2010 was to address the issue of Discipline.

Disproportionality in FUSD. In the area of student expulsions in 2009/2010, the

Disproportionality was stark in reference to the following particular student subgroups: 1)

African-Americans; 2) Special Education students; 3) Students in Foster Care; 4) Male

students; 5) Middle School students (7th/8th); and Native American students. The

Disproportionality is evidenced in the data tables below:

EXPULSION REFERRALS - 2009/2010 (180 days)

SUBGROUP % OF ENROLLMENT % OF EXP REFERRALS DISPROPORTIONALITY

African Americans 10.69% 30.35% 284%

Special Ed students 9.50% 27.42% 289%

Foster Care students 1.04% 2.80% 269%

Male students 50.91% 76.10% 149%

Middle School students 15.05% 37.38% 248%

Native Americans 0.66% 0.88 133%

EXPULSION REFERRALS - 2010/2011 (as of Day 90)

SUBGROUP % OF ENROLLMENT % OF EXP REFERRALS DISPROPORTIONALITY

African Americans 10.26% 26.20% 255%

Special Ed students 9.42% 22.43% 238%

Foster Care students 0.99% 2.95% 298%

Male students 51.11% 75.65% 148%

Middle School students 14.76% 40.15% 272%

Native Americans 0.64% 1.48% 231%
Speakers’ Written Statements – Panel 2 44

To address these concerns, the District has initiated numerous interventions. Beginning

in 2009/2010, the District began implementation of a K-12 Behavioral Intervention

curriculum, “Safe & Civil Schools.” SCS provides a three-tiered approach to behavioral

referrals, empowering adults to take more control and responsibility in regard to

modification of inappropriate behaviors. “Capturing Kids’ Hearts” is another training,

exclusively targeted at high school and middle school students. The Men’s Alliance, an

intervention class targeted at behaviorally-“at-risk” male students, was debuted this

school year at three high schools and has already shown great promise in mitigating

student suspensions, expulsions, and unexcused absences.

THE MEN’S ALLIANCE MID-YEAR REPORT – 2010/2011 - BEHAVIOR,

ATTENDANCE, AND ACADEMICS (as of Day 84)

2009/2010

(180 days)

2010/2011

(as of Day 84)

DIFFERENCE % CHANGE

STU SUSP PER DAY .31 .17 -.14 -45.16%

DAYS OF SUSP 1.93 0.40 -1.53 -79.27%

UNEXC ABSENCES .96 .65 -.31 -32.29%

GPA 1.2 1.5 .3 +25.00%

In combination with these curricular and programmatic interventions, we have also

focused on additional training regarding the expulsion process, and have clarified

requirements and enhanced scrutiny of all referrals. Ed Code violations have been

separated into three tiers – 1) Mandatory, 2) High-Priority, and 3) discretionary. The

following is a list of the violations in each category:

MANDATORY: (ED CODE 48915c)

 Possession of a firearm

 Sale of a controlled substance

 Brandishing of a knife

 Sexual battery, or attempted sexual battery

 Possession of explosives

HIGH-PRIORITY: (ED CODE 48900)

 Fight or battery using a weapon

 Furnishing of a controlled substance

 Possession of a knife

 Assault/battery upon a staff member

 Arson
45 School Discipline and Disparate Impact

DISCRETIONARY: (ED CODE 48900)

 All other violations listed under Ed Code 48900 are considered discretionary. Ed

Code requires expulsion only when other means of correction have not proven feasible. I

have also initiated the expectation that non-Mandatory and non-High-Priority expulsion

referrals will show evidence of a “good-faith” effort on the part of the site administration

to make a home visit.

Our mid-year Expulsion report indicates that the combination of these interventions and

strategies shows promise in reducing overall expulsions and Disproportionality in discipline.

Three of the four largest subgroups – Males, African-Americans, and Special Education

students—show decreases in Disproportionality. Middle school students, especially 8th

graders, continue to be an area of concern.

Two other areas of increase need further examination. The greater Fresno area has become

somewhat of a Mecca in California for the placement of students in Foster Care. There are 35

Group Homes which currently reside within the boundaries of Fresno Unified. A high

percentage of these students arrive with great emotional, academic, and social needs.

Unfortunately, the Licensed Childcare Institutions (LCI’s) have not always worked

collaboratively with school Districts, so important information regarding the high needs of

these students is not always been forthcoming. The Department of Prevention and

Intervention, working in tandem with our Special Education department, has initiated

meetings with Group Home leaders at our high schools, and begun the process of improving

our information sharing.

The final subgroup of Discipline Disproportionality—Native Americans—has increased

sharply in 2010/2011. Numerically, this is a very small subgroup, and the total number of

expulsion referrals as of Day 90 in 2010/2011 is only 4, so it may be premature to consider

this disproportionate this year.

SECTION 2: EXPULSION DATA

Overall, the total number of expulsion referrals has dropped in 2010/2011, as well as the

number of actual expulsions, as evidenced by the charts below:

COMPARISON OF 2009/2010 AND 2010/2011 EXPULSIONS

EXPULSION REFERRALS BY SCHOOL LEVEL

LEVEL 2009/2010 PER DAY 2010/2011 PER DAY

(as of Day 90)

% CHANGE

Elementary School .82 .49 -28.0%

Middle School 1.42 1.22 -14.1%

High School 1.55 1.33 -14.2%

FUSD 3.79 3.04 -19.7%
Speakers’ Written Statements – Panel 2 46

ACTUAL EXPULSIONS

2009/2010 PER DAY 2010/2011 PER DAY

(as of Day 81)*

% CHANGE

Expulsion Referrals 3.79 2.90 -23.4%

Canceled, Stopped, or

Terminated 0.38 0.86 +128.8%

Actual Expulsions 3.41 2.04 -40.3%

*Actual Expulsions were calculated per day as of Day 81, due to the fact that there

were still several cases pending beyond that date.

Reasons for the decrease in expulsions in 2010/2011 mirror the reasons listed in the

Disproportionality section. Of particular note is the Number of Referrals canceled or stopped

this year. This can happen from one of three ways—they can be stopped by an

Administrative Hearing Panel, a Manifestation Determination team in Special Ed, or by me

as the Associate Superintendent of the Department of Prevention and Intervention.

SECTION 3: DISPROPORTIONALITY IN EQUITY AND ACCESS

Although not specifically concerning discipline disproportionality in equity and access is

of fundamental importance in understanding the historical and on-going struggles of “atrisk” subgroups, particularly subgroups of ethnicity. The chart below illustrates the

disproportionality in regard to the percentage of students identified as Gifted and Talented,

as disaggregated by ethnicity:

GIFTED AND TALENTED EDUCATION (GATE)

ETHNICITY TOTAL ENROLLMENT TOTAL GATE IDENTIFIED % OF ENR ID’d AS GATE

WHITE 9,552 1,180 12.35%

HISPANIC 45,200 1,126 2.49%

AFRICAN-AMERICAN 7,962 220 2.76%

ASIAN-AMERICAN 9,617 403 4.19%

OTHER 1,089 63 5.79%

TOTAL FUSD 73,420 2,992 4.08%

Clearly, students of color, specifically African-American and Hispanic students, are

lagging far behind other ethnicities in GATE identification status. This has disturbing

ramifications, both to students and their families, as it reinforces stereotypes of racial

and ethnic inequities in innate cognitive abilities.
47 School Discipline and Disparate Impact

SECTION 4: NEXT STEPS

Fresno Unified is pursuing additional interventions and programmatic changes that we

believe will continue to reduce Disproportionality among “at-risk” groups of students.

These include the following:

 Expansion of the Men’s Alliance program

The Men’s Alliance is currently at three Fresno Unified High Schools, but will

expand to two additional high schools in the 2011/2012 school year.

 Improved networking with Licensed Childcare Institutions (LCI’s) and Group Homes

FUSD’s Department of Prevention and Intervention (DPI) has devised a

standardized protocol for the admission of students into our area Group Homes. In

addition, FUSD have scheduled meetings at our high schools and invited Group

Home staff to come to the table, share concerns, and work together with the District

to enhance the opportunities for Group Home students to meet with success. I have

also made arrangements for me and my Coordinator in charge of Foster Youth to

make visits to each of our Group Homes.

 Full implementation of Safe & Civil Schools and “Capturing Kids’ Hearts” curricula

The 103 schools in the District were divided into four cohorts, and implementation of

the SCS curriculum began in 2009/2010. The Department of Prevention and

Intervention will recommend additional personnel to assist with training and augment

the monitoring of implementation in 2011/2012.

 Creation of a Work Team on Diversity

This Work Team consists of approximately two dozen FUSD employees, with a

representation of both genders and all numerically-significant ethnic groups, who

study the District’s current practices in a wide variety of areas in order to address

concerns and make recommendations for systemic changes.

 Corrective Reading and other academic programs

Corrective Reading has not only shown promising results in academic advancement,

it has had the unforeseen consequence of showing some ability to mitigate certain

behaviors that result in suspension and/or expulsion.

 Credit Recovery expansion

All FUSD high schools offer Credit Recovery options, and the District also utilizes

two high school continuation programs to augment credits. In addition, FUSD is

expanding its credit recovery options by implementing Extended Learning and online courses.
Speakers’ Written Statements – Panel 2 48

 Proposal to create a pilot intervention class, the Renaissance Academy Scholars

(RAS)

RAS features a self-contained classroom setting, augmented with remediation,

music, art, computers, academic competition, and field trips embedded into the

instructional model. This class would exclusively target behaviorally-“at-risk”

students in 8th grade.

As of this writing, it is still in draft form and has yet to be submitted to the FUSD

Board of Trustees.

SECTION 5: CONCLUDING REMARKS

Fresno Unified School District is committed to addressing the problem of

Discipline Disproportionality that has been ongoing in urban districts throughout

the country for more than a generation. The interventions described, as well as

some others not mentioned, have exhibited promise thus far.

Overall expulsion referrals have dropped, and when this is combined with a drop in

disproportionality, however slight, the result has been a huge decrease in the number

of expelled students from each “at-risk” subgroups when compared to last year. We

recognize that our challenges are great, but we have a forward-thinking Board and

a visionary Superintendent, Mike Hanson, who deserve much credit for their efforts

to improve educational opportunities for all students.

***
49 School Discipline and Disparate Impact

REPORT TO THE COMMISSION ON CIVIL RIGHTS

Washington D.C. - February 11, 2011

Edward Gonzalez

SECTION 1: DISPROPORTIONALITY

EXPULSION REFERRALS – 2009/2010 (180 days)

• DISPROPORTIONALITY

SUBGROUP % OF

ENROLLMENT

% OF EXP

REFERRALS

DISPROPORTIONALITY

African

Americans

10.69% 30.35% 284%

Special Ed

students

9.50% 27.42% 289%

Foster Care

students

1.04% 2.80% 269%

Male students 50.91% 76.10% 149%

Middle School

students

15.05% 37.38% 248%

Native

Americans

0.66% 0.88% 133%
Speakers’ Written Statements – Panel 2 50

SECTION 1: DISPROPORTIONALITY

EXPULSION REFERRALS – 2010/2011 (as of day 90)

• DISPROPORTIONALITY

SUBGROUP % OF

ENROLLMENT

% OF EXP

REFERRALS

DISPROPORTIONALITY

African

Americans

10.26% 26.20% 255%

Special Ed

students

9.42% 22.43% 238%

Foster Care

students

0.99% 2.95% 298%

Male students 51.11% 75.65% 148%

Middle School

students

14.76% 40.15% 272%

Native

Americans

0.64% 1.48% 231%

SECTION 1: DISPROPORTIONALITY

THE MEN’S ALLIANCE MID-YEAR REPORT – 2010/2011 – BEHAVIOR, ATTENDANCE

AND ACADEMICS (as of day 84)

• DISPROPORTIONALITY

2009/2010

(180 days)

2010/2011

(as of day 84)

DIFFERENCE % CHANGE

STUDENT

SUSPENSION

PER DAY

.31 .17 -.14 -45.16%

DAYS OF

SUSPENSION

1.93 .40 -1.53 -79.27%

UNEXCUSED

ABSENCES

.96 .65 -.31 -32.29%

GPA 1.2 1.5 .3 +25.00%
51 School Discipline and Disparate Impact

SECTION 2: EXPULSIO

N

D

A

T

A

EXPULSION REFERRALS BY SCHOOL LEVEL

• DISPROPORTIONALITY

LEVEL 2009/2010

PER DAY

2010/2011

PER DAY

(as of day 90)

% CHANGE

Elementary School .82 .49 -28.0%

Middle School 1.42 1.22 -14.1%

High School 1.55 1.33 -14.2%

FUSD 3.79 3.04 -19.7%

SECTION 2: EXPULSIO

N

D

A

T

A

ACTUAL EXPULSIONS

• DISPROPORTIONALITY

2009/2010

PER DAY

2010/2011

PER DAY

(as of day 81)*

% CHANGE

Expulsion Referrals 3.79 2.90 -23.4%

Canceled, Stopped

or Terminated

0.38 0.86 +128.8%

Actual Expulsions 3.41 2.04 -40.3%

*Actual Expulsions were calculated per day as of day 81, due to

the fact that there were still several cases pending beyond that date.
Speakers’ Written Statements – Panel 2 52

SECTION 3: DISPROPORTIONALITY IN EQUITY AND ACCESS

GIFTED AND TALENTED EDUCATION (GATE)

• DISPROPORTIONALITY

ETHNICITY TOTAL

ENROLLMENT

TOTAL GATE

IDENTIFIED

% OF ENROLLED

IDENTIFIED AS GATE

WHITE 9,552 1,180 12.35%

HISPANIC 45,200 1,126 2.49%

AFRICANAMERICAN7,962 220 2.76%

ASIANAMERICAN9,617 403 4.19%

OTHER 1,089 63 5.79%

TOTAL FUSD 73,420 2,992 4.08%

***
53 Speakers’ Written Statements – Panel 3

Panel 3 – U.S. Department of Education Official and School

Administrators

Ricardo Soto

STATEMENT OF

RICARDO SOTO

PRINCIPAL DEPUTY ASSISTANT SECRETARY

OFFICE FOR CIVIL RIGHTS

U.S. DEPARTMENT OF EDUCATION

BEFORE THE

U.S. COMMISSION ON CIVIL RIGHTS' BRIEFING

FEBRUARY 11, 2011

Introduction:

Thank you for inviting the Department of Education's Office for Civil Rights (OCR) to the

U.S. Commission on Civil Rights' briefing on school discipline and disparate impact. I am

Ricardo Soto, the Principal Deputy Assistant Secretary in OCR. I am pleased to be able to

share with you the work that my office, under the leadership of Assistant Secretary Russlynn

Ali, is doing to enforce the civil rights laws and to support schools in meeting their

obligations to create and maintain the safe and orderly educational environments that are

necessary for our nation's students to learn and thrive.

I understand the challenges that educators and administrators face when they are

administering student discipline; because before coming to OCR, I dealt with them too. Prior

to my work at OCR, I represented school districts on education issues which included

providing advice regarding discipline policies and procedures, including the review of

recommendations for suspension and expulsion by school administrators. I also served as the

Assistant Secretary and Legal Counsel in the Office of the Secretary of Education of

California where I advised the Secretary of Education and the Governor's Office on legal and

policy issues related to elementary, secondary and higher education, including school

discipline. Furthermore, I have served as in-house counsel for the San Diego Unified School

District where I represented the Superintendent, Board and senior staff on education matters.

All of these experiences have given me a hands-on perspective on the difficulties

encountered when administering fair student discipline and I am excited to be working for

OCR as we work towards finding solutions to this complicated issue.
School Discipline and Disparate Impact 54

I. Overview of OCR

Let me first provide an overview of my office and the work that we do. OCR's mission is to

ensure equal access to education and to promote educational excellence throughout the nation

through vigorous enforcement of civil rights. OCR enforces civil rights laws that prohibit

discrimination on the basis of race, color, national origin, sex, age, and disability. Most

relevant to today's' briefing is OCR's enforcement of Title VI of the Civil Rights Act of 1964

(Title VI), which prohibits discrimination on the basis of race, color, or national origin.

Title VI's protections extend to all state education agencies, elementary and secondary

school systems, colleges and universities, vocational schools, proprietary schools, state

vocational rehabilitation agencies, libraries, and museums that receive federal funding from

the U.S. Department of Education.

As you know, a critical part of OCR's job is to investigate and resolve discrimination

complaints. These complaints may be filed by anyone, on behalf of an individual or group

that may have faced discrimination in education. Additionally, agency-initiated

investigations - typically called compliance reviews- permit OCR to concentrate our efforts

and resources on problems that are particularly acute or widespread. OCR also issues policy

guidance and provides technical assistance to help schools, universities, parents, and

community members understand their rights and responsibilities, and to promote voluntary

compliance with the civil rights laws that we enforce.

OCR has a headquarters office and twelve regional offices around the country, with more

than 600 attorneys, investigators and other staff working on investigating complaints,

conducting compliance reviews, developing policy guidance, and providing technical

assistance. As I have learned since joining OCR, our attorneys and investigators have a great

deal of experience investigating and resolving Title VI complaints and compliance reviews

involving allegations of discrimination in the administration of student discipline. In March

of 2010, Secretary Duncan delivered remarks commemorating the 45th anniversary of

"Bloody Sunday" — a pivotal moment in civil rights history — while highlighting key civil

rights issues facing the nation today. In that speech, he announced a reinvigorated OCR that

will "strive to make Dr. King's dream of a colorblind society a reality."

II. Discipline Disparities

Let me now turn to our work on issues relating to student discipline. From data gathered

through the Department's Civil Rights Data Collection, OCR estimates that in the 2005-2006

school year, almost 250,000 more students nationwide received out-of-school suspensions

than just four years earlier, and that the number of students who were expelled increased by

fifteen percent. (Compare the Department's Civil Rights Data Collection for 2002 and 2006).

OCR is concerned by the rising discipline rates and by the deep disparities in discipline in

our nation's schools. Both - have been linked to increased likelihood of dropping out of

school; decreased academic achievement; increased involvement with the juvenile-justice

system; and impairment of future college and employment opportunities. And those are just a

few of the harms to students. OCR is also concerned that significant disparities in the

application of discipline policies, practices, and procedures nationwide may suggest that
55 Speakers’ Written Statements – Panel 3

discrimination is occurring that violates the federal anti-discrimination laws enforced by

OCR. As Secretary Duncan said, "civil rights laws require vigorous enforcement not just

because they are the law of the land, but because the data paint a stark picture of educational

inequality."

III. Legal Theories

To maintain the integrity of our enforcement activities, OCR has a long-standing policy

against releasing information about pending investigations. So today I will not be discussing

open cases. But I will explain the legal theories that govern our enforcement efforts based on

statutes, regulations, and case law that OCR would employ, when the facts and circumstances

suggest they would be appropriate, to determine whether a school has violated Title VI.

Although my remarks will focus on discrimination based on race in the administration of

student discipline, when the facts and circumstances suggest they would be appropriate, OCR

would apply the same legal theories in our investigations of possible race, color, or national

origin discrimination in educational contexts.

Title VI requires that a school's disciplinary policies, practices and procedures must be

applied consistently to similarly situated students, regardless of their race. The Department's

Title VI regulations prohibit discrimination, therefore, both when it is the product of different

treatment - intentional discrimination based on race, color, or national origin- and when it

results from facially race-neutral policies, practices, or procedures that have a disparate

impact on the basis of race, color or national origin. OCR's Title VI regulations can be found

at 34 C.F.R. § 100.

Unlike cases involving different treatment, cases involving disparate-impact theory do not

require that a school had the intent to discriminate. Rather, under the disparate-impact theory,

the pertinent inquiry is whether the evidence establishes that a facially neutral discipline

policy, practice, or procedure causes a significant disproportionate racial impact and lacks a

substantial, legitimate educational justification. Even if there is a substantial, legitimate

educational justification, a violation may still be established under disparate impact if the

evidence establishes that there are equally effective alternative policies, practices, or

procedures that would achieve the school's educational goals while having a less significant,

adverse racial impact.

Statistical disproportionality in the administration of student discipline by race, color, or

national origin, standing alone, will not generally establish a Title VI violation. Although

data and statistical information are important indicators for OCR's work, they are but one

category of evidence that OCR collects in its investigative process. OCR attorneys and

investigators conduct interviews and collect a variety of information concerning a school's

written and unwritten disciplinary policies, practices, and procedures. As stated above,

schools can provide an educational justification for any data that suggests a statistical

disproportionality.

Disparate-impact discrimination has been prohibited by the Title VI regulations since the

Title VI regulations were written in 1964. These regulations have been used for decades by
School Discipline and Disparate Impact 56

all federal agencies, including OCR, that enforce Title VI in federally assisted programs. As

President Kennedy said when he first proposed the legislation that ultimately became Title

VI, "simple justice requires that public funds, to which all taxpayers of all races contribute,

not be spent in a fashion which encourages, subsidizes, or results in racial discrimination."

"Indirect discrimination," President Kennedy said, was "just as invidious" as direct

discrimination.

The Department brought administrative proceedings, In the Matter of Dillon County School

District No. 1, Docket No. 84-VI-16 and In the Matter of Maywood School District #89,

Docket No. S-125, which were ultimately resolved in 1987 and 1990, respectively, under the

Title VI disparate-impact theory.

In 1994, on the 30th Anniversary of the passage of Title VI, the Attorney General of the

United States reminded federal agencies that, "administrative regulations implementing Title

VI apply not only to intentional discrimination but also to policies and practices that have a

discriminatory effect." (1994 Letter from the Attorney General on the Use of Disparate

Impact Standard in Administrative Regulations Under Title VI of the Civil Rights Act of

1964.) The Attorney General instructed all federal agencies to "ensure that the disparate

impact provisions in your regulations are fully utilized so that all persons may enjoy equally

the benefits of federally financed programs."

Seven years later, in a 2001 memorandum following the Supreme Court's decision in

Alexander v. Sandoval, 532 U.S. 275 (2001), the Department of Justice instructed federal

agencies that while Sandoval held that there is no private right of action to enforce Title VI's

disparate-impact regulations, the Supreme Court did not address the validity of Title VI

regulations themselves or call into question the government's authority and obligation to

enforce them. (2001 Memorandum from the Assistant Attorney General on Executive Order

13166). The following year, the Department of Justice issued guidance and made clear that

through this memorandum, the Assistant Attorney General had clarified that, "Sandoval did

not invalidate any Title VI regulations that proscribe conduct that has a disparate impact on

covered groups—the types of regulations that form the legal basis for the part of Executive

Order 13166 that applies to Federally assisted programs and activities--the Executive Order

remains in force." As you may recall, Executive Order 13166 requires federal agencies to

examine the services they provide and develop and implement a system by which Limited

English Proficient persons can meaningfully access those services. Additionally, the 2002

guidance stated that Sandoval did not "otherwise limit the authority and responsibility of

Federal grant agencies to enforce their own implementing regulations." (2002 Guidance to

Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National

Origin Discrimination Affecting Limited English Proficient Persons).

Most recently, in a 2009 memorandum on the 45th anniversary of the passage of Title VI, the

Department of Justice, urged federal agencies "to remember that [we] serve an especially

critical role in enforcing Title VI disparate impact regulations ... [Because] [v]ictims can only

turn to the administrative complaint process, ... agencies must be particularly vigilant in

ensuring strong enforcement in this area." (2009 Memorandum from the Acting Assistant
57 Speakers’ Written Statements – Panel 3

Attorney General on Strengthening of Enforcement of Title VI of the Civil Rights Act of

1964).

Thus, the disparate-impact theory has been and remains a critical enforcement tool for

OCR. Where OCR finds a violation of Title VI in the administration of student discipline,

we will seek the school's voluntary agreement to take specific measures to remedy that

violation. And indeed, wherever OCR finds evidence of a civil rights violation, most

schools enter into voluntary resolution agreements which set forth what actions the school

must take to remedy the situation and prevent future discrimination. These agreements,

which OCR monitors closely, have resulted in significant changes benefitting students in

schools throughout the nation.

IV. Case Example

Now, I would like to provide an example of a case where OCR found a violation of Title VI

in the administration of student discipline. Because the case remains in the monitoring phase,

I cannot provide identifying details. In this case, the complaint, filed by a teacher, alleged

that a district discriminated against seventh-and eighth-grade African-American students by

disciplining those students more harshly (i.e. differently) than white students. An analysis

revealed that a statistically significant difference among the races existed in the school's

application of its discipline policy, with African-American students receiving greater

disciplinary sanctions for all four categories of misconduct examined. The District was

unable to provide a legitimate, nondiscriminatory, non-pretextual explanation for this

difference in treatment based on race. Through interviews and extensive document reviews,

OCR confirmed that African-American students were punished more harshly than their white

counterparts for the same or similar conduct. For example, OCR's review of teacher slips

referring students for disciplinary actions revealed that the slips on white students also

included positive teacher comments such as "wonderful student;' while no similar comments

were included for African-American students. OCR also learned that most white students

were allowed to exhaust informal and less harsh disciplinary sanctions before being referred

for formal discipline, whereas similarly situated African-American students were not allowed

to exhaust informal disciplinary sanctions.

Under such circumstances, an OCR agreement would normally include remedies such

as: revising existing disciplinary policies and procedures to ensure uniform application

of disciplinary consequences; training staff on the application of disciplinary policies

and procedures; and prospective monitoring of disciplinary sanctions.

Conclusion:

The answer to unequal, unfair, or ineffective student discipline, of course, is not to abandon

discipline policies, practices, and procedures. For many parents and teachers, disruptive and

disorderly schools are serious problems because children cannot learn in classrooms that are

not well managed. And, the Department of Education recognizes that disciplinary policies,

practices, and procedures differ from school to school. There is no universal, one-size-fits-all

approach to discipline that will be right for every school or all students. However, each
School Discipline and Disparate Impact 58

school has a responsibility not only to create a safe and orderly learning environment, but

also to ensure that its disciplinary policies, practices, and procedures are administered in a

nondiscriminatory manner. To help support schools in meeting the challenge to adopt

effective and appropriate disciplinary policies, practices, and procedures that do not violate a

student's civil rights, OCR is using all the tools at our disposal.

As I explained earlier, these include not just enforcement through complaint resolution and

compliance reviews, but also policy guidance and technical assistance to schools on the

administration of student discipline. For example, OCR, in partnership with Civil Rights

Division of the Department of Justice, convened conferences last fall in Washington, DC and

San Francisco on "Civil Rights and School Discipline: Addressing Disparities to Ensure

Equal Educational Opportunity." Through these conferences, OCR, the Department of

Justice, and education experts shared their knowledge about effective partnerships and best

practices in the administration of student discipline. As I noted at the first conference, OCR

is developing guidance, in the form of a Dear Colleague Letter, that will inform states and

districts about their responsibilities in avoiding discrimination based on race in the

administration of student discipline.

OCR also recognizes that we needed better data on disparate discipline, because better data

will both help community members understand the problem and improve OCR's enforcement

efforts. We have therefore begun collecting more detailed and accurate data to identify

districts that are really struggling with discipline. In particular, OCR has expanded this year's

Civil Rights Data Collection to cover more than 7,000 school districts, including all districts

with more than 3,000 students. In its revised collection, OCR is collecting data on school

discipline that includes data on corporal punishment, suspensions, tracking in-school and

multiple suspensions, referrals to law enforcement, school-related arrests, and zero tolerance

policies.

Thank you again for the opportunity to share OCR's work in this important area with the

Commission. Secretary Duncan has repeatedly stated that education is the civil rights issue of

our time. OCR is deeply committed to ensuring that every child receives the best education

possible. Increasingly, the number of students losing educational instructional time due to

disciplinary sanctions, such as out-of-school suspensions, expulsions, or referrals to law

enforcement authorities, and alternative educational placements, has dramatically increased.

All too often such consequences for student misconduct, especially from more subjective

disciplinary offenses where judgments are inherently more discretionary, are not imposed in

a fair and equitable manner. Moving forward, OCR is committed to using all the tools at our

disposal to address this critical issue. I am happy to answer any questions the Commissioners

have.

***
59 Speakers’ Written Statements – Panel 3

Hardy Murphy

Hardy Murphy, Ph.D.

Evanston/Skokie CC School District 65

Comments for the U.S. briefing on school discipline and disparate impact

Evanston/Skokie School District 65 is a K-8 school district located just north of the City of

Chicago in Illinois. The district serves 7,000 students from a variety of economic and ethnic

backgrounds (42% White, 27% Black, 20% Hispanic, 5% Asian, 6% Multi-Racial; 40%

eligible for free or reduced lunch). Our schools offer families a high-quality educational

experience and we provide many supports and services that enhance the academic

environment.

Like other districts across the country, District 65 grapples with disparate outcomes in the

application of discipline. Our data confirm a disproportionate representation of students of

color, and we are continuing to address this disproportionality. A districtwide behaviormanagement system, a program to help keep students in school, parent engagement and

education, and sensitivity training for faculty and staff are strategies we are using to address

this disparity.

Having our educational professionals develop an understanding about our students’ out-ofschool experiences helps create an appreciation for their culture and background. Students, in

turn, see these understandings as an affirmation of who they are and where they come from

and an acknowledgement of their potential. As a result the children are more inclined to see

their classroom experiences as supportive and meaningful. This helps them “buy-in” to the

larger system of values that public education represents.

The goal for our students is for them to understand and internalize behavioral expectations

that make for more successful school and life experiences. The goal for our teachers is to see

their students as having unlimited potential for academic success and productive citizenship.

The goal for our parents is to see our schools as institutions that embrace them and their

concerns in a more responsive environment.

Our discipline policies are equitable across racial, gender, disability, and sexual orientation

classifications. They comply with state, federal and local legislation and they reflect

community values. We have written behavioral expectations for activities in classrooms and

hallways, on the school bus, for walking to and from school, and for the acceptable use of

online resources. And, our consequences vary by category across a range of severity by

infraction.

One objective of the disciplinary policies and procedures is to create a culture highly

supportive of teaching and learning. We use the Positive Behavior Interventions and

Supports (PBIS) as the districtwide behavior management system to reinforce positive

behaviors and sustain instructional environments with reduced disruption or behavioral
School Discipline and Disparate Impact 60

concerns. Our educational professionals are trained with PBIS strategies to use at school -

from the classroom to the lunchroom, from the playground to the gym. Each school has a

PBIS team that includes teachers, the principal, and the school social worker. Together they

review data entered into an online reporting system (SWIS) that gives easy access to

information they can use, for example, to identify specific behavioral expectations that need

re-teaching. The data also may be used to identify students most at risk and who need

additional supports or a behavioral intervention plan.

Many District 65 schools have been recognized by the state for our implementation of PBIS.

Several schools were identified as model sites for official state and national visitors. And,

one of our schools was selected a few years ago to host a visit from the Assistant Secretary of

the Office of Special Education and Rehabilitation Services from the U.S. Department of

Education. The Assistant Secretary met with staff, students and families, and took back to

Washington DC what he learned.

We understand the important role that parents have in successful school experiences. Our

district participates in the John Hopkins parent involvement model to create more supportive

home-school relationships. We also involve parents in the alternative to suspensions (ATS)

program that provides services and supports to reduce or prevent out-of-school suspensions.

If a student and a parent commit to participate in counseling services, the child’s suspension

is held in abeyance. A school social worker holds counseling sessions and gives the students

and their family a chance to discuss things that might be causing behaviors that result in

disciplinary action and to identify strategies to avoid these behaviors in the future. A copy of

the ATS program materials is available on the District 65 website

(http://www.district65.net/parentsandstudents/handbook/ )

Another way we are attempting to address the disparate impact of discipline is through

sensitivity awareness training for staff. This year faculty and staff will participate in the

“Mosaic Experience: A Thoughtful Conversation about Cultural Diversity in the Classroom.”

Mosaic Experience is a local organization that helps other organizations find a culture of

team-building and collaborative approach to creatively problem-solve and address

challenges.

The District 65 board of education takes an active role in reviewing suspension data for

students. They, like Secretary Duncan, have raised concern about a disproportionate number

of African American students facing disciplinary action in public education. District policies

are designed to equitably address school expectations. I have included an appendix with a list

of current policies related to disciplinary matters. These policies are available on the District

65 website (http://district65.net/boardofed/goals_policy). District’s programs are intended to

help students understand their role in creating a climate and culture where learning is not

impeded by behaviors that interfere with a positive and productive learning environment.

***
61 Speakers’ Written Statements – Panel 3

Hardy Murphy, Ph.D., Statement (continued)

Appendix A

Evanston/Skokie District 65 Student Discipline Policies

Academic dishonesty .................... 7:190

Bus conduct................................... 7:220

Community service ....................... 7:190

Electronic devices ......................... 7:190

Expulsion procedures......... 7:190, 7:210

Extracurricular ............................. 7:240

General.......................................... 7:190

Maintaining student discipline...... 5:230

No pass, no play................. 6:190, 7:300

Off-campus misconduct................ 7:190

Police interviews........................... 7:150

Search and seizure......................... 7:140

Student with disabilities................ 7:230

Student appearance ....................... 7:160

Student rights and responsibilities 7:130

Suspension procedures7:190, 7:200, 7:230

Truancy ........................................... 7:70

Truant programs............................ 6:110

Vandalism ..................................... 7:170

Video recording and live video transmission 7:190
School Discipline and Disparate Impact 62

Hertica Martin, Ph.D.

Presentation to the Commission on Civil Rights

February 11, 2011

Washington, DC

The new initiative the Department of Education is undertaking to study the racially disparate

impact of discipline policies on students is a critical step to alert school district personnel

across the nation of their civil rights and responsibilities in disciplining students fairly

without regard to skin color.

Our district has been under reform for the last four years when the Superintendent

commissioned the work of Education Development Center (EDC) to conduct an educational

audit in the district. This report indicated a need for Rochester Public Schools to ensure that

all students experience a sense of belonging in their school community; assure that all

students benefit from high expectations and fair treatment; and create an open and

welcoming culture for all families. This report, on pages 26-29, further revealed the

following:

“The data revealed that there is an overrepresentation of African-American

males who are expelled from school. Parents of color raised the issue of

inconsistent implementation of disciple as well as the impact of some

disciplinary measures on learning. Students also spoke to the issue of the

unfair application of school rules.”

“Data affirmed the accuracy of parents’ and students’ perceptions. Figure 24

in the report showed that suspension rates are disproportionate to the overall

student population, both by race and by disability status. While students of

color make up 29 percent of the population, they make up more than 50

percent of all those students suspended. In contrast, White students make up

more than 70 percent of the population, but are only 45 percent of those who

are suspended. Similarly, students with disabilities make up 12.4 percent of all

students, but almost 30 percent of all suspensions. Given that students with

disabilities are disproportionately Black (especially in the Developmental

Cognitive Disabilities - Mild/Moderate (DCD-MM), Developmental

Cognitive Disabilities - Severe/Profound (DCD-SP) and

Emotional/Behavioral Disorders (EBD) categories, which are also the

categories with the highest suspension rates), this group of Black students

deserves greater attention from a number of angles, such as identification
63 Speakers’ Written Statements – Panel 3

processes, discipline issues, least restrictive setting, and access to grade-level

curriculum.”

“Suspension rate data for 2007–2008 showed that for this year, through

November, 82 of 288 out-of-school suspensions have been students with

disabilities (29 percent), and of those, 44 are Emotional/Behavioral Disorder

(15 percent of all suspensions) and 22 are students with learning disabilities (8

percent). These percentages are almost identical to those for 2006–07.”

Figure 24 from the EDC Report. Suspension Rates by Race/Ethnicity

and Special Education Status, 2006–2007 (n = 734)

“A lack of fairness of treatment in areas other than discipline was also mentioned by

students. As noted earlier, while all students interviewed were able to speak of

important adults in their school who made a difference for them, they also recognized

that “some teachers relate to ‘different’ students but the majority don’t.” One student

suggested that “more connections between students and teachers” would help more

students succeed. A bi-racial student suggested that her school needed help to “be

more open to diversity,” perhaps through greater adult diversity and student diversity

within challenging courses.”

“While efforts have been undertaken since the 1990s to address the changing face of

Rochester, there is still an underlying feeling today, as voiced in the September

stakeholders meeting, that “hostility to diversity is present” and that there is a

tendency among district members “to blame children and their families.” White

parents, parents of color, and newcomer parents expressed the belief that there are
School Discipline and Disparate Impact 64

“some deep-seated prejudices and hostilities within the community but that, for the

most part, people know what the appropriate ‘politically correct’ responses are and so

do not present these in public.””

“Students and families have markedly different experiences in the RPS culture.

Across many stakeholder groups—community, business, parents, and students—we

identified the shared perception that RPS has been struggling with the changes in the

make-up of its students for some time and still has important, deeply-rooted issues of

diversity and equity to resolve in its policies, procedures, and culture. Many serious

concerns and questions were raised about whether and how RPS responds to the

needs of students and families from culturally and linguistically diverse populations,

and from families with low incomes. At the same time, there appeared to be some

renewed hope that this will be the time when “action will be taken and not just talk.”

There is a growing appreciation that the district has made it a priority to deal with the

systemic inequities that compromise the quality of life and educational experiences of

many RPS students. To address this priority successfully, it will be imperative to

engage all adults in the system (administrators, teaching staffs, and all support staff)

in mindfully working together to create a culture of diversity that is pervasive across

the district.”

From the educational audit outlined in the EDC report, a 5-Year Strategic Plan was

developed and implemented to close the opportunity gap and to bring all students to

proficiency. This Five-Year Plan led to the identification of our District’s five focused

initiatives for the year. These five strategies below are researched-based, deeply rooted in the

5-Year Plan and drove the development and refinement of the District in Need of

Improvement Plan (DINI). This plan addresses the inequities in the system and the

disproportionality in achievement and discipline.

 Equity: Equity is defined as “Raising the achievement of all students while

narrowing the gaps between the highest and lowest performing students and

eliminating the disproportional number and racial predictability of the student groups

that occupy the highest and lowest achievement categories (Singleton, 1997). The

District is continuing its commitment to district-wide, systemic equity training. The

district equity leadership team (DELT) is developing plans for the district to promote

and embed equity training, plans, and cultural competency for the District’s

educators. Site equity leadership teams (SELT) are in the process of learning more

about developing site equity plans and embedding processes to develop equityfocused goals to support the development of their site integrated improvement plans.

 Efficacy: The belief that all children can learn is fundamental to the success of all

students. It is also critical that all staff use a common data analysis system. District

Efficacy Coaches provide embedded staff development and on-site support for these

two major Efficacy concepts. It is expected that all staff use the Self Directed

Improvement SystemTM in the work setting by 2011. Grade level, subject area teams

are expected to develop Essential Outcomes and Common Formative Assessments

and analyze such data using the Data/Feedback/Strategy Method, a central component
65 Speakers’ Written Statements – Panel 3

of the SDIS. The proficiency level at which administrators and teacher teams

currently operate using the Data/Feedback/Strategy Method from the SDIS varies

from site to site. In 2010-2011, Efficacy Coaches will work more closely with

building administrators and site based coaches to ensure that instructional staff

members are proficient in using the Data/Feedback/Strategy Method to analyze

reading and math data for the purpose of informing instruction.

 Strengthening the Core: The purpose of Strengthen the Core is to improve student

achievement by systematically focusing on curriculum, instruction, assessment, and

student engagement. This will be accomplished by articulating and documenting

standards and benchmarks being taught; ensuring that curriculum, instruction,

assessment, and student engagement are equity-focused; aligning curricular outcomes

and expectations with balanced assessments; utilizing research-based instructional

practices to ensure student proficiency and understanding; using effective researchbased student engagement strategies; participating in collaborative planning both

vertically and horizontally; and engaging in critical reflection about individual and

collaborative planning and instruction. RPS is committed to ensuring that systems are

in place to ensure that the core curriculum is implemented in a manner in which all

students will succeed.

 Positive Behavior Intervention Supports: PBIS is a systems approach to preventing

and responding to classroom and school discipline problems. PBIS develops schoolwide systems that support staff to teach and promote positive, appropriate behavior in

all students. Schools are using this systems approach to improve student behavior and

decrease behavior incidents, including suspensions and expulsions, while eliminating

the disproportional number and racial predictability of the student groups that occupy

the highest and lowest achievement categories. Training of all site teams in the PBIS

framework will be completed by the end of the current school year. All sites have

received the foundational training necessary to begin PBIS at their site. In addition,

many of the site teams completed a booster session this past August to further their

depth of knowledge regarding implementation and sustainability of PBIS. All sites

have received training in the use of School-Wide Information System (SWIS), a

detailed discipline tracking system to assist with analyzing data related to referrals.

 Interventions: The District has identified and invested in research-based

interventions in the area of reading and math to meet the needs of learners who have

not reached proficiency. Read 180, Language!, System 44, Project Read, Mathletics,

Voyager, Pinpoint and iSucceed provide support to students across the District.

Additional sites and grade levels have been added this year to expand the number of

students who are receiving intervention support. The District is carefully analyzing

achievement data to determine appropriate student placements in specific intervention

programs, as well as continuing to provide implementation support to staff. At the

high school level, a new math intervention, I CAN Learn, is being implemented for

students who receive special education services. The District remains committed to

providing intensive, research-based, high-quality instructional programs to accelerate

the learning of our students who are not yet meeting proficiency.
School Discipline and Disparate Impact 66

As a result of analyzing our discipline data and the disproportionalities which exist, our

schools have implemented a number of strategies in the site’s Integrated Improvement Plans

and the Site in Need of Improvement Plans to decrease the number of referrals for our black

and brown students. The implementation of these strategies has resulted in a decrease of 363

suspensions and expulsions from 2007-2008 to 2009-2010 school years. Additionally, our

district’s involvement in the Urban Special Education Leadership Collaborative (USELC)

provided us with the opportunity to participate in national trainings, such as Positive

Behavior Intervention Support (PBIS) model. With the full implementation of the PBIS

model, the schools have the following in place: behavior expectations shared with students

and staff; referral process; identification of major and minor infractions; consequences;

recognition programs; and resources for parents.

Additionally, our data indicated that with the implementation of the PBIS system, discipline

referrals have been decreased. However, when the suspension data was disaggregated, the

black and brown students were disciplined disproportionally. Since the inception of PBIS,

each building has developed an intentional plan to address these disparities in discipline and

to decrease the number of referrals to the office.

In order to track the data, the district utilizes the following data bases: Skyward, the SchoolWide Information System (SWIS), Student Plans, and the Disciplinary Incident Reporting

System (DIRS). Here is a description of these data bases:

1. Skyward is a Student Information System. This fully integrated

district-wide data base is designed specifically for K-12 schools and is

all inclusive for state reporting. The current program includes the

complete student management solution which includes student

information, attendance, discipline, gradebook and email message

center.

2. School-Wide Information System (SWIS) is used to collect, track,

manage and analyze discipline data, specifically to support the

implementation of the Positive Behavior Intervention Systems (PBIS).

SWIS is a web-based information system for data entry and report

generation. School personnel have the capability to analyze data on an

individual student, groups of students, according to specific settings, as

well as specific times of day. This data is discussed and disaggregated

by our Site Equity Leadership Teams (SELT) and the District’s Equity

Leadership Team (DELT) to drive our decisions.

3. Student Plans is used as the on-line due process reporting system for

special education. It generates and stores student Individual

Educational Plans, Evaluations, Functional Behavioral Assessments,

Behavior Intervention Plans, Team Meeting Notices, and Progress

Reports. It allows our school district to store information, run reports,

and cross check data for child count purposes. Student Plans receives

data from Skyward, which is imported on a nightly basis. It is housed
67 Speakers’ Written Statements – Panel 3

and supported by Central Minnesota Educational Research and

Development Council, located in Shoreview, Minnesota.

4. Disciplinary Incident Reporting System (DIRS) is a state reporting

system for schools to enter suspension and expulsion data.

Over the last three years, the district has provided training to administrators and teachers in

the following areas to ensure our staff and students are treated equitably with dignity and

respect and to ensure that each building has a safe and welcoming environment where all

students can flourish, grow, to ensure that we are in compliance with federal law:

 Equity

 Efficacy for staff and parents

 Courageous Conversations about Race

 Positive Behavior Intervention Support (PBIS)

 Life Space Crisis Intervention (LSCI)

 Efficacy Coaches

 Collaborative Learning Teams

 Instructional Coaching

At the administrative level, both at the central office and school sites, the lack of diversity

clearly impedes the development of new ways of thinking and limits the district’s ability to

make use of fresh viewpoints to challenge existing beliefs and practices. When discipline is

not applied fairly and consistently, the culture of diversity is undermined.

Singling out misbehaving students for humiliation or excluding them from classroom

sometimes starts with a referral to the principal’s office and sometimes escalates to the

removal from school through suspension. These strategies effectively deny these students

access to instruction and the opportunity to learn and do little to enable students to learn from

their mistakes and develop a sense of responsibility for their behavior.

I firmly believe that all students must be turned on to learning and must have equal access to

educational opportunities, including a college preparatory curriculum, advanced courses,

STEM or science, technology, engineering and mathematics courses so that they are prepared

to compete internationally. Turning students on to learning can help to reduce the likelihood

that they will be targeted for repeated punishments.

We hope we have provided you a snapshot of our efforts in Rochester Public Schools to

provide an equitable, safe, nurturing and supportive environment for all our students.

Hertica Y. Martin, Ed.D.

Executive Director of Elementary and Secondary Education

Rochester Public Schools

615 7th Street, SW

Rochester, MN 55902-2052
School Discipline and Disparate Impact 68

Douglas Wright

Statement of Douglas Wright, Ph.D.

San Juan School District (SJSD) lies at the heart of some of the world’s most

spectacular vistas and boasts a rich cultural tradition that includes American Indian,

Hispanic, and Pioneer (Caucasian) heritages. The District encompasses approximately 8,000

square miles, an area roughly the size of Connecticut and Rhode Island combined, and is

located in southeastern corner of Utah forming the north western corner of the Four-Corners.

The population density is less than two people per square mile. The District contains the Utah

portion of the Navajo Nation and also a portion of the Ute Mountain Ute Reservation,

creating a situation where the District answers to three separate sovereign nations. SJSD

serves approximately 2900 students in 12 small schools, 6 elementary, 1 middle, and 5 high

schools. SJSD student ethnicity is 48% American Indian, 48% Caucasian, 3% Hispanic, and

1% Other.

Attachment A: School Demographics

In addressing discipline issues within our schools, SJSD has attempted to put into

effect policies and practices that serve to address the behavior in the least oppressive manner

possible to assure that students are protected and able to experience an effective learning

environment. Our experience shows that suspending and expelling students virtually assures

their failure to obtain an education and to be prepared for the lives they will face. With this

fact in mind, we have attempted to implement preventative programs to avoid the need for

disciplinary measures.

One program we use is POSITIVE BEHAVIOR SUPPORT (PBS): Because

prevention and positive behavior support is more effective and leads to greater student

success than punitive disciplinary action, SJSD has placed great emphasis on putting

preventative measures in place. PBS is an evidence-based, data-driven approach proven to

reduce disciplinary incidents, increase a school’s sense of safety, improve attendance rates

and support improved academic outcomes. PBS is based on the premise that continual

teaching, modeling, recognizing and rewarding of positive student behavior will reduce

unnecessary discipline and promote a climate of greater productivity, safety and learning.

PBS schools apply a multi-tiered approach to prevention, using disciplinary data and

principles of behavior analysis to develop school-wide, targeted and individualized

interventions and supports to improve school climate. Implementing PBS has been shown to

improve school climate and helps keep students and teachers in safe and productive

classrooms. Some of our schools have adopted the Utah Behavior Initiative (UBI) program

which uses the Positive Behavior Support (PBS) model as a proactive framework for creating

and sustaining safe and effective schools. Other district schools plan to join this program as

UBI allows other schools to become involved.

Information on the PBS Model is found on the US Department of Education website:

http://www.pbis.org/school/what_is_swpbs.aspx
69 Speakers’ Written Statements – Panel 3

Research showing the effectiveness of the PBS program:

http://www.pbis.org/research/default.aspx then click on Download Word Document

Also, this year we are in the process of implementing the Olweus Bullying Prevention

Program (Olweus) in all our schools. Olweus is a schoolwide program designed to prevent or

reduce bullying throughout the school setting. The multi-component approach involves

individuals, classrooms, entire schools, as well as parents and communities, to successfully

address bullying in schools. Research has shown that the program can help school

significantly reduce the incidents of students being bullied and bullying others. It also can

lead to significant reductions in student reports of general antisocial behavior such as school

bullying, vandalism, school violence, fighting, theft, and truancy. Improvements in the

classroom social climate as reflected in students' reports of improved order and discipline,

more positive social relationships, and more positive attitudes toward schoolwork and school

are results that will we seek and will assist us in preventing the types of behaviors that lead to

disciplinary action being necessary.

Information on Olweus is found at the following website:

http://www.olweus.org/public/bullying_research.page?menuheader=3

COMPREHENSIVE GUIDANCE COUNSELING: Guidance counselors play a key role in

helping to assure PBS and similar programs are implemented properly and are successful.

Recognizing that early training and support is essential, SJSD wrote and received a grant

allowing us to hire four counselors to serve in our elementary schools. This grant is ending

this year and we are searching for funds to be able to retain the positions. In the past, the

grant was renewable, but the Department of Education has changed that practice and we are

now not eligible to rewrite, even though we has seen much success.

Attachment B: Elementary School Counseling Demonstration Program-External Evaluation

Report

Within our secondary schools, we have attempted to restructure the job duties of the

counselors to come in line with the Comprehensive Guidance model which is also designed

to be proactive in meeting students various needs and addressing concerns before students

make negative choices. The counselors play a key role in establishing and reinforcing proper

behavior and preventing behavior which would require disciplinary action. The counselors

also assist with parental outreach and communication assuring that the school and parents

work together in the best interest of the child.

SAFE SCHOOLS POLICY REVISION: We acknowledge that despite our best efforts at

prevention, there are times when discipline is required. SJSD has a practice of reviewing its

policy and procedures on a regular basis to assure that we stay current with best practices and

in compliance with changing law and regulations. Our Safe Schools Student Discipline

policies were extensively revised in April of 2008 and other smaller revisions have been

enacted since then. A key component of the major revision was to create a discipline

procedure that establishes a hierarchy of expectations for proper disciplinary actions

depending on the nature of the incident requiring discipline. The policy outlines the serious
School Discipline and Disparate Impact 70

offenses which require a recommendation for suspension or expulsion based on existing

laws, but also notes other types of negative behaviors for which less severe disciplinary

action is warranted. While zero tolerance of certain behaviors is required to be in compliance

with the Safe and Drug-Free Schools and Communities Act of 1994 (SDFSCA), SJSD is

aware of evidence that shows that “zero tolerance” policies may be counterproductive to

meeting the goal of safer schools. We desire that our practices use the lowest level of

discipline necessary to mold behavior and to provide a safe learning environment for all

students.

In 2002, the Navajo Nation Police Department wrote and received a Department of

Justice COPS grant. The grant began a cooperative arrangement between the District and the

Navajo Nation to provide School Resource Officers in our schools located on the Navajo

nation. San Juan County Sheriffs’ Office and the Monticello City Police have also provided

SROs on a limited basis in our schools. While the officers have proven to be helpful, we have

seen instances when their involvement may have raised the discipline to a higher level than

was prudent given the circumstances of the incident.

Schools within the SJSD have been provided some discretion in establishing rules and

procedures based upon community values and standards. This practice has been shown to

create some areas of concern and SJSD is looking carefully at the possible need to reduce the

level of discretion allowed. These rules and procedures are reviewed and approved by the

School Board to assure compliance with Board policy and state and federal statute and to

attempt to provide a consistency across the schools.

TRAINING PROVIDED TO ADMINISTRATION, FACULTY, AND STAFF: SJSD

provides a variety of required trainings and in-services to assure that employees are aware of

and follow policy and procedure. In addition, professional development opportunities are

provided that can enhance an employee’s knowledge and understanding of issues associated

with the students we serve. Upon hire, all employees are provided with three days of training

which includes a policy and procedure review. Cultural training known as Respecting Ethnic

and Cultural Heritage (REACH) is also provided to all employees to help them come to a

greater understanding of the need to respect and honor the cultural diversity which exists

within the SJSD. In addition, SJSD sponsors an annual Heritage Language Conference in

which we provide additional cultural awareness training as well as help teachers enhance

their skills and abilities in working with Native American students. In addition to the cultural

training, other in-service is provided on important areas such as preventing bullying and

harassment, PBS practices as described above, learning styles, and child development. These

trainings may be provided by SJSD employees or by consultants and other experts brought in

to assist in this effort.

FUTURE PLANS: In May of this year, SJSD was notified of its selection by the United

States Department of Education Office of Civil Rights (OCR) for a compliance review under

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. OCR is examining

whether SJSD “discriminates against female students by disciplining them more frequently

and more harshly than similarly-situated male students. The review will include issues such

as whether female students are referred for discipline more frequently than male students or
71 Speakers’ Written Statements – Panel 3

for less egregious conduct than male students, and whether discipline consequences are

assigned differently based on the sex of the student.” The process of responding to this

review has provided SJSD the opportunity to look carefully at its disciplinary records and to

study what is happening within our schools. The OCR review along with this request from

the U.S. Commission on Civil Rights will also allow us to continue to looking at our

practices for areas of different treatment and/or disparate impact and to take appropriate steps

should we find areas of concern.

SJSD is dedicated to constant improvement. And we are dedicated to providing

quality education to all of our students. We appreciate the opportunity to examine our

practices and enhance them to better meet student needs. We trust that the information

provided in here will be helpful in your efforts to improve educational experiences for

students.

***
Summary of Background Materials 72

Summary of Law and Background Materials

OCR Jurisdiction under the Civil Rights Act of 1964 and regulations promulgated

pursuant to the Act

In the Commission’s briefing, Mr. Soto of the Office for Civil Rights in the U.S. Department

of Education testified that his office pursues school discipline cases under the authority of

both disparate treatment and disparate impact regulations. OCR’s disparate impact

regulations provide generally that a recipient of federal education funds (meaning, for

example, a public school) may not either directly or indirectly use criteria or methods of

administration that have the effect of subjecting individuals to discrimination because of

race, color or national origin, or have the effect of defeating or substantially impairing the

objectives of a program based on race, color or national origin.16

The disparate impact regulations were promulgated in the same year as the passage of the

Civil Rights Act of 1964, under the authority of Sections 601 and 602 of the Act, and since

amended only in minor part.17 Section 601 provides that no person shall be excluded from

participation in or subjected to discrimination under any program receiving federal funding;

Section 602 authorizes federal agencies to effectuate the provisions of Section 601 by issuing

regulations. The statute itself contains no language addressing disparate impact.

Although in Alexander v. Sandoval the U.S. Supreme Court questioned in dicta the authority

of agencies to promulgate disparate impact regulations under Title VI, over nearly 50 years

of their existence the Supreme Court has not squarely addressed the issue.18 At issue in

Sandoval was whether Title VI authorized a private right of action to enforce disparate

impact regulations against English-only policies. The Court concluded that it did not.19 It

specifically reserved the question of whether regulations “promulgated under § 602 of Title

VI may validly proscribe activities that have a disparate impact on racial groups, even though

such activities are permissible under § 601,” further noting that “§ 601 permits the very

behavior that the regulations forbid.” 20

The Department’s Office for Civil Rights in its written submission cited continuing Justice

Department support for the use of disparate impact regulations, including a DOJ guidance

memorandum reinforcing their use, and noting the absence of Court precedent that would

require OCR to enforce only those of its regulations that treat intentional discrimination.21

OCR also cited two Department of Education administrative decisions supporting its

disparate impact regulations, the first dated 1987 and styled In the Matter of Dillon County

16 See 34 C.F.R. § 100.3; 34 C.F.R. §100.3 (b) (2).

17 Civil Rights Act of 1964, 42 U.S.C. §2000d; Non-discrimination in Federally Assisted Programs of HEW, 29

F.R. 16298 (Dec. 4, 1964).

18 Alexander v. Sandoval, 532 U.S. 275, 281 (2001).

19 Id.

20 Id. at 286, ft. 6.

21 See written statement of Mr. Ricardo Soto, U.S. Department of Education Office for Civil Rights at 55-56

above.
73 School Discipline and Disparate Impact

School District No. 122 (hereafter Dillon); the second styled In the Matter of Maywood

School District #89 (hereafter Maywood), dated 1990.23

In Dillon, OCR claimed that the school district’s practice of assigning students to fixed

groups on the basis of ability resulted in racial disproportionality and had no educational

justification. The administrative law judge (ALJ) did not address the relation of disparate

impact regulations to the authorizing statute. He found the district’s grouping practice

pretextual in the face of what he viewed as a sound alternative causing less

disproportionality, which was to assign students on the basis of mathematics and reading test

scores for placement in related classes only. The administrative appeals body (Civil Rights

Reviewing Authority) upheld the ALJ’s order against the District.

The 1990 Maywood decision involved a suburban Cook County, Illinois school district

whose 11 schools included two with largely majority-white populations that OCR alleged

were the result of facially neutral but effectively discriminatory school assignment practices.

The Maywood ALJ rejected the District’s assertion that it was not in violation of Title VI

because it had not intentionally discriminated in assignments. The Civil Rights Reviewing

Authority upheld the use of disparate impact, relying on the fractured Guardians Association

v. Civil Service Commission24 as did the Secretary of Education in the final appeal, although

he reversed on other grounds.25 Both Dillon and Maywood were decided before Alexander v.

Sandoval, as was Guardians.

Scholarly Articles

In considering school discipline and racial disproportionality, Commissioners and staff

consulted several scholarly articles from two prominent authors in the field, Russell Skiba

and Richard Arum. Russell Skiba is Professor in Counseling and Educational Psychology at

Indiana University and also Director of the Equity Project. Along with co-authors he has

written, among other things, “The Color of Discipline: Sources of Racial and Gender

Disproportionality in School Punishment”26 (hereafter Color of Discipline) and “Safety

without Suspensions.”27 Richard Arum is Professor of Sociology and Education at New York

22 In the Matter of Dillon County School District No. 1, Lake View, South Carolina, and South Carolina State

Department of Education, Docket No. 84-VI-16, April 17, 1987, Administrative Proceeding in the U.S.

Department of Education (Provided as Exhibit F by OCR on the day of the briefing).

23 In the Matter of Maywood School District #89 and Illinois State Board of Education, Docket No. S-125,

Administrative Proceeding in the U.S. Department of Education and National Science Foundation, May 22,

1990 (Provided as Exhibit G by OCR on the day of the briefing).

24 Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983). The appeals board also cited

Alexander v. Choate, 469 U.S. 287 (1985) (concerning Section 504 of the Rehabilitation Act of 1973) as

additional support for this ruling.

25 The Secretary of Education ruled that the school district had not been given the opportunity to make rebuttal

arguments or to supply supporting evidence. In the Matter of Maywood School District #89 at 11.

26 Skiba et al., 34 Urban Review 317 (No. 4, December 2002). See also his publication list at

http://education.indiana.edu/ProfilePlaceHolder/tabid/6210/Default.aspx?u=skiba#publications. (accessed Sept.

20, 2011).

27 Skiba, R and Sprague, J., 66 The Positive Classroom at 38-43 (Vol. 66, No. 1, Sept. 2008).
Summary of Background Materials 74

University. He has written, among other things, “Law and Disorder in the Classroom”28

(hereafter Law and Disorder) and “Class and Racial Differences in U.S. School Disciplinary

Environments” (hereafter Class and Racial Differences).29

In Safety without Suspensions Professor Skiba examined exclusion policies, including what

are commonly termed “zero-tolerance” policies that generally require fixed disciplinary

sanctions for enumerated violations of school codes that cannot be altered by school

authorities. Exclusion policies have apparently resulted in a considerable increase in out-ofschool suspensions and expulsions that are racially disproportionate and that he asserts are

not due to higher rates of misbehavior by black students. He recommends use of a program

called “School-wide Positive Behavior Support;” (PBS, or PBIS) an approach supported by

many of the briefing’s speakers. PBS has three components that include prevention, positive

reinforcement from many sources inside the school (such as reward coupons), and reliance

on data instead of ad hoc imposition or creation of discipline policies. Professor Skiba views

evidence gained from participating schools as thoroughly supporting the effectiveness of

PBS in reducing disciplinary referrals, although it apparently has not eliminated racial

disproportionality.

Professor Skiba in Color of Discipline looked at one year’s data from an urban middle school

that showed disproportionality and discussed possible explanatory hypotheses. One

hypothesis that controlled for socio-economic status did not eliminate disparities. This led

him to hypothesize that African-American students were treated differently at the classroom

level for subjectively-determined infractions of rules, although the data did not allow firm

conclusions. He stated that he was unaware of studies using direct observation of student

behaviors that could establish that African-American students misbehave at a significantly

higher rate. His study also found that once students of any race were referred to an

administrative office, from that point there were virtually no disproportionalities in

discipline. Rather, the disproportion stemmed from more classroom referrals for what a

reader might view as largely disruptive behavior (disrespect, excessive noise, threat and

loitering) compared to other violations that were destructive, self-destructive or offensive

such as smoking, truancy, obscene language and vandalism that might occur more out of

class or disrupt class somewhat less. Professor Skiba found no other explanations for large

and consistent racial disparities in discipline and concluded that bias could not be ruled out.30

Professor Arum in Law and Disorder surveyed the legal landscape over the last 40 years, and

credits the considerable increase in parental litigiousness for the heavy reliance of schools on

school security guards, uniformed police, technical surveillance and zero-tolerance policies at

the expense of the judgment of school administrators and teachers. He views reliance on

authoritarian zero-tolerance mandates as ill-suited to support the moral authority of teachers

and administrators in the socialization of young people.31

28 Arum, R. and Preiss, D., Education Next, p. 68, Fall 2009; See also

http://sociology.fas.nyu.edu/object/richardarum.html for a list of publications.

29 Chapter in Improving Learning Environments in Schools: Lessons from Abroad. (Forthcoming: Palo Alto,

Stanford University Press).

30 Skiba et al. at 338.

31 Arum and Preiss at 65.
75 School Discipline and Disparate Impact

In Class and Racial Differences, Professor Arum observed that administrators’ and teachers’

maintenance of school order and appropriate student behaviors and norms contribute to the

overall disciplinary climates. He reviews academic racial gaps and also management and

organizational difficulties shown by studies of high levels of heterogeneity in class, race,

ethnicity, language and religion in schools. For example, he notes that in one recent school

year, “85 percent of public schools monitored or locked doors during school hours.”32 His

study compares racial gaps in cognitive performance with differences in discipline and

violence and finds that economically disadvantaged schools are strongly associated with

lower test score performance and dysfunctional disciplinary climate. He also finds that there

are more disciplinary rules in schools with a high concentration of African-American

students and more severe punishment.33

Professor Arum, unlike Professor Skiba, examines variation in cognitive outcomes as either a

predictor or a result of school discipline climate, using several databases. Other predictors he

finds are variation in school resources, teacher expectations, peer composition, summer

learning, family composition and social psychological factors associated with the test

process. None, in his view, account fully for the test score gap between African Americans

and others. Other researchers have found smaller test gaps in schools with orderly discipline

climates. Discipline gaps have grown overall, according to researchers cited in Professor

Arum’s work. Results from data indicate to him that African-American students attain lower

test scores in economically disadvantaged schools with dysfunctional discipline, although

these are correlational, not causational findings. His models suggest that black students

perform better in schools with greater discipline.34

Professor Arum states, in consonance with Professor Skiba, that race is more predictive than

class status in analyzing school disciplinary climates. He finds that African-American

students receive higher levels of disciplinary sanctions, but states that this may be caused by

greater exposure to schools with higher disorder, violence and safety problems, and

ineffective discipline.35 An interesting finding is that in those schools studied having high

levels of discipline, racial test gaps did not exist, although the reasons were not clear.36 He

recommends that school administrators ensure that discipline imposed is perceived as fair in

order to enhance their moral authority that is at the core of effective school discipline.

***

32 Arum and Velez at 17.

33 Id. at 27.

34 Id. at 33.

35 Various State Advisory Committee reports have documented the disproportionate rate of discipline for

minority students, and its asserted relation to later incarceration. See Michigan, Florida, Kentucky and

Tennessee SAC reports available from the U.S. Commission on Civil Rights, Robert S. Rankin Memorial

Library. See http://www.usccr.gov/pubs/KY-report-2011.pdf; http://www.usccr.gov/pubs/TN-report-2011.pdf.

36 Id. at 36.
Summary of Background Materials 76

Public Comments

The Leadership Conference on Civil and Human Rights (Conference) submitted a public

comment that endorsed the use of disparate impact analysis to enforce civil rights law in

cases of disciplinary disparities. The Conference regards actions under intentional treatment

analysis alone as inadequate to reach disturbing and harmful increases in disciplinary

differentials between racial groups. The Conference’s letter, along with CEO/ACRI’s letter

described below, is included in this report in the Appendix under the heading “Public

Comment Letters.”

The Conference praises behavior management programs such as School-Wide Positive

Behavior Supports (SWPBS) as effectively reducing disparities while maintaining school

safety and good academic outcomes. The Conference considers that exclusionary discipline

is harmful to the perpetrators of minor violence, whose behavior could be controlled in ways

that would not lead to later violations of law and incarceration as adults.

The Center for Equal Opportunity (CEO) and the American Civil Rights Institute (ACRI)

submitted a copy of a letter to the Civil Rights Division of the U.S. Department of Justice

dated February 14, 2002.

The CEO/ACRI letter asserts that DOJ does not have the authority under Title VI to employ

a disparate impact approach in enforcing the prohibition against national origin

discrimination as applied to limited English proficiency persons (LEP). In support of this

assertion, the letter quotes the Department’s policy guidance that acknowledges that Title VI

on its face prohibits only intentional discrimination, a view supported in dicta by Sandoval.

37

The letter distinguishes Alexander v. Choate,

38 which involved the Rehabilitation Act of

1973, and Lau v. Nichols39 (whose interpretation of Section 601 as reaching beyond

intentional discrimination was rejected in Sandoval40) as inapplicable, and concludes that the

only guidance that can be drawn from the Supreme Court’s discussion of disparate impact

regulations under Title VI in Sandoval makes it clear that at least five justices view the

validity of disparate impact regulations as resting on dubious authority.

***

37 Alexander v. Sandoval, 532 U.S. 275 (2001).

38 Alexander v. Choate, 469 U.S. 287 (1985).

39 Lau v. Nichols, 414 U.S. 563 (1974).

40 Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (“it is similarly beyond dispute – and no party disagrees –

that § 601 prohibits only intentional discrimination.”).
77 School Discipline and Disparate Impact

Summary of School District Response Letters

Seventeen school districts responded to the Commission’s letter requesting information on

discipline and disparate impact. One declined to supply information (Charleston County

schools, Charleston, SC). The letters are reprinted in the Appendix.

Responding school districts include Anderson County in Clinton, TN; Hamilton County in

Chattanooga, TN; Berkeley County in Moncks Corner, SC; Dorchester schools in

Summerville, SC; Charles County in La Plata, MD; Baltimore City schools in Baltimore,

MD; Cook County School District 65 in Evanston, IL; Lansing schools in Lansing, MI;

Ypsilanti schools in Ypsilanti, MI; Winner schools in Winner, SD; Nash-Rocky schools in

Nashville, NC; Winston-Salem/Forsyth schools in Winston-Salem, NC; Rochester schools in

Rochester, MN; San Juan schools in Blanding, UT; Tucson schools in Tucson, AZ; San

Diego schools in San Diego, CA; and Jefferson County schools in Louisville, KY.

Nine of the 17 schools reported using a program praised also by Commission briefing

speakers, Positive Behavior Intervention Support (PBIS), in addition to varied supplemental

measures developed by the schools.41 Two schools reported also using the Olweus Bullying

Prevention Program.42 Most schools reported using or developing a detailed school conduct

code, some including teacher conduct expectations. The Rochester, MN schools, for

example, report using the Self-Directed Improvement System (SDIS)43 in addition to PBIS.

Ypsilanti, MI schools report initiating a practice of randomly choosing schools to check for

possible disciplinary irregularities. La Plata, MD schools report using cultural competence

courses to train teachers in classroom management. The San Juan schools in Blanding, UT

include comprehensive guidance counseling in addition to other programs. As a result of a

recent mandate from the state legislature, the Winston-Salem/Forsyth County schools have

reduced out of school suspensions to 5 days, and require schools to use positive behavior

intervention strategies. The district had already eliminated out-of-school suspensions for

truancy and consideration of prior disciplinary sanctions for unrelated infractions in

assigning punishment. They also allow for mitigating factors. Early reports indicate that the

new policies have markedly reduced disparities.

A program started in the Tucson, AZ schools is targeted to African American male students

transitioning from middle to upper school. Aside from its focus on African Americans, this

concept is not unlike that of one of the Commission’s briefing panelists, Mr. Edward

Gonzalez, who began a program called Men’s Alliance, an intervention class targeted to atrisk male students of any race that he stated has shown promise in reducing infractions. The

Evanston, IL school district 65, (K-8) offers sensitivity training and classes in cultural

diversity in addition to PBIS to help teachers better understand their students.

41 See http://www.pbis.org/ (accessed September 23, 2011).

42 See http://www.olweus.org/public/index.page (accessed September 23, 2011).

43 Website apparently unavailable.
78 Commissioner Statements

Commissioner Statements

Statement of Chairman Martin R. Castro And Commissioners

Roberta Achtenberg And Michael Yaki

School administrators and teachers face tough choices when it comes to maintaining a

positive school climate. Schools find themselves having to balance their duty of providing

students with a safe learning environment with their responsibility to provide equal

educational opportunities for all students. Disruptive students can negatively affect a

classroom’s climate and raise concerns for both parents and school personnel. In response to

these concerns, almost 90% of U.S. public schools have established and implemented some

sort of zero-tolerance policy1according to the U.S. Department of Education. The

enforcement of these policies has resulted in a substantial increase in the number of

expulsions2and out-of-school suspensions3currently being imposed by schools, especially

against students of color.4

Concern over this substantial increase recently led to the establishment of a federal initiative

that examines differences in discipline outcomes between students of color and other

similarly situated students. This initiative aims to identify whether the application of

exclusionary5discipline policies is having a disparate impact on students of color. The use of

the disparate impact-based enforcement by the U.S. Department of Education, Office of Civil

Rights (DOE OCR) has raised concerns among our conservative colleagues over whether this

enforcement will impose a very heavy burden on schools. The belief that education civil

rights enforcement does not require a disparate impact theory, due to the fact that schools and

OCR have access to data, fails to take into consideration that using a disparate-impact

analysis provides everyone with the ability to look beyond the numbers. This analysis holds

schools accountable for the disciplinary policies that disproportionately exclude students of

color from the school environment. It also provides school districts with the opportunity to

identify alternative disciplinary practices that are designed to address and improve the school

climate.

1 A zero tolerance policy assigns explicit, predetermined punishments to specific violations of school rules,

regardless of the situation or context of the behavior.

2 Expulsion refers to a procedural removal of a student, for a longer period of time, typically involving a

decision by the superintendent and school board. Schools sometimes expel students for a semester, a year, or

longer.

3

Suspension refers to a short-term removal of a student from school for a disciplinary infraction.

4 Daniel J. Losen & Russell J. Skiba, Suspended Education: Urban Middle Schools in Crisis, Civil Rights

Project (Los Angeles, CA: The Civil Rights Project, September 2010), 2.

5 These policies are called exclusionary because they remove students from the learning environment without

access to any educational content.
79 Statement of Chairman Castro, and Commissioners Achtenberg and Yaki

School suspensions have risen steadily since the 1970s and have recently reached an all time

high. According to the U.S. DOE 2006 Civil Rights Data Collection,6 more than 2.34 million

students were estimated to have been suspended at least once. The same 2006 survey

estimated that 102,077 students were expelled at least once. These numbers are almost

double the rate reported in the early 1970s, with racial minorities experiencing the greatest

increase. According to the DOE data, the gap between the Black and White students more

than tripled between the 1970s and 2006, rising from 3 percentage points to 10 percentage

points.7 Many view the rise in suspension rates as a necessary response to the increasing

school violence, as well as, a teacher’s need to maintain order and safety. However, current

data contradicts this belief. According to data reported by the National Center from

Education Statistics (NCES), from 1992 to 2008 the rate of nonfatal8incidents of crime

against students 12 to 18 years of age at school declined by 67 percent.9Further inquiry by

the American Psychological Association (APA) has determined that zero tolerance policies

fail to make schools safer.10 Yet, schools continue to enforce these draconian practices.

Nationwide, case studies11 completed on school suspension indicate that the majority of

suspensions are for offenses that are nonviolent, subjective or discretionary in nature and, at

times, trivial.12 This finding was supported by the briefing testimony of Mr. Ricardo Soto,

Principal Deputy Assistant Secretary for OCR, Suzanne Maxey, Principal at T.C. Williams

High School, and Joseph Oliveri, former principal for the Austin Independent School District

(AISD). All three panelists indicated that a high number of suspensions were for minor

infractions. In addition, Mr. Soto indicated that he views the increasing numbers of

disciplinary sanctions for subjective offenses as an indication that rules are not imposed

6

Since 1968, DOE has been collecting data on out-of-school suspension and expulsions. A biennial survey is

administered by OCR, which typically includes one-third to one-half of all U.S. public schools and districts.

Under this survey, schools are instructed to count each suspended student only once, regardless of how many

suspensions a student received throughout the year. This, coupled with the fact that the data does not capture the

length of the suspensions, yields a conservative estimate of the amount of time that students spend out of

school.

7 Daniel J. Losen, Discipline Policies, Successful Schools, and Racial Justice (Boulder, CO: National Education

Policy Center, October, 2011), 5.

8 Nonfatal crime includes theft and all violent crime; violent crime includes serious violent crime (rape, sexual

assault, robbery, and aggravated assault) and simple assault.

9

In 1992, the rate of student-reported nonfatal crimes against students between the ages of 12 and 18 years old

was 144 per 1,000 students. By 2008, the rate had fallen to 47 per 1,000 students. Simone Robers, Jijun Zhang,

Jennifer Truman, and Thomas D. Snyder, Indicators of School Crime and Safety: 2010, NCES 2011 –

2012/NCJ 230812 (Washington, DC: National Center for Education Statistics, U.S. Department of Education,

and Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice, 2010).

10 Russell Skiba et al., “Are Zero Tolerance Policies Effective in the Schools? A Report by the American

Psychological Association Task Force,” American Psychologist 63, no. 9 (December 2008): 852-862.

11 Research of a large urban school district found that attendance issues, insubordination and classroom

disruption were leading causes of suspension; An analysis of suspensions across one Midwestern state indicated

that weapons and drug offenses made up only 5 percent of suspensions. See, Child Trends (2011). Multiple

Responses, Promising Results: Evidence-Based Non Punitive Alternatives to Zero Tolerance. Retrieved from

http://www.childtrends.org/Files/Child_Trends-2011_03_01_RB_AltToZeroTolerance.pdf

12 Schools have suspended or expelled students of all ages for possession of “weapons” such as paper clips, nail

files, and a toy ax used in a Halloween costume by a Kindergarten student; drugs, including aspirin, Midol, and

white-out; and, general behavior such as humming and tapping on a desk, classified as “defiance of authority.”

See, Adira Siman, “Challenging Zero Tolerance: Federal and State Legal Remedies for Students of Color,”

Cornell Journal of Law and Public Policy 14, no. 327, (Summer 2005) 4.
School Discipline and Disparate Impact 80

fairly.13 Among the investigations that have been conducted by OCR, OCR has found

disparate impact in the imposition of discipline for lesser, or discretionary violations.14 Mr.

Soto’s statement supports what researchers and advocacy organizations alike have already

documented, that the use of zero-tolerance policies has skyrocketed for minor incidents.

Supporters of zero tolerance policies believe that the policies’ “one size fits all” approach

removes the effects that a multitude of background variables can have on punishment

assignment. In other words, they believe the policies result in fair treatment of all students.

However, available statistics strongly suggest that these policies are disproportionately

impacting male, African American, and Latino students. A recent analysis of nationwide data

showed that students from African American families were 2.19 (elementary) to 3.78 (middle

school) times as likely to be referred to the office for disciplinary problems as their white

peers.15 In addition, the results also indicated that students from African American and

Latino families were more likely than their white peers to receive expulsion or out-of-school

suspension as consequences for the same or similar problem behavior. In a recent

longitudinal study of all Texas students conducted by the Council of State Governments

Justice Center, African American students were found to be disproportionately removed from

their classrooms for disciplinary reasons.16 The study conducted a multivariate analysis

which controlled for 83 different variables in isolating the effect of race alone on disciplinary

actions. The study found that African American students had a 31 percent higher likelihood

to receive a disciplinary action in comparison to similarly situated white and Hispanic

students.17

Our Southern Region State Advisory Committees (SACs)18 recently examined the issue of

school discipline in their particular states. Their studies set out to systematically examine the

effectiveness of the local school systems’ exclusionary practices to ensure that such policies

were providing a safe school environment while not unnecessarily pushing students out of

the educational system. The results of their studies indicate that African American students

are being disproportionately disciplined in comparison to their white peers. In Tennessee, the

SAC study found that during the 2008-2009 school year African American students made up

33 percent of the total student population in the Hamilton County School District but

received nearly 60 percent of all out-of-school discipline referrals, a discipline rate that is

almost twice that of their proportion of the total student population.19 Similar to Tennessee,

13 USCCR, “Briefing on Disparate Impact In School Discipline,” transcript of business meeting and briefing,

Feb. 11, 2011, testimony of Mr. Ricardo Soto, Principal Deputy Assistant Secretary in the Office for Civil

Rights, p. 139.

14 USCCR, Soto, 160.

15 R. J. Skiba, R.H. Horner, C. Chung, M.K. Rausch, S.L. May and T. Tobin, “Race is Not Neutral: A National

Investigation of African American and Latino Disproportionality in School Discipline,” School Psychology

Review, 40 no. 1, (2011): 85-107.

16 Fabelo, T., Thompson, M.D., Plotkin, M., Carmichael, D., Marchbanks, M.P. III, & Booth, E.A.,. Breaking

Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice

Involvement (New York: Council of State Governments Justice Center, 2011).

17 Ibid.

18 The U.S. Commission on Civil Rights maintains 51 State Advisory Committees (SACs), one for each state

and the District of Columbia. The Southern Regional Office (SRO) is composed of Florida, Georgia, Kentucky,

North Carolina, South Carolina, and Tennessee.

19 Tennessee Advisory Committee to the U.S. Commission on Civil Rights, “School Discipline: Are School

Discipline Practices Pushing Too Many African American Children out of School?” June 2011 at 12.
81 Statement of Chairman Castro, and Commissioners Achtenberg and Yaki

African American students in Kentucky’s Jefferson County School District made up 36

percent of the total student body during the 2008-2009 school year and received 61 percent

of all district discipline referrals.20 In Florida, African American students in the Duval

County Public School system received disciplinary referrals at a rate that was 202 percent of

their total enrollment during the 2008-2009 school year. In comparison, white students had a

referral rate that was 80 percent of their total enrollment.21 Although the African American

and white student population was found to be statistically equal,22 72 percent of African

American students received out-of-school suspensions in comparison to 20 percent of white

students in Duval County.23 These numbers strongly suggest that zero tolerance policies are

significantly impacting students of color. Yet, they do not explain causation nor do they

measure the consequences that these policies have on students.

During our briefing, some panelists indicated that race and socio-economic status contribute

to the disproportionate amount of disciplinary problems that exist in schools, with African

American students exhibiting the greatest disciplinary problems due to their socio-economic

background and home life. Current research contradicts this belief. In a 2010 study African

American students were found to be more likely to be sent to the office for disciplinary

reasons, even when teacher ratings of student misbehavior were controlled.24 This racial

disparity is especially evident when it comes to suspension referrals for subjective offenses,

such as disrespect or excessive noise. Studies have shown that African American students are

referred more often for these behaviors than their white peers, who tend to be referred for

behaviors that are objective, such as smoking, vandalism, and using obscene language.25

Researchers have concluded that there is no evidence that racial disparities in school

discipline can be explained by more serious patterns of rule-breaking among African

American students. Although poverty has been found to correlate with an increased risk for

suspension, studies have also shown that even when socio-economic status is controlled, race

continues to make a significant and independent contribution.26

In spite of the research, few school districts have taken steps to curtail or reverse the

continuous and escalating implementation of these policies and to minimize the disparate

results associated with them. In fact, these policies have led school administrators to

relinquish their authority over disciplinary infractions to law enforcement, including School

20 Kentucky Advisory Committee to the U.S. Commission on Civil Rights, “School Discipline in Kentucky: An

Examination of School Discipline in the Jefferson County Public School District,” June 2011 at 11.

21 Florida Advisory Committee to the U.S. Commission on Civil Rights, “School Discipline in Florida:

Discipline Practices Leave Many Behind,” December 2010 at 10.

22 The white and African American populations are essentially equal with 42 percent and 43 percent

respectively.

23 Florida Advisory Committee at 6.

24 Data from 6,988 children in 381 classrooms at 21 elementary schools was used to conduct an analysis. The

analysis indicated that even after controlling for the student's level of teacher-rated behavior problems, teacher

ethnicity, and other classroom factors, Black students were significantly more likely than White students to

receive disciplinary referrals to the office. See C.P. Bradshaw, M.M. Mitchell, L.M. O’Brennan, & P.J. Leaf,

“Multilevel Exploration of Factors Contributing To the Overrepresentation of Black Students in Office

Disciplinary Referrals.” Journal of Educational Psychology, 102 no. 2, (2010): 508-520.

25 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,” Urban Review, 34 (2010): 317-342.

26 Skiba supra 17 at 86.
School Discipline and Disparate Impact 82

Resource Officers (SROs), found patrolling local schools nationwide. This has resulted in

students being arrested for disorderly conduct, including at least one for swearing.27 Under

these policies a student can now conceivably be arrested and charged with “disruption of a

school activity” for burping in class.28 Doodling on a school desk has recently resulted in an

arrest rather internal discipline methods such as having the Principal order the student to

remove the doodle with cleaning detergent.29

Nationally, our law enforcement and juvenile justice systems currently lack the ability to

centrally track the number of students that are arrested or referred to the juvenile justice

system directly from schools. This also impedes the ability to identify whether students of

color are being disproportionately arrested by SROs. However juvenile justice data does

show that youth of color are disproportionately arrested when compared to their white

peers.30 At the state level, data does show that students of color are being disproportionately

referred to law enforcement by schools. In South Carolina, approximately 90% of disorderly

conduct charges were referred to law enforcement by schools during the 2000-2001 school

year. Black students represented 75% of the students charged and referred to law

enforcement even though they represented approximately 42% of the student enrollment

during that year.31 In Florida, during the 2008 – 2009 school year Black male and female

students accounted for almost half (49%) of all school related juvenile justice referrals, while

only representing 22% of the youth age 10-17 in Florida.32

The negative outcomes associated with the zero tolerance policies extend far beyond the

individual students and into the schools themselves. Research indicates that a negative

relationship exists between the use of exclusionary discipline practices and school wide

academic achievement, even when socioeconomic status is controlled for.33 In fact, higher

suspension rates have been found to be correlated to lower school-wide academic

achievement and standardized test scores.34 The widespread reliance on zero-tolerance

policies has also served to widen the achievement gap that currently exists in our public

schools. Nationwide, 28 percent of African American male middle school students and 16

percent of Hispanic male middle school students are currently being suspended each year,

27 In Wake County, NC a 16-yr old student was arrested and charged with disorderly conduct when she verbally

argued with other students and used profanity in the hallway. WRAL News, “Cary Teen Taken to Jail For

Swearing,” October 13, 2011. www.wral.com/news/local/story/1055548/.

28 Fox News, “Lawsuit Filed After New Mexico Teen Arrested for Burping in Class,” December 1, 2011.

http://www.foxnews.com/us/2011/12/01/lawsuit-filed-after-new-mexico-teen-arrested-for-burping-in-class/

29 CNN, “Girl’s Arrest for Doodling Raises Concerns about Zero Tolerance,” February 18, 2010 .

http://articles.cnn.com/2010-02-18/justice/new.york.doodle.arrest_1_zero-tolerance-schools-policeprecinct?_s=PM:CRIME.

30 National Council of Crime and Delinquency, And Justice for Some (Washington, DC: National Council on

Crime and Delinquency, 2007).

31 South Carolina Public Schools, School Crime Incident Report, School Year 2000-2001.

32 Florida Department of Juvenile Justice. Delinquency in Florida’s Schools: A Five-Year Study (2004-05 to

2008-09).

33 American Psychological Association Zero Tolerance Task Force, “Are Zero Tolerance Policies Effective in

the Schools? – An Evidentiary Review and Recommendations,” American Psychologist, 63 no. 9 (December

2008), p. 852 – 862, 854.

34 R. Skiba, Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary Practice (Bloomington, IN:

Education Policy Center Indiana University, 2000).
83 Statement of Chairman Castro, and Commissioners Achtenberg and Yaki

compared to 10 percent of White male students. Studies have shown that students suspended

in 6th grade are far more likely to be suspended again35 and research indicates that

suspensions and expulsions are, in turn, correlated to an increased risk of dropping out.36 A

research study has also shown that students who are suspended three or more times by the

end of their sophomore year of high school are five times more likely to drop out or graduate

later than students who had never been suspended.37

It is apparent that the enforcement of harsh disciplinary practices requires an immediate and

substantive response from both OCR and the school districts themselves. For some school

districts, change has already been implemented. Nationwide, some schools have adopted

alternatives to exclusionary practices, which have not only improved school climate and

increased student engagement but have also resulted in fewer suspensions and expulsions.

During the briefing Dr. Murphy, Dr. Wright and Dr. Martin spoke about building an area of

support within the schools, to not only reduce discipline concerns, but to also increase

student academic success. According to some panelists, positive, preventative techniques

such as Positive Behavior/Intervention Supports (PBIS), restorative justice, conflict

resolution and peer mediation, have improved school climate, reduced suspensions and

expulsions for subjective offenses, and have resulted in keeping students in school and

engaged. In addition, the public statement submitted by the Leadership Conference on Civil

and Human Rights on behalf of a coalition of diverse education and civil rights groups and

advocates, indicates that “some schools are blending evidence-based practices like SchoolWide Positive Behavior Supports (SWPBS) with focused efforts to address racial bias and

improve culturally relevant pedagogy.”38 In states such as Illinois and Indiana,

implementation of these practices has resulted in a reduction in out-of-school suspension

rates and a narrowing of the disparities between discipline and achievement.39

It is our hope that the new initiative implemented by the U.S. DOE Office of Civil Rights

will delve deeper into why disparities exist and whether the use of exclusionary policies are

even justifiable. Mr. Soto assured the Commission that school districts will be able to offer

alternatives to remedies suggested by OCR during enforcement proceedings. Schools will

also be allowed flexibility, during the early stages of the investigation, to provide input

before OCR invokes a more formal disciplinary process. This level of cooperation and

communication will play an important role in enhancing the legitimacy and efficacy of any

resolution agreement that is adopted. In addition, this approach will provide school districts

with an opportunity to analyze whether there are more effective, productive and less

discriminatory discipline practices that can be implemented that will ensure continued safety,

along with, equal educational opportunities for all students.

35 Daniel J. Losen, School Discipline – What the Research Tells Us: Myths and Facts, National Education

Policy Center Resource Sheet.

36 The Massachusetts Department of Education published a report which highlights the high risk for dropouts

and the need for earlier interventions, citing “numerous suspensions” as among the leading indicators. See

Losen, supra note 7, at 11.

37 National Center for Education Statistics. (June 1, 2006). The Conditions of Education 2006, Table 27-2.

http://nces.ed.gov/pubs2006/2006071.pdf.

38 Leadership Conference on Civil and Human Rights (LCCHR) record letter, March 11, 2011, p. 4.

39 Matt Cregor & Damon Hewitt, Dismantling the School-to-Prison Pipeline: A Survey from the Field,” Poverty

& Race, 20 no. 1, January/February 2011.
School Discipline and Disparate Impact 84

We commend OCR for trying to reinvigorate their efforts to make Dr. King’s dream of a

colorblind society a reality.40 It is our understanding that as part of their efforts, OCR will be

expanding their civil rights data collection set which will now include, for the first time,

zero-tolerance expulsions, referrals to law enforcement, and school-related arrests.41 All of

the data will be disaggregated by race, ethnicity, sex, disability and limited English proficient

status. The new data will be made available to the public in Fall 2011.42 This expanded data

will serve to highlight what DOE believes to be the most important civil rights issue facing

schools today, student discipline disparities.43 It will also serve to expand OCR’s ability to

effectively implement a disparate impact analysis to school discipline.

In light of Sandoval, it is important for OCR to become more strategic in their complaint

investigation process. Under the new initiative, OCR should not only provide schools with

the necessary guidance to implement any required changes under a corrective action plan,

they should also actively monitor each school district’s progress throughout the

implementation of the plan. Requiring a corrective action plan without post-implementation

monitoring serves no purpose and diminishes any positive impact that can be achieved

through the enforcement process.

One thing is painfully clear about the disparate state of school discipline imposed on students

of color: it creates a highway from the schoolhouse to the jailhouse. When a student is the

recipient of disproportionate discipline, he is more likely to drop out of school. Students who

drop out of school are more likely to become involved with the juvenile or criminal justice

system.44 Once they are part of the criminal justice system, those same former students of

color find they are victims of disproportionate punishment45 (but that is a topic for another

day).

It is apparent that the continuous removal of students of color for minor offenses represents a

violation of civil rights protections that were developed as a result of Brown v. Board of

Education. It is therefore time to make certain that these protections are consistently applied

for the sake of all of our children and their educational and economic future.

***

40 USCCR, “Briefing on Disparate Impact In School Discipline,” transcript of business meeting and briefing,

Feb. 11, 2011, testimony of Mr. Ricardo Soto, Principal Deputy Assistant Secretary in the Office for Civil

Rights, p. 134.

41 US DOE Civil Rights Data Collection, Questions and Answers Regarding the CRDC at

http://ocrdata.ed.gov/faq.aspx.

42 US DOE Civil Rights Data Collection at http://ocrdata.ed.gov/Whats_New.aspx.

43 US DOE Press Release issued June 30, 2011 at http://www.ed.gov/news/press-releases/new-data-usdepartment-education-2009-10-civil-rights-data-collection-show-conti.

44 Robert Belfanz et al., “High Poverty Secondary Schools and the Juvenile Justice System,” Deconstructing the

School-to-Prison Pipeline (San Francisco: Jossey-Bass, 2003), 77-78.

45 Moeller, Margaret, “Reauthorizing the Juvenile Justice and Delinquency Prevention Act: the Impact on

Latino Youth,” National Council of La Raza White Paper, Feb. 2011, p. 1.
85 Statement of Vice Chair Thernstrom

Statement of Vice Chair Abigail Thernstrom

In a joint news release of July 21, 2011 Attorney General Eric Holder and Secretary of

Education Arne Duncan announced a new initiative to address what they called the “schoolto-prison pipeline.” The initiative, they said, would support “good discipline policies and

practices that “foster safe and productive learning environments in every classroom.”

To that end, they promised to bring together government, law enforcement, academic, and

community leaders to make sure “school discipline policies are enforced fairly and do not

become obstacles to future growth, progress, and achievement.”

The federal government is much practiced in the art of making empty educational promises.

In 1965 when the Elementary and Secondary Education Act (ESEA) was passed President

Lyndon B. Johnson said the act would provide the one sure “passport” to a better life for

children in poverty – their means of escape. It was not a civil rights measure per se, but it

disproportionately affected black children, half of whom lived in poverty in 1965. As the

Education Department itself admitted in the waning days of the Clinton administration, the

statute has not made a significant difference in the lives of children whose futures seemed

bleak. Head Start was also launched in 1965 and promised to put children growing up in

poverty “on an even footing with their classmates.” It was another feel-good idea that was

hugely expensive and hugely unsuccessful.

Subsequent federal educational initiatives have fared no better, and it is a very safe bet that

the latest fantasy of ensuring that the educational system become “a doorway to opportunity

– and not a point of entry to our criminal justice system” – is little more than appealing

rhetoric. Attorney General Holder and Secretary Duncan describe that aim as “a critical and

achievable goal.” “Critical,” okay, but “achievable” . . . surely they do not believe that in

schools across the nation in every demographic setting (in the entire “educational system”)

they can magically transform the current school discipline picture.

We can all agree that, proportionate to their school population, black children are much more

likely than their white or Asian peers to be disciplined for behavior the schools find

intolerable. I hope we can also acknowledge that whites are twice as likely to be disciplined

as Asians. We should also be able to agree that disciplinary actions are taken in response to

real discipline problems. But can we come to a consensus on a solution? The clear answer is,

no.

Indeed, the likelihood of a constructive response to the problem of school discipline policies

that have a disparate impact on non-Asian minority group members is probably diminished

by framing the issue in civil rights terms. Labeling an issue one that involves civil rights

usually implies a problem of bigotry – racial animus. But racial animus cannot account for

the magnitude in disparity that we see in looking at group differences in school discipline.

That same disparity shows up in school systems run by black superintendents, schools in

which the principal is black, and classrooms in which the teacher is black.
School Discipline and Disparate Impact 86

In her concept paper urging a study of disparate impact and discipline, Commissioner Heriot

notes that “students from one-parent families are disproportionately likely to misbehave in

school, and that African-American students disproportionately come from one parent

families.” Much evidence supports her point. But where does it lead us? What public policy

can solve the problem of the collapse of the black family in the last four-to-five decades?

***
87 Statement and Rebuttal of Commissioner Gaziano

Statement and Rebuttal of Commissioner Todd Gaziano

The Department of Education’s policy that threatens to sanction schools whose disciplinary

policies unintentionally have a greater impact on students of certain races than others is

flawed both as a matter of law and policy.

The Education Department’s Legal Errors

Title VI of the Civil Rights Act of 1964 at Section 601 provides that no person shall, “on the

ground of race, color, or national origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 42 U.S.C. § 2000d (emphasis added). Simply put, section 601 prohibits

intentional discrimination by school officials on the basis of race, color, or national origin.

That’s what it means to act “on the ground of race, color, or national origin.”

Yet, the Department of Education’s regulations go much further, prohibiting recipients from

using “criteria or methods of administration which have the effect of subjecting individuals to

discrimination because of their race, color, or national origin.” 34 C.F.R. § 100.3 (emphasis

added). As Deputy Assistant Secretary of Education for Civil Rights Ricardo Soto explained

in his statement to the Commission, the Department’s regulations prohibit “race-neutral

policies, practices, or procedures that have a disparate impact on the basis of race, color or

national origin.”

Although this phrasing has been part of the executive branch’s lexicon for some time, it is

still worth pausing a moment on the Orwellian doublespeak of anything having a “disparate

impact on [a] basis” to show how hard the Department must strain to use some of the words

of the statute in service of the opposite of what they provide. Because a disparate impact is

usually understood as an unintended effect, and may include many unintended effects, this

formulation awkwardly attempts to equate unintended “impacts” with the actual basis (or

ground) for the action. Putting aside this nonsensical use of the English language, Soto’s

testimony accurately described the Department’s disparate-impact theory and its subjective

test relating to whether the Department thinks the educational reason for the action is both

legitimate and substantial, and has no other reasonable alternatives:

Unlike cases involving different treatment, cases involving disparate-impact

theory do not require that a school had the intent to discriminate. Rather, . . .

the pertinent inquiry is whether the evidence establishes that a facially neutral

discipline policy, practice, or procedure causes a significant disproportionate

racial impact and lacks a substantial, legitimate educational justification. Even

if there is a substantial, legitimate educational justification, a violation may

still be established under disparate impact if the evidence establishes that there

are equally effective alternative policies, practices, or procedures that would

achieve the school’s educational goals while having a less significant, adverse

racial impact.
School Discipline and Disparate Impact 88

Where does this authority come from? The text of Section 601 most certainly does not

prohibit unintended effects. If an action has an unintended racial effect, then the action was

not taken “on the ground of race.” Section 602 authorizes regulations to enforce the

prohibition in section 601, but does not authorize rules to enforce other prohibitions agency

officials deem desirable.

The prohibition in Title VI contrasts with other federal civil rights laws in which Congress

explicitly placed restrictions on actions or policies that have a disparate racial impact.

Although some of these provisions have raised constitutional questions as applied to the

states, at least there is no doubt that Congress forced the issue. For example, the 1991

amendments to Title VII explicitly authorized a “disparate impact” cause of action and set

forth the burden of proof necessary to establish an “unlawful employment practice based on

disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(A).

Under Section 2 of the Voting Rights Act (VRA), one circumstance which may be

considered in determining whether political processes violate the Act is the “extent to which

members of a protected class have been elected to office in the State or political subdivision.”

42 U.S.C. § 1973(b). Thus, Congress put in place at least a partial effects test in which the

process is judged in part by its outcome, even if the process was not intended to discriminate

on the ground of race.

The Americans with Disabilities Act (ADA) prohibits “using qualification standards,

employment tests or other selection criteria that screen out or tend to screen out an

individual with a disability or a class of individuals with disabilities unless the standard, test

or other selection criteria, as used by the covered entity, is shown to be job-related for the

position in question and is consistent with business necessity.” 42 U.S.C. § 12112 (emphasis

added).

As the above examples show, Congress knows how to prohibit unintended policies or effects.

The VRA and the ADA do not use the term “disparate impact” or even the word “effect” but

they turn on the outcome of the actions at issue. There is nothing like that anywhere in Title

VI. Indeed, the opposite is so. Congress prohibited actions taken “on the ground of” race,

color, or national origin, and no fair reading of that clause can turn it into an outcome or

effects test.

In the most recent opinion from the Supreme Court on the subject, five justices seemed to

agree that the Education Department’s disparate impact regulations in Title VI were invalid,

although the Court’s holding did not resolve that question. In Alexander v. Sandoval, the

Court wrote that it is “beyond dispute—and no party disagrees—that § 601 prohibits only

intentional discrimination.” 532 U.S. 275, 280 (2001). The Court chose to rest its opinion in

Sandoval, however, on whether private plaintiffs could sue to enforce disparate impact

regulations issued under section 602. The Court held that there was no private cause of action

to enforce disparate-impact regulations, id. at 291, and so there was no reason to reach

whether the regulations themselves were invalid. Nevertheless, the majority’s discussion of

the disparate impact regulations is an unmistakable indication that five justices thought the

disparate impact regulations were invalid.
89 Statement and Rebuttal of Commissioner Gaziano

The Court twice noted that section 602 only grants federal agencies authority to “effectuate

the provisions of [Section 601] of this title with respect to such program or activity by issuing

rules, regulations, or orders of general applicability.” And it repeatedly stated that section

601 only prevented intentional discrimination, see id. at 280-81. Section 602 does not by its

terms empower agencies to issue regulations that go beyond prohibiting the intentional

discrimination forbidden in Section 601. Thus, there is no textual argument that section 602

authorizes the disparate impact regulations.

The Department’s only defense is to rely on the now thoroughly discredited notion that

federal agencies are empowered to enact any regulations that effectuate the broad purposes

of the underlying statute rather than the statute’s actual terms. The Supreme Court in

Sandoval pointed out that it has abandoned support for that approach and had begun the

process of invalidating regulations that had no other basis in law. Id. at 287. The reason the

Sandoval Court assumed that the disparate impact regulations were valid in deciding that

case is more complicated than is worth explaining here, but the current Court often chooses a

narrower ruling if that will dispose of the case, and one was available in Sandoval.

Nevertheless, the five-justice majority’s most telling indication of what it thinks about the

validity of the Title VI disparate impact regulations is contained in this passage:

We cannot help observing [in the dissent] how strange it is to say that disparateimpact regulations are ‘inspired by, at the service of, and inseparably intertwined

with’ § 601, when § 601 permits the very behavior that the regulations forbid. See

Guardians: “If, as five Members of the Court concluded in Bakke, the purpose of

Title VI is to proscribe only purposeful discrimination ..., regulations that would

proscribe conduct by the recipient having only a discriminatory effect ... do not

simply ‘further’ the purpose of Title VI; they go well beyond that purpose.”1

Given the Supreme Court’s helpful warning, the executive branch should have shown similar

restraint, reexamined the legality of its disparate impact regulations, and abandoned them

since they were unauthorized. But there was no serious reexamination of the power that the

federal agencies had claimed for themselves, at least there is none the Department has drawn

to the Commission’s attention. Instead, there was a series of pronouncements that the

Supreme Court had not expressly overturned the regulations. These statements are bereft of

analysis but declare that the federal government will continue business as usual. In short, the

agency officials and bureaucrats doubled down on their own claim of power. Their

pronouncements regarding the precise holding of Sandoval are accurate, but the legal

foundation for the regulations themselves after Sandoval is more flimsy than ever.

Intentional Discrimination in the Name “Fairness”

Even if a disparate-impact regulation is authorized by Title VI, reliance on this “theory” is

bad policy. In almost any real-world setting, one cannot ensure both equality of treatment and

equality of results. Trying to ensure equality of result when the underlying merit is decidedly

1

Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001) (full citations omitted; ellipsis and emphasis in the

original quote).
School Discipline and Disparate Impact 90

uneven—or in this situation, the underlying misconduct is uneven—can only be achieved by

engaging in intentional discrimination.

In at least some school districts, the law of averages dictates that some groups of students

will merit more discipline than their proportionate share of the student population. If children

from certain backgrounds (e.g., fatherless homes or neighborhoods with lots of gang

members) misbehave at a higher rate and such children are not evenly distributed among all

racial and ethnic groups, there is even more reason to expect differences in the level of

misbehavior among different groups of students, whether that is potentially violent or just

disruptive of learning. If discipline is meted out in proportion to who deserves it, a disparate

impact will be found. The only way to “fix” the disparate impact is to intentionally

discriminate. As Roger Clegg has written, “Under the guise of combating the problem of

‘unintended discrimination,’ the [disparate impact] theory demands deliberate

discrimination.”2

Concentrating on disparate impacts in each school or district will lead, sadly but inevitably,

to discriminatory treatment of similarly-situated students in violation of the law. Teachers

who try to get their numbers “right” by ensuring that discipline is evenly distributed among

students of all races and ethnicities will have to treat individual students unequally. The

converse is also true: Teachers who are careful to treat all students the same, regardless of

race, gender, or ethnicity, will inevitably observe some disparate impacts if behavior meriting

discipline is not perfectly distributed among those groups. The only exception to the above is

if no discipline is ever meted out.

Differences in family structure are one reason why students may misbehave at different rates.

The estimated out-of-wedlock birth rates in the United States in 2010 were 17% for Asian or

Pacific Islander, 29% for non-Hispanic whites, 53.3% for Hispanics, 65.6% for American

Indians or Alaska Natives, and 72.5% for non-Hispanic blacks.3The rates of children

estimated to be living in single-parent families in 2009 were 16% for Asian and Pacific

Islanders, 24% for non-Hispanic whites, 40% for Hispanics, 53% for American Indians, and

67% for blacks.4 Growing up in single-parent families puts children at greater risk of

dropping out of school and becoming a teen parent.5It is associated with much higher

2 Roger Clegg, Disparate Impact in the Private Sector: A Theory Going Haywire, BRIEFLY . . . PERSP. ON

LEGIS., REG., & LITIG., NAT’L LEGAL CENTER FOR THE PUB. INT., Vol. 5, No. 12, at 11 (Dec. 2001).

3 BRADY E. HAMILTON, JOYCE A. MARTIN & STEPHANIE J. VENTURA, U.S. DEP’T OF HEALTH & HUMAN SERV.,

CENTERS FOR DISEASE CONTROL & PREVENTION, NAT’L CENTER FOR HEALTH STATISTICS, NAT’L VITAL

STATISTICS REPORTS, VOL. 60, NO. 2, BIRTHS: PRELIMINARY DATA FOR 2010, Table 1 (Nov. 2011).

4 THE ANNIE E. CASEY FOUND., KIDS COUNT DATA CENTER, DATA ACROSS STATES: CHILDREN IN SINGLEPARENT FAMILIES BY RACE (PERCENT) – 2009.

5

See MARK MATHER, POPULATION REFERENCE BUREAU, U.S. CHILDREN IN SINGLE-MOTHER FAMILIES (May

2010).
91 Statement and Rebuttal of Commissioner Gaziano

incidents of child neglect.6 As the report notes on page 75, scholars cite family composition

as a predictive factor in cognitive performance.7Sadly, data from Wisconsin also suggests

that “the probability of incarceration for juveniles in families headed by never-married single

mothers [is much] higher than for juveniles in the two-parent family.”8In sum, family

structure does not dictate the result for any child, but it does affect the odds of certain

negative outcomes and behaviors.

When determining whether a school district may have discriminated on the basis of race, the

Department examines the rates of discipline for the different races of students in the district.

Briefing Transcript at 158, 160-61 (Soto Testimony). Data alone may trigger an

investigation. Id. at 185. Given this method of triggering the investigation, it is unlikely the

Department would ever detect that a district is disciplining a group too little in order to get its

numbers right. The Department notices disparities; a school district with disciplinary actions

equally distributed among groups will not be noticed. The incentive for school districts,

principals, and teachers is to make sure there are no disparities in discipline among races of

students so as to avoid an investigation by the Department, which would be costly and time

consuming for the school district.

The report and the testimony of the witnesses demonstrated that administrators and teachers

are very concerned about disparities in discipline. A teacher from the suburban Washington,

DC area testified that her district monitors the disciplinary rates in her classes for AfricanAmerican and Hispanic students relative to the other students. The district’s expectation is

that there will not be disparities, and she is held to account if there are.9

Two school districts told the Commission they have changed their discipline policies in order

to reduce racial disparities in discipline. The Winston-Salem/Forsyth County Schools in

North Carolina revised its discipline policies to “address the disproportionate discipline of

African-American students in the district.”10 The Tucson Unified School District outlined the

“shift” in its discipline policies with the goal “to ensure . . . the reduction of disciplinary

incidents” for African American students. Expected outcomes for African American students

are “[r]educed discipline referrals to the office” and “[r]educed suspensions and

6

See DIANE DEPANFILIS, U.S. DEP’T OF HEALTH & HUMAN SERV., CHILDREN’S BUREAU, OFFICE ON CHILD

ABUSE & NEGLECT, CHILD NEGLECT: A GUIDE FOR PREVENTION, ASSESSMENT AND INTERVENTION, Chapter 4

(2006) (citation omitted).

7 Richard Arum and Melissa Velez, Class and Racial Differences in U.S. School Disciplinary Environments, at

4, chapter in IMPROVING LEARNING ENVIRONMENTS IN SCHOOLS: LESSONS FROM ABROAD (Forthcoming: Palo

Alto, Stanford University Press).

8

PATRICK FAGAN, HERITAGE FOUND., CONGRESS’S ROLE IN IMPROVING JUVENILE DELINQUENCY DATA (March

10, 2000).

9 Report at 28-29 (Written statement of Jamie Frank).

10 Letter from Donald L. Martin, Jr., Superintendent, Winston-Salem/Forsyth County Schools to Lenore

Ostrowsky (Dec. 10, 2010).
School Discipline and Disparate Impact 92

expulsions.”11 I do not know whether the original discipline polices were sound or not, but

changing them solely to affect a racial outcome serves no educational purpose, and racial

balancing for its own sake is not constitutional.

Of the 17 school districts that responded to the Commission, nine reported using the Positive

Behavior Intervention Support (PBIS) program, a “systems approach to preventing and

responding to classroom and school discipline problems.” One goal of the PBIS program is

to “eliminate[e] the disproportional number and racial predictability of the student groups

that occupy the highest and lowest achievement categories.”12 Artificially decreasing the

discipline of misbehaving students or artificially increasing the discipline for goody-twoshoes students who are the best behaved is not a sound educational or civil rights policy. For

the well-behaved students, it can only breed resentment, or worse, a desire to live “down” to

the lowered expectation.

The Counterproductive Effect on Minority Students

Of course, there is nothing wrong with schools implementing programs to improve student

behavior, which may eventually result in less disparity in discipline among different groups.

The danger is that schools will weaken disciplinary measures in order to equalize the

disciplinary rates, which will only increase disruptive behavior.13 Such a change will harm

well-behaved students the most by interfering with the productive learning environment they

deserve. This may be especially harmful to minority students who, as Arum and Velez point

out, “are exposed to school environments with high levels of disorder, violence and concerns

over safety” and who therefore “face the disparate impact of inadequate and ineffective

discipline in U.S. schools.” “Significantly,” they go on to say, “in schools with higher levels

of disciplinary administration, we . . . have found that the gap between African-American and

white student test performance does not exist.”14 In short, an increase in the use of disparate

impact investigations is likely to cause substantial harm to minority students about whom the

Department professes concern.

Rebuttal to Other Commissioner Statements

Statements by Commissioners Castro, Achtenberg and Yaki are unclear on some seemingly

important points, or at least some points that seem important to them. Their joint statement

begins with a condemnation of zero-tolerance policies, but the remainder of their statement is

11 Letter from Augustine Romero, Director of Academic and Student Equity, and Jimmy Hart, Director of

Academic Equity for African American Studies, Tucson Unified School District to Martin Dannenfelser (Dec.

13, 2010).

12 Letter from Romain Dallemand, Superintendent, Rochester (MN) Public Schools, to Martin Dannenfelser

(Nov. 30, 2010).

13 My own view is that the risks associated with too little discipline are greater than those with too much, and

thus, any approach that lessens the proper level of discipline are worse than the converse, even if applied fairly

across the board.

14 Arum and Velez at 35-36, supra Gaziano note 7.
93 Statement and Rebuttal of Commissioner Gaziano

much more concerned with the exercise of discretion in discipline by school administrators.

There is no acknowledgement of the contradiction between these two positions. The only

easy way to harmonize them is to assume the authors advocate no discipline, but that is not

supported by other portions of the joint statement. It is a puzzle.

As for most zero-tolerance discipline policies, I’ll register my opposition here, especially

when they are used to sanction a kindergartener who makes a finger gun, grade school boys

who draw pictures of soldiers, and others who bring nail clippers to school. Conservative and

libertarian thinkers are the leading voices against crazy, zero-tolerance rules.15

Although Commissioners Castro, Achtenberg and Yaki bemoan the increase of zerotolerance policies,16 one of the main drivers of this increase is the kind of accusations leveled

against school administrators in the rest of their joint statement, i.e., that administrators’

discretionary decisions are racially discriminatory. School administrators also may fear

private litigation over their exercise of discretion, but there should be little doubt that the

accusation of racial injustice from the federal government and others would be a powerful

force encouraging the growth and blind application of zero-tolerance policies.

The only conclusion a careful reader might draw from such a mish-mash is the importance

these commissioners attribute to getting the racial percentages right, regardless of anything

else. It would be unfortunate in the extreme, however, if their racial bean-counting

contributes to the entrenchment of zero-tolerance policies, especially if such policies have the

counterproductive effect that my fellow commissioners attribute to them.

Turning to their central claim, Commissioners Castro, Achtenberg and Yaki are relatively

clear in their assertion that the disparities among racial groups in school discipline have a

significant racial explanation, i.e., that schools are unfairly disciplining blacks and Hispanics

relative to whites and Asians due to their race and not because of other relevant factors. This

is an extraordinary claim that calls for extraordinary, or at least very carefully documented,

evidence. Yet, there appears to be very little evidence supporting that contention, certainly

not the studies cited in their statements, which are either seriously flawed or easily

distinguished. More scholarly study would be helpful, but it should be more rigorous and

carefully designed than that relied upon by the activists who try to use simple disparities to

prove something malevolent.

15 Prominent critics of zero-tolerance rules have included my colleagues at The Heritage Foundation, see, e.g.,

HERITAGE FOUND., CASE STUDIES: CRIMINALIZING KIDS I: TRUE TALES OF ZERO TOLERANCE

OVERCRIMINALIZATION (Dec. 2003) (high school senior arrested, suspended from school, and not allowed to

attend graduation ceremonies for having a kitchen knife in her car in the school parking lot); HERITAGE FOUND.,

CASE STUDIES: CRIMINALIZING KIDS II: MISDEMEANOR MISTAKES AND FELONY FORGETFULNESS (describing

arrests of children for minor offenses pursuant to zero-tolerance policies); and Reason magazine, see, e.g.,

Charles Oliver, No Hugging, No Learning, REASON HIT & RUN (Nov. 10, 2011) (middle school students

suspended for briefly hugging); Radley Balko, Further Adventures in Zero Tolerance, REASON HIT & RUN (Feb.

3, 2011); Radley Balko, Zero Tolerance Follies, REASON HIT & RUN (March 5, 2010).

16 In the first paragraph of their joint statement, they report that “almost 90% of U.S. public schools have

established and implemented some sort of zero-tolerance policy ... result[ing] in a substantial increase in the

number of expulsions and out-of-school suspensions currently being imposed by schools.”
School Discipline and Disparate Impact 94

The activists are not unlike those who think that differences in the racial composition of the

prison population are proof of discriminatory treatment in the criminal justice system.

Simplistic analyses of the offenses charged and sentences imposed compound the problem if

they do not control for other important factors, including an offender’s past criminal history.

Any criminology graduate student can debunk the poorly designed studies by demonstrating

how the introduction of additional factors eliminates the supposed proof of discrimination.

Unfortunately, the simplistic and faulty “studies” continue to fuel the myth of a racist

criminal justice system. When all the relevant factors are taken into account: “[T]here is

almost no reliable evidence of racial bias in the criminal justice system’s handling of

ordinary violent and non-violent offenses. Rather, the facts overwhelmingly show that blacks

go to prison more often because blacks commit more crimes.”17

As is the case with pseudo-studies of racism in the criminal justice system, so it is with

poorly designed studies of school discipline. One study cited by Commissioners Castro,

Achtenberg and Yaki found differences in punishment for students sent by teachers to the

principal’s office for committing supposedly similar offenses. Black and Hispanic students

were more likely to receive suspension or expulsion relative to white students for similar

offenses.18 But the study’s authors admitted they did not take into account which students

committed prior infractions, “a variable that might well be expected to have a significant

effect on administrative decisions regarding disciplinary consequences.”19 More importantly,

the authors’ own data showed that blacks were 2.19 times as likely to be referred for

misbehavior as whites in grades K-6 and 3.79 times as likely as whites in grades 6-9,20

making it much more likely that the black students were repeat offenders in any particular

encounter. Since repeat offenders may rightly receive more punishment, the study cannot tell

us whether administrators unfairly punished anyone.

17 AMY L. WAX, RACE, WRONGS, AND REMEDIES 91(noting some admitted anomalies with certain drug

offenses). Professor Wax continues:

As a noted criminal law scholar sympathetic to black concerns stated in an exhaustive

summary of the literature, “[v]irtually every sophisticated review of social science evidence

on criminal justice decision making has concluded, overall, that the apparent influence of the

offender’s race on official decisions concerning individual defendants is slight.” With respect

to arrests, “few or no reliable, systematic data are available that demonstrate systematic

discrimination.” Rather, “arrests can by and large be taken as reasonable reflections of the

involvement in serious crime of members of different racial groups.” Likewise, . . . blacks are

not singled out for stricter or more frequent prosecution. Nor do they receive longer sentences

once criminal history and other sentencing factors are taken into account.

Id. (citing MICHAEL TONRY, MALIGN NEGLECT 50, 71, 79).

18 See Russell J. Skiba et al., Race Is Not Neutral: A National Investigation of African American and Latino

Disproportionality in School Discipline, SCH. PSYCHOL. REV., Vol. 40, No. 1, at 85, 95 (2011) [hereinafter

Skiba, Race is Not Neutral].

19 Id. at 103.

20 Id. at 93.
95 Statement and Rebuttal of Commissioner Gaziano

A Texas study, also cited by Castro, Achtenberg and Yaki, found that “African-American

and Hispanic students were more likely than white students to experience repeated

involvement with the school disciplinary system for multiple school code of conduct

violations.”21 The paper noted that the “reader should not discount the possibility of

overrepresentation of African Americans among students who are repeatedly disciplined

flows from the previous finding that African-American students are disproportionately

involved in the discipline system in the first place.”22

The Texas study included a multivariate analysis in an attempt to compare students of

different races who were otherwise from similar backgrounds, including socioeconomic

background. But it did not isolate whether the students came from a single parent household,

which is likely far more important than other socioeconomic factors. Instead, acknowledging

the importance of family structure, the analysis included as a variable the percentage of

families in the student’s county headed by a single parent.23 This crude variable does not

remotely capture the family structure of an individual student. The analysis thus classified

many students as coming from similar backgrounds when they differed with regard to their

family situation.

The statement of Commissioners Castro, Achtenberg, and Yaki cites a different study for the

proposition that black students tend to be referred for discipline more often for “subjective

offenses, such as disrespect or excessive noise,” while white students tend to be referred

more often for “behaviors that are objective, such as smoking, vandalism, and using obscene

language.”24 An examination of the study itself reveals that black students were also more

often referred for “threat” or “loitering,” while white students were more often referred for

“leaving without permission.”25 The subjective offenses have elsewhere been termed

“defiance.”26 All such offenses could be serious, but threatening behavior—even if

subjective—should be viewed as more serious than skipping class.

Moreover, threats and other forms of defiance might well be more disruptive in a classroom

setting than obscene language. None of these behaviors will be helpful for the student later in

21 TONY FABELO ET AL., BREAKING SCHOOLS’ RULES: A STATEWIDE STUDY OF HOW SCHOOL DISCIPLINE

RELATES TO STUDENTS’ SUCCESS AND JUVENILE JUSTICE INVOLVEMENT, COUNCIL OF STATE GOVERNMENTS

JUSTICE CENTER; PUBLIC POLICY RESEARCH INSTITUTE 42 (2011).

22 Id. at 42 n.80.

23 Id. at 94.

24 Statement at 81.

25 Russell J. Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School

Punishment, THE URBAN REV., Vol. 34, No. 4, at 317, 332 (Dec. 2002).

26 Skiba, Race Is Not Neutral, supra Gaziano note 18, at 101. In contrast, a 2010 study of elementary students

cited by Commissioners Castro, Achtenberg, and Yaki did not find that black students were more likely than

white students to receive an office disciplinary referral for defiance. See Catherine P. Bradshaw et al., Multilevel

Exploration of Factors Contributing to the Overrepresentation of Black Students in Office Disciplinary

Referrals, J. EDUC. PSYCHOL., Vol. 102, No. 2, at 508, 513 (2010) (hereinafter Bradshaw et al.).
School Discipline and Disparate Impact 96

life; teachers should try to stop them all. But teachers and principals need discretion to deal

appropriately with each situation. Crude generalizations about subjective offenses (that may

include threats) versus objective offences are not helpful. They will either encourage the

administrators to ignore so-called subjective offenses or to try to formulate a zero-tolerance

rule that converts such subjective offenses into defined, objective offenses.

Finally, one study of elementary students was cited by Commissioners Castro, Achtenberg,

and Yaki for the proposition that black students receive office disciplinary referrals at a

higher than expected rate after controlling for various factors.27 The study had another

interesting finding, however: that black male students in classrooms with black teachers were

more likely to receive office disciplinary referrals than the other students.28 Perhaps all the

findings in this study of 21 elementary schools were anomalous, idiosyncratic, or explained

by some other factor that further review and study would reveal. Yet the authors suggest that

the “findings do not suggest that a cultural or ethnic match between students and their

teachers reduces the risk of [office disciplinary referrals] among Black students.”29

The study suggests four possibilities to me: (1) the black teachers in the study were biased

against black male students compared to other students and wanted black males punished at

higher rates, (2) the black teachers in the study were biased in favor of reforming black male

students as compared to other students, (3) the black teachers were more concerned about the

negative effect of misbehaving black male students on others in the class, or (4) none of the

above. In any event, the study does not easily support the simple message of racial hostility

or indifference by a majority white establishment against minority students.

In the end, however, the biggest difference between at least four of us on the commission and

Commissioners Castro, Achtenberg and Yaki is our disagreement with their predictable call

for an “immediate and substantive” intervention by the federal civil rights enforcers at the

U.S. Department of Education. At best, such intervention will be merely unlawful, costly,

and bureaucratic. In addition, I believe it will likely be counterproductive and make matters

worse for minority students in schools with the most serious discipline problems.30

***

27 Bradshaw et al. at 511, supra Gaziano note 26.

28 Id. at 514.

29 Id. at 515.

30 See also “Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow” in U.S. Commission on

Civil Rights, Peer-to-Peer Violence and Bullying: Examining the Federal Response at 163-68 (Sept. 2011),

regarding the likely counterproductive effects of greater federal involvement aimed at preventing student

bullying and harassment.
97 Statement and Rebuttal by Commissioner Heriot

Statement and Rebuttal by Commissioner Gail Heriot

On March 8, 2010, Secretary of Education Arne Duncan stood on the Edmund Pettus

Bridge in Selma, Alabama. The occasion was the forty-fifth anniversary of the confrontation

known as “Bloody Sunday” between peaceful civil rights demonstrators and state and local

police. There he delivered an emotional address in which he declared that the previous

administration had been guilty of a lack of vigilance in combating discrimination and

promised that he would “reinvigorate civil rights enforcement.”

The emotion that Duncan felt was understandable in view of the site of his speech.

But Duncan’s words had the ring of a general rallying his troops to fight the last war. His

strategy–a frontal attack on what he evidently regards as hidden race discrimination—bears

little relation to the problems schools, especially schools that primarily serve minority

children, actually face. Instead of promising to cut through the layers of bloated bureaucracy

that smother innovative schools and teachers at all levels, he promised to use the Department

of Education’s bureaucracy to double down on schools. His Department of Education would

be conducting “compliance reviews” and issuing “a series of guidance letters to school

districts and postsecondary institutions that will address issues of fairness and equity.” 1 One

media report later said that rather than “waiting for cases to come in the door,” Duncan’s

Department of Education “plans to use data to go find [civil rights] problems.”2

Disciplinary actions will be a special concern in carrying out Secretary Duncan’s

vow to root out subtle discrimination and disparate impact. He told the crowd, “AfricanAmerican students without disabilities are more than three times as likely to be expelled as

their white peers” and “African-American students with disabilities are over twice as likely

to be expelled or suspended as their white counterparts.” The Department of Education’s

plan, which had been in the works well before his speech, is to keep schools under careful

surveillance: “We will review whether districts and schools are disciplining students without

regard to skin color. We will collect and monitor data on equity,” he said.

The danger should be obvious: What if an important reason African-American

students were being disciplined more often than white or Asian students is that more AfricanAmerican students were misbehaving? And what if the cost of failing to discipline those

students primarily falls on their fellow African-American students who are trying to learn

amid classroom disorder? Will unleashing the Department of Education’s Office for Civil

Rights and its army of lawyers cause those schools to eliminate only that portion of the

discipline gap (if any) that was the result of race discrimination? Or will schools react more

heavy-handedly by tolerating more classroom disorder, thus making it more difficult for

students who share the classroom with unruly students to learn?

1 Crossing the Next Bridge: Secretary Arne Duncan’s Remarks on the 45th Anniversary of “Bloody Sunday” at

the Edmund Pettus Bridge, Selma, Alabama (March 8, 2010), available at

http://www.ed.gov/news/speeches/crossing-next-bridge-secretary-arne-duncan’s-remarks-45th-anniversarybloody-sunday-ed.

2

Paul Baskin, “Education Department Promises Push in Civil Rights Enforcement,” The Chronicle of Higher

Education, March 8, 2010.
School Discipline and Disparate Impact 98

There are two sides to the “disparate impact” coin. Secretary Duncan focuses only

upon the fact that, as a group, African-American students are suspended and expelled more

often than other students.3 By failing to consider the other side of the coin—that AfricanAmerican students may be disproportionately victimized by disorderly classrooms—his

policy could easily end up doing more harm than good to the very group he is attempting to

help.4

3

In this respect, the controversy over disparate impact in school discipline may have parallels to the controversy

over the death penalty. For many years, some opponents of the death penalty argued that it should be abolished

because it has a disparate impact on African-American male offenders. According to Department of Justice

figures, 34.6% of all offenders executed between 1976 and 2011 were black, 6.87% were Hispanic and 56.6%

were white. This constitutes an overrepresentation of blacks, who made up around 12% of the American

population during that period. Such an overrepresentation may seem troubling until one learns that Department

of Justice figures over that period also record that 52.2% of all homicide offenders are black. Indeed, some

studies have found that if there is a problem with the death penalty, it is not that black offenders appear to be

discriminated against; it is that black victims appear to be discriminated against. Most homicides are within

race. According to Department of Justice statistics, 46.9% % of all homicide victims are black, yet only 14.2%

of those executed for homicide killed black victims. Some empirical studies have attempted to explain this as

the result of a lack of value placed upon black lives by prosecutors. See Theodore Eisenberg, Death Sentence

Rates and County Demographics: An Empirical Study, 90 Cornell L. Rev. 347 (2004)(citing studies suggesting

that it is black victims who are discriminated against and arguing instead that such murders may simply be more

likely to take place in places dominated by voters who oppose the death penalty). Those who advocate more

lenient school discipline (or just different methods of school discipline) may or may not have a point, just as

those who oppose the death penalty may or may not have better arguments regarding the death penalty

controversy. But insofar as they premise their argument on the supposed disparate impact of the policies they

oppose, they must recognize that there is another side to the coin. Efforts to reduce the number of AfricanAmerican offenders who are subject to the death penalty are likely to exacerbate the disparate impact on

African-American victims, which in the view of many is just as bad if not more so. Ultimately, it is to be hoped

that policy over the death penalty and over school discipline matters can be decided over considerations that

transcend race, gender or ethnicity.

4

I agree with Commissioner Gaziano that Title VI simply does not permit the Department of Education to

proceed against schools on a disparate impact theory and that the Department’s regulation nonetheless adopting

that theory, 34 C.F.R. sec. 100.3, is therefore unauthorized by law. It requires actual discrimination. See Section

601 (Title VI) of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000d (No person shall “on the ground of race,

color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance”). See also Alexander v.

Sandoval, 532 U.S. 275 (2001). I also agree with Commissioner Gaziano that the problem with disparate impact

analysis is not simply that it goes beyond what Congress authorized in Title VI; it actually contradicts Title VI.

If one group receives more school discipline than another because (for whatever reason) its members violated

more school rules than the other, race-conscious efforts to alter the “disparate impact” are usually themselves

discriminatory.

Commissioner Yaki makes it clear that he would like to see disparate impact analysis used more

widely. He calls the “revival of disparate impact analysis in [Title VI] enforcement” a “particularly

commendable” development—although at least in the draft of his statement that was made available to me, he

did not attempt to explain why the law permits the Department of Education to pursue such a legal strategy.

Among the racial and ethnic disparities that he believes are in need of remedying are “a wide achievement gap,

disparate dropout rates, and skewed placement in special education or gifted and talented programs.”

Commissioner Yaki is, of course, right to be concerned with these matters, which he concedes are not

necessarily the result of “conscious discriminatory intent.” I would add that discrimination, either conscious or

unconscious, has very little to do with these problems or their solutions. The sooner that is recognized, the

sooner the problems can be solved.
99 Statement and Rebuttal by Commissioner Heriot

There are many theories as to why some students misbehave in schools and others do

not. While both misbehaving and model students come from every walk of life, no one

should be surprised to learn that students from households below the poverty line tend to

present more discipline challenges than others. Since according to the U.S. Census 27.4% of

blacks live below the poverty line, while 26.6% of Hispanics, 9.9% of whites and 12.1% of

Asians do, one should not be astonished to find that racial groups are not disciplined at the

same rates.5Similarly, though probably not unrelatedly, 72% of African American and 53%

of Hispanic children are now being born outside of wedlock, as opposed to 29% of white and

17% of Asian/Pacific Islander children.6 Given that much research has found that children

born outside of wedlock or living in single-parent households are more likely to engage in

anti-social behavior than other children, it would be naïve to expect rates of discipline to be

equal across races.7 One cannot infer race discrimination from the differing discipline rates.

5 To the contrary, if living below the poverty line were the sole determinant of who misbehaves inside or

outside of the classroom (which it is surely not), one would expect African American students to be disciplined

at roughly 2 to 3 times the rate for white students—which is exactly what Secretary Duncan’s figures showed.

Non-Hispanic white and Asian households also have higher median incomes than black and Hispanic

households. According to the Census Bureau, in 2010 non-Hispanic white households had a median income of

$54,620 and Asian households $64,308; black households had a median income of $32,068 and Hispanic

households $37,759. See U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage 2010. See also

Ellen Brantlinger, Social Class Distinctions in Adolescents’ Reports of Problems and Punishments in School, 17

Behavioral Disorders 36 (1991).

6 Child Trends Data Bank, “Births to Unmarried Women,” available at

http://www.childtrendsdatabank.org/?q=node/196.

7

See, e.g., William S. Comanor & Llad Phillips, The Impact of Income and Family Structure on Delinquency,

J. App. Econ. 209 (2002); Susan C. Duncan, Terry E. Duncan, Lisa A. Strycker & Nigel R. Chaumeton,

Relations Between Youth Antisocial and Prosocial Activities, 25 J. Behavioral Med. 425 (2002); Lela Renee

McKnight & Ann Booker Loper, The Effects of Risk and Resilience Factors in the Prediction of Delinquency in

Adolescent Girls, 23 School Psychology Int’l 186 (2002); Amy L. Anderson, Individual and Contextual

Influence on Delinquency: The Role of the Single Parent Family, 30 J. Crim. Justice 575 (2002); Stephen

Demuth & Susan L. Brown, Family Structure, Family Processes and Adolescent Delinquency: The Significance

of Parental Absence Versus Parental Gender, 41 J. Res. Crime & Delinquency 58 (2004); Todd Michael Franke,

Adolescent Violent Behavior: An Analysis Across and within Racial/Ethnic Groups, 8 J. Multicultural Social

Work 47 (2000); Marcia J. Carlson & Mary E. Corcoran, Family Structure and Children’s Behavioral and

Cognitive Outcomes, 63 J. Marriage & Family 779 (2001). But see Mallie J. Paschall, et al., Effects of

Parenting, Father Absence, and Affiliation with Delinquent Peers on Delinquent Behavior Among AfricanAmerican Male Adolescents, 38 Adolescence 15 (2003)(finding no delinquency difference in a non-random

sample of 260 African-American, adolescent males between those who reported living with a father or father

figure and those who did not).

One of the witnesses at our briefing, teacher Patrick Walsh, made it clear that it was his opinion that the racial

disparities in discipline were largely the result of poverty and family structure and not related to race per se. He

stated: “It’s not the African American girls on their way to UVa or William & Mary [who disproportionately are

disciplinary problems at school]; it’s not the black girls from Ghana or Sierra Leone or Ethiopia who come here

to live the American dream, but it’s the black girls who are products of what Colbert King in a great article that

everybody should read that was in the Post last Saturday called an inter-generational cycle of dysfunction. Girls

who have no fathers in their homes, who often are born to teen mothers. They’re a small group, but the fact is

they cause enormous problems in school ... and it’s the same with the boys.” Transcript at 26-27. Walsh openly

acknowledged that this cycle of dysfunction likely had roots in a history of racial discrimination. He was not,

however, optimistic that the disparity would disappear before “the problems of poverty and teen pregnancy and
School Discipline and Disparate Impact 100

Indeed, given that schools with African-American principals and mainly African-American

teachers are just as likely as schools with white principals and mainly white teachers to have

a large “discipline gap,”8it is unlikely that anything other than differing rates of misbehavior

contribute significantly to the differing rates of discipline. Those who claim to have

demonstrated that discrimination and racism are at work are simply scandalmongering.9

lack of fathers can be reduced or solved.” Id. See Colbert I. King, Celebrating Black History as the Black

Family Disintegrates, Washington Post (February 4, 2011)(the article to which Walsh was referring).

Efforts to suggest that the differences in the rates of discrimination between blacks and whites are

anomalous (in the sense that they cannot be accounted for in large part by factors such as socio-economic class

or fatherless homes) tend to fall short of the mark. Consider, for example, Breaking Schools’ Rules: A

Statewide Study on How Schools Discipline Relates to Students’ Success and Juvenile Justice Involvement—a

report issued by the Justice Center of the Council of State Governments and the Public Policy Research Institute

of Texas A&M University. That study purports to find that even after 83 different variables (including a

measure of economic disadvantage) are taken into account, African American students are still 31.1% more

likely than white students to have been the subject of discretionary disciplinary action in the 9th grade. The

implication, at least to some readers, was that perhaps some teacher reports of misbehavior by African

American students were false or misleading. But the presence of both parents in the student’s home was not

taken into account. And the method used to control for economic disadvantage was rudimentary. Rather than

control for household income, parents’ educational attainment or other markers of socio-economic status, the

study controlled only for whether the student is eligible for free or reduced-price lunch or other public

assistance. A binary classification system of this type does not convey the whole picture. It treats a student

whose parents earns a penny more than the eligibility cut-off the same as a student whose parents are both

wealthy, well-educated professionals. Similarly, it treats a student whose parents earn the maximum allowable

for reduced-price lunch benefit ($40,793 for a family of four in 2010), because they are both attending graduate

school, the same as a homeless child being shuffled from one shelter to another. It is not clear from the Texas

A&M study that students of different races with truly similarly-situated family and socio-economic status will

have differing rate of school discipline problems. Moreover, it is certainly not clear that the African-American

students (or the students of other races) looked at by the study had not committed the infractions for which they

were disciplined or that they did not deserve to be disciplined in the particular way the school authorities chose

to discipline them.

8 Tony Fabelo, Michael D. Thompson, Martha Plotkin, Dottie Carmichael, Miner P. Marchbanks III and Eric A.

Booth, Breaking Schools’ Rules: A Statewide Study on How Schools Discipline Relates to Students’ Success

and Juvenile Justice Involvement (2011)(“Texas A&M study”). See also Catherine P. Bradshaw, Mary M.

Mitchell, Lindsey M. O’Brennan, Philip J. Leaf, Multilevel Exploration of Factors Contributing to the

Overrepresentation of Black Students in Office Disciplinary Referrals, 102 J. Educ. Psych. 508 (2010).

9

See, e.g., Russell Skiba, Robert H. Horner, Choong-Geun Chung, M. Karega Rausch, Seth L. May & Tary

Tobin, Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in

School Discipline, 40 School Psych. Rev. 85 (2011)(“Skiba-Horner”). Skiba-Horner purports to find that

African-American students tend to be punished more harshly for the same general categories of behavior. But

the actual data behind the study do not support such a finding. The authors readily admit that, in making their

comparisons, their data failed to take into consideration whether the student was in any way a repeat offender—

a variable that they further admit “might well be expected to have a significant effect on administrative

decisions regarding disciplinary consequences. Skiba-Horner at 103. But this is no hypothetical possibility.

Elsewhere in the Skiba-Horner analysis they find that “students from African-American families are 2.19

(elementary) to 3.78 (middle) times as likely to be referred for problem behavior as their White peers.” Id. at 85.

In other words, their own data point strongly in the direction that African-American students are in the

aggregate much more likely to be repeat visitors to the principal’s office. This is a study at war with itself.

Skiba-Horner attempts and fails to draw support for its conclusion by citing a number of earlier studies.

Consider, for example, “Student Suspension: A Critical Reappraisal,” which Skiba-Horner describes as having
101 Statement and Rebuttal by Commissioner Heriot

found “no significant difference in [disciplinable] behavior between African-American and white students.” See

Shi-Chang Wu, William Pink, Robert Crain & Oliver Moles, Student Suspension: A Critical Reappraisal, 14

Urb. Rev. 245 (1982). In that article, the authors asked both black and white students eight questions designed

to determine whether their propensity for anti-social behavior such as “Would you cheat on a test (if you could

get away with it)?” and do you agree or disagree or are you undecided about whether if “you want to get ahead,

you can’t always be honest?” They found that among students with similar answers, black students tend to get

suspended more than white students. This, of course, is not the same thing as finding “no significant differences

in behavior between African American and white students.” First, there was no finding that African American

and white students gave similar answers to the questions; the study did not make such a comparison and instead

simply compared African American students to white students who gave similar answers. Second, even among

students who gave similar answers, there is no reason to believe they engaged in the same level of bad behavior.

If, for example, the average white student with a high number of anti-social answers had greater reason to

believe he would be punished by his mother and father if he engaged in bad behavior at school and got caught

than an equivalent African American student, the anti-social white student could be expected to behave better.

(Indeed, one of the main problems with the Department of Education’s policy is that it deprives minority

students of the opportunity to develop the discipline they need to succeed—something that white, middle-class

students will often adequately learn at home.) In short, Skiba-Horner was off-base for citing this article as

evidence that African-American students engage in misbehavior at the same rates as white students.

An earlier effort by the lead author in Skiba-Horner was similarly flawed. Russell J. Skiba, Robert S. Michael,

Abra Carroll Nardo & Reece L. Peterson, The Color of Discipline: Sources of Racial and Gender

Disproportionality in School Punishment, 34 Urb. Rev. 317 (2002)(“Skiba-Michael”). It purports to provide

evidence that part of the reason that African-American students in the middle schools in the school district

under study get referred for discipline a little over twice as often as white students is race discrimination on the

part of teachers. It does so by demonstrating that among students who are referred for discipline, AfricanAmerican students are proportionately more likely to be referred for “Disrespect,” “Excessive Noise,” “Threat,”

and “Loitering,” while white students are proportionally more likely to be referred for “Smoking,” “Left

without Permission,” “Vandalism,” and “Obscene Language.” Apparently, there were no statistically significant

differences in the proportions on matters of “Fighting,” “Endangering,” “Conduct Interference,” “Throw/Propel

Objects,” “Gambling,” “Sexual Acts,” “Indecent Exposure,” “Minor Offenses,” “Spit,” “Truancy,” and a few

unspecified reasons for discipline referral. Skiba-Michael at 332-333, Table 5.

Note that this is emphatically not the same thing as a finding that white students actually commit or are referred

for committing “Smoking,” “Left without Permission,” “Vandalism,” or “Obscene Language” more often than

African-American students. Given that African-American students are referred for discipline at rates more than

twice that of white students, it may well be (indeed it may be likely) that the rate of African-American referrals

for these behaviors is higher than the rate of white referrals across the board. Skiba-Michael studiously avoids

presenting data on that point and instead argues that because a somewhat higher percentage of the total AfricanAmerican referrals are for conduct that is subjective in nature (compared to the percentage of total white

referrals for that kind of conduct), teachers are likely being harsh on African-American students on account of

their race.

Even if this were the most plausible explanation for the different proportions, it is unclear that it would explain

more than a very small proportion of the overall differences in rates of referral. More important, however, it is

not the most plausible explanation for the higher proportion of referrals for subjective misbehavior among

African-American students. Given that the overall rates of referrals for misbehavior are more than twice as high

for African-American students as for white students, the number of African-American students who are

repeatedly referred for misbehavior is undoubtedly much higher. It is perfectly sensible for teachers to be

quicker to refer students for “subjective misbehavior” if the student already has a track record of misbehavior. If

the best behaved student in the class says something that could plausibly be interpreted either as a threat or as a

lame joke, teachers may be inclined to give him the benefit of the doubt; if a student who attacked another

student last week says the same thing, it is more than reasonable to interpret his behavior less favorably.

I strongly suspect one would find similar results if one looked at the arrest and prosecution records of adult

parolees. Those who have never been arrested or convicted of a crime normally they get the benefit of the doubt
School Discipline and Disparate Impact 102

I do not purport to know the best way to maintain discipline in the nation’s

classrooms or to cause students to adopt the self-discipline they will need to live happy and

useful adult lives.10 I strongly doubt that there is a “one size fits all” best way. That is why

the Constitution does not confer upon the federal government the authority to set school

discipline policy, and Congress does not even purport to confer such authority on the

Department of Education. These are matters best left to individual schools and local school

districts. As a nation, we are better off having a variety of approaches to school discipline in

order to foster experimentation and adaptation to local needs. For the same reason, education

policy in general is best left to individual schools and local school districts.11

It is not, therefore, my intention to take sides in the general debate over whether

suspension and expulsion rates are too high or whether more effective alternatives to current

disciplinary policies can be found.12 It may well be true, for example, as critics of current

when it comes to misconduct that requires the police officers subjective judgment; parolees are less likely to.

Consequently, the proportion of parolees who get prosecuted for offenses that might be viewed as subjectively

defined would likely be higher than the proportion of first-time offenders who get prosecuted for such offenses.

But that would be true regardless of the offender’s race. Skiba-Michael has uncovered no evidence that one

would not expect to find under well-functioning school discipline policy where it happens to be the case that

African-American students misbehave at higher rates than white students. The authors’ conclusions to the

contrary are unwarranted.

10 A sometimes spirited debate over general school discipline policy has been going on for over a century. On

the one hand, there is the Progressive view mostly closely associated with John Dewey who argued that strong

disciplinary methods only served “to cow the spirit, to subdue inclination” and to foster “indifference and

aversion” to schools. John Dewey, On Democracy and Education: An Introduction to the Philosophy of

Education 129 (1916). On the other, there are conservatives who argue that Progressive methods have been a

disservice to students, especially those born into family environments that fail to instill self-discipline into each

new generation. See, e.g., Jackson Toby, The Schools in Crime (James Q. Wilson and Joan Petersilia, eds.

1995). See also Gerald Grant, The World We Created at Hamilton High (1988). It is unnecessary for me to

weigh in on that debate in order to make the points that (1) classrooms must be reasonably orderly in order for

students to learn; (2) it is not the federal government’s responsibility to decide what sort of discipline policy

will best promote that orderliness or even what level of orderliness is to be sought; and (3) issues of race should

not drive the debate.

11 Indeed, one can go somewhat further: Even if one size could potentially fit all, it would be hard to know what

that size is. The success of education policy, including discipline policy, is something that is hard to measure. In

the short run, it is very difficult to tell what is working and what is not, and sometimes even in the long run,

separating good practices from bad can be tough. As a consequence, education is prone to fads and fashions, not

all of which have turned out to be in the best interests of students. A good example is the New Math. See Morris

Kline, Why Johnny Can’t Add: The Failure of the New Math (1973). Similarly, a debate raged for some time

between advocates of the phonetic approach to literacy and those who favor the “sight-word” or “whole

language” approach. It is doubtful that the last word has been written on this topic. Let us hope that the nation’s

children will be able to read it when it comes. See Rudolph Flesch, Why Johnny Can’t Read—And What You

Can Do About It (1955); Marilyn Jager Adams, Learning to Read: Thinking and Learning About Print (1990).

In the end, the best defense against the risk created by faddishness is a decentralized system of decision-making

about education. Schools that march in lockstep have been known collectively to march off a cliff.

12 One issue I am willing to take a stand on is the gross misuse of statistics. In their draft statement provided to

me, Commissioners Castro, Achtenberg and Yaki wrote, “One thing is painfully clear about the disparate state

of school discipline imposed on students of color: it creates a highway from the schoolhouse to the jailhouse.”

In their view, a student who receives “disproportionate discipline” is “more likely to drop out of school.”

Statement of Chairman Martin R. Castro and Commissioners Roberta Achtenberg and Michael Yaki at 84. The
103 Statement and Rebuttal by Commissioner Heriot

practices argue, that because suspensions take misbehaving students out of the classroom,

they have the effect of putting those students further behind their peers.13 This is part of the

price that has been paid for eliminating corporal punishment in most states and in severely

limiting the use of “staying after school” as a method of dealing with student misbehavior.14

Whatever the other virtues and/or vices of these approaches to instilling discipline in

children, they did not have the effect of removing them from instruction for significant

periods of time.15

theory that African Americans are dropping out or turning to crime because they have been disciplined by

schools is a fashionable one these days. Commissioners Castro, Achtenberg and Yaki appear to be committed to

it. See id. at 6 (“Studies have shown that students suspended in 6th grade are far more likely to be suspended

again and research indicates that suspensions and expulsions are, in turn, correlated to an increased risk of

dropping out. A research study has also shown that students who are suspended three or more times by the end

of their sophomore year of high school are five times more likely to drop out or graduate later than students who

had never been suspended”)(citations omitted). But their theory runs headlong into Occam’s Razor. A far

simpler theory is that students who tend to misbehave when they are younger also tend to misbehave when they

are older. The only thing that is “painfully clear” is that the correlation Commissioners Castro, Achtenberg and

Yaki cite does not prove causation.

13 Commissioner Yaki also complains that too many students are being arrested for offenses that are best dealt

with outside the criminal process. Statement of Commissioner Yaki at 119. He may be well be right. See, e.g.,

Kathryne Solove, Student Arrested for Burping During Class, ABC News (December 2, 2011). But a large part

of the reason that too many trivial incidents are being treated as criminal matters is that school districts are

hiring police officers (known as school resource officers (“SROs”)) to patrol school hallways rather than relying

on traditional school administrators to keep order. Problems are inevitably defined by the tools we use to deal

with them. If police officers are hired to deal with school discipline issues, the issues will be viewed as criminal.

In turn, the reason so many school districts hire police officers to keep order is the COPS in Schools program,

which is funded through the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 (1994).

COPS in Schools provides up to $125,000 per officer per year for three years to schools willing to hire such

officers.

This is not a race problem. It won’t be cured by the “revival of disparate impact analysis” that Commissioner

Yaki lauds. Statement of Commissioner Yaki at 119. The way to stop the problem is for Congress to terminate

the COPS in Schools program and for school districts to return to relying on more traditional school

administrators focusing on discipline. Of course, that may not be as easy as it sounds. Once a program and the

jobs that go with it are in place, it is devilishly difficult to get rid of them. That is why government should think

twice and then twice again before creating a program. I note that the Violent Crime Control and Law

Enforcement Act of 1994 was the brainchild of now-Vice President Joseph Biden and was a thoroughly

bipartisan effort from start to finish. These are the kinds of programs that can cause the greatest problems.

Nobody on either end of the political spectrum thinks them through until it is too late. If it becomes clear that

they are not working well, the solutions offered (e.g. by Commissioner Yaki) consist of yet more federal

intervention. At some point, it would be helpful for federal authorities to stop thinking of themselves as the

solution to every local problem and thus to stop the cycle.

14 These are not the only ways in which the art of maintaining order in the classroom and of helping students to

internalize self-discipline has had to change with the times. At one point, teachers were encouraged to have oneon-one relationships with their students. These days, teachers are discouraged from being in the same room

alone with a student on account of concerns over sexual harassment and sexual harassment laws.

15 Many schools apparently take the position that without parental consent they cannot keep a student after

school. It is not clear to me why the state has the authority to compel a student to attend school during regular

school hours, but has no authority to compel a misbehaving student to spend an hour or two after school unless

the school has cleared this with the student’s parents. Of course, that authority should only be exercised in a

reasonable manner. Working out a model procedure that would permit this seems to me like a more useful
School Discipline and Disparate Impact 104

Rather than try to resolve all questions of school discipline policy,16 I will stick to two

points that should be obvious, but which seem to have gotten lost in this debate.

First, in general, disorderly students mean disorderly classrooms. And disorderly

classrooms make learning less likely to occur—something that both teachers and students

recognize.17 The problem may be significant in many places, but it is particularly acute in

inner-city schools and other low-income areas.

18 An article in the San Francisco Chronicle,

project than Secretary Duncan’s effort to force the problem into a “race discrimination” paradigm. This is a

surmountable problem. Student who are sent home are more likely to fall further behind in school and to get

into trouble than students who are kept after school. That is true regardless of the race of the students who are

suspended or expelled.

16 Commissioners Castro, Achtenberg and Yaki argue that zero-tolerance policies have contributed to the high

number of suspensions and expulsions of minority students and that these policies should be reined in. By

removing discretion from teachers, principals and other school authorities, such policies are designed to prevent

discrimination, not promote it. Zero-tolerance policies can therefore sometimes be good policies. But no one

can accuse me of being a fan of over-the-top zero-tolerance policies that are practiced in schools today. It is

important, however, not to forget that many schools enacted zero tolerance policies at least in part due to federal

pressure. See the Gun Free School Zones Act of 1996 (P.L. 104-208.)

When the Department of Education issued its policy declaring that school districts that don’t control sexual

harassment would face stiff consequences, school districts understandably adopted policies designed to remove

discretion from teachers and principals. See 6-Year-Old Boy Accused of Sexual Harassment, WSPA-7-OnYour-Side (April 4, 2008); Yvonne Bynoe, Is that 4-Year-Old Really a Sex Offender?, The Washington Post

(Oct. 21, 2007); Scott Michels, Boys Face Sex Trial for Slapping Girls’ Posteriors, ABC News (July 24, 2007);

Gitika Ahuja, First-Grader Suspended for Sexual Harassment: Boy’s Mother Says He’s Too Young to Even

Understand the Accusation, ABC News (February 9, 2006). These incidents were not isolated. According to the

Maryland Department of Education, 166 elementary school students were suspended in the 2007-2008 school

year for sexual harassment, including three pre-schoolers, 16 kindergarteners and 22 first graders. In Virginia,

255 elementary students were suspended for offensive sexual touching in that same year. Juju Chang, Alisha

Davis, Cole Kazdin and Olivia Sterns, First-Grader Labeled a Sexual Harasser: Has Zero-Tolerance for Sexual

Harassment in Schools Gone Too Far?, ABC News (Feb. 19, 2009). And if over forty Maryland pre-schoolers,

kindergarteners and first-graders have been suspended for sexual harassment, can you imagine how many

middle and high school students have been suspended for antics, real or imagined, that they never should have

been suspended for? Schools cannot afford to be found out of compliance by the Department of Education or

liable to a private litigant (who might use the failure to discipline any sexually harassing student as evidence of

indifference). I fully expect the Department of Education’s new policy on bullying will result in similar zerotolerance rules. Things are thus likely to get worse rather than better. That, of course, brings me back to

Commissioners Castro, Achtenberg and Yaki. They have vigorously supported the Department of Education’s

new bullying policy. See U.S. Commission on Civil Rights, Peer-to-Peer Violence and Bullying: Examining the

Federal Response 90, 100, 214 (2011). Their enthusiasm for the Department of Education’s sexual harassment

policy appears to be no less vigorous. See id. But their support for these policies cannot be easily squared with

their concern over zero-tolerance rules. The latter is the result of those policies.

17 All of the teachers who testified before the Commission were in substantial agreement on this point. See, e.g.,

Statement of Louise Seng at 30; Transcript at 26 (Patrick Walsh testifying); Transcript at 115 (Principal

Suzanne Mackey stating that schools slide into chaos without enough discipline).

18 Is it possible to overstate the degree to which classroom disorder is affecting middle- and high-income areas?

Of course it is, and some people have. One careful scholar—New York University professor of sociology and

education Richard Arum—reports that there is “little evidence supporting the contention that the level of

disorder and violence in public schools has [generally] reached pandemic proportions.” But, he writes, it is

“indeed the case in certain urban public schools,” various factors have combined “to create school environments
105 Statement and Rebuttal by Commissioner Heriot

entitled “Students Offer Educators Easy Fixes for Combating Failure,” had this to say on the

topic:

Thousands of learned men and women gathered in Sacramento

this week to chew over the vexing question of why black and

Latino students often do poorly in school, someone had a fresh

idea: Ask the students.

So they did. Seven struggling students - black, brown and

white - spent an hour Wednesday at the Sacramento

Convention Center telling professional educators what works

and doesn't work in their schools. It was the only one of 125

panels at the two-day Achievement Gap Summit convened by

state schools chief Jack O'Connell where students had their

say.

“If the room is quiet, I can work better - but it's not gonna

happen,” said Nyrysha Belion, a 16-year-old junior at Mather

Youth Academy in Sacramento County, a school for students

referred for problems ranging from truancy to probation.

She was answering a question posed by a moderator: “What

works best for you at school to help you succeed?”

Simple, elusive quiet.

Nyrysha said if she wants to hear her teacher, she has to move

away from the other students. “Half our teachers don't like to

talk because no one listens.”

The others agreed. “That's what made me mess up in my old

school - all the distractions,” said Imani Urquhart, 17, a senior

who now attends Pacific High continuation school in the North

Highlands suburb of Sacramento.”19

that are particularly chaotic, if not themselves crime producing.” Unless the problem is solved, students in these

schools will continue to be shortchanged in their education. See Richard Arum, Judging School Discipline: The

Crisis of Moral Authority 2 (2003). This underlines my earlier point that Secretary Duncan’s efforts may

disproportionately harm the very students he is attempting to help.

19 Natasha Asimov, “Students offer educators easy fixes for combating failure,” The San Francisco Chronicle,

November 15, 2007. These students’ stories match up well with complaints that students gave in response to a

1998 study, entitled “Strategies to Keep Schools Safe.” “Some of my classes are really rowdy,” a student from

Seattle told the researchers, “and it’s hard to concentrate.” “They just are loud and disrupting the whole class,” a

student from Chicago similarly said about some of her classmates. “The teacher is not able to teach. This is the

real ignorant people.” Sasha Volokh and Lisa Snell, “Strategies to Keep Schools Safe,” Policy Study No. 234,

January 1998, available at http://reason.org/files/60b57eac352e529771bfa27d7d736d3f.pdf.
School Discipline and Disparate Impact 106

Second, viewing the issue through the prism of race and poring over school discipline

data in search of disparate impact is likely to create more heat than light. School districts

don’t need one discipline policy for African-American and another for white students and

still others for Hispanic and for Asian-American students. They need one fair and effective

policy that applies to everyone, letting the chips fall where they may. If schools should be

modifying their discipline policies, it should not be because there are more students of one

race than of another that are misbehaving in school. It should be because they have made a

sincere judgment—free from federal coercion—that it is in the best interests of their students

that they do so.20 Given that federal law confers no authority upon the Department of

This point was also brought home in an unusual manner at the Commission’s briefing during a discussion about

the effectiveness of detentions as a punishment. “The irony is that they [unruly students] like the detentions,”

teacher Allen Zollman testified. “The detentions are a haven of tranquility apart from the mayhem that's going

on in the school.... I think they’re behaving just badly enough to earn the detention.” (Emphasis supplied.)

Teacher Louise Seng also said she agreed with Zollman’s remarks. Transcript at 52. Seng retired in 2006 from

teaching at Harrison-Morton Middle School in Allentown, Pennsylvania, a majority-minority school where

many students came from poor backgrounds. Seng testified at our briefing that she was not then aware of efforts

at Harrison-Morton or other majority-minority Allentown schools to lower disparities in discipline, but that she

thought that any such efforts would have a negative effect on classrooms. An article in the Allentown Morning

Call published eight months after Seng gave her testimony —Steve Esack, “Teachers Say Discipline Code

Giving Students Upper Hand,” The Morning Call, October 7, 2011— indicates that Seng’s concerns may have

been warranted. According to the article, Allentown recently adopted a new code of conduct that makes it more

difficult for teachers to suspend students. A month after the new policy went into effect, teachers told The

Morning Call that they believed that under the new policy, “students have the upper hand.” See also Steve

Esack, Parent Says Behavior at Allen High Out of Control, The Morning Call, October 13, 2011 (“Bathrooms

are unsafe and trashed, detentions get ignored, study halls are a zoo, and school was dismissed 10 minutes early,

without parental notification, last Wednesday to quell a potential gang fight with bricks and bats, [parent Karen

Santone] said.”).

Two months later, the Morning Call reported that in the view of teachers and city residents “a culture of

defiance” had set in at area schools.” “Some have worried,” it wrote, “that the district’s staff cuts and a new

discipline code, which seeks to reduce school suspensions so students don’t miss class have contributed to the

outpouring of incidents both on and off school grounds.” Devon Lash & Steve Esack, Allentown School District

Pays for Extra Police Coverage, The Morning Call, December 21, 2011.

These articles do not mention racial disparities as impetus for this new policy. Nor do they mention the

Department of Education’s new initiative. But they do mention that the new approach in Allentown is rooted in

Positive Behavioral Interventions and Supports, a popular decision-making framework that many of the school

districts at our briefing said that they are using to try to curb disciplinary disparities. It would not be surprising

if Allentown adopted the PBIS program at least in part as a response to the Department of Education’s

initiative.

20 It is interesting to note that last month the Department of Education released a pair of guidances—one for

colleges and universities and another for elementary and secondary schools—instructing them on when and how

they can give preferential treatment to minority students in admission in order to produce a racially diverse

class. In those documents, the Department emphasized that the Supreme Court was willing to defer to their

academic judgment that diversity is a compelling purpose. It seems odd that the Supreme Court would defer to

school in a case involving actual intent to discriminate on the basis of race, while the Department of Education

is unwilling to defer to the same school’s academic judgment on what disciplinary policies are best. It is the

former that involves actual race discrimination and hence raises serious equal protection issues, while the latter

involves only racial disparate impact with no suggestion, much less proof, that any student is being treated

differently on account of race.
107 Statement and Rebuttal by Commissioner Heriot

Education’s to formulate general discipline policy, it should play no role in the formulation

of that policy.

Real racial discrimination—or “disparate treatment,” the rather bloodless term now in

vogue—is another matter. There is no question that if a school were to administer discipline

one way for misbehaving white students and another way for similarly misbehaving AfricanAmerican students on account of their race, that would be a violation of Title VI, which the

Department of Education has some responsibility for enforcing.21 Similarly, if a school were

to administer discipline to misbehaving students whose victims were Hispanic differently

from the way it would have administered it if the victims had been Asian, that would be a

violation of the law. Of course, ordinarily school administrators and school district

administrators know to take action when discrimination of that kind occurs without any

prodding from the Department of Education. The country has changed a lot since Bloody

Sunday. But there have been serious lapses even in recent years.22 When administrators fail

to act, school boards have a responsibility to act, and when they fail, state education or civil

rights authorities should do so. When these institutions default, the federal government has a

responsibility to act.

But Secretary Duncan’s policy has little to do with allegations of actual

discrimination. His program is to sift through data looking for evidence of disparate impact.

If he does so, he is almost certain to find it. Indeed, if he were to sift through data looking for

disparate impact of discipline policies on boys vs. girls or Japanese Americans vs.

21 For public schools, such discrimination would also be a violation of the Constitution. See U.S. Const. amend.

xiv.

22 See, e.g., G.W. Miller III, Asian Students Under Assault: Seeking Refuge from School Violence, Philadelphia

Weekly (September 1, 2009)(detailing allegations that Asian students in inner city Philadelphia high schools

had been subject to racially-motivated, student-initiated violence about which high school administrators did

little or nothing); Asha Beh, Attacks Against Asian Students Prompt Private Meeting, NBC Philadelphia

(December 14, 2009)(“The students—and adult advocates—claimed that staff allowed this to happen on their

watch and added taunts of their own”). In this case, both the U.S. Department of Justice and the Pennsylvania

Human Relations Commission eventually stepped in. See Justice Department Reaches Settlement with

Philadelphia School District on Anti-Asian Harassment, Asian American Legal Defense and Education Fund in

the News (December 15, 2010).

Not all federal investigations into allegations of actual discrimination involve incidents of equal gravity. In

response to a document request from the Commission, the Department of Education turned over correspondence

with school districts regarding both disparate treatment and disparate impact discipline complaints that the

Department had investigated within the last few years. One such letter, for example, contained an allegation that

a Chicago Public Schools teacher discriminated against a student on the basis of race by “not giving Student A a

glue stick for an in-class assignment, and then punishing the student by making him stay after class when he

could not complete the in-class assignment because he did not get a glue stick.” Letter from Don Ray Pollar of

the Office for Civil Rights to Arne Duncan, Superintendent of the Chicago Public Schools, Re: OCR Docket

0581103 (July 15, 2008). After an investigation, the Department of Education concluded that there was

insufficient evidence of discrimination to take further enforcement action. It is not clear to me that this

investigation was a good use of the Department of Education’s scarce resources, and it is tempting to wonder

what the delegates to the 1787 Constitutional Convention in Philadelphia would have thought about the modern

reach of the federal government they had created. At least one can say, however, that the Department had

received an actual complaint from someone who felt the student had been discriminated against on account of

his race.
School Discipline and Disparate Impact 108

Vietnamese Americans, he is almost certain to find that too. Secretary Duncan does not

explain why he regards higher rates of discipline referrals for African-American over white

students to be a problem and not higher rates of boys over girls or whites over Asians.

Middle-school students are more likely to be disciplined for bullying (or victimized by

bullying) than are elementary or high school students. But if my observations as a middleschool student from 1969 to 1971 are any guide, it is because more middle-school students

are bullies, not because of age discrimination. Disparate impact is not the same as actual

discrimination, and it would difficult to find any education policy or practice that has no

disparate impact based on race, national origin, gender, or some other protected

classification. Seating students in alphabetical order has a disparate impact on Chinese

Americans, since they have a disproportionate number of surnames beginning with the letters

W, X, Y and Z.

No doubt Secretary Duncan would argue that his discipline initiative will not assume

that all disparate impact is a violation of Title VI. Only that part of a school district’s

discipline gap that cannot be explained and justified by the school district will form the basis

of a finding of non-compliance with Title VI. But this reflects a lack of understanding of the

nature of bureaucracy, the kinds of situations for which it is useful and the kinds of situations

where it ordinarily does more harm than good.

The edicts of bureaucracies are usually devoid of nuance by the time they reach the

foot soldiers on the ground (in this case, classroom teachers). “Don’t do X unless you have a

good reason to do X” is naturally understood by school district administrators as “Don’t do X

unless you are confident that you can persuade some future federal investigator whose

judgment you have no reason to trust that you had good reason to do X.” In turn, this is

communicated to principals as “Don’t do X unless you jump through the following timeconsuming procedural hoops designed to document to the satisfaction of federal investigators

whose judgment you have no reason to trust that you had good reason to do X.” Finally, this

is communicated to the teacher as simply “Don’t do X; it will only get us in trouble.”23

23 Teacher Allen Zollman testified that teachers in his school district already have to fill out a three-page form

showing that they have exhausted all reasonable alternatives before finally referring a disruptive student to the

principal’s office:

Before the student can be removed and placed in ‘time out’, the teacher

must prepare a disciplinary referral—what many of us used to call a ‘pink

slip’. This is a two-page form with space for three offenses—not just one—

and a checklist of measures taken by the teacher before issuing this referral.

These measures include a private conference with the student, a change of

seat location, a lunch time or after-school detention, or a phone call to a

parent. Sometimes the foregoing strategies are effective, but often they are

not. What is important to note here is that in order to get a disciplinary

referral for disruption in my school, there must be three infractions and they

must be documented in writing BEFORE the student can be removed from

the classroom.

All of this comes at a real cost: the need for documentation makes it harder to teachers to discipline students at

the moment of the disruption, rather than days or weeks after the fact. Meanwhile, other students must suffer

while the disruptive behavior continues:
109 Statement and Rebuttal by Commissioner Heriot

Effectively administering school discipline is an enterprise that requires attention to

the individual situation. This cannot be done well by distant bureaucracies.24 It must be done

by the actual principals and teachers, under the supervision of local school district

administrators and school boards. And the Department of Education’s policy makes their

effectiveness less likely.25

[F]or mere disruption, it is no simple thing to have a student removed at the

time of the disruptive behavior. This means that for extended periods of

time, it can happen that very little teaching and learning will take place in a

given classroom... [T]he need to build up a case to refer a misbehaving

student and then wait for action at a higher level leaves me dealing with the

problem myself for a while or, more often, persuades me to let things

continue as they are without issuing a referral, in other words, teach through

chaos. Indeed, because of behavior problems, there are times when very

little teaching or learning takes place.

In such an environment, students see few meaningful consequences for their

actions, so they not only continue to misbehave but the behaviors get more

brazen, with more and more students joining in the fun, until even the

quote-unquote ‘good’ kids are acting out. They often become cynical,

reminding teachers that nothing will happen to them.

Jamie Frank offered a similar account of the problems with overly bureaucratic discipline in

her school:

You have to contact - we have a computer form where you have to check

off the same thing. Three times you have to contact the parent before you

can send them to the administrator, and then once it's at the administrative

level you don't know what's going to happen to that child. You refer the

child and it's up to the administration to determine what's going to happen.

It's most likely that that child will be back in school if they are a minority

student, if they are a minority. Transcript at 50.

Ms. Frank drew the same lesson as Mr. Zollman about how bureaucracy leads to lenience, which in turn leads to

disorder: lack of discipline “sends the message that nothing’s really going to happen to these students.” A

typical student will think to herself, “If I do the same thing, if I misbehave again, nothing will really happen.”

24 The abundance of statistical information collected to assist federal and state authorities in setting disciplinary

policy often obscures more than it illuminates, thus underlining the need for local control. For example, one

much-cited report conducted by UCLA’s Civil Rights Project and the University of Colorado’s National

Education Policy Center reports data showing African-American first-time offenders are suspended for dress

code violations more often than their white counterparts. It does not appear to have taken into consideration that

not all dress code violations are equal. A student who is suspended for wearing prohibited street gang colors or

insignia is not the same as a student who is told to put on a sweater and given a warning for wearing a blouse

that is too revealing. See Daniel J. Losen, Discipline Policies, Successful Schools and Racial Justice (2011).

The only way to do justice is to pay close attention to the particular facts of each case. That simply cannot be

done well at the federal level.

25 Commissioner Kladney argues that the evidence presented at our briefing that “paperwork requirements

interfered with [teachers’] ability to mete out discipline in the classrooms or would result in no disciplinary

actions being taken” is merely “anecdotal.” “Relying on anecdotal evidence that teachers will not discipline

students, because there is paperwork involved is wrong,” he wrote. Statement of Commissioner Kladney at 116.
School Discipline and Disparate Impact 110

If the local authorities had been engaging in a pattern of resistance to the Constitution

or federal authority, the situation might well benefit from the intervention of federal

authorities despite the lack of nuance that such an intervention would inevitably entail.26 But

such situations are rare. Far more common, however, are the day-to-day situations that

There are several responses to that argument. To begin with, as David Hume once observed, the level

of evidence necessary to persuade a reasonable person of the truth of a claim must be proportional to the claim.

Extraordinary claims require extraordinary evidence. Ordinary claims ... not so much. See David Hume, An

Enquiry Concerning Human Understanding 114-16 (1748).

No claim can be any more ordinary than “if you place costs on a particular human activity, you will get

less of it; similarly, if you reward that conduct, you will get more of it.” School disciplinary policies are

themselves built on the widespread conviction that punishing bad behavior will result in students’ doing less of

it. The same thing is true applied to teachers. If you make teachers jump through procedural hoops before they

can impose discipline, they will be less likely to impose that discipline. Indeed, the very purpose of Secretary

Duncan’s discipline initiative is to reduce the level of discipline currently administered to minority students, and

the school districts that I have discussed infra at 111-112 have adopted that purpose. It seems strange and naïve

to take the position that it will be ineffective in its aim.

But just in case someone does want more outside evidence (in addition to that provided by sworn testimony of

our panel of teacher witnesses) that bureaucratic procedures slow down and ultimately reduce activity in the

school discipline context, there is plenty of it. Nationwide, 70% of public middle- and high-school teachers told

pollsters in 2004 that “[r]educ[ing] the paperwork & formal documentation required to take disciplinary action

would either be a “very effective” or “somewhat effective” solution to the discipline and behavior problems

found in the nation’s public schools. This poll was conducted by Public Agenda, an organization dedicated to

research on public policy issues founded by Carter Administration Secretary of State Cyrus Vance and the wellrespected pollster Daniel Yankelovich. The Public Agenda, Teaching Interrupted: Do Discipline Policies in

Today’s Public Schools Foster the Common Good? 38 (2004). It was not the respondents’ favorite way to deal

with the problem, but it garnered a very strong majority of teachers. The two favorites—garnering 94% support

each— were (1) “Find ways to hold parents more accountable for their kids when they misbehave in school,”

and (2) “Treat special education students who misbehave just like other students—unless their misbehavior is

related to their disability.” These methods are, of course, also at odds with the Department of Education’s

school discipline initiative. Sadly, given the legal environment in which schools must operate, these teachers did

not seem to agree that the paperwork requirements in effect then were unnecessary. But a strong majority (57%)

of those of those answering the question on these requirements said they go “beyond common sense” and

“mostly exist to protect the schools for parental or legal challenges.” See also Richard Arum, Judging School

Discipline: The Crisis of Moral Authority (2003).

An additional troubling aspect of Commissioner Kladney’s arguments is that it appears to place the

burden of persuasion on the wrong side. Commissioner Kladney is defending a new policy that essentially

wrests the power to control discipline from local hands and places it in federal hands. While “radical” is a much

overused word, it is one that may be fairly be applied here. If the Department of Education can use its clout to

require local schools to justify their discipline policies because of their disparate racial impact, then it can use

that clout to require local schools to justify all their policies and decisions, since all policies have a disparate

impact on some racial, national origin, gender, or disability group. See supra at 11 (pointing out that seating

students alphabetically has a disparate impact on Chinese Americans, since a disproportionate number of

Chinese surnames begin with the last four letters of the alphabet). In public policymaking, incomplete evidence

is the rule, not the exception. It is part of the human condition. As a result, citizens ordinarily require the

advocates of new initiatives to carry the burden of persuasion. To be adopted, an initiative should affirmatively

be a good idea. It is insufficient to say, “I support this policy, because its opponents have not proven to my

satisfaction that it is bad.”

26 See, e.g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964).
111 Statement and Rebuttal by Commissioner Heriot

require discretion on the part of those closest to the situation.27 Outside of cases in which

there is credible evidence that a student has been treated differently in a disciplinary matter

on account of his race or ethnicity—which should, of course, receive attention from local

authorities and (sometimes, if necessary) from state and federal authorities—Secretary

Duncan’s initiative is likely to do more harm than good.28

Meanwhile, there is already evidence that the Department of Education’s discipline

policy may be pushing schools in a troubling direction.29 Consider, for example, the Tucson

27 The tragedy of such policies, of course, is that there was no reason to believe the classroom teacher’s

judgment was in any way inferior to the federal investigator’s concerning when it is appropriate or inappropriate

to do X. Left to her own devices, she probably would have acted in a way the Department of Education would

have approved of most of the time. Indeed, given the fact that she is there on the ground and hence privy to all

the facts, she is likely to get it right more often than the federal investigator. But in the overly bureaucratized

world of education, her judgment is discounted. Her role is reduced.

28 Dr. Richard Arum has argued that the legal movement of the late 1960s and early 1970s toward greater

students’ rights (characterized by cases like Goss v. Lopez, 419 U.S. 565 (1975)) has had a significant and not

altogether salutary effect on schools across the country.

“Educational litigation increased dramatically during the late 1960s and early 1970s, a period we will

term the student rights contestation period. While the volume of litigation has subsequently stabilized

or moderately declined, both the threat of legal challenges to school authority and the effects of

litigation on school practices remain.”

Richard Arum, Judging School Discipline: The Crisis of Moral Authority 5 (2003).

According to Arum, “[t]oday’s schools inherit from that period a historical legacy” in which (1)

“students have developed a sense of legal entitlement” that “has produced skepticism about the legitimacy of

school disciplinary practices as well as a general familiarity with resorting to legal avenues to contest such

practices”; and (2) schools have responded by “forms, practices, and cultures—including wide-spread

normative taken-for-granted assumptions about the necessity of organizing school discipline in particular ways”

that are not necessarily in the best interests of students.

I don’t know if Dr. Arum is correct. But if he is right, he has demonstrated that a small government

agency can have a significant and deleterious effect on the discipline culture of schools across the country. He

convincingly demonstrates that “the major institutional actor advancing legal challenges to public school

disciplinary practices” during the late 1960s and early 1970s “was the Legal Services Program established by

the Office of Economic Opportunity.” Id. at 8. “In 1967, the OEO Legal Services Program ... employed nearly

1,200 lawyers; by 1972, the program ... employed over 2,000 lawyers.” According to Arum, by 1972, these

lawyers spent 7.7% of their time challenging educational practices. Id. at 9. Let us hope that history is not

repeating itself with a federal agency—this time the Department of Education—again having a significant and

deleterious effect on discipline culture. See also Gerald Grant, The World We Created at Hamilton High

(1988)(providing evidence for Dr. Arum’s thesis at a New York high school).

29 A typical school district receives eight percent of its funding from the federal government. See the U.S.

Department of Education, 10 Facts About Education, available at

http://www2.ed.gov/about/overview/fed/10facts/index.html. In a district with many high poverty schools

eligible for grants under Title I, the percentage of its budget coming from the federal government is likely to be

even higher. See, e.g., Marty Strange, “Rural schools lose in funding formula,” May 21, 2010, available at

http://www.dailyyonder.com/rural-school-lose-funding-formula/2010/05/10/2738 (a brief account of how the

Title I funding formula works and why inner-city schools are disproportionately likely to fare well under it).
School Discipline and Disparate Impact 112

Unified School District plan under which teachers and principals are expected to “striv[e] for

no ethnic/racial disparities.”30 Elaborate procedures were set out requiring an “Equity Team”

to ensure “social justice for all students” in discipline matters. The plan specifically sets out

as its “goal” that the district “will reduce the disproportionate number of suspensions of

African American and Hispanic students.” (Italics added.) It states that one of “the expected

outcomes” of the implementation of its new procedures, which includes a requirement that all

long-term suspensions be reviewed by the “Director of Student Equity,” will be a decline in

out-of-school suspensions “especially with regard to African American and Hispanic

students.”31

The Tucson Unified School District does not state why it believes that greater

attention to fairness in discipline will yield a reduction in suspensions “especially with regard

to African American and Hispanic students.” Perhaps it is supposed to be taken on faith. If,

however, in moving towards its goal and expected outcome, the school district ends up

consciously or unconsciously doing exactly what the law forbids—doling out discipline on

the basis of a student’s race or ethnicity—it will be in violation of the law, not in some sort of

heightened compliance with it owing to its efforts to respond to disparate impact. This policy

was likely adopted at least in part as a result of the belief that the Department of Education

would regard its racial disparities in discipline to be evidence of a violation of Title VI.

Dr. Hertica Martin, Executive Director for Elementary and Secondary Educations of

the Rochester Public Schools in Olmstead County, Minnesota, testified both in person and in

response to our inquiries by letter. She stated in her letter:

As a result of analyzing our discipline data and the disproportionalities which

exist, our schools have implemented a number of strategies ... to decrease the

number of referrals for our black and brown students. The implementation of

these strategies has resulted in a decrease of 363 suspensions and expulsions

from 2007-2008 to 2009-2010 school years.32

The Winston-Salem/Forsyth County School District was also forthright in explaining

to the Commission that its reasons for reducing discipline overall is specifically to reduce

racial disproportionality in discipline:

No superintendent is eager to tell parents and teachers that she will be forced to cut her district’s budget by eight

percent or more next year. The Department of Education never need come close to actually revoking federal

dollars; the mere possibility that such a funding cut could befall a district is often enough to send local

administrators scurrying to do the federal government’s bidding.

30 Tucson Unified School District Governing Board, Post-Unitary Status Plan 25 (July 30, 2009).

31 Id. at 26.

32 Letter from Dr. Hertica Y. Martin to Lenore Ostrowsky of the U.S Commission on Civil Rights, January 12,

2011.
113 Statement and Rebuttal by Commissioner Heriot

To address the disproportionate discipline of African-American

students in the district [italics added], the WS/FCS [WinstonSalem/Forsyth County] discipline policies were revised this

year to specifically disallow administrators from aggravating

disciplinary sanctions based on prior, unrelated misconduct.

Further, minor code of conduct infractions occurring in prior

school years may not be considered at all [italics in original]

when assigning disciplinary sanctions. Administrators are also

able to use mitigating factors in assigning discipline, and may

consider circumstances such as a student’s truthful statement, a

student’s positive history, and a student’s respectful

cooperation during the discipline process.33

Perhaps Rochester’s and Winston-Salem’s new, more lenient policies will work better

at keeping order than the old ones did. But I am not optimistic. The fact that their

administrators seem to be driven by concerns about disparities in and of themselves rather

than by concerns that the old policies were generally unsatisfactory is not a good sign.

Moreover, a disciplinary system like Winston-Salem’s that forbids teachers and principals

from considering a student’s past misbehavior in determining the proper response to the

student’s current misbehavior is wrongheaded in the extreme.34

These school districts are not alone. In Dorchester, South Carolina, school authorities

write, “The superintendent has established a Discipline Task Force to examine and ensure

that policies and procedures are equitable for all students and lead to reduction in racial

disparities in school discipline particularly among African American males.”35 But it is

unclear why they believe that fairness and a reduction of racial disparities in discipline are

33 Letter from Donald Martin, Superintendent of the Winston-Salem Forsyth County Schools, to Lenore

Ostrowsky of the U.S. Commission on Civil Rights, December 10, 2010, reproduced at page 248 in this report.

In the same letter, Winston-Salem stated that it has also changed its policy regarding suspensions. Before, shortterm suspensions could last ten days at most; now, the maximum is eight. Also, no student can now receive an

out-of-school suspension for truancy. For these latter two changes, the district mentions only “fairness and

consistency” as its motive, which in context might be readily interpreted to mean “fairness” to all racial and

ethnic groups.

34 The general intuition that repeat offenders should be punished more harshly than first offenders runs

throughout federal and state sentencing law. See, e.g., U.S. Sentencing Guidelines Manual sec.4A1.1 (“The

Comprehensive Crime Control Act sets forth four purposes of sentencing. (See 18 U.S.C. sec. 3553(a)(2).) A

defendant’s record of past criminal conduct is directly relevant to those purposes. A defendant with a record of

prior criminal behavior is more culpable than a first offender and thus deserving of grater punishment. General

deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior

will aggravate the need for punishment with each recurrence.”); Cal. Pen. Code 667 et seq. (codifying what is

sometimes popularly called the “three strikes law,” which provides that a defendant with two or more prior

felony convictions will be sentenced to life imprisonment.) A New York Times article published in 2010 states

that twenty-five other states also have some version of the three strikes law. Emily Bazelon, Arguing Three

Strikes, The New York Times (May 21, 2010).

35 Memorandum to U.S. Commission on Civil Rights at 2 attached to Letter from Joseph R. Rye,

Superintendent of Dorchester School District Two dated December 13, 2010.
School Discipline and Disparate Impact 114

compatible goals. They do not appear to be suggesting that, up to now, their schools have

been engaging in discrimination. Rather, they appear to be assuming that fairness and a

reduction in racial disparities are one and the same.

In Washington, D.C., concerns about racial disparities also led to repeals of policies

that prohibited students from receiving credit for courses if they are absent from class too

frequently. In the view of Jamie Frank, a teacher witness at the Commission’s briefing,

rescinding this policy actually disproportionately harmed minority students by taking away a

previously strong incentive to attend class. Without such incentive, Ms. Frank said, too many

minority students give into the temptation not to attend class and miss out on valuable

learning.36

No one should imagine that the reactions of these schools to the Department of

Education’s initiative are a victory for African-American students struggling their way

through inner city schools. To the contrary, the primary beneficiaries of this ill wind will

likely be the businesses and activist groups who provide computer software aimed at tracking

school discipline and training programs for teachers and administrators aimed at reducing

disparities as well as the additional school administrators hired to carry out the new policies.

***

36 Statement of Jamie Frank at 28-29.
115 Statement of Commissioner Kladney

Statement of Commissioner David Kladney

Many schools and school districts face serious challenges as they carry out their

responsibilities to provide all of their students a quality education in a safe and orderly

environment. The U.S. Department of Education (“the Department”) has an important role in

helping to ensure students have equal access to such an education. The Department has many

means by which it can carry out its mission. In the context of school discipline, I believe that

as a matter of policy it would be most productive for the Department to focus its resources on

assisting school districts to locate and adopt discipline programs which have strong records

of success. However, individual school districts should make the choice as to which program

(if any) they choose to partake in.

Both the frequency of disciplinary actions and the disproportionality of their application have

increased since the 1970s.1In addition to continued racial bias and misunderstandings, some

of this rise is undoubtedly due to socio-economic factors. Increased rates of single-parent

households2and households in which both parents are employed full-time (or in multiple

jobs), have led to many children being raised in environments that are not conducive to good

manners or conduct-control, which in turn results in more acting out in class. Many factors

disadvantage children growing up in low- and lower-income neighborhoods, among them:

inappropriate or negligent parenting before children enter school (and during their school

years), a basic lack of socialization with other children with supervision, bad neighborhood

influences (of the sort dramatically portrayed in the fact-based television program, “The

Wire”), poor nutrition, a lack of a pre-school environment, and no one at home who can teach

children how to study or provide a good study environment.

The U.S. Department of Education cannot address all these issues. The local school districts

have to. There is wide agreement that school discipline needs to be carried out in order to

allow students to have a safe and calm environment in which to learn. Should we revert to the

ruler, the principal’s office and/or the belt?3Some people will probably say, “Yes,

punishment is what's needed, along with a strong family ethic.” To some degree these people

may be right—if the families and communities of today are as they were 50 years ago. But

they are not.

1

For example, in 1973, 6% of African-American students received out of school suspensions, as compared with

3.1% of white students. Students of other races had even smaller suspension rates. According to the most recent

survey statistics published by the U.S. Department of Education, nation-wide, roughly 15% of AfricanAmerican students and 6.8% of Latino students received out of school suspensions, as compared to 4.8% of

white students and 2.7% of Asian/Pacific Islander students. See, Daniel J. Losen & Russell J. Skiba, Suspended

Education (2010) available at

http://www.splcenter.org/sites/default/files/downloads/publication/Suspended_Education.pdf.

2

Since the 1970s, the rate of single-parent households has increased by more 50%. See, U.S. Census Bureau

2012 Statistical Abstract, available at http://www.census.gov/compendia/statab/2012/tables/12s1337.pdf. As

noted by the National Poverty Center, single-parent households have a substantially higher rate of poverty. See

http://www.npc.umich.edu/poverty/#4.

3 This Commissioner remembers the wooden type bar stool in the corner of the classroom, a yardstick, swat

board with holes drilled in it, among other in-class disciplinary devices, the principal’s office and the dreaded

parental notification and subsequent home based discipline.
School Discipline and Disparate Impact 116

Fortunately there are new and more sophisticated methods of providing discipline in our

schools. As the members of the school administrator panel testified at our briefing, there are

several nationally-tested programs which thousands of schools have adopted. As the panelists

noted, these schools have found the preventative approach of programs like positive behavior

supports significantly reduce disparities in school discipline interventions,4reduce the total

number of behavioral incidents for all races and genders and, most importantly, reduces

repeated behavioral incidents by the same student.

Common features of the programs5discussed by the panelists include:

 Clearly defined expectations for student behavior communicated to the student

 Clearly defined consequences for good and bad behavior communicated to the

student

 A preventative approach to discipline in which all students are instructed in positive

behavior, as opposed to a remedial approach largely directed at students who have

misbehaved

 Comprehensive and consistent school-wide discipline policies

 Support teams composed of administration and fellow faculty to assist teachers in the

use of consistent and effective discipline practices

 Collection and use of enforcement data to ensure consistent and effective

interventions

Some may note that the implementation of these discipline programs is not cost-free. That is

undoubtedly true, but then there’s a cost to be paid—by schools, students, and society at

large—by the status quo in many schools and by the misapplication of disciplinary actions.

As a number of the Commission’s State Advisory Committees have recently noted, bad

school discipline policies can result in not just bad educational outcomes, but also future

entanglement in the criminal justice system.

Some may also note that a couple of members of the teachers’ panel at our briefing

complained that paperwork requirements interfered with their ability to mete out discipline in

their classrooms or would result in no disciplinary actions being taken. There was further

suggestion that attention to disproportionate disciplinary practices might further burden

teachers. Relying on anecdotal evidence that teachers will not discipline students because

there is paperwork involved is wrong. Such speculation is too malleable for any type of

accurate or reliable decision making. This is especially true when only one or two "stories"

are presented where thousands of schools and tens of thousands of students and teachers are

involved. In trying to grapple with how best to improve safety and good order in schools

4 Obviously, the purpose of these types of approach is not to stop discipline because there is currently a

disparate impact according to the numbers; rather, it is to institute discipline that has a positive impact on

students so they continue with appropriate conduct in the classroom.

5 Most of the administrator panelists and many of the district response letters indicated that they had in place

variations of School-Wide Positive Behavior Supports. Several school districts had also adopted the Olweus

Bullying Prevention Program as well as programs to better train teachers to better appreciate their students’

diverse racial and ethnic backgrounds.
117 Statement of Commissioner Kladney

nationwide, only a body of actual evidence with statistics lead to logical conclusions and the

truth. Anything else is mere noise adding to the sound machine for purposes of feeding one's

own beliefs or just plain fear-mongering.

Teachers and administrators should be expected to provide well-disciplined classes, both by

their supervisors, school boards, and by parents and the public. Additionally, it is

unfortunately sometimes necessary for investigations by the U.S. Department of Education.

Based on the testimony of our briefing panelists, it fortunately seems however that wider

adoption of well-established preventative programs can reduce both the incidence of

behavioral problems in our schools and subsequent investigations by the Department.

The Department should continue to maintain its Office of Special Education Program’s

Technical Assistance Center on Positive Behavior Intervention & Supports.6It should also

examine and publicize the effectiveness and cost-effectiveness of existing commercially

available training/consulting programs. By serving as a clearinghouse for such information,

the Department could provide school districts additional information with which to make the

school districts' own informed choices as to which programs, if any, to choose which would

best meet their needs.

In order to maximize the benefits of an orderly school, it is important to ensure not only that

discipline is being imposed, but it is being imposed appropriately. Schools and school

districts should strive to create environments of effective discipline in which disciplinary

actions take place less often—because disciplinary actions mean that misbehavior has

already occurred. When disciplinary actions are taken—an inevitability given that there are

tens of millions of school children—teachers, schools and school districts should strive to

ensure that the actions taken against students are both appropriate in whom they are directed

(i.e. that the student is being disruptive) and appropriate in the severity of the disciplinary

action (i.e. that the student is not removed from class or from school unless his or her

presence endangers the safety or good order of the school), and effective in that the

disciplined student learns, is taught, the rules of conduct necessary for him/her to continue

and flourish as a student. Schools have an obligation to try to provide an education to all of

their students and to teach students appropriate conduct the school environment expects of its

students and the reasons the rules are in place. Principals and teachers need to be taught the

best methods to impose discipline that will result in a successful educational experience for

all.

In summary, the Department of Education should continue to collect and publish disciplinary

metrics it receives from schools throughout the country. The Department should provide

school districts seeking information on the different types of disciplinary programs being

offered throughout the country. Furthermore, Department should enter into a long term study

to determine the cost effectiveness of these discipline programs regarding, among other

things, attendance, graduation rates, test scores and adult success in seeking employment and

higher education. School Districts must choose for themselves the type of student

disciplinary programs, if any, they wish to use within their districts. School districts must

also continue to encourage parents and family to become part of the solution regarding

6

http://www.pbis.org/default.aspx
School Discipline and Disparate Impact 118

discipline and study.

Before showing students the door and sending them to the scrap heap of life, schools should

use the best methods available to create a safe and orderly learning environment.

***
119 Statement of Commissioner Michael Yaki

Statement of Commissioner Michael Yaki

Racial and ethnic disparities are pervasive in American education, and take many forms. The

disproportionate use of out-of-school suspensions and expulsions against minority students is

one of several interrelatedicivil rights problems that include a wide achievement gap,

disparate dropout rates, and skewed placement in special education or gifted and talented

programs. These disparities effectively deny many minority students an equal opportunity in

education, whether or not there was conscious discriminatory intent. Worse still, these

problems, particularly disparities in school discipline, put youth at risk for a host of negative,

non-education outcomes that include involvement in the juvenile justice system.ii The socalled “school-to-jailhouse” pipeline has become a geyser, with recent school-based arrests

almost tripling in states like Pennsylvania.iii The potential of our children is being lost,

devastating their future and the justice and prosperity of our entire society.

Addressing the disparate impact of school discipline must be a critical element in a

comprehensive response to disparities in our education system. I strongly support renewed

efforts by the Department of Education (and the Department of Justice) to use all available

tools to address this problem. Although more needs to be done, Secretary Duncan and

Assistant Secretary for Civil Rights Russlynn Ali have courageously brought federal

technical expertise and legal enforcement techniques to bear on this complex problem,

working with school districts and states to detect and redress disparities. The revival of

disparate impact analysis in Title IV enforcement is particularly commendable.

Obviously, racial discrimination is not the only cause of statistical disparities in school

punishment, but neither can the pivotal role of race be ignored. Regression analyses show

that other, non-racial explanations cannot explain away these disparities. My colleagues may

rightly say that research is incomplete in this area and we don’t know all the causes

underlying such racial disparity. But, the fact is, there is a failure somewhere, and whatever

the cause, the impact falls squarely on minority students.

Existingiv research does indicate that these racially disparate rates of expulsions and

suspensions:

 Are not due to minority students causing more safety-threatening behavior—the

disparities aren’t because kids of one race are simply more dangerous.v

i

See, e.g., summary of research findings in Russell Skiba, Lauren Shure, and Natasha Williams, What Do We

Know about Racial and Ethnic Disproportionality in School Suspension and Expulsion? The Equity Project at

Indiana University, at 4, (September 2011). Draft of article available online at

www.indiana.edu/~atlantic/wp.../12/CollaborativeBriefingPaper.pdf (cited by permission).

ii Id. at 13.

iii See Test, Punish, and Push Out: How “Zero Tolerance” and High Stakes Testing Funnel Youth into the

School-To-Prison Pipeline, The Advancement Project, at 18 (March 2010). Available online at

http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.

iv For a review of research on these points, see endnote 1, above, at 5-9.

v

Some research suggests, instead, that disparate outcomes may stem from subjective evaluations of minority

students’ offensive behavior, e.g. as “defiance.” Id. at 7.
School Discipline and Disparate Impact 120

 Are not just about students’ socioeconomic status—this isn’t just a problem of poor

kids or poor schools.vi

 Are higher among elementary school children than kids in secondary school, and

among black and white girls than boys.vii

 Are not merely a result poor academic achievement—race is still a predictor after

accounting for GPA.

Unfortunately, full, disaggregated data has not been available to researchers, creating a

nearly insurmountable obstacle to a detailed understanding of the causes underlying disparate

rates. The Department of Education’s Office of Civil Rights (OCR) should expand its

collection of disaggregated data, working with states and school districts.

Moreover, despite knowing for decades about the problem of racially and ethnically disparate

school punishments—and having developed methods for improving school discipline

generally—there is little evidence-based research today on how to reduce disparities.viii

Combining School-wide Positive Behavior Supports (SWPBS), restorative justice, and other

programs with culture-specific interventions may prove to be most effective. Promising

studies have been done, e.g., on incorporating Native American and Chinese cultural values

into SWPBS programs.ix But, the research is still too thin. More federal research funding

needs to be directed specifically toward the development and diffusion of interventions to

reduce racial and ethnic disparities in school discipline. The Department of Education’s

Office of Special Education Programs could also expand the mandate of its commendable

Technical Assistance Center on Positive Behavioral Interventions and Supportsxto

specifically address use of culturally responsive interventions.

In the end, progress in redressing racial and ethnic disparities in school discipline may

require a fundamental restructuring of the accountability structure of schools. The pending

Congressional reauthorization of the Elementary and Secondary Education Act (ESEA)

provides a unique opportunity for a comprehensive review of what success in the nation’s

public schools means. Are standardized test scores the best measure of success when so

many of the most at-risk students are being disproportionately suspended and expelled, or

even arrested in our schools? Should the disciplinary practices of a school and/or their equal

treatment of minority students play a greater role in assessing school performance? The

problem of disparate outcomes in America’s schools, whether in discipline or achievement, is

undoubtedly complex, as the varied perspectives at this and other Commission briefings have

shown. However, as a nation we can and must do better at ensuring that children of every

race, national origin, and gender are treated equally.

vi In fact, while absolute rates of suspension appear to be highest in poor urban districts, black-white student

disparities are greatest in better resourced suburban districts. Id. at 2.

vii Again, absolute rates of suspension and expulsion are higher in secondary school and among black and white

boys, but not the disparities. Id. at 3.

viii Id. at 16-17.

ix Id. at 20-21.

x

For more information on the Center and its mission, visit http://www.pbis.org/about_us/default.aspx.
121 Statement of Commissioner Michael Yaki

As policymakers focus on the next iteration of ESEA, I hope they give particular attention to

improving the research, funding, mandates, and incentives necessary to change the way

school discipline is being meted out. We can't wash our hands and say "not our problem."

Not now. Not ever.

***
Speaker Biographies 122

Speaker Biographies

Allen Zollman

Biographical Statement

 Teacher of English as a Second Language (ESL), grades K-8, six years

 Instructional Technology Specialist and classroom computer teacher at a school for deaf

children ages 2 – 18, 21 years

 Educational Media Specialist (media producer) at a school for mentally retarded children

and adults, 4 years

 Teacher of high school French, one year

 Tutor of homebound students, grades 8 - 12, in mathematics, English, world history,

world cultures, Western Civilization, and public speaking,

 First generation American

 Native speaker of English with Advanced level proficiency in French and American Sign

Language

Andrea Smith

Biographical Statement

Andrea Smith, Sixth Grade Teacher, joined the E.L. Haynes staff in November, 2008. She

has ten years of experience teaching in Washington, D.C. public and charter schools. Prior to

teaching in the classroom, she worked as a Legislative Research Assistant for the Education

Trust, an advocacy organization committed to the high academic achievement of all students.

A native of Fostoria, Ohio, Ms. Smith holds a Bachelor of Arts Degree in Political Science

and History. She earned a Master’s Degree in Education from Trinity College.

Jamie Frank

Biographical Statement

Jamie Frank has been a secondary social studies teacher for the past eleven years. She has

taught a myriad of subjects, including Advanced Placement courses in Government and

Psychology, On-level and Honors courses in U.S. and World History, and a variety of

elective courses. Ms. Frank has taught in three prominent school systems in the DC

Metropolitan area. Currently she serves as a member of several teachers’ advisory boards,

including the Bill of Rights Institute and the Council for Teaching and Learning. She holds a

Masters in Secondary Education from George Mason University.
123 School Discipline and Disparate Impact

Louise Vincentine Seng

Biographical Statement

TEACHER (Retired 2006)

Mrs. Seng taught eighth grade social studies at Harrison Morton Junior High/Middle School,

Allentown School District, Pennsylvania for 34 years, and retired in 2006.

EDUCATION

Kutztown University (State College) Master's Degree in Education, graduated with honors.

East Stroudsburg University (State College), BA, graduated with honors.

Lehigh County Community College, Associates Degree, graduated with honors

FAMILY

Mrs. Seng has been married for 34 years to Michael J. Seng, teacher and SFC Retd. USA.

She has two daughters: Staff Sgt Theresa E Seng, USMC, and Staff Sgt Ann V Seng USAF.

Both of her daughters are combat veterans, and are scheduled to be redeployed.

Patrick Welsh

Biographical Statement

Patrick Welsh has taught English at T.C. Williams High School in Alexandria, Virginia since

1970. His essays on education and the youth culture have appeared in The Washington Post,

USA Today, the New York Times and other publications. He is author of the book Tales Out

of School (Viking/Penguin).

Suzanne Maxey

Biographical Statement

Immediately before coming to T.C. Williams High School in June 2010, Suzanne Maxey was

a mentor to new and struggling middle and high school principals in Montgomery County,

MD. Prior to that, she was widely credited with improving test scores, raising staff morale,

and energizing students at Seneca Valley High School in Montgomery County.

Ms. Maxey began her career in 1973 as a high school social studies teacher. She first became

an administrator in 1993 as vice principal of Laurel High School, and two years later was

named Dean of Academic and Student Affairs. Ms. Maxey served as principal of Bowie High

School in Prince Georges County from 2000–2003 before moving to Seneca Valley. She

holds a Bachelor of Arts in Secondary Education from the University of Rhode Island, and a

Master of Arts in Political Science from the University of Maryland.
Speaker Biographies 124

In 2007, Ms. Maxey won the Washington Post Distinguished Educational Leadership Award

for Montgomery County Public Schools. In his nomination letter for the award, Montgomery

Councilmember Michael Knapp wrote, “With her innovative approach to academics and

administration, Suzanne has worked hard to foster cooperation between the school and

community. Fully understanding that a school should not only be a participant in the

surrounding community but its hub, Suzanne launched an outreach program to educate

parents about the school, and help them get involved with their students and with the Seneca

Valley community.”

Ms. Maxey, her husband Bob, and Mattie, their black lab–Australian cattle dog mix, live in

Alexandria City. They also have two grown sons.

Osvaldo Piedra, Ed.D.

Biographical Statement

Dr. Osvaldo Piedra has over twenty years of public school teaching experience in

elementary, middle and high school. As an assistant principal in both the middle and high

school levels, Piedra served students, parents, and teachers in grades six through twelve. As a

school based administrator, Dr. Piedra devised an after school credit recovery program

designed to ensure a high graduation rate by maximizing instructional time. Analyzing the

school’s discipline data to determine trends in student discipline that lead to increased out of

school suspensions and decreased academic performance, Piedra strategized approaches to

minimize student disciplinary disruptions to increase teacher-student contact time. Working

collaboratively with the school staff, Piedra has implemented new school-wide positive

behavior strategies that increased teacher-student contact time. As a former elementary,

middle, and high school teacher, Piedra is able to see the continuing curriculum, K-12. He

has facilitated inter-grade level articulation leading to higher student academic gains. Dr.

Piedra enjoys working cooperatively with parents, students, and faculty and possesses a

genuine commitment to student success and highest student achievement. Osvaldo Piedra

received his Doctorate degree in educational leadership from the University of South Florida.

Joseph P. Oliveri

Retired Administrator, Austin, ISD

Biographical Statement

Mr. Oliveri served in the Peace Corps where he taught English and helped organize a

weavers’ cooperative in Peru. He earned Bachelor’s degree from Purdue University and his

Masters degree in Curriculum and Instruction from Yeshiva University. He taught in an inner

city school in Brooklyn, New York. He worked with the Agency for International

Development and the Peace Corps in Honduras, Guatemala, and the Dominican Republic as

Director of Education Programs and Acting Peace Corps Director. In Austin, Mr. Oliveri

directed a Veterans’ Upward Bound Program and the Migrant Attrition Prevention Program

at St. Edwards University. He was the principal of the Alternative Learning Center and
125 School Discipline and Disparate Impact

Director of Alternative Education for the Austin Independent School District, serving

students in grades K-12, and co-chair of the Joint City of Austin/AISD Steering Committee

on Gang Activity. He also proudly served as state president of the Texas Association for

Alternative Education (2001-2003). He has been active on the Board of Big Brothers/Big

Sisters and Literacy Austin, as well as on the board of his congregation.

Edward C. Gonzalez

Biographical Statement

Mr. Gonzalez is a 29-year veteran educator with extensive classroom and administrative

experience in public schools. He is a five-time recipient of the Who’s Who Among America’s

Teachers honor, and was chosen as the inaugural National School Administrator of the Year

by the School Library Journal in 2003. Mr. Gonzalez believes that high expectations,

relationship development and community interaction are essential for the academic, social,

and emotional well-being of our youth. A former small school district Superintendent, Mr.

Gonzalez is currently the Associate Superintendent in charge of the Department of

Prevention and Intervention in Fresno Unified School District, the 4th largest school district

in California.

Ricardo Soto

Deputy Assistant Secretary, Office for Civil Rights,

U.S. Department of Education

Biography

Ricardo Soto is the deputy assistant secretary for the Office of Civil Rights at the U.S.

Department of Education. He has served in this position since October 2009. In his position,

Soto provides senior leadership concerning enforcement, policy and operational activities

at OCR.

Prior to arriving at the Department, Soto was a private attorney in San Diego where he

represented school districts in education and employment issues. From 2005 to 2007, he

served as assistant secretary and legal counsel in the Office of the Secretary of Education

for the state of California where he advised the secretary and the governor on legal and

policy issues related to elementary, secondary and postsecondary education. For eight years,

Soto served as in-house counsel for the San Diego Unified School District and represented

the superintendent, school board and senior staff in education and employment matters.

Soto began his legal career at California Rural legal Assistance in Oceanside, Calif., and

represented migrant farmworkers in education and employment issues statewide.

Soto earned a Juris Doctor from the University of Wisconsin Law School, Madison, Wis. He

earned a bachelor’s degree from Marquette University, Milwaukee. Soto is a native of

Chicago.
Speaker Biographies 126

Dr. Hardy Murphy

Superintendent of Schools

Evanston/Skokie School District 65

Biographical Statement

Career

 1999– Current - Superintendent of Schools, Evanston/Skokie CC School District 65 (K-8

district serving approximately 7,000 students) Evanston, IL

 1979-1999 – Fort Worth Independent School District (K-12 district with 113 schools)

Fort Worth, TX. During the twenty years at FWISD, served in a variety of administrative

positions including Assistant and Associate Superintendent.

 Also practiced as a licensed psychologist for a number of years.

Education and Community Service

Superintendent Hardy Murphy earned his Ph.D. in Educational Psychology from the

University of Texas at Austin, a Master’s degree in Education from Southwest Texas State

University and a Bachelor’s degree in Sociology from New Mexico State University

Accomplishments

Accomplishments during my tenure with District 65 include noteworthy improvements in the

areas of student achievement, staff management and leadership, fiscal responsibility, and the

creation of innovative programs. Achievement demonstrates a multi-year trend of

improvement in mathematics and reading for all student groups. Students who historically

struggle in public education demonstrate higher levels of achievement, as do students who

historically excel. Illustratively, standardized test scores have improved in reading and

mathematics in all grade levels for student subgroups, e.g., African Americans, Hispanics,

students with Individual Education Plans (IEP), Limited English Proficient (ELP) students,

low-income students, etc. Under my leadership, the district and schools have been recognized

at the state and national level for the implementation of Positive Behavioral Interventions and

Supports (PBIS) as an initiative to improve student behavior and peer relationships. In this

past year, an Alternative to Suspension program was successfully implemented to provide

counseling for students and families to reduce student suspensions.

During Dr. Murphy's tenure, student achievement has significantly improved. The years of

his Superintendency are characterized by the alignment of programs and strategies that

reflect best practices in school reform with the district's planning documents. One of the

recent major initiatives, a redesigned teacher appraisal system that incorporates student

growth, is in its second year of implementation. This appraisal system that anticipated new

directions in the field of education has been presented to groups at the local and national

level. Evanston/Skokie Community Consolidated School District 65 is the first district in the

state of Illinois to implement such a system.
127 School Discipline and Disparate Impact

Hertica Y. Martin

Biographical Statement

Hertica Martin received her Bachelor of Arts degree in Elementary Education from the

College of the Virgin Islands, her Master of Arts in education degree from Seattle University

in Curriculum & Instruction/Special Education, her principal’s credentials from Pacific

Lutheran University and an Ed.D degree from Fielding Graduate Institute in California.

Dr. Martin, a 1996 Milken Educator, is currently the Executive Director for Elementary and

Secondary Education in Rochester Public Schools in Rochester, MN. She has been a public

school educator for 30 years, serving as a regular education teacher in the Virgin Islands, a

special education teacher in Tacoma Public Schools, a Principal in North Thurston Public

Schools, Director of Curriculum Development and Implementation, and Director of

Professional and Organization Development in Tacoma Public Schools. Under her

leadership, her school received recognition for school restructuring, multicultural integration,

inclusion service model for special needs students.

Dr. Martin believes that “our children are the Diamonds of the World; they are precious; they

are durable; they are invaluable; they possess high character and outstanding qualities; they

are the bonds that bind us to the next generation.” Her goal as an educator is to not only

attract good employees but also to motivate them to become aware that each child is indeed a

diamond, precious gem, to be lifted and filled with knowledge, skills, and attitudes that the

future will demand of them---true gems for us to adore and admire.

Douglas E. Wright

Biographical Statement

Dr. Douglas E. Wright is the Superintendent of Schools for the San Juan School District,

Blanding, Utah. Prior to being named Superintendent in 2002, Dr Wright taught English,

served as an Assistant Principal, and Director of Human Resources. He earned a BA in

English from Utah State University and an MA in English from Fort Hays State. He received

a Vice President’s Fellowship for Research from Utah State University focusing his

dissertation research on Early High School Graduation and the type of student who use it to

accelerate their education. He was awarded an EdD in Curriculum and Instruction, with

emphasis on Educational Leadership from Utah State University. He is endorsed in English

as a Second Language and has worked at the forefront of distance education efforts within

the State of Utah.
Appendix A: Summary of Public Comment 128

Appendix A

Summary of Public Comment

Mrs. Julie A. Worley, President of Tennesseans for Non-Violent School Discipline,

forkidsake.org, and Volunteer with Parents and Teachers Against Violence in Education

(PTAVE) sent multiple emails objecting to the use of corporal punishment in schools.

***
129 Appendix A: Public Comment Letters

Public Comment Letters
Appendix A: Public Comment Letters 130
131 Appendix A: Public Comment Letters
Appendix A: Public Comment Letters 132
133 Appendix A: Public Comment Letters
Appendix A: Public Comment Letters 134
135 Appendix A: Public Comment Letters

Public Comment Letter from the Center for Equal Opportunity

February 14, 2002

Ms. Merrily Friedlander

Chief, Coordination and Review Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Dear Ms. Friedlander:

We are writing to submit comments on the Justice Department’s republication of its

policy guidance on Title VI’s prohibition against national original discrimination as it affects

limited English proficient persons.

The guidance is principally a discussion of the four-part balancing test that is set out

for determining the required scope of accommodations for limited English proficient persons

in federally funded programs (especially the Justice Department’s). Our comments, however,

take issue with the premise that such accommodations can or ought to be required under Title

VI in the first place.

The validity of our comments is buttressed by a Supreme Court decision, Alexander

v. Sandoval, 121 S. Ct. 1511 (2001), that was handed down since the guidance first became

effective on the last full day of the Clinton administration, January 19, 2001. The events of

last September 11 also make this a good time to reassess the wisdom of executive-branch

pronouncements that inevitably encourage the balkanization of the nation into ethnic

enclaves.

Title VI of the Civil Rights Act of 1964 prohibits “discrimination under any program

or activity receiving Federal financial assistance” against any person in the United States “on

the ground of race, color, or national origin.” The guidance acknowledges that “On its face,

Title VI prohibits only intentional discrimination.” Sandoval reaffirms the Supreme Court’s

earlier pronouncements that Title VI bans only disparate treatment, not actions that have only

disproportionate effects on this or that racial or ethnic group.

There is obviously a problem, then, if a federal agency promulgates regulations

purporting to implement Title VI but that ban not only disparate treatment (which Title

VI is aimed at) but also actions with only disproportionate effects (which the Supreme Court

has said that Title VI allows). The Court has long recognized that the difference between

disparate treatment and disparate impact is one of kind, not just degree. See, e.g., Washington

v. Davis, 426 U.S. 229 (1976). Since a federal agency cannot even ban intentional

discrimination without statutory authority, see NAACP v. FPC, 425 U.S. 662 (1976), then it

would certainly seem to lack authority to ban actions that are not intentionally discriminatory

when they have no statutory authority to do so.
School Discipline and Disparate Impact 136

While the Sandoval decision did not invalidate Title VI disparate-impact

regulations—the Court concluded that the issue had not been presented to it—five justices on

the Court strongly hinted that they might vote to do so in a future case. The Sandoval

majority noted, “We cannot help observing ... how strange it is to say that disparate-impact

regulations” properly implement Title VI when the statute “permits the very behavior that the

regulations forbid.” The Court also noted that Title VI “limits agencies to ‘effectuat[ing]

rights already created by” it. See 121 S. Ct. at 1516-17, 1519 n.6, 1521. See also Thomas A.

Lambert, The Case against Private Disparate Impact Suits, 34 Ga. L. Rev. 1155, 1211-21

(2000) (discussing, inter alia, the Court’s “general rule that agency regulations may not be

more prescriptive than the enabling statutes under which they are promulgated,” id. at 1214).

Since Congress cannot transform a disparate-treatment ban into a disparate-impact

ban, see City of Boerne v. Flores, 521 U.S. 507 (1997), it seems fair to conclude that a

federal agency also lacks this authority. The Court in Boerne said that Congress’s font of

authority, Section 5 of the Fourteenth Amendment, does not give it authority to make this

fundamental transformation; a fortiori, an agency’s font of authority, Title VI, does not give

it authority to make this fundamental transformation. See Lambert, 34 Ga. L. Rev. at 1218-

21.

Such a transformation is additionally problematic because a ban on disproportionate

effects will in fact encourage race-consciousness and disparate treatment—the very behavior

that Congress sought to ban. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 652-53

(1989); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992-94 & n.2 (1988) (plurality

opinion); Albemarle Paper Co. v. Moody, 422 U.S. 405, 449 (Blackmun, J., concurring in

judgment).

Finally, to the extent that Title VI regulations are applied to states (as they frequently

are), problems are raised under Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242

(1985), because Congress has not approved such incursions on state authority, let alone

approved them “unequivocally.” And were Congress to have given agencies authority to

rewrite the statute actually passed, problems are raised under the nondelegation doctrine as

well.

The justification for the disparate-impact approach in the republished guidance is in

one sentence in Appendix B and its accompanying footnote. The sentence reads, “The

Supreme Court has consistently upheld agency regulations prohibiting unjustified

discriminatory effects.” The footnote cites three Supreme Court decisions, but the authority

provided by each is quite problematic.

Only two majority opinions are cited in footnote 5. The first, Alexander v. Choate,

469 U.S. 287, 293-94 (1985), was not a case about Title VI or its regulations; instead, it

involved the Rehabilitation Act, which the Court was at pains to assert might well give

agencies broader authority to promulgate disparate-impact regulations. The other majority

opinion cited in footnote 5 is Lau v. Nichols, 414 U.S. 563, 568 (1974), but there is no

discussion in this case at all of any regulation’s validity and, in any event, when Lau was

decided the Court had not yet determined that Title VI banned only disparate treatment, so
137 Appendix A: Public Comment Letters

the divergence between the statute’s ban and the regulations’ could not have been

authoritatively addressed.

The other case cited in footnote 5 (and discussed by the majority in Alexander v.

Choate) is Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983). But to

find in Guardians a bare majority for the proposition that agencies may promulgate

disparate-impact regulations under Title VI, one must add the opinion by Justice White to

Justice Marshall’s dissent and to Justice Stevens’ dissent (joined by Justices Brennan and

Blackmun). Four members of the Court—Burger, Rehnquist, Powell, and O’Connor—

explicitly rejected this view. Furthermore, Justice White actually voted to affirm the holding

below denying the plaintiff compensatory damages, and also thought that the statute itself

reaches disparate impact, so “[t]he question whether agency regulations under Title VI may

forbid only disparate impact ... thus remains open.” Lambert, 34 Ga. L. Rev. at 1207; see

also id. at 1203-25 (discussing why disparate-impact regulations are invalid under the

Court’s precedents).

In all events, whatever tenuous authority these three decisions might have had was

snapped by last year’s decision in Sandoval (and, earlier, by the Court’s City of Boerne

decision). Clearly there are at least five justices who view the validity of disparate-impact

regulations promulgated under Title VI as very much an open question and, indeed, indicated

rather clearly that the regulations rest on dubious authority.

And even if in some future case the Supreme Court rules that federal agencies have

authority to write disparate-impact regulations, that would not mean that they should do so,

especially given the many bad consequences that the disparate-impact approach has had for

civil-rights law. Thus, the administration ought to be reassessing the use of the disparateimpact approach in all areas not required by statute, and that includes Executive Order

13166.

Indeed, the disparate-impact approach is especially untenable in the language area. It

equates the use of English with national-origin discrimination, which is absurd. Ability to

speak English and ethnicity are obviously distinct qualities. Some people of a particular

national origin will not be able to speak English well, but others will. Conversely, some

people not of that particular national origin will also not be able to speak English well. Thus,

the courts have overwhelmingly rejected claims that employers with a preference or even a

requirement for speaking English—practices that go much further than the mere failure to

make the positive accommodations that the guidance would require—are discriminating on

the basis of national origin. (These cases are collected and discussed in Barnaby Zall, English

in the Workplace (2000) (published by the Center for Equal Opportunity).)

The Supreme Court’s decision in Espinoza v. Farah Manufacturing Co., 414 U.S. 86

(1973), is also instructive. It held there that it was not national origin discrimination when an

employer refused to hire a noncitizen. The Court—per Justice Marshall, with Justice Douglas

the only dissenter—endorsed an early EEOC opinion that “`national origin’ refers to the

country from which the individual or his forbears came ..., not whether or not he is a United

States citizen” (id. at 94). The Court had noted, “Certainly the plain language of the statute
School Discipline and Disparate Impact 138

supports [that] result” (id. at 88), and that Title VII’s legislative history “suggest[ed] that the

terms ‘national origin’ and ‘ancestry’ were considered synonymous” (id. at 89). What’s

more, the Court expressly rejected the EEOC’s attempt to ban discrimination against

foreigners by arguing that it would have a disparate impact on the basis of national origin (id.

at 92-95). It would seem to follow that discrimination against all foreign languages doesn’t

violate the law; only discrimination against a language associated with a particular national

origin.

While it is of course possible that a particular Title VI recipient might choose not to

make its programs available in a language other than English as a way of discriminating

against a particular ethnic group, it seems fair to assume that the overwhelming majority of

Title VI recipients use only English not out of any illicit motive but simply because of ease,

convenience, and thrift. Thus, it is much fairer for the government to limit itself to going

after recipients it suspects of disparate treatment—especially since that is all the underlying

statute prohibits. There is no reason to assume recipients who use only English are guilty

until they can show their good faith and a business necessity for their policy. Nor is there any

reason to assume that, unless the federal government is requiring recipients to make

programs available in English, that they will not do so. Many recipients will indeed

accommodate non-English-speakers; but the decision of whether and how to do so should be

and is theirs to make, not the federal government’s.

The last sentence in the republished guidance asserts that “DOJ’s primary concern is

to ensure that the recipient’s policies and procedures overcome barriers resulting from

language differences.” No doubt. But Congress has not enacted an affirmative mandate that

recipients “overcome[e] barriers resulting from language differences”; it has banned

discrimination on the basis of ethnicity, which is very different.

Worse, the guidance endorses the notion that America ought to be a multilingual

nation, and removes important incentives for all Americans to learn English. A common

tongue becomes more, not less, important as our nation grows more multiracial and

multiethnic. We must be able to communicate with one another, and it is very damaging if

the federal government is sending the message that learning English is not necessary for

being an American. In short, as dubious as Executive Order 13166 is as a matter of law, it is

much worse as a matter of policy.

Executive Order 13166 ought to be revoked. Furthermore, all agency regulations and

guidance promulgated under Title VI that rely on the disparate-impact approach should be

revoked as well.

Sincerely,

Edward Blum Roger Clegg

Director of Legal Affairs Vice President and General Counsel

American Civil Rights Institute Center for Equal Opportunity
Appendix B: USCCR Letter to School Districts 139

Appendix B

USCCR Letter to Schools

Dear School District Administrator:

The U.S. Commission on Civil Rights is charged with the responsibility to study and collect

information relating to discrimination or denial of equal protection of the laws under the

Constitution of the United States because of color, race, religion, sex, age, disability, or

national origin, or in the administration of justice.171

In fulfillment of this statutory obligation, the Commission has recently undertaken to study

the on-going Department of Education initiative to reduce racial disparities in school

discipline. We hope that the Commission will be able to issue a report sometime in 2011.

Secretary of Education Arne Duncan explained the Department of Education initiative in a

speech commemorating the 45th anniversary of the “Bloody Sunday” march in Selma,

Alabama. In it, he noted that it is well-established that African-American students are

disproportionately the subject of discipline in schools across the country. This includes

expulsions, suspensions and sanctions of many varieties. He also specifically stated that Dr.

Martin Luther King Jr. would have been “dismayed to learn of schools that seem to suspend

and discipline only young African-American boys.”

Assistant Secretary of Education for Civil Rights Russlynn Ali has said that she plans to

initiate compliance reviews regarding this matter in 38 school districts in various parts of the

country. Districts that are not in compliance with federal law must formally agree to correct

unlawful practices, or else face litigation and/or the loss of federal funds.172

We seek to hear directly from school district administrators about the steps that their school

districts have taken or plan to take to ensure that they are in compliance with federal law. In

particular, how have or will your discipline policies change in response to concerns about

racial disproportionalities in school discipline? Also of interest to us is how teachers are

trained in implementing discipline policies. If you have not taken and do not plan to take any

new steps, we would appreciate hearing from you about why you believe that no action is

necessary.

If you have any opinions about the Department of Education’s initiative—whether positive,

negative or somewhere in between—we would appreciate hearing from you about those too.

On behalf of the Commission, I ask that you send us a letter containing your responses to

these questions by December 15, 2010. A copy of this letter should be sent by e-mail to

171 42 U.S.C. 1975(a).

172 “Civil Rights in Education,” The New York Times, March 15, 2010.
School Discipline and Disparate Impact 140

*****@usccr.gov or by fax to ********** by that date. As a result of post-9/11 federal

procedures, our mail does not reach us until it has been irradiated for anthrax.

***
141 Appendix B: School District Response Letters

School District Response Letters

Office of the Director of Schools

101 South Main Street, Suite 501

Clinton, Tennessee 37716

Office: (865) 463-2800, x 2801

Fax: (865) 457-9157

Larry Foster, Director of Schools

December 15, 2010

To Whom It May Concern:

The Anderson County School System reviews all policies annually, including

discipline which is addressed in our Code of Student Conduct. A team consisting of

principals and directors meets to review and monitor the implementation of each

aspect of the document. Also, our Parent Advisory Council participates in the review

before our Board of Education approves the final procedures for the upcoming

school year. Each month our board receives a disciplinary report with an annual

report at the close of the school year.

Before the beginning of school, administrators are trained on policy and changes

and how those changes will impact their schools. It is the administrator’s

responsibility to train teachers and monitor compliance in their building.

We have a very small minority population enrolled in the Anderson County district

and our data does not indicate racial, gender, disability or any other disparities with

discipline. However, in an effort to be transparent with discipline in our schools,

future annual disciplinary reports will disaggregate data by school, gender, age, race

and disability.

Any specific data is available upon request.

Regards,

Larry Foster

====================================

Some people say education is expensive. We say it’s priceless.
Appendix B: School District Response Letters 142
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Administrative Offices

VanHoose Education Center

P.O. Box 34020

Louisville, KY 40232-4020

(502)485-3011

December 15, 2010

Mr. Martin Dannenfelser

Staff Director

U.S. Commission on Civil Rights

Washington, D.C. 20425

Dear Mr. Dannenfelser:

Attached is a summary of Jefferson County Public Schools’ district strategies in response to your

correspondence of November 8, 2010, regarding the suspension of African-American students.

The District has a longstanding commitment to diversity as evidenced by our nationally

recognized effort in the area of student assignment.

The summary includes strategies related to discipline organized in three areas:

Procedures/Monitoring, Instruction/Leadership, and Culturally Responsive Practices. I trust that

the description provides a clear picture of Jefferson County Public Schools’ intensive and

extensive work to reduce student suspensions, particularly African-American students.

Please contact me should you desire further information. You have my support as we work

together to address the civil rights of all of our students.

Sincerely,

Sheldon H. Berman, Ed.D.

Superintendent

SHB/sd
Appendix B: School District Response Letters 168

JEFFERSON COUNTY PUBLIC SCHOOLS

JCPS Response for the United States Commission on Civil

Rights Regarding the Suspensions of African American

Students

Dr. Sheldon Berman, Superintendent

Jefferson County Public Schools

December 15, 2010
169 Appendix B: School District Response Letters
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Lansing School District, Lansing, Michigan

December 10, 2010

Mr. Martin Dannenfelser

U.S. Commission on Civil Rights

Washington, D.C. 40425

Re: Lansing School District Civil Rights Policies

Dear Sir:

In a communication to this office dated November 8, 2010, you have requested a

report from this office concerning the District’s compliance with the enforcement of the

federal civil rights policies. We are pleased to do so. The District has over 13,500 students

who speak 40 different languages. Our magnet schools teach Chinese and Spanish as

primary languages. The Board has adopted a policy on Multiracial Understanding to

“promote cultural awareness, inter-group relations, and the understanding and racial and

ethnic groups within the District.”

The District has 6 collective bargaining agreements and a personnel policy manual.

Each of these documents articulates the District’s commitment to follow the letter of the law

concerning both state and federal civil rights acts. Thus, in this District, an employee may

not only rely on the various administrative entities for support, but also each employee has

the right to file a grievance with the District concerning any claim of a civil rights violation.

Furthermore, the Board has adopted an anti discrimination policy in its published

Board policies and, has, of course, has published all policies as required by the EEOC. The

Board has established an independent complaint policy appointing the Superintendent to

directly review all complaints involving sex, race, color, national origin religion, height,

weight, age or marital status discrimination. With regard to the federal complaints which may

arise out of IDEA, FAPE, or Sec. 504 of the Rehabilitation Act, the Director of Special

Education is to personally review all non-compliance complaints. (Policy 5030).

Every new employee of the District is required to attend an in service presentation by

the Human Resources Department to review with the new employees the expectations of

employment. This meeting specifically includes a discussion of the civil rights acts and the

need for strict compliance to the acts. It includes an explanation of what these employees

can do if they feel they are discriminated against or have observed what they believe to be

violations of the acts.
Appendix B: School District Response Letters 176

On a monthly basis, the administrators, i.e. department heads, principals, and assistant

principals meet with the Administration to discuss any new procedures and rules and review

any concerns with may be raised concerning employment matters.

On at least an annual basis or more frequently as necessary, the legal counsel to the

District reviews all of the current policies of the District and reviews that language to make

sure it is in compliance with any changes which may have been published by way or

regulation or court decision. The legal counsel then publishes and sends to all impacted

administrators/teachers an analysis of any change in the regulations/statutes and explains the

differences.

With regard to student discipline, each building has a School Improvement Team

(pursuant to a collective bargaining agreement) comprised of the building administrator and

selected teachers which is responsible to review among other things “the student discipline

process”. Of course, by statute, some discipline is set regardless of race, sex, nationality of

religion (MCL 380.1311a (1) requires the expulsion of a student who assaults a school

employee for a defined period of time).

The District provides to each student a Code of Conduct which, among other things,

lists examples of behavior, in and out of the school, which constitutes grounds for discipline.

The Code includes corrective actions to be taken: snap suspension, snap suspension

guidelines, building suspensions, suspensions to student services, expulsions and statemandated expulsions and non-mandatory expulsions.

As you can see from this response, the District has taken very strong actions to

establish a District which provides at all levels steps to ensure that no student, employee or

parent is discriminated against based on race or any other illegal factor. This policy includes

a strong commitment to the employment of minorities from the administration, to teachers

and non-teaching staff. The Administration, in its monthly meetings with its administrators,

will emphasize the concerns raised by the Department and continue to maintain records on

discipline. It will be placing on the agenda for all School Improvement Teams a presentation

on the need to ensure fairness and equality in all of our disciplinary actions at the building

level. Each new teacher is provided a “mentor” to rely on in making serious decisions, and

we will review with the teaching staff our concerns to ensure fairness is employed at all

levels including non disparate application of our policies.

As you know, the doctrine of disparate treatment is based on facially neutral rules

applied in an unequal manner. It is a legal theory under the discrimination statutes and

regulations. Thus, even with this District’s evidence of establishing and maintaining

policies to avoid discriminatory practices, the Civil Rights Department now wants us to

“train” teachers to apply them in a non-disparate basis. The training is to emphasize non

discriminatory practices and emphasize (as we already do) the importance of non

discriminatory practices.

With this in mind, the District intends to review randomly disciplinary actions taken

by building over a 60 day period. It is envisioned that the District will identify one high
177 Appendix B: School District Response Letters

school, one middle school and one elementary school for review. This should provide some

basis to determine what issues need to be addressed, if any. It will then pick another group of

schools for a 60 day review, and so on. It is envisioned that this will take over a year before

we get an accurate picture. Nevertheless, in light of state and local budget cutting forcing the

reduction in staff, this procedure will provide, in our opinion, an accurate measure of our

success in dealing with student discipline.

The District is proud of the fact that there have been no previous claims of disparate

treatment or claims that the rules have been applied not taking the best interests of the

students in consideration. We believe that monitoring this on a random basis at random

schools will give the District a better idea of how to proceed in the future. The results will

also be discussed with both administrators and teachers.

Sincerely yours,

Peter C. Jensen

Legal Counsel

c. TCWallace
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Rochester Public Schools

Independent School District #535

615 7th Street SW

Rochester, Minnesota 55902-2052

Office of the Superintendent  Telephone (507) 328-4256  FAX (507) 328-4121

November 30, 2010

Dear Martin Dannenfelser,

This letter is in response to your communication of November 8, 2010 regarding Rochester

Public School’s attempts to reduce the disparities in school discipline. Our district has been

under reform for the last four years when the Superintendent commissioned the work of

Education Development Center (EDC) to conduct an educational audit in the district. This

report indicated a need for Rochester Public Schools to ensure that all students experience a

sense of belonging in their school community; assure that all students benefit from high

expectations and fair treatment; and create an open and welcoming culture for all families.

From the EDC report, a 5-Year Strategic Plan was developed and implemented to close the

opportunity gap and bring all students to proficiency. This 5-Year Plan lead to the

identification of our District’s five focused initiatives for the year. These five strategies

below are researched-based and are deeply rooted in the 5-Year Plan and drove the

development and refinement of the District in Need of Improvement Plan (DINI). This plan

addresses the inequities in the system and the disproportionality in achievement and

discipline.

 Equity: Equity is defined as “Raising the achievement of all students while

narrowing the gaps between the highest and lowest performing students and

eliminating the disproportional number and racial predictability of the student groups

that occupy the highest and lowest achievement categories (Singleton, 1997). The

District is continuing its commitment to district-wide, systemic equity training. The

district equity leadership team (DELT) is developing plans for the district to promote

and embed equity training, plans, and cultural competency for the District’s

educators. Site equity leadership teams (SELT) are in the process of learning more

about developing site equity plans and embedding processes to develop equityfocused goals to support the development of their site integrated improvement plans.

 Efficacy: The belief that all children can learn is fundamental to the success of all

students. It is also critical that all staff use a common data analysis system. District

Efficacy Coaches provide embedded staff development and on-site support for these

two major Efficacy concepts. It is expected that all staff use the Self Directed

Improvement SystemTM in the work setting by 2011. Grade level, subject area teams

are expected to develop Essential Outcomes and Common Formative Assessments

and analyze such data using the Data/Feedback/Strategy Method, a central component

of the SDIS. The proficiency level at which administrators and teacher teams

currently operate using the Data/Feedback/Strategy Method from the SDIS varies

from site to site. In 2010-2011, Efficacy Coaches will work more closely with
Appendix B: School District Response Letters 182

building administrators and site based coaches to ensure that instructional staff

members are proficient in using the Data/Feedback/Strategy Method to analyze

reading and math data for the purpose of informing instruction.

 Strengthening the Core: The purpose of Strengthen the Core is to improve student

achievement by systematically focusing on curriculum, instruction, assessment, and

student engagement. This will be accomplished by articulating and documenting

standards and benchmarks being taught; ensuring that curriculum, instruction,

assessment, and student engagement are equity-focused; aligning curricular outcomes

and expectations with balanced assessments; utilizing research-based instructional

practices to ensure student proficiency and understanding; using effective researchbased student engagement strategies; participating in collaborative planning both

vertically and horizontally; and engaging in critical reflection about individual and

collaborative planning and instruction. RPS is committed to ensuring that systems are

in place to ensure that the core curriculum is implemented in a manner in which all

students will succeed.

 Positive Behavior Intervention Supports: PBIS is a systems approach to preventing

and responding to classroom and school discipline problems. PBIS develops schoolwide systems that support staff to teach and promote positive, appropriate behavior in

all students. Schools are using this systems approach to improve student behavior and

decrease behavior incidents, including suspensions and expulsions, while eliminating

the disproportional number and racial predictability of the student groups that occupy

the highest and lowest achievement categories. Training of all site teams in the PBIS

framework will be completed by the end of the current school year. All sites have

received the foundational training necessary to begin PBIS at their site. In addition,

many of the site teams completed a booster session this past August to further their

depth of knowledge regarding implementation and sustainability of PBIS. All sites

have received training in the use of School-Wide Information System (SWIS), a

detailed discipline tracking system to assist with analyzing data related to referrals.

 Interventions: The District has identified and invested in research-based

interventions in the area of reading and math to meet the needs of learners who have

not reached proficiency. Read 180, Language!, System 44, Project Read, Mathletics,

Voyager, Pinpoint and iSucceed provide support to students across the District.

Additional sites and grade levels have been added this year to expand the number of

students who are receiving intervention support. The District is carefully analyzing

achievement data to determine appropriate student placements in specific intervention

programs, as well as continuing to provide implementation support to staff. At the

high school level, a new math intervention, I CAN Learn, is being implemented for

students who receive special education services. The District remains committed to

providing intensive, research-based, high-quality instructional programs to accelerate

the learning of our students who are not yet meeting proficiency.

As a result of analyzing our discipline data and the disproportionalities which exist, our

schools have implemented a number of strategies in the site’s Integrated Improvement Plans

and the Site in Need of Improvement Plans to decrease the number of referrals for our black

and brown students. The implementation of these strategies has resulted in a decrease of 363
183 Appendix B: School District Response Letters

suspensions and expulsions from 2007-2008 to 2009-2010 school years. Additionally, our

district’s involvement in the Urban Special Education Leadership Collaborative (USELC)

provided us with the opportunity to participate in national trainings.

One of these trainings is the Positive Behavior Interventions Support (PBIS) model. With the

full implementation of the PBIS model, the schools have the following in place: behavior

expectations shared with students and staff; referral process; identification of major and

minor infractions; consequences; recognition programs; and resources for parents.

Additionally, our School-Wide Information System (SWIS) manages and tracks our data.

This data is discussed and disaggregated by our Site Equity Leadership Teams (SELT) and

the District’s Equity Leadership Team (DELT) to drive our decisions.

Over the last three years, the district has provided training to administrators and teachers in

the following areas to ensure our staff and students are treated equitably with dignity and

respect and to ensure that we are in compliance with federal law:

 Equity

 Efficacy for staff and parents

 Courageous Conversations about Race

 Positive Behavior Intervention Support (PBIS)

 Life Space Crisis Intervention (LSCI)

 Efficacy Coaches

 Collaborative Learning Teams

 Instructional Coaching

We hope we have provided you a snapshot of our efforts in Rochester Public Schools to

provide an equitable, safe and nurturing environment for all our students. If you need

additional information, please do not hesitate to ask.

Sincerely,

Romain Dallemand, Ed.D.

Rochester Public Schools

Superintendent
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San Juan School District

Office of the Superintendent

200 North Main

Blanding, UT 84511

435-678-1211 * fax 435-678-1272

www.sanjuanschools.org

Nelson Yellowman Douglas E. Wright, Ed.D. Clayton H. Holt, CPA

Board President Superintendent of Schools Business Administrator

December 14, 2010

Martin Dannenfelser

Staff Director

U.S. Commission on Civil Rights

Washington, D.C. 20425

Dear Director Dannenfelser:

In response to your November 8, 2010 letter requesting information on the steps that San

Juan School District (SJSD) has “taken or plan[s] to take to ensure that [we] are in

compliance with federal law,” and on “how our discipline policies have or will change in

response to concerns about racial disproportionalities in school discipline,” SJSD offers the

following:

POSITIVE BEHAVIOR SUPPORT: Because prevention and positive behavior support is

more effective and leads to greater student success than punitive disciplinary action, SJSD

has placed great emphasis on putting preventative measures in place. PBS is an evidencebased, data-driven approach proven to reduce disciplinary incidents, increase a school’s

sense of safety, improve attendance rates and support improved academic outcomes. PBS is

based on the premise that continual teaching, modeling, recognizing and rewarding of

positive student behavior will reduce unnecessary discipline and promote a climate of greater

productivity, safety and learning. PBS schools apply a multi-tiered approach to prevention,

using disciplinary data and principles of behavior analysis to develop school-wide, targeted

and individualized interventions and supports to improve school climate. Implementing PBS

has been shown to improve school climate and helps keep students and teachers in safe and

productive classrooms. Some of our schools have adopted the Utah Behavior Initiative (UBI)

program which uses the Positive Behavior Support (PBS) model as a proactive framework

239 Appendix B: School District Response Letters

San Juan School District

Office of the Superintendent

200 North Main

Blanding, UT 84511

435-678-1211 * fax 435-678-1272

www.sanjuanschools.org

Nelson Yellowman Douglas E. Wright, Ed.D. Clayton H. Holt, CPA

Board President Superintendent of Schools Business Administrator

December 14, 2010

Martin Dannenfelser

Staff Director

U.S. Commission on Civil Rights

Washington, D.C. 20425

Dear Director Dannenfelser:

In response to your November 8, 2010 letter requesting information on the steps that San

Juan School District (SJSD) has “taken or plan[s] to take to ensure that [we] are in

compliance with federal law,” and on “how our discipline policies have or will change in

response to concerns about racial disproportionalities in school discipline,” SJSD offers the

following:

POSITIVE BEHAVIOR SUPPORT: Because prevention and positive behavior support is

more effective and leads to greater student success than punitive disciplinary action, SJSD

has placed great emphasis on putting preventative measures in place. PBS is an evidencebased, data-driven approach proven to reduce disciplinary incidents, increase a school’s

sense of safety, improve attendance rates and support improved academic outcomes. PBS is

based on the premise that continual teaching, modeling, recognizing and rewarding of

positive student behavior will reduce unnecessary discipline and promote a climate of greater

productivity, safety and learning. PBS schools apply a multi-tiered approach to prevention,

using disciplinary data and principles of behavior analysis to develop school-wide, targeted

and individualized interventions and supports to improve school climate. Implementing PBS

has been shown to improve school climate and helps keep students and teachers in safe and

productive classrooms. Some of our schools have adopted the Utah Behavior Initiative (UBI)

program which uses the Positive Behavior Support (PBS) model as a proactive framework

: School District Response Letters

n Juan School District

Office of the Superintendent

200 North Main

Blanding, UT 84511

fax 435-678-1272

www.sanjuanschools.org

Clayton H. Holt, CPA

Business Administrator

In response to your November 8, 2010 letter requesting information on the steps that San

plan[s] to take to ensure that [we] are in

compliance with federal law,” and on “how our discipline policies have or will change in

response to concerns about racial disproportionalities in school discipline,” SJSD offers the

SUPPORT: Because prevention and positive behavior support is

more effective and leads to greater student success than punitive disciplinary action, SJSD

has placed great emphasis on putting preventative measures in place. PBS is an evidencedriven approach proven to reduce disciplinary incidents, increase a school’s

sense of safety, improve attendance rates and support improved academic outcomes. PBS is

based on the premise that continual teaching, modeling, recognizing and rewarding of

ive student behavior will reduce unnecessary discipline and promote a climate of greater

tiered approach to prevention,

-wide, targeted

and individualized interventions and supports to improve school climate. Implementing PBS

has been shown to improve school climate and helps keep students and teachers in safe and

e Utah Behavior Initiative (UBI)

program which uses the Positive Behavior Support (PBS) model as a proactive framework
Appendix B: School District Response Letters 240

for creating and sustaining safe and effective schools. Other district schools plan to join this

program as UBI allows other schools to become involved.

Also, this year we are in the process of implementing the Olweus Bullying Prevention

Program (Olweus) in all our schools. Olweus is a schoolwide program designed to prevent

or reduce bullying throughout the school setting. The multi-component approach involves

individuals, classrooms, entire schools, as well as parents and communities, to successfully

address bullying in schools. Research has shown that the program can help school

significantly reduce the incidents of students being bullied and bullying others. It also can

lead to significant reductions in student reports of general antisocial behavior such as

school bullying, vandalism, school violence, fighting, theft, and truancy. Improvements in

the classroom social climate as reflected in students' reports of improved order and

discipline, more positive social relationships, and more positive attitudes toward

schoolwork and school are results that will we seek and will assist us in preventing the

types of behaviors that lead to disciplinary action being necessary.

COMPREHENSIVE GUIDANCE COUNSELING: Guidance counselors play a key role in

helping to assure PBS and similar programs are is implemented properly and are successful.

Recognizing that early training and support is essential, SJSD wrote and received a grant

allowing us to hire four counselors to serve in our elementary schools. Within our secondary

schools, we have attempted to restructure the job duties of the counselors to come in line

with the Comprehensive Guidance model which is also designed to be proactive in meeting

students various needs and addressing concerns before students make negative choices. The

counselors play a key role in establishing and reinforcing proper behavior and preventing

behavior which would require disciplinary action. The counselors also assist with parental

outreach and communication assuring that the school and parents work together in the best

interest of the child.

SAFE SCHOOLS POLICY REVISION: SJSD has a practice of reviewing its policy and

procedures on a regular basis to assure that we stay current with best practices and in

compliance with changing law and regulations. Our Safe Schools Student Discipline policies

were extensively revised in April of 2008 and other smaller revisions have been enacted

since then. A key component of the major revision was to create a discipline procedure that

establishes a hierarchy of expectations for proper disciplinary actions depending on the

nature of the incident requiring discipline. The policy outlines the serious offenses which

require a recommendation for suspension or expulsion based on existing laws, but also notes

other types of negative behaviors for which less severe disciplinary action is warranted.

While zero tolerance of certain behaviors is required to be in compliance with the Safe and

Drug-Free Schools and Communities Act of 1994 (SDFSCA), SJSD is aware of evidence
241 Appendix B: School District Response Letters

that shows that “zero tolerance” policies may be counterproductive to meeting the goal of

safer schools. We desire that our practices use the lowest level of discipline necessary to

mold behavior and to provide a safe learning environment for all students.

SJSD schools have been provided some discretion in establishing rules and procedures based

upon community values and standards. This practice has been shown to create some areas of

concern and SJSD is looking carefully at the possible need to reduce the level of discretion

allowed. These rules and procedures are reviewed and approved by the School Board to

assure compliance with Board policy and state and federal statute and to attempt to provide a

consistency across the schools.

TRAINING PROVIDED TO ADMINISTRATION, FACULTY, AND STAFF: SJSD

provides a variety of required trainings and in-services to assure that employees are aware of

and follow policy and procedure. In addition, professional development opportunities are

provided that can enhance an employee’s knowledge and understanding of issues associate

with the students we serve. Upon hire, all employees are provided with three days of training

which includes a policy and procedure review. Cultural training known as Respecting Ethnic

and Cultural Heritage (REACH) is also provided to all employees to help them come to a

greater understanding of the need to respect and honor the cultural diversity which exists

within the SJSD. In addition, SJSD sponsors an annual Heritage Language Conference in

which we provide additional cultural awareness training as well as help teachers enhance

their skills and abilities in working with Native American students. In addition to the cultural

training, other in-service is provided on important areas such as preventing bullying and

harassment, PBS practices as described above, learning styles, and child development. These

trainings may be provided by SJSD employees or by consultants and other experts brought in

to assist in this effort.

FUTURE PLANS: In May of this year, SJSD was notified of its selection by the United

States Department of Education Office of Civil Rights (OCR) for a compliance review under

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. OCR is

examining whether SJSD “discriminates against female students by disciplining them more

frequently and more harshly than similarly-situated male students. The review will include

issues such as whether female students are referred for discipline more frequently than male

students or for less egregious conduct than male students, and whether discipline

consequences are assigned differently based on the sex of the student.” The process of

responding to this review has provided SJSD the opportunity to look carefully at its

disciplinary records and to study what is happening within our schools. The OCR review

along with this request from the U.S. Commission on Civil Rights will also allow us to

continue to looking at our practices for areas of different treatment and/or disparate impact

and to take appropriate steps should we find areas of concern.
Appendix B: School District Response Letters 242

SJSD is dedicated to constant improvement. We appreciate the opportunity to examine our

practices and enhance them to better meet student needs. We trust that the information

provided in this letter will be helpful to you in your efforts to improve educational

experiences for students. Please contact us if we can be or further assistance.

Sincerely,

Douglas E. Wright, EdD

Superintendent

San Juan School District
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BOARD OF EDUCATION:

MIKE CALHOON, Chairperson

DR. TOM COVEY, Vice Chairperson

BRENDA JORGENSEN, Member

STEVE KUBIK, Member

SCOTT MEINERS, Member

STEVE MEYER, Member

WAYNE MEYER, Member

ADMINISTRATION:

MIKE HANSON, Superintendent/MS Principal

GERALD WITTE, High School Principal

BRIAN NAASZ, Elementary School Principal

TIM FREWING, Special Education Director

LAURA ROOT, Business Manager

November 12, 2010

Lenore Ostrowsky

Attorney Advisor to the Office of the Staff Director

United States Commission on Civil Rights

Washington, D.C. 20425

Dear Lenore:

Thank you for your letter dated November 8, 2010 regarding disciplinary practices in the Winner

School District. I am honored to answer the questions as the Winner School District prides itself

on reviewing current practices and revising those based on new research and methodologies

proven to enhance the educational experience for all students enrolled in our district. Our mission

statement is “We are Warriors! We have PRIDE! Prepared-Respectful- Involved-DeterminedEmpowered. To help us reach Warrior PRIDE among all students, we have implemented new

supports and interventions we feel make a positive impact on our school climate and culture and

reduce racial disparity in disciplinary practices.

The Winner School District has changed its approach to student behavior interventions

significantly from the 2008-2009 school year to the present. Working closely with technical

experts from Learning Point Associates and Effective Schools, Inc., we have trained all faculty

on the use of Positive Behavioral Supports. This system encourages pro-active methods as we

take steps to continuously teach students expectations for behavior. We have three faculty

members currently taking a university course focused on PBIS. Their work will result in an

updated discipline policy and procedure matrix set to be reviewed Summer 2011.

Complementing our PBIS system is our continued use of Love and Logic student behavior

interventions. The school district sends new faculty to this training helping them learn new more

beneficial methods for dealing with student behaviors. Both programs reduce the number of

referrals requiring principal action through the discipline matrix. We also use the Olweus

Bullying Prevention Program. A student bullying survey is administered in April each year.

Survey data is shared with faculty who prepare meaningful classroom activities that help promote

a pro-active response to bullying behaviors. Our district has also increased our connection with

the Rosebud Sioux Tribe Education Office as they offer assistance with family support

programming during the year and through the summer focused on student and parent/guardian

need. Strong potential for reducing racial disparity in discipline practices is our goal through

meaningful implementation of these systems.

Assessing the impact and effectiveness of our practices is equally important. Data from annual
Appendix B: School District Response Letters 248

BOARD OF EDUCATION:

MIKE CALHOON, Chairperson

DR. TOM COVEY, Vice Chairperson

BRENDA JORGENSEN, Member

STEVE KUBIK, Member

SCOTT MEINERS, Member

STEVE MEYER, Member

WAYNE MEYER, Member

ADMINISTRATION:

MIKE HANSON, Superintendent/MS Principal

GERALD WITTE, High School Principal

BRIAN NAASZ, Elementary School Principal

TIM FREWING, Special Education Director

LAURA ROOT, Business Manager

assessments encourages reflective decision making leading to yearly changes in what we do to

consistently improve our efforts and incorporate best practice. Learning Point Associates serves

as our district monitor in numerous areas of school climate and culture. With their assistance we

collect discipline data and build systems that can enhance and improve the school climate for

students and their families. We are putting together a strong communications plan and are

implementing effective “Early Warning Signals” that help us identify students who struggle at

school which may impact their opportunity to graduate. We want to work with those students

early on in their educational career and guide them toward graduation and the realization of their

post secondary goals. The district also collects data through an annual school survey of 5th

through 12th grade students and their parents/guardians. Contracting with California State

University, Los Angeles for our annual school climate survey, the district collects information

from students and their parents in areas such as Physical Environment, Student Interactions,

Discipline and Management, School Leadership, Faculty Relations, and Learning and

Assessment. The data from this survey is very important in our efforts to review current district

practice and make changes based on survey data. Additionally, we hold one Principal Advisory

Council meeting each quarter to review discipline data, attendance, and academic data. Council

membership is made up of parents, faculty, and administration working together to review trends

and offer suggestions for improvement. Every opportunity is made to articulate data results to the

community through board meetings, parent meetings, civic organization presentations, and

various media outlets.

Thank you very much for the opportunity to highlight our district’s initiatives in this area of our

educational programming. Focusing on improving student achievement through development of

Warrior PRIDE within all students at the Winner School District, acts as the cornerstone in our

commitment toward promoting a positive climate and culture for learning. The Winner School

District is proud to incorporate new practices and methods that build a strong climate and culture

for learning. Meeting the academic, social, emotional, and physical needs of our students each

and every day requires continuous opportunities for review and improvement. Building strong

data sets that promote reflective decision making promotes the introduction of new practices and

also strengthens those our district leaders feel make a positive impact to reduce racial disparity in

school discipline.

Sincerely,

Charles M. (Mike) Hanson II

WSD 59-2 Superintendent
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STUDENT BEHAVIOR Policy 5131

Winston-Salem/Forsyth County Board of Education August 2011

I. Introduction

The Winston-Salem/Forsyth County Board of Education recognizes its responsibility to

provide each student an equal opportunity to receive an education and to provide an

atmosphere in its schools which is conducive to learning and which protects student

freedoms guaranteed by the Constitution of the United States. In order to meet these

responsibilities the Board of Education adopts this statement of policy concerning student

behavior.

II. Principles

The reasons for managing student behavior are to (1) create an orderly environment

in which students can learn; (2) teach expected standards of behavior; (3) help

students learn to accept the consequences of their behavior; and (4) provide students

with the opportunity to develop self-control. The following principles apply in

managing student behavior.

1. Student behavior management strategies will complement other efforts to

create a safe, orderly and inviting environment.

2. Positive behavioral interventions will be employed as appropriate to improve

student behavior.

3. Responsibility, integrity, civility and other standards of behavior will be

integrated into the curriculum.

4. Disruptive behavior in the classroom will not be tolerated.

5. Consequences for unacceptable behavior will be designed to help a student

learn to comply with rules, to be respectful, to accept responsibility for his or

her behavior and to develop self-control.

6. Strategies and consequences will be age and developmentally appropriate.

III. Authority of School Personnel

The principal has the authority and responsibility to investigate and take appropriate

action regarding any prohibited or criminal student behavior and any other behavior

appropriately referred to him or her.
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The teacher has the authority and responsibility to manage student behavior in the

classroom and when students are under his or her supervision. The teacher is expected

to implement the student behavior management plan and any other school standards

or rules. The teacher may develop other standards or rules consistent with the

direction provided by the board, superintendent and school principal. Every teacher,

student teacher, substitute teacher, voluntary teacher, teacher assistant or other school

employee is required to report to the principal all acts of violence occurring in school,

on school grounds or at any school-sponsored activity.

Teachers and other school personnel have the authority to manage or remove

disruptive or dangerous students from the classroom and other locations within the

school building. School personnel may use reasonable force to control behavior or to

remove a person from the scene in those situations when necessary:

1. to correct students;

2. to quell a disturbance threatening injury to others;

3. to obtain possession of a weapon or another dangerous object on the person,

or within the control, of a student;

4. for self-defense;

5. for the protection of persons or property; or

6. to maintain order on school property, in the classroom, or at a school-related

activity whether on or off school property.

Except as restricted by G.S. 115C-391.1, school personnel may use appropriate

seclusion and restraint techniques reasonably needed in the circumstances described

above as long as such use is consistent with state law and applicable board policies

and procedures.

Students must comply with all directions of principals, teachers, substitute teachers,

student teachers, teacher assistants, bus drivers and all other school personnel who are

authorized to give such directions during any period of time when they are subject to

the authority of such personnel.

IV. School Plan for Management of Student Behavior

Each school must have a plan for managing student behavior that incorporates

effective strategies consistent with the principles established herein. School officials

are encouraged to implement research-based behavior management programs that

take positive approaches to improving student behaviors in an effort to avoid repeated

misbehavior and suspension. Components of the plan for management of student

behavior should address:
253 Appendix B: School District Response Letters

1. the process by which student behavior will be addressed;

2. the means by which students at risk of repeated disruptive or disorderly conduct

are identified, assessed and assisted;

3. positive behavioral interventions and possible consequences that will be used;

and

4. parental involvement strategies that address when parents or guardians will be

notified or involved in issues related to their child’s behavior.

Principals are encouraged to use a full range of disciplinary responses that do not

remove a student from the classroom or school building, unless necessary to provide a

safe, orderly environment that is conducive to learning.

V. Corporal Punishment

No school plan for managing student behavior, Board policy, or administrative

regulation may authorize the use of corporal punishment. Corporal punishment is the

intentional infliction of physical pain upon the body of a student as a disciplinary

measure. It includes, but is not limited to, spanking, paddling and slapping. The

Board prohibits corporal punishment, believing that other consequences are more

appropriate and effective for teaching self-control. No teacher, substitute teacher,

student teacher, bus driver, or other employee, contractor or volunteer may use

corporal punishment to discipline any student. Reasonable force that is necessary to

protect oneself or others is not considered corporal punishment.

VI. Communication of Rules

At the beginning of each school year, principals shall make available to each student

and parent all of the following: (1) the Code of Student Conduct (AR 5131); (2)

Board Policy 5131 and any other policies related to student behavior; (3) any related

administrative procedures; (4) any additional discipline-related information from the

school’s student behavior management plan, including behavior standards, prohibited

conduct or disciplinary measures; and (5) any other school rules. This information

must be available at other times upon request and must be made available to students

enrolling during the school year and their parents.

For the purpose of board policies related to student behavior, all references to

“parent” include a parent, a legal guardian, a legal custodian or another caregiver

adult authorized to enroll a student under Board Policy 5117, Domicile or Residence

Requirements.
Appendix B: School District Response Letters 254

VII. Applicability

Schools may enforce policies, administrative regulations, and school rules when

student misbehavior occurs:

1. while in any school building or on any school premises before, during or after

school hours;

2. while on any bus or other vehicle as part of any school activity;

3. while waiting at any school bus stop;

4. during any school-sponsored activity or extracurricular activity;

5. when the student is subject to the authority of school employees; and

6. at any place or time when the student’s behavior has or is reasonably expected to

have a direct and immediate impact on the orderly and efficient operation of the

schools or the safety of individuals in the school environment.

VIII. Enforcement

The Superintendent and Assistant Superintendents for Elementary, Middle and High

Schools are responsible for supervising the enforcement of the Code of Student

Conduct to ensure that school disciplinary policies are uniformly and fairly applied

throughout the school system.

The procedures set forth in the Individuals with Disabilities Act (IDEA) and its

implementing regulations, Article 9 of Chapter 115C of the North Carolina General

Statutes and its implementing regulations, and AR 5131.25 shall be followed when

disciplining students with disabilities.

IX. Prohibited Behavior

Every student has the right to be free from fear, harm, and violence at school, on the

school bus and at school-related activities. In order to preserve this right, the Board

authorizes the Superintendent to create a Code of Student Conduct that sets out

specific consequences for students violating the following rules:

1. Students shall obey Board of Education policies, administrative regulations,

school rules, and classroom rules.

2. Students shall comply with all lawful directions of Principals, teachers,

substitute teachers, teacher assistants, bus drivers, and other school personnel

who are authorized to give such directions.
255 Appendix B: School District Response Letters

3. Students shall not assault, hit, kick, punch, fight, intentionally harm or

threaten to harm another person.

4. A student shall not incite or instigate a fight, assault or riot. The terms “incite”

and “instigate” mean to urge or direct others by words or actions to engage in

a fight, assault or riot. A student commits this offense by actively urging or

directing others to take part in the prohibited behavior or by causing or

instigating the prohibited behavior to occur. Students committing this offense

should be disciplined in the same manner as those students actually engaging

in the fight, assault or riot.

5. A student shall not aid or assist another student to violate any Board Policy,

administrative regulation or local school rule. A student is guilty of this

offense if he/she knowingly advises, induces, encourages, aids or assists

another student to commit an offense OR shares in the purpose of the act (to

commit the offense) and aids or is in a position to aid the other student when

the offense is committed. A student committing this offense may be

disciplined in the same manner as those students actively committing the

offense.

6. A student should avoid a fight by walking away from a threatened conflict

and/or reporting the other student’s threats to a teacher or other school

employee. A student may, in a defensive manner, restrain the other student or

block punches, kicks etc. but if the student retaliates by kicking, hitting, striking,

etc. the other student, that action is considered fighting.

7. A student shall not participate in an affray. An affray is a fight between more

than two people which causes a large public disturbance. Examples of an affray

are fights involving multiple students in the school cafeteria or at an athletic

event. A person who commits an affray may be guilty of a misdemeanor.1

8. Students shall not take the property of another person or the school without

permission. Theft, larceny, robbery and extortion are forbidden. Students shall

not knowingly sell stolen items at school.

9. Students shall not engage in extortion. Extortion is the act of securing money,

favors, or other things of value from another person through blackmail, abuse

of authority, or intimidation.

10. Students shall not intentionally vandalize, scratch, mark, or damage the

property of the school or any person at the school.

11. Students shall adhere to their school’s dress code. At a minimum, the

1 N.C.G.S. § 14-33.
Appendix B: School District Response Letters 256

following dress or appearance is prohibited:

a. Clothing that contains advertisements for tobacco, alcohol or drugs;

pictures or graphics of nudity; words that are profane, lewd, vulgar, or

indecent;

b. Halter or bare midriff tops, or bare midriffs;

c. Spaghetti straps or tank tops;

d. Strapless shirts or tube tops;

e. Bare feet;

f. Short shorts or skirts;

g. Pants, slacks or jeans that sag below waist; and

h. Hats, caps, bandanas, or garments which cover the student’s face or

conceal the student’s identity2.

i. Underpants or bras showing or worn as outerwear;

j. Provocative, revealing attire that exposes cleavage; and

k. Any symbols, styles or attire frequently associated with gangs,

intimidation, violence or violent groups about which students at a

particular school have been notified as described in AR 5131.4.

12. Students shall not bring to, or have on school property or at any school-related

activity, any weapon, or explosive of any kind, including, but not limited to

any BB gun, stun gun, air rifle, air pistol, knife, dirk, dagger, slingshot, leaded

cane, blackjack, metallic knuckles, razors and razor blades, destructive

devices, firearms, and firecrackers, or any look-a-like weapon, including but

not limited to, plastic guns, water pistols, and rubber knives, or use any

weapon or look-a-like weapon to harm or threaten to harm another person.

Students shall not bring to, or have on school property or at any school related

activity any other item which may be used as a weapon, such as a saw or

unaltered nail file, unless such item is being used for a school-related project

or activity. (See also AR 5131.7, Reporting Prohibited Relationships with

Students and Other Criminal Acts.)

13. Students shall not use an aerosol spray can, bottle or other type container as a

weapon to threaten to injure, to injure, harm, harass or annoy any other person

or to disrupt class or any school program or activity.

14. Students shall not start fires or ignite explosives or threaten to do so.

15. Students shall not wrongfully break and/or enter into school buildings, school

buses, classrooms, storerooms, or lockers.

16. Students shall not trespass on school grounds when told not to do so by

2 Unless the headwear is worn based on a sincerely held religious belief or practice.
257 Appendix B: School District Response Letters

authorized school personnel. During the term of assignment to an alternative

school, students are prohibited from being present on any WS/FCS campus or

at any school-sponsored event other than the campus of the alternative school

to which the students are assigned. During the term of a suspension or

expulsion, students are prohibited from being present on any WS/FCS campus

or at any school-sponsored event.

17. Students shall not engage in a disorderly conduct. Disorderly conduct is

defined in N.C. Gen. Stat. §14-288.4 as intentionally creating a public

disturbance that disrupts, disturbs or interferes with the teaching of students at

any public or private educational institution or engaging in conduct which

disturbs the peace, order or discipline on a school bus, at any public or private

educational institution or on the grounds adjacent thereto.

18. Students shall not possess, use, give away, attempt to sell or purchase, or be

under the influence of any illegal narcotic drug, hallucinogenic drug,

amphetamine, barbiturate, marijuana, malt beverage (including beer and other

malt beverages that contain less than .5 of one percent of alcohol), wine,

alcoholic beverage, or any other controlled substance as defined by North

Carolina law.3Students shall not possess, use, give away, attempt to sell or

purchase a counterfeit substance such as those described in this paragraph, or

an otherwise legal substance that is intended to mimic the effects of one of the

substances described in this paragraph. (See policy 5131.6, Student Behavior

– Drugs and Alcohol.)

19. Students shall not insert a foreign substance in the food or drink of another

person with the intent of injuring or harming the other person or causing an

adverse reaction including but not limited to, hallucinations, sleep, or

euphoria. Students shall not knowingly bring containers of urine or any other

bodily fluid or substance to school unless required for an academic or other

required assignment or activity.

20. Students may not possess, display or use tobacco products at any time in any

building, facility, or vehicle owned, leased, rented or chartered by the Board

or a school, on any school grounds and property, including athletic fields and

parking lots, owned, leased, rented or chartered by the Board, or at any

school-sponsored or school-related event on-campus or off-campus.

21. Students shall not possess drug or chemical paraphernalia at any time in any

building, facility, or vehicle owned, leased, rented or chartered by the Board

or a school, on any school grounds and property, including athletic fields and

parking lots, owned, leased, rented or chartered by the Board, or at any

3 A student may possess and use a prescription medication on school property as allowed by Policy 5141,

Student Health Care.
Appendix B: School District Response Letters 258

school-sponsored or school-related event on-campus or off-campus. (See

policy 5131.6, Student Behavior – Drugs and Alcohol.)

22. Students shall not park motor vehicles on campus in student parking areas

unless allowed by Policy 5131.3, Parking on School Grounds. Parking

privileges may be revoked for violation of the Code of Student Conduct.

23. Students shall not engage in sexual or intimate conduct at school, on the

school bus or school-related activities, including but not limited to: taking or

attempting to take immoral or indecent liberties with another student,

exposing private body parts (genitals, buttocks and/or female breasts) or

engaging in consensual sexual misconduct or engaging in inappropriate public

displays of affection including but not limited to, prolonged hugging or

embracing, kissing, petting, and/or making out.

24. Students shall not gamble; they shall not possess and/or use playing cards

unless approved by a teacher or school officials for an educational purpose.

25. Students shall not use or possess electronic devices such as MP3/4 players,

portable radios, recording devices, tape/CD/DVD/MP3 players, digital

cameras, laser pens, or other similar electronic equipment in school during

regular school hours except as approved by a Principal or his designee.

Students shall not use any type of electronic device on school property or

during a school activity, whether on or off school property, for the purpose of

immoral or pornographic activities, including, but not limited to, sexting.

Sexting shall be defined as the sending, taking, disseminating, transferring,

sharing, or receiving of obscene, pornographic, lewd, indecent, or otherwise

sexually explicit messages, photographs or images on or by electronic devices.

26. Students shall not possess a portable communication device of any kind,

including, but not limited to, a cellular telephone, at any school that has

expressly prohibited such items.

27. If schools allow students to possess a portable communication device of any

type, including but not limited to, a cellular telephone, students shall not use

or display such devices during regular school hours except as approved by a

Principal or his designee. “Regular school hours” means from the beginning

of the student instructional day to the end of the student instructional day.

a. If a portable communication device rings ̧ vibrates or is otherwise used or

in use during class or instruction without permission from the Principal or

his designee, it may be confiscated and the student may be denied the

privilege of possessing a communication device at school for up to the
259 Appendix B: School District Response Letters

remainder of the school year. The confiscated device shall be returned to

the student’s parent/guardian.

b. If a school administrator has reasonable suspicion a device has been used

to violate the Code of Student Conduct, the school administrator may

search the device for evidence of such misconduct.

c. By virtue of the ringing, vibration, or other evidence of use of a portable

communication device during regular school hours in contravention of this

Policy, the owner of the device thereby consents to the search of such

portable communication device by a school administrator.

28. Students and their parent(s)/guardian(s) are solely responsible for any loss or

damage to their portable radio, tape recorders, tape/CD/DVD/MP3 players,

cell phone or any other similar electronic equipment in school while it is in

their care, custody or control. WS/FCS accepts no responsibility for theft, loss

or damage to a student’s personal electronic equipment.

29. Commercial solicitation of or by students is prohibited on school grounds or at

school-sponsored events. Charitable solicitation of students is permitted

subject to the provisions of Policy 1324.

30. Students shall not engage in hazing. Hazing is defined in state law as to

subject another student to physical injury as part of an initiation, or as a

prerequisite to membership, into any organized school group, including any

society, athletic team, fraternity or sorority, or other similar group.

31. Students shall not engage in gang activity as described in AR 5131.4.

32. Students shall not litter or loiter on school property.

33. Students shall not make false statements to teachers and school officials or

forge a signature on any papers or documents.

34. Students shall not make or publish false statements on the internet, by Fax or

by any other means of communication that defame the character or reputation

of a school employee or student. While students have a constitutional right to

criticize school personnel or students, that right does not include making false

statements accusing school personnel or students of engaging in criminal or

immoral acts that are intended to injure, harass and/or harm an individual.

35. Students shall not download to or otherwise place upon a computer owned
Appendix B: School District Response Letters 260

and/or maintained by the school or school system any software or computer

program which enables the student and/or others to load content or programs

to school system computers which would otherwise be prohibited by school

system policy. Students are not to download software or programs or view

content prohibited by AR 6161.1.

36. Due to the risk or injury to the student and others, students shall not ride a

skateboard, roller skate or in-line skate on school property, unless approved in

advance by the Principal or designee as a school sponsored program or

activity.

37. Students shall not skip/leave class or school without permission.

38. Students shall not knowingly make a false report to law enforcement (i.e. a

false 911 call).

39. Students shall not make a bomb threats or a false fire alarm.

40. Students shall not make terrorist threats. A student violates this rule when he

or she:

a. By any means of communication to any person or group of persons,

makes a report, knowing or having reason to know the report is false, that

there is located on educational property or at a school-sponsored

curricular or extracurricular activity off educational property any device,

substance, or material designed to cause harmful or life-threatening illness

or injury to another person;

b. With intent to perpetrate a hoax, conceals, places, disseminates, or

displays on educational property or at a school-sponsored curricular or

extracurricular activity off educational property any device, machine,

instrument, artifact, letter, package, material, or substance, so as to cause

any person reasonably to believe the same to be a substance or material

capable of causing harmful or life-threatening illness or injury to another

person;

c. Threatens to commit on educational property or at a school-sponsored

curricular or extracurricular activity off educational property an act of

terror that is likely to cause serious injury or death, when that threat is

intended to cause a significant disruption to the instructional day or a

school-sponsored activity or causes that disruption;

d. Makes a report, knowing or having reason to know the report is false, that
261 Appendix B: School District Response Letters

there is about to occur or is occurring on educational property or at a

school-sponsored curricular or extracurricular activity off educational

property an act of terror that is likely to cause serious injury or death,

when that report is intended to cause a significant disruption to the

instructional day or a school-sponsored activity or causes that disruption;

or

e. Conspires to commit any of the acts described in this subsection.

37. Students shall not possess on school property or on a school activity or use

counterfeit currency, unless such item is being used for a school-related

project or activity.

38. Students shall not cheat. Students shall not copy another student’s answers to

a test, homework or any other school work and submit it as their own work for

evaluation and grading. In addition, unless permitted in advance, students

shall not bring any materials in any form with them for use in answering

questions on a test, such as a “cheat sheet.”

39. Students shall not plagiarize. Students shall not copy an author’s work and

submit it as their own original work for evaluation and grading.

40. Students shall not use profanity, obscenity, fighting or abusive words, or

otherwise engage in speech that disrupts (written, symbolic or verbal) which

materially and substantially disrupts the classroom or other school activities.

41. Students shall not communicate a threat to another person. Students shall not

bully, harass, or discriminate against others. Incidents of misbehavior that do

not rise to the level of bullying, discriminating, threatening or harassing may

still violate Policy 1170, Civility Policy. Bullying, discrimination, and

harassment are defined in policy 5131.1. Communicating threats, is defined

as

4

:

a. A person without lawful authority who:

i. willfully threatens to physically injure the person or that person's

child, sibling, spouse, or dependent or willfully threatens to damage

the property of another.

ii. The threat is communicated to the other person, orally, in writing, or

by any other means;

iii. The threat is made in a manner and under circumstances which

would cause a reasonable person to believe that the threat is likely to

be carried out; and

4 N.C.G.S. § 14-277.1
Appendix B: School District Response Letters 262

iv. The person threatened believes that the threat will be carried out

42. Students are prohibited from engaging in behavior (whether on or off campus)

that constitutes a clear threat to the safety of other students or employees.

Pursuant to AR 5131, Code of Student Conduct, such behavior may subject a

student to expulsion. Behavior constituting a clear threat to the safety of

others includes, but is not limited to:

a. theft or attempted theft by a student from another person by using or

threatening to use a weapon;

b. the intentional and malicious burning of any structure or personal

property, including any vehicle;

c. an attack or threatened attack by a student against another person

wherein the student uses a weapon or displays a weapon in a manner

found threatening to that person;

d. an attack by a student on any employee, adult volunteer or other

student that does not result in serious injury but that is intended to

cause or reasonably could cause serious injury;

e. an attack by a student on another person whereby the victim suffers

obvious severe or aggravated bodily injury, such as broken bones, loss

of teeth, possible internal injuries, laceration requiring stitches, loss of

consciousness, or significant bruising or pain; or whereby the victim

requires hospitalization or treatment in a hospital emergency room as a

result of the attack;

f. any intentional, highly reckless or negligent act that results in the death

of another person;

g. confining, restraining or removing another person from one place to

another, without the victim’s consent or the consent of the victim’s

parent, for the purpose of committing a felony or for the purpose of

holding the victim as a hostage, for ransom, or for use as a shield;

h. the possession of a weapon on any school property, including in a

vehicle, with the intent to use or transmit for another’s use or

possession in a reckless manner so that harm is reasonably foreseeable;

i. taking or attempting to take anything of value from the care, custody

or control of another person or persons, by force, threat of force, or

violence, or by putting the victim in fear;

j. any unauthorized and unwanted intentional touching, or attempt to
263 Appendix B: School District Response Letters

touch, by one person of the sex organ of another, including the breasts

of the female and the genital areas of the male and female;

k. the possession, manufacture, sale or delivery, or any attempted sale or

delivery, of a controlled substance in violation of Chapter 90 of the

North Carolina General Statutes;

l. any behavior resulting in a felony conviction on a weapons, drug,

assault or other charge that implicates the safety of other persons; and

m. any other behavior that demonstrates a clear threat to the safety of

others in the school environment.

X. Student Speech and Expression.

Nothing herein is intended to limit a student’s right to express his or her thoughts and

opinions at reasonable times and places, consistent with the protections of the First

Amendment. In general, schools may place restrictions on a student’s right to free

speech when the speech is obscene, abusive, promoting illegal drug use, or is

reasonably expected to cause a substantial disruption to the school day. If a student

believes his or her constitutional rights have been violated, he or she may file a

grievance in accordance with Board Policy 5145, Student and Parent Grievance

Procedure.

Adopted: July 1974

Revised: July 1984; June 1975; May 1985; May 1980; May 1987; July 1981; October

1989; March 1992; March 1993; June 1993; July 1994; June 1996; December

1997; February 1999; May 2001; May 2002; October 2002; November 2002;

November 2003; May 2004; May 2005; May 2006; May 2007; May 2008;

May 2009, July 2009; May 2010; October 2010; March 2011; August 2011.

Date: October 18, 2011

From: Winston-Salem Schools General Counsel

Re: Revised school discipline policy

We have revised our entire discipline policy and code of conduct as a result of changes made

by the NC General Assembly to statewide discipline rules. Out of school suspension days

cannot exceed 5 cumulative days now, and every school must have a plan for managing

student behavior that uses positive behavior intervention strategies prior to suspending the

child out of school for more than 10 days in a semester. It is early in the year, but

anecdotally there appears to be a marked decrease in the number of long-term

suspension/expulsions being recommended across the district.

*****