Department of Justice Zeroes In On Zero-Tolerance Policies In Schools

After years of hard work on the part of community leaders, civil justice organizations, and students, could the Department of Education (DOE) and Department of Justice (DOJ) finally be shutting off the valve on the school-to-prison pipeline? New guidelines issued in a joint “Dear Colleague” letter from both agencies in early January indicate they’re trying to do just that. 

The 32-page document highlights discipline disparities in US schools, and provides recommendations for avoiding discriminatory treatment in the development and application of in-school discipline policies nationwide. It’s a direct response to growing concerns about the alarming number of students ending up in the justice system as a result of relatively routine and often minor infractions that could better be handled in school environments. It’s a condemnation of the clearly racialized disparities in how school discipline is applied.

The phenomenon of students ending up in jail, not classrooms, which s known as the “school to prison pipeline,” is the result of harsh “zero tolerance” school discipline policies, which mandate tough penalties for students accused of a variety of infractions, some of them relatively benign. To make matters worse, rather than handling discipline internally, schools are turning the responsibility over to law enforcement officers stationed in schools, as well as outside law enforcement agencies and the court system. The result is situations like kicking students out of school for having Tylenol, suspending students for mixing up their lunchboxes, and harsh penalties for carrying LEGOs with toy guns to school, with students acquiring criminal records for misdeeds committed in the classroom. These policies are often poorly constructed and research suggests they are demonstrably ineffective, making their use in schools questionable.

The school-to-prison pipeline is routing thousands of US students into the justice system, denying them further educational opportunities and leaving them at a severe disadvantage. Most of those students are people of color, with nondisabled black students three times more likely than their white colleagues to be suspended or expelled from school. Thus, the pipeline entrenches racial injustice for the next generation, depriving students of access to education and society.

As the “Dear Colleague” letter states, evidence from DOE analysis of education environments suggests such policies are not being applied equally. “Although African-American students represent 15% of students in the [Civil Rights Data Collection (CRDC)], they make up 35% of students suspended once, 44% of those suspended more than once, and 36% of students expelled. Further, over 50% of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American.”

In response to mounting evidence on the school-to-prison pipeline and racial inequality in schools, the Obama administration has already settled with a school district in Meredian, Mississippi to address discrimination that kept students of color academically behind in comparison with white students. The “Dear Colleague Letter” is a natural extension of the administration’s work on the issue. The letter serves as a “significant guidance document,” according to the issuing agencies. While the statements within are not legally binding, they are intended to outline the nature of the problem for schools, provide information about when and how the DOE/DOJ investigate accusations of discrimination at schools, and offer suggestions for preventing discrimination.

Notably, this document focuses primarily on racial discrimination, not discrimination on the grounds of other identity factors like gender and disability status, although such discrimination is also banned under federal law. Disability discrimination in particular is a significant issue in school environments, as the document itself admits:

“...although students served by [the Individuals with Disabilities Education Act (IDEA)] represent 12% of students in the country, they make up 19% of students suspended in school, 20% of students receiving out-of-school suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of students referred to law enforcement, and 23% of students receiving a school-related arrest. Additionally, students with disabilities (under the IDEA and Section 504 statutes) represent 14% of students, but nearly 76% of the students who are physically restrained by adults in their schools.”

The letter notes that while there are substantial concerns about discrimination against disabled students in school environments, the issue is “not specifically addressed in this guidance because [other forms of discrimination] implicate separate statutes and sometimes different legal analyses (although this guidance applies to race discrimination against all students, including students of both sexes and students with disabilities).”

Numbers Too High to Be Coincidental

DOE and DOJ officials finds the numbers on race and discipline particularly suspicious: “The substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.”

In other words, students of color aren’t ending up in the legal system more because they’re inherently more likely to engage in prohibited activities on school grounds. Instead, zero tolerance policies and other school discipline systems appear to be deliberately targeting them, in two ways.

First, the DOE and DOJ believe that zero tolerance policies are not being applied equally. They see evidence of different treatment in school environments, as in a case they discuss where a Hispanic and non-Hispanic student received suspensions of differing lengths for a fight, despite having similar past discipline histories. The Hispanic student received a three-day school suspension, in contrast with the other student, who was suspended for only two days. They were “similarly situated,” as the letter describes it, yet they didn’t receive the same penalty.

In cases of different treatment, the school must be able to provide a compelling, clear and defensible reason for their decision-making process. Pretexts for discrimination, such as claims that different treatment is necessary to keep order when it’s patently not, the DOE and DOJ coldly note, do not count.

The agencies also have concerns about what is known as “disparate impact,” in the form of policies that appear neutral, but actually affect some students more than others. A classic example is school dress codes, which are used to help students maintain a basic standard of dress conducive to a healthy learning environment. If a dress code singles out an item worn more by members of one racial group, such as baggy pants (commonly worn by black students), it is discriminatory, as it results in higher rates of penalties for students who belong to that group.

Disparate impact may be considered acceptable if it is “necessary to achieve an important educational goal.” However, “If the policy is necessary to meet an important educational goal, then are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group?”

If there are, and the school continues to maintain the existing discipline policy, it may be engaging in discrimination. For example, instead of suspending students for cell phone use in class, schools could confiscate them until the end of the class period or day.

When schools are found guilty of discrimination in the course of an investigation, the DOE and DOJ recommend a number of remedies to address the situation and prevent future occurrences. These include immediate remedies for students adversely affected by discrimination, such as correcting school records and offering supplemental educational opportunities to compensate for time spent out of the classroom as a result of suspension and expulsion.

Furthermore, schools are advised to revise their policies, commit to additional teacher training in how to fairly enforce policies, and to repeatedly reevaluate staff performance, school performance and policies in the future. These measures are aimed at keeping schools internally accountable for their discipline practices after being identified as violators of various civil rights protections aimed at defending access to a fair and free education.

DOJ and DOE Recommend Concrete Changes in School Policies

The substance of the letter discusses the ongoing problem, how the DOE and DOJ are dealing with it, and what schools need to know about how investigations are conducted and resolved. The appendix contains a number of important recommendations for all schools to implement, discussing ways schools can both prevent discriminatory policies and move away from discipline policies that are harmful to student populations. This portion of the document is of most interest to groups like the ACLU, which is excited to see formal guidance from the Obama administration on the topic of school discipline.

One of the most important recommendations can be found in Section I(C) of the appendix, which discusses the appropriate use of law enforcement. Given that the school-to-prison pipeline is driven by the use of law enforcement in schools and the referral of misbehaving students to law enforcement agencies, this section acts as a sharp condemnation and demand to change the way schools handle discipline. It also clarifies the chain of responsibility on school campuses, ensuring that districts are ultimately responsible and thereby eliminating a chain of fingerpointing from conflicting agencies and groups, like School Resource Officers (SROs), law enforcement, and the district itself.

Specifically the document states a need to, “ensure that school personnel understand that they, rather than school resource officers and other security or law enforcement personnel, are responsible for administering routine student discipline.” This stresses that discipline in schools needs to be the responsibility of staff, not law enforcement, and that law enforcement are only to be used in emergency situations. Schools are effectively being ordered to rethink their approach to discipline and return to historic disciplinary practices.

The appendix also notes that in any interaction between students and law enforcement, it is advisable to keep records and make sure they are up to date. These data can help schools in annual reviews as they evaluate the use of law enforcement and school resource officers to determine if there are any discriminatory disparities and patterns that emerge. Documentation is also critical in the event a school is accused of discrimination, as it should be able to provide clear information about how a situation was handled and why staff members chose to handle it in the way that they did.

Amy Walters, an attorney at the Maryland Disability Law Center, wrote for the MDLC about the case of “Kiera,” a disabled student who was found delinquent after she acted out in class and the teacher summoned a school resource officer. Her discussion of a real-world case provides a powerful and illuminating look at how much schools need to change their approach to discipline to ensure equal access to education.

She notes that the situation rapidly escalated because the student was agitated and frightened by a uniformed and armed officer, but that the problem could have been easily resolved by calling in a trained counselor to work with Kiera. The contrast between what did happen and what should have happened illustrates what the DOE and DOJ are discussing in this document: schools need to learn to use law enforcement officers correctly, and they need to focus on student wellbeing with discipline policies that promote the use of conflict resolution, trained crisis responders, and proactive classroom management.

The document goes on to encourage the development of fair, neutral and reasonable discipline policies, with teacher training to ensure the policies are applied equally in the school environment. It advises schools to consider a positive intervention-based approach to discipline, rather than one that involves removing students from educational environments. Such approaches are effective, useful, nondiscriminatory, and critically, don’t deprive students of their right to receive an education.

A Strong Statement, But Will It Bring About Change?

On the surface, the document appears to be good news for advocacy groups and others who have been fighting the school-to-prison pipeline. But does it have teeth? AlterNet talked to Stephanie Langer, a staff attorney at the Southern Poverty Law Center’s Florida office, to get more information about the real-world implications of this policy document. Her response was guardedly positive.

Under the Obama administration, the DOJ has been aggressive about civil rights violations and defending the rights of minorities in the US. The new document could serve as an advisement that it plans to go on the offensive about civil rights violations in school environments. As a form of advance warning tool, it could provide critical notice that schools need to reform their discipline policies before the government intervenes, which could lead to more equitable education across the US while also keeping another generation of young men of color out of jail and prison.

According to Langer, the release of the document was part of a larger movement pushing for the decriminalization of normal childhood behaviors. After years of working on discrimination in school settings in Florida, where discrimination is particularly acute (Langer noted five recent complaints in Florida regarding disproportionate discipline aimed at African-American students), this document serves as a wakeup call to school districts. And an affirmation for the groups that have been increasingly worried about discrimination and disparate impact in schools.

“We took it as a validation of what we’ve been doing on the ground. It’s definitely a validation....I think it’s great that the government has put this out in public – that disparate impact and disproportionate impact exist...Now the federal government has showed that racism exists...[that] school discipline feeds into the prison pipeline. They’ve made that correlation now publicly.”

Langer pointed out that the document is also a fantastic resource for school districts.As a policy document, it puts schools on notice about the potential penalties for violating the law. It also provides a clear framework for schools that may be confused about civil rights law, illustrating how and where the law applies, and what violations of the law look like. This allows schools and members of the community alike to see how the Department of Education’s Civil Rights Division investigates and determines the outcomes of cases. The clearly spelled-out guidance on remedies may be helpful for schools working to reach settlements in civil rights complaints, helping them avoid costly and lengthy civil rights suits—and getting students the fair treatment they deserve more quickly.

Langer is particularly pleased by the section of the document that clearly spells out guidelines on accountability and responsibility: “They are holding the schools accountable for anybody and everybody on campus, including law enforcement and SROs...These guidelines made it clear that school districts are responsible. That is also a huge step forward. It should have a nice, positive, resonating effect.”

Langer said it was too early to make projections about the possible long-term effects of the document, but she’s optimistic, seeing it as a tremendous first step and noting that the DOE and DOJ likewise recognize that it’s only the first step on a long road. As for school districts, she says, “Districts review on an annual basis at the start of the year, so we don’t know what changes it will make until the '14-'15 fiscal year.”

She added: “Hopefully the school districts take it seriously. Hopefully they make some changes. But I do think there needs to be a shift in culture at the schools, like in Massachusetts where the superintendent said we shouldn’t criminalize kids anymore. These kinds of big bold statements are what we need, and hopefully it will trickle down.”

Of course, the recommendations made in the document aren’t legally binding. While schools are advised to read and consider the document in addition to applying the recommendations it contains, they are not required to do so, and nothing in the document constitutes a new regulation or rule. Schools could choose to continue engaging in discriminatory behavior and hope the DOE and DOJ won’t notice, won’t receive complaints, or won’t have time to investigate.

Given that it’s not practical to take large numbers of schools into receivership or put them into monitoring programs, the DOJ and DOE may not have many options when it comes to enforcement. Each investigation takes time, money and the energy of trained personnel. When these cases do go to court in the form of civil rights litigation, they can drag on, and the resolution may be only a partial stopgap when it comes to protecting students in a given school or district.

Hopefully Langer’s optimism about the document is merited, and the DOE and DOJ are moving forward on additional policy documents and other legal guidance. As Langer points out, the school-to-prison pipeline can’t be fixed with policy documents alone, but also involves a major shift in school culture. Groups like the SPLC use the legal system as a tool to fight injustice in school settings, and as they punch up from below, administrators can dismantle oppressive policies from above to create a more equal system.

While the “Dear Colleague” letter is an important step in the fight to shut down the school-to-prison pipeline forever, it can’t be the government’s last move. And hopefully, it won’t be. “I think it’s a really amazing first step,” said Langer. “A long-time-coming first step. I don’t think it solves the problems, I don’t think it changes anything overnight. But it’s an amazing resource.”