New School Discipline Guidance from the Office for Civil Rights and DOJ

1. New School Discipline Guidance from the Office for Civil Rights and DOJ January 24, 2014

2. Today’s Presenters Maree SneedPartner,Hogan Lovells LLP Michelle TellockAssociate,Hogan Lovells LLP Sasha PudelskiAssistant Director of Policy and Advocacy, AASA

3. Today’s Agenda • Overview • Dear Colleague Letter: Nondiscriminatory Administration of School Discipline • What does it say? • What doesn’t it say? • How can my district comply? • Other Guidance Package resources • Pending legislative efforts • Q & A

4. Overview: School DisciplineGuidance Package • Joint effort by U.S. Department of Education and Department of Justice • Released January 8, 2014 Racial discrimination in school discipline is a real problem today, and not just an issue from 40 to 50 years ago. . . . We must tackle these brutal truths head on—that is the only way to change the reality that our children face every day. We must never waver in our determination to keep our schools safe and hold students to a high standard of accountability . . . . Effective discipline is, and always will be, a necessity. But a routine school discipline infraction should land a student in a principal’s office – not in a police precinct.

5. Reactions to the release There is no question that this federal guidance comes at a critical time. For far too long, youth of color have received harsher disciplinary sanctions that their white peers - even for the same infractions. Educators and advocates must now use this guidance as a tool to keep students in schools where they belong. Randi Weingarten, President, American Federation of Teachers What No Child Left Behind did, as zero-tolerance policies did, was shine a light on a problem but solve it with sanctions instead of supports. That cannot continue. The federal government made many positive suggestions, but policies in a vacuum without actual resources and support will not succeed. Leticia Smith-Evans, Interim Director of Education Practice, NAACP Legal Defense Fund

6. Behind the Guidance Package: The Data • In 2011, nationwide: • 3 million out-of-school suspensions • 100,000+ students expelled • Students lost “hundreds of thousands” of hours of instructional time • Students of color, students with disabilities are “far more likely” to be removed from class • African-American students are three times more likely to be suspended/expelled, often for similar offenses • Most exclusionary actions are for non-violent offenses • Suspensions lead to drop-outs, police contact

7. Behind the Guidance Package:The Law • Federal law prohibits public school districts from discriminating in the administration of student discipline based on certain personal characteristics • Title IV of the Civil Rights Act of 1964 • Prohibits discrimination in public elementary and secondary schools based on race, color, or national origin, among other things • DOJ is responsible for enforcing • Title VI of the Civil Rights Act of 1964 • Prohibits discrimination based on race, color, or national origin by recipients of Federal financial assistance • OCR and DOJ are responsible for enforcing

8. Overview: School Discipline Guidance Package • The Guidance Package includes five resources • Dear Colleague Letter • Guiding Principles • Directory of Federal School Climate and Discipline Resources • Compendium of School Discipline Laws and Regulations • Overview of the Supportive School Discipline Initiative

9. Dear Colleague Letter:Legal Background • The Dear Colleague Letter does not constitute new regulations • The Dear Colleague Letter does not add requirements to applicable law • The Dear Colleague Letter is a “significant guidance document” • Courts would likely show deference to the Departments’ interpretations and guidance

10. Purposes of theDear Colleague Letter • Assist schools in meeting their obligations under federal law to administer student discipline without discriminating on the basis of race, color, or national origin. • Assist schools in providing all students with equal educational opportunities through guidance on how to identify, avoid, and remedy discriminatory discipline.

11. Purposes of the DearColleague Letter (cont’d) • Explain OCR’s Title VI and DOJ’s Title IV and Title VI investigative process, including: The legal framework the Departments use to consider allegations of racially discriminatory student discipline practices. Evidence the Departments may consider in evaluating a complaint alleging racial discrimination in the administration of student discipline. If a violation is found, examples of remedies to provide relief to individual students and prospective remedies necessary to ensure future adherence to the requirements of Titles IV and VI.

12. Purposes of the DearColleague Letter (cont’d) • Provide examples of school discipline policies and practices that may violate civil rights law (“What not to do”). • Describe racial disparities observed by the Civil Rights Data Collection and OCR and DOJ investigations. • Equip school officials with tools to support positive student behavior, prevent and address misconduct to promote safety and avoid discriminatory or inappropriate discipline.

13. What the Letter says:Observations, in brief • Titles IV and VI apply to school officials and everyone school officials exercise some control over • Including school resource officers, whether through contract or other arrangements • Titles IV and VI apply to the whole course of the disciplinary process • Including initial referral to principal’s office • The Departments are concerned about students missing significant chunks of instructional time • Data matters

14. What the Letter says:Legal framework • Two ways administration of student discipline can result in unlawful discrimination: • Different treatment (“intentional discrimination”) • Intentionally disciplining students differently based on race, or • A policy that does not explicitly differentiate based on race is administered in a discriminatory manner • Disparate impact • A policy that does not mention race and is administered in an evenhanded manner has a disproportionate and unjustified effect on students of a particular race

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

16. Evaluating different treatment

17. Example of disparate impact • A school district established a district-wide alternative high school to which it assigns students with excessive disciplinary records. Although only 12 percent of the district’s students are African-American, 90 percent of students assigned involuntarily to the alternative high school are African-American. The evidence shows that when white and African-American students commit similar offenses in their regular high schools, the offenses committed by the white students have not been reflected as often in school records. The evidence also shows that some white students are not assigned to the alternative high school, despite having disciplinary records as extensive (in terms of number of and severity of offenses) as some of the African-American students who have been involuntarily assigned there.

18. Evaluating disparate impact

19. Example of disparate impact • A school district adopted an elaborate set of rules governing the sanctions for various disciplinary offenses. For one particular offense, labeled “use of electronic devices,” the maximum sanction is a one-day in-school suspension where the student is separated from his regular classroom but still is provided some educational services. The investigation reveals that school officials, however, regularly impose a greater, unauthorized punishment – out-of-school suspension – for use of electronic devices. The investigation also shows that African-American students are engaging in the use of electronic devices at a higher rate than students of other races. Coupled with the school’s regular imposition of greater, unauthorized punishment for using electronic devices, therefore, African-American students are receiving excessive punishments more frequently than students of other races. In other words, African-American students are substantially more likely than students of other races to receive a punishment in excess of that authorized under the school’s own rules. • There is no evidence that the disproportionate discipline results from racial bias or reflects racial stereotypes. Rather, further investigation shows that this excessive punishment is the result of poor training of school officials on the school rules that apply to use of electronic devices.

20. Evaluating disparate impact

21. What the Letter says: Evidence • Types of information examined: • Written policies • Unwritten disciplinary practices • Data indicating number of referrals to administrators • Discipline incident reports • Copies of student discipline records and discipline referral forms • School discipline data, disaggregated by subgroup, offense, other relevant factors • Interviews with students, parents, administrators, counselors, SROs and other law enforcement, contractors, support staff • Data provided by schools through CRDC • Other relevant data

22. What the Letter says: Evidence • Departments will “look carefully at” – • A school’s definition of misconduct to ensure they are clear and nondiscriminatory • The extent to which disciplinary criteria and referrals are made for offenses that are subjectively defined (e.g., “disrespect” or “insubordination”) • Whether there are safeguards to ensure discretion is exercised in a nondiscriminatory way

23. What the Letter says: Evidence • The Departments expect schools will: • “establish [ ] a system for monitoring all disciplinary referrals” • Have a system in place to ensure that staff with authority to refer students for discipline are properly trained to administer discipline in a nondiscriminatory manner • “take steps to monitor and evaluate the impact of disciplinary practices to detect patterns that bear further investigation” • If the Departments determine a school does not collect accurate and complete data sufficient to resolve an investigation, they may conclude the record-keeping process presents concerns necessitating imposition of particular data-related remedies

24. What the Letter says: Remedies • The Departments will attempt to secure a voluntary agreement • If appropriate, remedy will involve entire district, not just an individual school • Remedies may include individual relief as well as prospective remedies necessary to ensure future adherence to the law • Remedies vary with facts of case

25. Examples of remedies

26. What the Letter doesn’t say: Students with disabilities [E]vidence of significant disparities in the use of discipline and aversive techniques for students with disabilities raises particular concern . . . . The Departments are developing resources to assist schools and support teachers in using appropriate discipline practices for students with disabilities. • The Dear Colleague Letter doesn’t directly address discipline issues related to special education, but the Departments say guidance on that topic is forthcoming, but… • “We have no specific timeline on future guidance in this area.”

27. What the Letter doesn’t say: Students with disabilities • Open questions about Dear Colleague Letter and special education include: • To what extent do IEP services have to continue in order for ISS not to “count” as a true short-term removal? • When is a series of short-term removals a “pattern” of removals and therefore a change of placement? • Will districts be liable for discrepancies in rates at which different populations are disciplined? SeeSchenectady (N.Y.) School District, 62 IDELR 93 (OCR 10/30/13).

28. How can my district complywith the DCL? • Review existing discipline policies and code of conduct • Read the Appendix to the DCL, which contains recommendations for developing and implementing compliant policies and practices • Don’t forget about state law, too! • Consider what training may be necessary • Engage in communications with various constituents, including students and parents

29. Guiding Principle 1: Climate and Prevention Action Steps (1) Engage in deliberate efforts to create positive school climates (2) Prioritize the use of evidence-based strategies like PBIS (3) Promote social and emotional learning to complement academic skills and encourage positive behavior (4) Provide regular training and supports to all school personnel (5) Collaborate with local mental health, child welfare, law enforcement, and juvenile justice agencies to align resources, prevention strategies, and intervention services (6) Ensure that any school-based law enforcement officers’ roles focus on improving school safety and reducing inappropriate referrals to law enforcement

30. Technical Resources for Principle #1 Technical Assistance Center on Positive Behavioral Interventions and Supports: Practice Guide: Reducing Behavior Problems in the Elementary School Classroom: School Climate Survey Compendium Guide to Assigning Police Officers to Schools

31. Guiding Principle 2: Clear, Appropriate, and Consistent Expectations and Consequences Action Steps (1) Set high expectations for behavior and adopt an instructional approach to school discipline. (2) Involve families, students, and school personnel in the development and implementation of discipline policies or codes of conduct, and communicate those policies regularly and clearly. (3) Ensure that clear, developmentally appropriate, and proportional consequences apply for misbehavior. (4) Create policies that include appropriate procedures for students with disabilities and due process for all students. (5) Remove students from the classroom only as a last resort, ensure that any alternative settings provide students with academic instruction, and return students to their regular class as soon as possible.

32. Technical Resources for Principle #2 Positive School Discipline Course for School Leaders Sample Consent Decree - U.S.A. Settlement Agreement with School District of Palm Beach, FL Early Warning, Timely Response: A Guide to Safe Schools

33. Guiding Principle 3: Equity and Continuous Improvement Action Steps (1) Train all school staff to apply school discipline policies, practices, and procedures in a fair and equitable manner that does not disproportionately impact students of color, students with disabilities, or other students at risk for dropout, trauma, or social exclusion. (2) Use proactive, data-driven, and continuous efforts, including gathering feedback from families, students, teachers, and school personnel in order to prevent, identify, reduce, and eliminate discriminatory discipline and unintended consequences. USED Technical Assistance Equity Assistance Centers Forum Guide to Crime, Violence, and Discipline Incident Data

34. Funding to Improve School Climate School Climate Transformation Grants • Grants for schools train their teachers and other school staff to implement evidence-based strategies to improve school climate. • Funds would be used to implement data tracking systems; train the staff to analyze the data and select the most appropriate programs to address students’ needs; train staff to implement the selected programs with fidelity; and purchase associated programmatic materials. • Grantees will collaborate with juvenile justice and law enforcement entities to reduce unnecessarily harsh discipline actions including arrests and juvenile justice system involvement, and train school staff in mental health first aid to help adults detect and respond to mental illness in children and connect them to treatment • The School Climate Transformation Grants will combine with the Substance Abuse and Mental Health Services Administration (SAMHSA) mental health first aid grants and the Department of Justice (DOJ) Juvenile Justice and Education Collaboration Assistance (JJECA) grants to make competitive grants to LEAs • The Department would give priority in making awards to LEAs that enroll large concentrations of students from low-income families, though the expected number of awards will allow the grants to serve all types of communities.

35. School Discipline in ESEA Reauthorization • HR 5: No mention of school discipline/school climate • S. 1094: • Reinstates/revamps SDFS Program • Districts report on in/out-of-school suspensions, expulsions, referrals to law enforcement, school-based arrests, transfers to alternative placements and student detentions for all major categories of students • State’s lowest performing schools must review disaggregated discipline rates and incorporate best practices if found struggling with disproportionality

36. AASA’s Leadership Responds to School Discipline Package “District leaders recognize the importance of providing positive school climates that keep students in school and treat students equitably when disciplinary matters arise. Unfortunately, there is a disconnect in Washington between the importance of adopting best practices to support positive school climates that reduce discipline disparities, and the funding available to districts to do this challenging work. Healthy, supportive learning environments produce students capable of achieving academic excellence. If our nation hopes to generate greater numbers of students who are successful in a post-secondary environment, our leaders must do more than incentivize compliance with civil rights laws, they must provide the resources to schools and the community agencies with which we partner, to ensure we can accomplish this goal.”

37. AASA Member Resources • Legislative Trends Report documenting the discipline policies common across states and trends in recent state policy changes (Available 2/14) • Model Code of Conduct Guides for Districts (Available 5/15) Help Us Help You! Take our School Discipline Survey (3/15)

38. Questions & Answers

39. Need help? Reach out to us. If you are seeking more information on USED technical assistance or federal grants, or would like our upcoming Legislative Trends report on school discipline policies or a copy of this presentation, please email Sasha Pudelski (spudelski@aasa.org) If you wish to receive legal counsel specific to your district’s needs, please email Maree Sneed maree.sneed@hoganlovells.com or Michelle Tellock at michelle.tellock@hoganlovells.com