On January 8, , the U.S. Department of Education and the U.S. Department of Justice issued a Dear Colleague Letter to assist schools in administering discipline without discrimination on the basis of race, color, or national origin. The letter emphasizes the Office for Civil Rights’ focus on eliminating discrimination in schools, and the importance of complying with anti-discrimination laws.
The letter appears to have been prompted by statistical data that shows students of certain racial or ethnic backgrounds tend to be disciplined more than their peers. For example, African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended. Other data shows that African-American students were disciplined more harshly and more frequently than similarly situated white students in certain cases. OCR explained that significant and unexplained racial disparities are suggestive of racial discrimination.
To mitigate exposure to discrimination claims, a school must be able to prove:
- That it did not limit or deny services, benefits, or opportunities to a student by treating such student differently from a similarly situated student of another group. In other words, schools must treat similarly situated students from various protected groups in the same manner.
- That it had a legitimate nondiscriminatory reason for treating a student differently than other students.
- That its reason for the disparate treatment is not a pretext for discrimination. “Pretext” is shown when the proffered reason is false.
Additionally, OCR may consider circumstantial evidence in determining whether discrimination has occurred. The guidance letter further outlines the legal framework for these protections; offers an explanation of different treatment, flowcharts, examples of impact, and information considered in an investigation; and highlights the importance of appropriate recordkeeping.
Andrew J. Freedman is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .