On January 8, 2014, the U.S. Department of Education and the U.S. Department of Justice issued a thirty-two page Dear Colleague Letter to provide guidance to schools to prevent disciplining in a discriminatory manner on the basis of race, color, or national origin. The letter accentuates the Office for Civil Rights’ focus on eliminating discrimination in schools, which it recognizes as clearly unlawful, and the importance of complying with anti-discrimination laws.
The letter provides how unfair execution of student discipline can result in unlawful discrimination based on race in two ways. First, if a student is subjected to different treatment based her or his race then this is clear and obvious discrimination. However, this type of blatant mistreatment is quite uncommon. Though cases like Williams vs. Port Huron (2012) demonstrate that school leaders can be ill prepared to deal with these palpable cases of racial discrimination.
Second, if a policy is neutral on its face, which means that the policy itself does not explicitly mention race, yet it is administered in such a manner that results in a disparate impact, i.e., “a disproportionate and unjustified effect on students of a particular race.” Disparate impact is confirmed in the clearly discernible disproportionately high suspension rates of African American and Latino students from schools. Thought this type of discrimination has been around for decades, is harder for many school leaders to “truly see” it as issue worth examining and eradicating. Sadly, as the report noted, these disproportionally high suspension and expulsion rates result in a material exclusion from school and hundreds of hours of lost instruction time.
The Departments have noted that under both inquiries, statistical analysis regarding the impact of discipline policies and practices will be used to investigate whether potential violations are present. In all cases, however, the Departments will investigate all of the circumstances to determine, for example, if the punishment of the student of color was justified and proper. This brings up a question for educational leadership professors who train the leaders who will be on the front lines. Are we able to “truly see” how this discrimination, which has been around for several decades, is impacting African American and Latino students? A closer question is, are we able to teach our students to “truly see” the legal concept of disparate impact in schools and its detrimental impact on learning?