The new guidelines categorize racial discrimination in school discipline under the headings of "Different Treatment" and "Disparate Impact." Different treatment includes not only straightforwardly discriminatory discipline policies, but also discriminatory enforcement of disciplinary policies that are race-neutral on the books (e.g. if it could be established that a school gave African-American students the full measure of disciplinary action attached to a specific infraction whereas white students routinely received less severe discipline for the same infraction, this would constitute different treatment.) Determining disparate impact is a bit more complex, as it involves a judgment of ostensibly race-neutral policies based on their impact as well as their necessity in meeting educational goals. To establish discrimination in this case, investigators would have to find that either: (1) a policy was having a disparate impact on one racial group over others and did not meet a specific educational goal (e.g. if a school policy penalized students for wearing hats in class, this could not be reasonably connected to a specific educational goal, and it were established that Hispanic students were substantially more likely to wear hats in class than students of other races, this would constitute discrimination by disparate impact); or (2) that even though the policy in question did meet a specific educational goal, there were alternative policies available to the school that would also meet this goal without impacting or having less of an impact on a particular racial group disproportionately impacted by the current policy.
Attorney General Eric Holder said last week that “A routine school disciplinary infraction should land a student in the principal’s office, not in a police precinct" (NYT Editorial Board, 2014). It is encouraging to see the government taking action on racial discrimination in schools, and we can hope that this will also constitute a step toward dismantling the School-to-Prison Pipeline.
Find the full text of the Departments of Justice and Education's letter here: