Discipline Policies, Successful Schools, Racial Justice, and the Law

• Date: 01 July 2013
• DOI: http://doi.org/10.1111/fcre.12035
• Author: Daniel J. Losen
• Published date: 01 July 2013

DISCIPLINE POLICIES, SUCCESSFUL SCHOOLS,

RACIAL JUSTICE, AND THE LAW*

Daniel J. Losen

Research has found that, in 2006, over 28 per cent of Black male middle school students had been suspended at least once,

nearly three times the rate for White males. Other research has revealed racial disparities in discipline, including dispropor-

tionately high numbers of Black students being removed from class on discretionary discipline grounds, while Whites had

higher rates of punishment for nondiscretionary offenses. Several studies have shown that being suspended significantly

increased the risk of dropping out and future contact with the juvenile justice system.This ar ticle examineswhat we know about

racial disparities in out-of-school suspensions in light of research on school discipline policy. The article explores the

implications of this knowledge for civil rights enforcement and making improvements.

Keypoints:

• Argument that sound educational practice can replace excessive suspensions with alternativesthat address misbehavior

but keeps students in school.

• Unpacks common misconceptions in defense of frequent use of suspensions with research on the harm of this common

practice.

• Analyzes the national data that should raise serious concerns about the use of out-of-school suspensions.

• Makes clear recommendations for federal and state policymakers, educators and civil rights enforcement.

Keywords: Civil Rights;Discipline;Disparate Impact;Education;Racial Disparity;and Suspensions.

In March 2010, Secretary of Education Arne Duncan stood on the Edmund Pettis Bridge in Selma,

Alabama and spoke on the importance of strengthening civil rights enforcement in education, high-

lighting racial disparities in the use of suspension and expulsion (Duncan, 2010). The Secretary

suggested that students with disabilities and Black students, especially males, were suspended far

more often than their White counterparts and often punished more severely for similar misdeeds.

Subsequently, U.S. Attorney General Eric Holder and Secretary Duncan each addressed a conference

of civil rights lawyers inWashington D.C. and affirmed their departments’ commitment to remedying

these disparities (Zehr, 2010). As part of their promised efforts, they indicated that new guidelines

would be released to help states and districts determine whether their discipline policies may have an

unlawful “disparate impact” under the U.S. Department of Education’s Title VI regulations that are

enforced by the Department’s Office for Civil Rights (OCR).1The guidance is still forthcoming, but

a simple application of the Title VI regulations to school discipline would read as follows:

Under the “disparate impact” theory, a method of discipline that is racially neutral on its face but has a

discriminatory effect may be found unlawful absent sufficient justification such as educational necessity.

Even if a school’s action is justified, it still may be unlawful if equally effective, less discriminatory

alternatives are available (Kim, Losen & Hewitt, 2010).

The disparate impact approach looks beyond the question of whether similarly situated students were

disciplined differently along racial lines. By focusing on the impact, and by considering the policy

justification and the alternatives, the legal framework enables enforcement agencies (and complain-

ants) to address any discipline policy or practice that burdens children of color more than others.

Concerns that unconscious racial bias may have influenced the adoption or implementation of an

unnecessarily harsh disciplinary policy or practice can also be addressed if they produce racially

Correspondence: losendan@gmail.com

FAMILY COURT REVIEW, Vol.51 No. 3, July 2013 388–400

© 2013 Association of Familyand Conciliation Cour ts