The letter was prompted by and in reaction to the withdrawal, last December, of the Rethink School Discipline Guidance, which was jointly issued in 2014 by the U.S. Department of Education and U.S. Department of Justice. These two federal agencies are responsible for the legal enforcement of federal laws that prohibit discrimination based on certain personal characteristics, including race, color and national origin, in public elementary and secondary schools and by recipients of federal financial assistance.

The guidance addresses the disproportionately high rates of suspension and expulsion among minority students. It cited examples of prohibited policies and practices and included a recognition of “disparate discriminatory impact” as a theory on which unlawful discrimination could be found. Under this theory, a policy or practice which, on its face, has no discriminatory intent or purpose could still be found discriminatory if it has a disproportionately adverse effect on a protected group. The guidance further reasoned that excessive use of exclusionary discipline as a means of correcting student misconduct could deprive minority students of learning opportunities and exacerbate the achievement gap. For these reasons and more, the guidance encouraged school administrators to employ alternatives to exclusionary disciplinary measures and provided an array of such alternatives as examples.

In withdrawing the guidance, the Ed. Dept. expressed some concerns about the validity of the disparate discriminatory impact theory, noting that disparate impact is not in the law itself, but exists only in implementing regulations. Further, the Ed. Dept stated that the guidance was flawed in that it ignored the need to preserve state and local control over education policy and, by dictating disciplinary measures rather than providing support to classroom teachers in implementing school discipline policies, it hampered school safety.

Though the guidance was non-binding, it contained a treasure trove of tools for educators in evaluating and possibly adjusting their discipline policies and practices to keep administrative focus on maintaining a safe school environment without sacrificing student learning and achievement for all students. According to the Attorney General, the withdrawal of the guidance was a “troubling step backward,” and sent the wrong message, undercut the stated benefits of pursuing alternative methods of discipline and could potentially reverse the welcome trend of reduction in the rates of student suspensions and expulsions that California’s more recent data have been revealing. These critical considerations informed the Attorney General’s letter and have been the basis of several recent enforcement actions and investigations by the state.

Specifically, the Attorney General stated that “California law is intended to be as or more extensive than the federal Civil Rights Act of 1964,” and emphasized the state’s commitment to pursue the civil rights principles reflected in state and federal law, and in informational documents such as the guidance. Further, the Attorney General clarified the existence of state enforcement authority as being distinct from federal enforcement authority. Becerra cautioned school administrators that, notwithstanding the withdrawal of the guidance and the Ed. Dept’s repudiation of the implementing regulation on which disparate impact theory relies, the California Department of Justice intends to continue to enforce the law and those implementing regulations since they remain in effect and continue to have the force of law.

Key messages for schools

The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.