The U.S. Department of Education on Tuesday issued school discipline guidance for district leaders, rebuffing previous Democratic administrations' attempts to reduce discipline disparities for Black and other historically marginalized students and calling for schools to "stop racial balancing."
"This guidance makes clear that neither Title VI nor the Constitution requires the use of race in student discipline," Kimberly Richey, assistant secretary for civil rights, said in the new guidance. "Neither Title VI nor the Constitution prohibits unintentional disparate impact; nor do they require schools to consider race in student discipline to address an unintentional disparate impact."
The Dear Colleague letter, issued by the Office for Civil Rights, further says "it is race discrimination under Title VI for the school to evaluate the racial outcomes of their discipline policies and to make decisions based on or because of those racial outcomes."
While Dear Colleague letters provide guidance for school districts and convey the Education Department's enforcement approach to civil rights laws, they do not have the force of regulation or formal policy.
Tuesday's letter follows the Trump administration's decision last month to formally undo the disparate impact legal theory, a tool previously used by the Office for Civil Rights to investigate school districts partly based on disparate outcome data.
What is disparate impact?
Disparate impact occurs when a school discipline policy that is seemingly neutral on its face is disproportionately applied against Black or other student subgroups. This can happen because of unintentional bias or prejudice by school employees.
Disparate impact cases against school districts became popular under the second Obama administration when it issued a 2014 Dear Colleague letter on school discipline and enforcement of Title VI, which prevents discrimination based on race, national origin and ethnicity.
The Obama administration cited federal civil rights data showing that African American students without disabilities were more than three times as likely as their White peers without disabilities to be expelled or suspended.
As a result, disparate impact investigations became a legal tool used to address systemic disparities in outcomes for Black and other students. Following the tool's rescission last month, former federal civil rights attorneys said districts can expect their investigations related to disparate impact to be closed or narrowed.
Tuesday's Dear Colleague letter to schools criticizes the Obama and Biden administrations' crackdown on schools for disparate impact investigations — which were paused under the first Trump administration — calling the Trump administration's approach "better" and one that creates "safer and better environments for learning."
The Education Department said in its new guidance that only cases of intentional discrimination are prohibited by Title VI and the Constitution. Former federal civil rights enforcement attorneys, however, have said such cases are much more difficult to investigate and prove compared to unintentional discrimination as a result of applying policies unevenly.
"It is not race discrimination when a school adopts a facially neutral discipline policy with mandatory punishments if the school evenhandedly enforces the policy with respect to race and did not adopt the policy because of race," Tuesday's letter said.
Although disparate outcome data can be used as evidence in civil rights discrimination cases, the letter said the data "cannot substitute for the ultimate inquiry — whether the school intentionally discriminated based on race.”
