By Tammi Wong

American youth today attend public schools in a time where the disproportionate discipline of students of color is blatantly obvious. The high rates of expulsion and suspension of African American, Latino, and other youth of color are highly publicized(1), and state and federal education agencies also acknowledge the existence of disparities in who receives school discipline.(2) On its website describing the state’s zero tolerance statutes, the California Department of Education (CDE) states that the methods used to achieve a goal of safe school environment under zero tolerance can lead to arbitrary and capricious decision making.(3) In fact, the CDE warns districts of the danger of disproportionately disciplining students of color and cites to the Civil Rights Project study’s recommendations for minimizing this affect.(4) The most obvious cause of disproportionate discipline from an advocate’s perspective is racial bias and discrimination. However, those in the education field articulate other reasons causing student behaviors that lead teachers to use punitive measures. This article attempts to discuss how the issue of disparate discipline is framed and concludes with some strategies for legal advocates to address this issue.

Discussions of race and discipline often include other variables to describe why African American and Latino youth are an overly disciplined population. One of the most common beliefs amongst educators is that the discipline of students of color must be based on a factor other than race, since most educators are color blind in their decision making and teaching.(5) Under this framework, the Supreme Court case Brown v. Board of Education successfully eradicated racial discrimination in America’s public schools and replaced segregated opportunities with integrated schools where all children had the same chances to succeed. This color blind perspective assumes that children, regardless of their race, should have the same expectations about education and how to behave in an educational setting. Color blindness allows educators to assume that culturally appropriate characteristics, speech patterns, or mannerisms are “behavior problems” because they do not conform to an Anglo perspective of appropriate behavior. The non-conformity is explained away by attributing the behaviors to poverty, family background, and low achievement.(6)

In his July 1, 2009 press release recognizing the 45th anniversary of Title VI of the Civil Rights Act of 1964, U.S. Secretary of Education Arne Duncan stated that “many schools are still struggling to serve students of color and students growing up in poverty.”(7) Secretary Duncan’s mention of poverty in a commemoration of the civil rights statute protecting against race, color and national origin discrimination is indicative of policy makers’ struggle with isolating one factor from the other. The pairing of race and poverty is challenging for advocates by presenting two somewhat opposing explanations of why the disparity exists. Racial bias is a way of identifying a perpetrator of disparate discipline, while poverty is often used as a “blame frame”(8) to explain how students of color behave in a manner that triggers the discipline process. Since there are no federal protections against socio-economic status discrimination, the conflation of race and poverty muddies a clean racial bias explanation for disparities in discipline.

We should begin to see a growing discussion correlating the so called “achievement gap”(9) and disparate discipline of students of color. The passage of the No Child Left Behind (NCLB) law has changed the provision of education in the United States. Through state mandated standards for student achievement from first grade to high school graduation, NCLB set a goal for the country’s youth to become academically proficient in Reading and Math by the year 2013. The harsh reality of this federal legislation was to force state and local educational agencies to emphasize test taking and to design a curriculum with the purpose of preparing students for taking standardized tests. With the severe budget deficits facing this nation’s educational systems, teachers are now, more than ever, less able to be innovative in their approaches to teaching and classroom management for fear that their jobs hinge on their students’ academic performance on a test. The relationship to discipline is: 1) racial bias impacts expectations of achievement and behavior; 2) students of color are not engaged in this type of curriculum; and 3) with the increased pressure to complete a fast paced, test oriented curriculum, teachers are less tolerant of minor, disruptive behaviors.

This article’s discussion of some the rhetoric around disparate discipline demonstrates the intricate overlap between law, education and psychology. As educators struggle with the boundaries of teaching and our African American, Latino, and Native American students struggle with staying in school, the Obama administration struggles with how to re-name and re-frame what is currently No Child Left Behind. Hoping to distance itself from the stigma attached to the previous administration’s NCLB law, the Department of Education under Secretary Duncan is committed to the reauthorization of the Elementary and Secondary Education Act (ESEA) in a manner that attaches a significant amount of federal funding.(10) The Department of Education announced its “Race to the Top” program where billions of dollars of discretionary and competitive grants became available to the nation’s states to progress reform in the area of measuring college and workplace success; developing data systems to measure success; developing, retaining and rewarding effective teachers and administrators; and raising the achievement of students in low-performing schools.(11) The funding can be used to better the school climate to increase academic achievement and attendance, which means that states can use the money to address disproportionate discipline using methods like Positive Behavioral Interventions and Supports (PBIS).(12) These monies and the impending reauthorization of ESEA are an opportunity for advocates to lobby states, educational agencies, and the federal government for school reform that betters the educational environment for students of color.

Litigating disparate discipline cases as a strategy is a question of whether advocates wait for the law to change, or whether litigation is a means to change the current state of race discrimination law. One of the difficulties in proving a disparate discipline claim under Title VI is that a plaintiff must provide evidence that similarly situated students were treated differently.(13) Additionally, disparate treatment cases require a finding of intentional discrimination.(14) One legal inquiry advocates may want to explore is whether a Title VI disparate treatment claim for racially hostile environment can be made by demonstrating that teachers exercise racial bias in school discipline, the district is on notice of the bias and disparate impact of poor classroom management techniques, and the district fails to address the problem. First advocates must articulate evidence that teachers’ disciplinary referral of students of color is severe, persistent or pervasive to constitute offensive racial harassment. If possible, then by analogy to hostile environment cases under Title IX of the Education Amendments of 1972,(15) a deliberate indifference standard might arguably apply to imply intent under Title VI disparate treatment.(16)

Where advocates can more readily succeed in the tough task of attacking the disparities in school discipline is on the ground – empowering communities of parents, students and educators to take a look at how young people of color are treated in the school environment. Proactive outreach to communities of color are necessary to level the playing field with “know your rights” sessions educating parents about how to hold schools accountable to Education Code provisions requiring that other means of correction are used before punitive forms of discipline. Advocates can also represent students in discipline proceedings to ensure that due process rights are respected, involved students are treated equally, and appropriate educational placements are provided. Another space for advocates is to encourage, and if possible to advise, community members and educational agencies to seek funding opportunities to create a school climate that does not remove educational opportunities from students of color by disciplining them out of the classroom environment. Finally, advocates must not allow the rhetoric to shift away from conversations of race and bias and allow other variables to replace the civil rights protections that were made to legally mandate equal access to programs receiving public funding. The data is clear: the racial disparity in school discipline means that students of color receive less instructional time and less academic, social, and other benefits associated with participating in a comprehensive school environment. To that extent, whether other variables influence the need for school discipline, or are simply a historical and social extension of what being “of color” means, race is still very much a factor educators must struggle with in shaping how America’s youth receive their education.

Tammi Wong is a volunteer attorney at Legal Services of Northern California.

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1. Howard Witt, School Discipline Tougher on African Americans, Chicago Tribune, e-Edition, September 25, 2007 at http://www.chicagotribune.com/services/newspaper/eedition/chi-070924discipline,0,5092689,full.story; Building Blocks for Youth, Zero Tolerance – Key Studies, at http://www.buildingblocksforyouth.org/issues/zerotolerance/studies.html (last viewed March 8, 2010).
2. See Sam Dillon, Officials Step Up Enforcement of Rights in Education, N.Y. Times, March 7, 2010, at http://www.nytimes.com/2010/03/08/education/08educ.html?emc=eta1.
3. Counseling, Student Support, and Service-Learning Office, California Department of Education, Zero Tolerance. at http://www.education.ca.gov/ls/ss/se/zerotolerance.asp. (last modified December 7, 2009).
4. Id. See also, Advancement Project & Harvard Civil Rights Project, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies (June 2000), available at http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED454314&ERICExtSearch_SearchType_0=eric_accno&accno=ED454314.
5. The Teaching Diverse Students Initiative, Teaching Tolerance, a project of the Southern Poverty Law Center, Color Blindness, at http://www.tolerance.org/tdsi/cb_color_blindness (last viewed March 7, 2010).
6. See id.
7. Press Release, U.S. Department of Education, Anniversary of Title VI Marks Progress and Reminds us that Every Child has the Right to an Education, at http://www2.ed.gov/news/pressreleases/2009/07/07012009a.html (last modified July 2, 2009).
8. “Blame frames” come from social psychology and related fields that “help explain how people who imagine themselves fair and just routinely blame the victims of inequities and excuse the perpetrators or passive observers…” John Hanson & Kathleen Hanson, The Blame Frame: Justifying (Racial) Injustice in America, 41 HARV. C.R.–C.L. L. REV. 415 (2006), available at http://www.law.harvard.edu/students/orgs/crcl/vol41_2/hanson.pdf.
9. The achievement gap is the disparity in academic performance between African American, Latino, and Native American students as compared to their White peers. See Research Center, Education Week, Achievement Gap, at http://www.edweek.org/rc/issues/achievement-gap/ (Sept. 10, 2004).
10. Press Release, U.S. Department of Education, Secretary Duncan Says Rewrite of “No Child Left Behind” Should Start Now; Reauthorization Can’t Wait, at http://www2.ed.gov/news/pressreleases/2009/09/09242009.html (last modified Sept. 29, 2009).
11. U.S. Department of Education, Race to the Top Fund, at http://www2.ed.gov/programs/racetothetop/index.html (last modified March 4, 2010).
12. Southern Poverty Law Center, “Race to the Top Fund” Offers Schools Opportunity to Improve Discipline, at http://www.splcenter.org/get-informed/news/race-to-the-top-fund-offers-schools-opportunity-to-improve-discipline (Nov. 24, 2009).
13. Plyler v. Doe, 457 U.S. 202, 216, (1982).
14. Washington v. Davis, 426 U.S. 229 (1976); Alexander v. Sandoval, 532 U.S. 275 (2001).
15. Alexander v. Sandoval, 532 U.S. 275, 279-280 (2001).
16. See Bryant v. Indep. School Dist. No. I-38, 334 F.3d 928, 934 (10th Cir. 2003) [deliberate indifference standard applies to peer to peer harassment hostile environment claim under Title VI], Silva v. St. Anne Catholic Sch., 595 F. Supp. 2d 1171, 1186 (D. Kan. 2009) [plaintiffs’ claim that English-only policy in and of itself creates a racially hostile environment under Title VI survives summary judgment].