In the midst of an 11 percent spike in discrimination complaints filed with the Department of Education's Office of Civil Rights (OCR) last year, as well as the release of independent reports revealing the high rates of disciplinary action against African American students, the OCR has announced a reinvigorated approach to enforcing civil rights statutes that uses a disparate impact analysis. Education Week (Oct. 12, 2010); see also Dan Losen and Russell Skiba, Southern Poverty Law Center, Suspended Education: Urban Middle Schools in Crisis (2010); National Association for the Advancement of Colored People (NAACP), Misplaced Priorities: Under Educate, Over Incarcerate, (2010); ACLU of Florida, Still Haven't Shut Off the School to Prison Pipeline: Evaluating Florida's New Zero Tolerance Policy Law, (2011).
The movement against the "school-to-prison pipeline" must examine the significance of this change in the investigation of racial disparities in school discipline in the context of its overall goals. From this perspective, how much can we rely on the OCR to remedy the school-to-prison pipeline in communities of color, and does this represent a step forward?
The Movement Against the School-to-Prison Pipeline
The ABA's resolution against the use of zero-tolerance discipline in schools in 1992 was part of the initial rising tide against the school-to-prison pipeline. Since then, a coalescing movement consisting of individual parents, community stakeholders, community-based organizations, social justice organizations, civil rights organizations and members of the bar have successfully exposed the systemic disproportionate impact that students of color face in school systems that rely heavily on policies—including overreliance on suspension, expulsion, and zero-tolerance discipline and policing—that criminalize school-based misbehavior. For more background on the problem, readers are encouraged to visit the websites for the Children's Rights Litigation Committee, the Dignity in Schools Campaign, and the American Civil Liberties Union (ACLU).
The movement has grown from one that mobilized defensively against zero-tolerance discipline policies to one that critically analyzes educational policy and the conditions in educational institutions that lead to a school-to-prison pipeline, in particular for communities of color. Various segments of the movement have identified systemic problems that go beyond discrete policy frameworks, from underlying class and race biases in instruction, discipline, and school governance to the criminalization of youth by the increasing role of law enforcement and the imposition of increasingly punitive penalties; from the defunding and privatization models of education to the failure to address the needs of the most vulnerable populations, including homeless, foster, and special needs students and pushing youth into the inferior system of education called alternative schools. The school-to-prison pipeline has severe and lasting consequences for students, parents, schools, and communities.
In turn, there is a demand for systemic, longer-term solutions, such as a high standard for a right to an education, equity in schools, the participation of low-income communities in developing and monitoring the implementation of school policy, the creation of positive school climates, the provision of multi-systemic models of support and intervention for low-income families, and promoting alternative models of school discipline. Subsequent ABA resolutions and the work of various sections and committees of the ABA, including the Section of Litigation through its Children's Rights Litigation Committee and the Criminal Justice Section through its Juvenile Justice Committee, the Commission on Youth at Risk, and the ABA Center for Children and the Law, reflect an understanding of the need for broader change.
Change in the Way That OCR Operates
The OCR's announcement that it will take a more aggressive approach to enforcing civil rights in educational outcomes, discipline disparities in particular, using a "disparate-impact" analysis is a step in the right direction. According to Russlynn Ali, assistant secretary of education and head of OCR, the new policy for analyzing discrimination complaints represents a major shift in practice at the OCR because the last administration pursued cases mostly using a "different treatment" or "intentional discrimination" standard. Education Week (Oct. 7, 2010). Using a disparate-impact analysis broadens the scope of the OCR investigations and provides a vehicle to substantiate the movement's long-standing claims that the problem is systemic and that alternative solutions are viable.
Title VI of the Civil Rights Act of 1964 prohibits intentional discrimination on the basis of race, color, or national origin in any institution that receives federal funds. To prove intentional discrimination, one must show that "a challenged action was motivated by intent to discriminate." Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). Challenging school policies under the theory of intentional discrimination would be an uphill battle when there is no evidence that the policy was adopted for the purposes of disadvantaging a particular group or that a purportedly legitimate reason for the policy was a pretext for discrimination. Discrimination is much more nuanced, particularly in the racially segregated South and dense urban areas across the country.
However, the act also authorizes federal agencies to adopt regulations to effectuate its provisions. Utilizing this authority, most federal agencies have adopted the disparate-impact standard. OCR regulations state that any recipient of federal funds may not "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination," thus barring unintentional disparate-impact discrimination. 34 C.F.R. 100.3(b)(2) (2004) (emphasis added).
The disparate-impact theory looks at differences in outcomes among students of color or other students that result from neutral policies or procedures, even if no intent to discriminate exists. Secretary of Education Press Conference (Mar. 8, 2010); see e.g. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (discussing disparate impact under Title VII of the Civil Rights Act of 1964). Thus, a student who is a member of a racial minority and subjected to school disciplinary policies can prove discrimination if the policy resulted in the different treatment of similarly situated white students.
Disparate impact is a three-step burden-shifting analysis. The group that is challenging the policy or practice must first show by preponderance of evidence that a seemingly neutral policy has a disproportionate adverse effect on a protected class. Elston, 997 F.2d at 1407. This can be demonstrated by a significant, statistical disparity in outcomes for that group compared to other groups. The OCR has promised to develop guidelines for how it will calculate the disparity in school discipline and has stated publicly that it will look at data and work with other sources, including "school and district officials, parents, advocacy groups, and community organizations." The Chronicle, (Mar. 8, 2010) (quoting Justin Hamilton, Education Department spokesperson); Education Week (Oct. 7, 2010). In March 2010, the OCR expanded civil rights data collection as it relates to school discipline. Civil Rights Data Collection, OCR. The OCR will now have school discipline data by race, ethnicity, gender, limited English proficiency (LEP) status, and disability, and is therefore more likely to identify patterns, trends, and disparities.
If a prima facie case is made of statistically significant disparity, the education agency will then have the burden of demonstrating that the policy or practice is justified by an "educational necessity." In other words, the policy must have a demonstrable relationship to an important educational goal. Elston, 997 F.2d at 1412–13. In the zero-tolerance context, school districts may argue that such a policy is necessary to deter school violence. Adira Siman, Note, "Challenging Zero Tolerance: Federal and State Legal Remedies for Students of Color," 14 Cornell J. L. & Pub. Pol'y 327 (2005) (provides a detailed analysis of the disparate impact of zero-tolerance policies). However, there still needs to be a necessary relationship between the policy and the goal of deterrence, and numerous studies have shown that zero-tolerance policies are ineffective in preventing violence, and, in some cases, they even exacerbate school discipline.
Even if there is a substantial justification, the policy can still be invalidated where there is another equally effective method for achieving the stated goals that would result in less disproportionality. Elston, 997 F.2d at 1407. According to Russlynn Ali, an education agency would be found out of compliance if an equally sound policy would have less of a disparate impact. Education Week, (Oct. 7, 2010). Such an alternative, supported by many in the movement, is positive behavior intervention and supports (PBIS). PBIS is implemented in approximately 7,100 schools across the country and encouraged by the Department of Education. In Jefferson Parish, Louisiana, the implementation of PBIS led to a reduction of school suspensions by 29 percent for students with special needs and 24 percent for mainstream students within one year of implementation. Ronald K. Lospennato, "Multifaceted Strategies to STOP the School to Prison Pipeline,"42 Clearinghouse Rev. 528, 532 (2009).
Update on OCR Compliance Reviews and Investigations
The OCR has received volumes of complaints in the past 10 years about the disproportionate number of suspensions, expulsions, arrests, and dropouts of vulnerable, fragile, and disabled children across the country. Given the involvement of various ABA committees and groups in calling into question zero-tolerance policies, it is not surprising that at the fall leadership meeting of the ABA Section of Litigation on October 2, 2010, Secretary of Education Arne Duncan and Russlyn Ali focused much of their remarks on addressing racial disparities in zero-tolerance policies. Ali has been unapologetic in her quest to ensure equal educational access for African American students, stating that "my sense of urgency could not be greater." The Root (April 20, 2011).
As part of its invigorated approach, the OCR has announced that it will proactively conduct its own compliance investigations in enforcing its regulations. Using a disparate-impact standard, the OCR plans to initiate compliance investigations in up to 60 school districts, of which five or more selected districts will focus on disciplinary policies. Last fall, the press began reporting on OCR investigations across the country. Based on early statements by the agency and news reports, those districts include but are not limited to the Christina School District in Wilmington, Delaware; the Slamanca City (New York) Central School District; Winston-Salem/Forsyth (North Carolina) County Schools; San Juan (Utah) School District; and Rochester (Minn.) Public Schools. This is in addition to the investigation of nearly 7,000 complaints recorded last year. According to the OCR, in the thousands of cases handled in the first year under the Obama administration, resolution agreements increased by 11 percent. Voluntary resolutions in which schools made sufficient changes without additional prodding jumped 32 percent. Recent Resolutions, OCR. The OCR posted online voluntary resolutions and settlement agreements reached with school districts.
The OCR also announced that it would be issuing technical assistance guides on discipline codes during the winter of 2010, but the office has yet to do this, and the word is that this guidance has become low on the OCR's priority list. The legal, advocacy, and directly impacted community anxiously await such guidance. Community stakeholders could leverage these guidelines at school district codes of conduct, student handbooks, tribunal hearings, and disciplinary code revision committee sessions, which are open to the public.
The Departments of Justice and Education convened for the first time last fall, where community leaders, government officials, and legal advocates were invited to discuss the school-to-prison pipeline and share integrated advocacy strategies. This effort confirmed the intent of the two agencies to collaborate and signaled the Department of Justice's interest in pursuing discipline cases. In a public briefing before the U.S. Commission on Civil Rights, the OCR received input that the focus on disparate impact would be an opportunity to illustrate to school districts nationwide best practices, in addition to remedies that would address punitive and disparate disciplinary practices. Education Week (March 2, 2011). In formally adopting these recommendations, the OCR would be in a position to provide significant oversight and authority over schools currently depriving children of their right to a high-quality public education.
However, the OCR is already beginning to face some criticism. The first major compliance review was initiated against the Los Angeles Unified School District (LAUSD) to look at whether it provides adequate services to students learning English. This move was harshly criticized by a group of civil rights, advocacy, and education representatives (including the California State Superintendent of Public Instruction) in an open letter that claimed the OCR was ignoring African American students and alleging that the department's decision to focus on English Language Learner (ELL) students but not African American students was more political than educational. The Los Angeles Sentinel (April 1, 2010). A similar compliance review initiated against Boston Public Schools at around the same time resulted in a compliance agreement by September 2010—within six months. However, one year later, the LAUSD review is still pending.
The most recent and only settlement related to school discipline was recently reached between the Justice Department, the OCR, and a school district in Minnesota resolving allegations of race and national origin harassment and the disproportionate discipline of Somali American students at Owatonna High School. While the settlement agreement outlines the measures the district will take to prevent harassment against students based on race, color, or national origin, the terms around developing appropriate disciplinary measures are general and not helpful in addressing concerns about an overreliance of exclusionary forms of discipline. The agreement makes no mention of the use of alternative forms of school discipline for acts of harassment outside of exclusion and, in fact, requires the school district to use discipline that includes, "if circumstances warrant, suspension or expulsion." OCR, Resolution Agreement #05-10-1148, Independent School District #761, Owatonna. It is disappointing that the OCR did not use this opportunity to explore conflict resolution methods such as restorative justice practices, which can be effective in de-escalating harassment and hostile environments.
Although those involved in the movement to dismantle the school-to-prison pipeline are encouraged by the October 2010 guidance from the Obama administration through the OCR and the Department of Justice on the bullying of lesbian, gay, bisexual, and transgender (LGBT) youth, it inherently fails to address the deeply embedded racism and criminalization of youth in public school systems today. In the case of the bullying of LGBT youth as well as sexual harassment of gender and sexual minorities, the OCR must shift its sporadic approach of addressing the needs of one, two, or a dozen children to creating safer, richer, and more diverse educational environments for all children. Transformational change and practices in our public schools must in fact be systemic, not episodic.
How Significant Is the OCR's Change in Practice?
The media has greeted the OCR's announcement of disparate-impact analysis with much fanfare but little in-depth reporting. For a movement that is interested in making structural, systemic, and institutional changes, it is critical that we analyze the OCR's new practice in the context of movement-building and long-term priorities. In this way, we can effectively add the OCR as another tool in our arsenal to dismantle the school-to-prison pipeline but also understand the structural limitations of the OCR's role in addressing school disciplinary disparities.
One focus of the response to the school-to-prison pipeline has been to expose the disproportionate impact of school disciplinary and criminalization practices; another has been to endorse alternative approaches such as PBIS and restorative justice practices. Collectively, the movement has produced numerous reports, including analysis of outcome data published by educational agencies, state departments of education, and the federal government, as well as independent reports. The movement has even engaged in creative methods of collecting anecdotal evidence, including public hearings, participatory research, story gathering, and human rights documentation. This has played an influential role in pushing for better data collection by all facets of government, but primarily by the OCR itself. Across the country, local coalitions and groups have studied, endorsed, and actively worked to get school districts to adopt alternative approaches to school discipline, including PBIS and restorative justice practices.
Therefore, an administrative process, as outlined by the OCR, that legitimizes efforts to demonstrate the discriminatory effect of policies regardless of intent, presents alternatives, and provides a regulatory arm to hold educational institutions accountable is consistent with the priorities of the movement. It builds on the experience and expertise of the movement. This is particularly critical for parents, students, and community organizations that otherwise do not have access to lawyers or the courts so that they may seek direct intervention.
At the same time, when viewed in the context of significantly diminished ability to obtain legal remedies in the courts for civil rights violations, the OCR's new practice simply represents a small step to regain what we have already lost. Similarly, litigation for racial equality in the 1950s and 1960s began under a disparate-impact analysis. For the first 20 years of discrimination litigation, proof of intent was unnecessary, and the existence of segregation or disparate impact was sufficient to challenge a wide variety of practices in court. Derek W. Black, "Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge," 43 Conn. L. Rev. 503, 510 (2011). Since 1973, however, the Supreme Court has tightened the ropes on the ability of plaintiffs to address inequity by inserting an intent requirement into all race-discrimination claims under the Equal Protection clause of the Constitution. However, plaintiffs were able to continue to assert disparate-impact claims under Title VI. Finally, in 2001, the U.S. Supreme Court held that there is no private right of action to enforce Title VI, using the disparate-impact standard. Alexander v. Sandoval, 532 U.S. 275 (2001). Thus, advocates unfortunately lost the ability to effectively use the courts to hold school districts liable for the types of systemic violations that rely on a demonstration of statistical disparities and disparate impact.
While a regulatory agency like the OCR can enforce Title VI, using a disparate-impact standard, a private individual can only assert intentional discrimination. Relying on just the intentional-discrimination doctrine "has devastated racial and gender equity" in education cases, and civil rights advocates have viewed this as essentially closing courts as viable venues for remedying discrimination. Derek W. Black, "The Mysteriously Reappearing Cause of Action: The Court's Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs," 67 Md. L. Rev. 358 (2008).
In effect, the movement against the school-to-prison pipeline has been divested from the ability to directlychallengethe types of discriminatory practices that are most relevant to the communities that we represent. The OCR's compliance mechanism remains the only remaining vehicle to challenge discrimination in education, using a disparate-impact standard. This vehicle will prove useless unless the OCR exercises its enforcement arm and takes swift action against offending schools and school districts across the nation. For example, a complainant has no recourse if he or she disagrees with the remedial action—or if the OCR does not enforce its regulations.
The OCR's commitment to remedy disparities in school discipline and the school-to-prison pipeline is vulnerable to political influence, depending on the level of support it gains from the current administration. As with the previous administration, the OCR can decide to simply not enforce regulations using disparate-impact analysis. The OCR can also decide what level of investment it will make in discipline cases, as opposed to other areas of discrimination. Finally, the end result of an OCR complaint will most likely lead to remedial action by the school district that may or may not involve the complainant and will not include the imposition of liability. The OCR's effectiveness will remain negligible unless the revocation of federal funding is exercised to invoke immediate compliance and dramatically reduce the over-disciplining of vulnerable children and children of color in America's public schools.
In addition, the Department of Justice can enforce and pursue civil rights cases, using disparate impact. However, to date, the department has intervened in only one case relating to school discipline—the Owatonna case mentioned previously—which resulted in a settlement agreement.
What Results Can We Expect from the OCR?
The University of California, Los Angeles (UCLA) Civil Rights Project recalls the desegregation era between 1965 and 1970 as an example of the potential for the OCR to influence education and civil rights policy. During that window, the OCR brought 600 proceedings against school districts and terminated federal funds in 200 districts, and as a result, "by 1970, southern schools were the most integrated in the country." A key component of this success included the issuance of firm regulations and a strong partnership between the OCR and the Department of Justice Civil Rights Division in the enforcement of desegregation. Since then, however, activities of the OCR have come to "a virtual standstill" caused by political machinations that resulted in a disconnection between the OCR and the Department of Justice, challenges by conservatives, and the weakening of political support to address racial inequities. The Civil Rights Project at UCLA, The Integration Report, issue 23 (2010).
The Civil Rights Project recommends that the OCR duplicate the aggressive efforts of the 1960s and 1970s. The research institute suggests strong public declarations, developing relationships with advocates and communities, issuing strong guidance, coordinating with the Department of Justice, providing technical assistance to school districts, and inserting educational equity into conversations around social equity in areas such as housing, transportation, land use, and urban planning. In particular, the institute recommends that, in light of Sandoval, the OCR should be more strategically proactive in investigating complaints and, if it uncovers significant disparities in discipline, that it provide to the school districts the broad steps that must be taken to correct them and play an active role in monitoring progress.
The ability of the OCR to pursue an aggressive posture and strategy is dependent on the commitment and investment of the Obama administration to equity issues overall. Civil rights groups including NAACP, the Lawyers' Committee for Civil Rights Under Law, the National Urban League, the Rainbow PUSH Coalition, the National Coalition for Educating Black Children, the NAACP Legal Defense and Educational Fund, and the Schott Foundation for Public Education have critiqued the administration's focus on policies that undermine equity. A report issued by the above mentioned groups alleges that the administration has undermined the need for an equitable system of education by having a focus on competitive grants, such as the Race to the Top grants that have denied funding to children of color in some of the poorest school districts in the country; intending to make Title I competitive; using unproven methods of educational change that penalize schools in economically disenfranchised areas; relying on charter schools and quick-fix strategies such as closing public schools; and relying on test scores for measuring teacher effectiveness. National Opportunity to Learn Campaign, Civil Rights Framework for Providing All Students an Opportunity to Learn through Reauthorization of the Elementary and Secondary Schools Act (July 26, 2010); Dianne Ravitch, Why Civil Rights Groups Oppose the Obama Agenda, Education Week Blog, (September 14, 2010). In this context, civil rights advocates may rightfully remain skeptical of the outcomes of the administrations' education policy on overall education equity.
The Struggle Must Continue
More than 55 years after Brown v. Board of Education, many students of color throughout the United States continue to struggle in racially isolated, underfunded, inadequate public schools. The movement to dismantle the school-to-prison pipeline across the country will strengthen and increase in momentum if the OCR digs deep, identifies the root causes of disproportionate harsh discipline in our public schools, and pursues the aggressive enforcement of compliance to civil rights laws. The OCR provides the movement with a critical vehicle to address racial and other disparities that result from the school-to-prison pipeline and provides an important resource for school districts to implement alternative approaches. Legal advocates, community leaders, parents, and even students can be directly involved in monitoring educational inequities and the reporting of these inequities to the OCR.
At the same time, the OCR is just beginning to reprioritize and enforce the improvement and equalization of educational programs, discipline policies, and other initiatives. In light of the history of both the OCR and disparate-impact litigation, these are small but significant steps. The OCR's power is simply limited to the investment the Obama administration makes to education equity and, therefore, quite vulnerable. The students, the community organizations, the educational rights attorneys, and the advocacy community should remain cautiously optimistic and maintain pressure on the administration and OCR to fulfill its promises. In the end, however, the struggle to dismantle the school-to-prison pipeline is rooted in a vision for social change. We can only succeed if we cut through the rhetoric and continue to measure our strategies, tools, and victories against that vision. With that in mind, la lucha continua (the struggle continues).
Keywords: litigation, children's rights, Department of Education's Office of Civil Rights, school-to-prison pipeline