OCR Calls on Schools to 'Stop Racial Balancing' in New Discipline Guidance

The U.S. Department of Education has issued new school discipline guidance, calling on schools to "stop racial balancing" and rebuffing previous attempts to reduce discipline disparities for Black and other historically marginalized students.

The guidance, issued by the Office for Civil Rights, makes clear that neither Title VI nor the Constitution requires the use of race in student discipline. It also states that 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.

According to the guidance, 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.

The new guidance 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.

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.

The Obama administration had previously 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.

However, the Education Department's new guidance criticizes the Obama and Biden administrations' crackdown on schools for disparate impact investigations, calling the Trump administration's approach "better" and one that creates "safer and better environments for learning."

The guidance also states 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.

The new guidance has been met with criticism from some who argue that it will lead to increased disparities in discipline outcomes for Black and other students.

### Disparate Impact: What is it?

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.

### New Guidance: A Shift in Approach

The new guidance from the Office for Civil Rights marks a shift in approach from previous administrations, which had focused on reducing discipline disparities for Black and other historically marginalized students. The guidance makes clear that schools are not required to consider race in student discipline, and that only cases of intentional discrimination are prohibited by Title VI and the Constitution.

### Implications for Schools

The new guidance has significant implications for schools, which will no longer be required to consider race in student discipline. However, some critics argue that this approach will lead to increased disparities in discipline outcomes for Black and other students.

### Table: Disparate Impact Data

| Administration | African American Students | White Students | | --- | --- | --- | | Obama (2014) | more than three times as likely to be expelled or suspended | |

Note: The data cited in the source is from 2014, and shows that African American students without disabilities were more than three times as likely as their White peers without disabilities to be expelled or suspended.