Data collected by the U.S. Department of Education demonstrates that disparities exist in the use of suspension and expulsion as discipline practices used for students of certain racial and ethnic groups and students with disabilities.
The release of the 2013-14 Civil Rights Data Collection (CRDC) shed light on the extent to which the exclusionary discipline practices (e.g. suspension or expulsion) were being utilized in schools. Zero-tolerance discipline policies that mandate predetermined consequences as a result of specified conduct emerged as a product of initiatives to keep students safe in the mid-1990s.
Despite the emphasis on safety, questions quickly arose regarding the implementation and efficacy of zero tolerance policies. The overreliance on exclusionary suspensions or expulsions for minor, non-violent infractions negatively affects student behavioral health and academic success, in addition to increasing involvement with the criminal justice system. Exclusionary discipline drastically decreases a student's likelihood of completing high school, which comes with substantial social and economic costs.
Reducing the use of exclusionary discipline is vital, not only for affected individuals, but the school community. School climate is of paramount importance to school quality and improvement in the lowest-performing schools. Discipline practices, among other factors, set the school culture and climate for all students. Research indicates that the implementation of alternative, restorative discipline practices can positively affect school climate and individual connectedness.
Although findings connecting student achievement and restorative discipline practices are less conclusive, both the Learning Policy Institute and the American Institutes of Research identify a positive school climate as a driver of school improvement and vital to student development and achievement.
Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from discriminating on the basis of race, color or national origin. The U.S. Department of Education’s Office for Civil Rights (OCR) oversees the enforcement of Title VI through the investigation and resolution of complaints, as well as by OCR initiated compliance reviews. Students and parents, as well as someone acting on behalf of another, may file a complaint with OCR. OCR routinely investigates and resolves complaints of discrimination, including those specific to the use of exclusionary discipline practices, arising under Title VI using the following analyses:
- Different treatment: A scenario in which a student is treated differently than similarly situated students of another race.
- Disparate impact: A scenario in which a policy is adopted that is neutral on its face but applied in a manner that targets students of a particular race.
In response to the CRDC findings and ongoing research linking exclusionary discipline practices with long-term, negative effects on student outcomes, the U.S. Department of Justice and U.S. Department of Education jointly released a Dear Colleague Letter and associated resource package, "Rethinking School Discipline Guidance," (guidance), in early 2014 to address state and local school discipline policies. The legal guidance clarified the Obama Administration’s interpretation of the Civil Rights Act of 1964 in the school discipline context and outlined a federal expectation for resolving the disparate application of exclusionary practices.
However, after releasing the guidance, school districts entered a period of uncertainty when reviewing and reconciling systemic discipline policies and the OCR complaint and resolution process. Prior to 2014, many states had already acted to unravel the statutory and regulatory embedded zero-tolerance policies underlying the use of exclusionary discipline practices. For example, in 2012 the Indiana legislature successfully created a commission to study best practices for student discipline. Meanwhile, California provided more flexibility to principals and superintendents in determining the appropriateness of expulsion for specific conduct violations in the same year. After the 2014 guidance was released, the number of states reviewing and revising zero-tolerance policies through legislative action rose substantially as states attempted to minimize the amount of lost instructional time occurring due to exclusionary discipline practices.
The Obama administration’s guidance was rescinded by the U.S. Department of Education in December of 2018. This decision was reached as a product of the Federal Commission on School Safety, led by Secretary of Education, Betsy Devos. The commission stated in the “Final Report of the Federal Commission on School Safety” that rescinding the guidance would empower educators to address problem behaviors that create an unsafe learning environment. This concerned some advocates and policymakers, who feared the exacerbation of school discipline disparities, or an overreliance on zero-tolerance policies and exclusionary discipline. Though rescinding the guidance demonstrated the Trump administration’s priority of transferring decision-making authority back to state and local governments, the provisions within Title VI remain unchanged, including the different and disparate treatment analyses. For more information, consult the document released by the U.S. Department of Education—Questions & Answers on Racial Discrimination and School Discipline—provided as a companion to the document withdrawing the guidance.
Despite the tension in response to the decision to rescind the guidance, the “Final Report of the Federal Commission on School Safety” also highlighted best practices to foster a positive school climate, including the implementation of positive behavior interventions and supports (PBIS), social and emotional learning (SEL), as well as trauma-informed practices. Consult the NCSL School Safety webpage for more information on School Climate.
Although federal guidance plays a significant role in state policy, state legislatures and state education agencies remain the drivers of school discipline reform.
To address both the disparities between student groups and the negative consequences of exclusionary discipline, states have pursued innovative approaches to school discipline to ensure students are safe and supported in schools. State policy options include:
- Eliminating or reducing exclusionary discipline practices.
- Implementing restorative approaches to school discipline.
- Collecting and reporting discipline rates disaggregated by student subgroups.
Even prior to the rescission of the federal guidance, states pursued innovative ways to reduce the use of exclusionary discipline and improve school climate to create safe and supportive learning environments for all students.
Reducing and prohibiting the use of exclusionary discipline for the early grades has been a priority for many states seeking to improve school discipline practices. For example, the Ohio Legislature enacted HB 318 in 2018, which limits the use of exclusionary discipline in pre-kindergarten through third grade. For a detailed look at pre-k through third grade discipline policies, please consult this NCSL LegisBrief.
A 2016 NCSL LegisBrief on school discipline reported that some states have limited exclusionary discipline by prohibiting suspension or expulsion for certain practices. California K-12 students are prohibited from being expelled for disruption or defiance. Arkansas and Rhode Island prohibit using out-of-school suspension to address truancy, Oregon and North Carolina prohibit the use of expulsion to address truancy, and Nevada, New Mexico and the District of Columbia prohibit both suspending and expelling truant students.
To reduce the use of exclusionary discipline in the middle and upper grades, some states have pursued restorative approaches to school discipline, including PBIS and Restorative Justice. The OSEP Technical Assistance Center defines PBIS as a, “schoolwide system of support that include[s] proactive strategies for defining, teaching, and supporting appropriate student behaviors to create positive school environments”. Ohio HB 318 built upon the strong foundation for PBIS already laid in the state. In 2013, the Ohio State Board of Education adopted a policy requiring all school districts statewide to implement PBIS systemwide as an alternative to limit restraint and seclusion and remove and address factors that contribute to negative behaviors. The legislation requires the development and implementation of a schoolwide PBIS framework, in addition to required instruction/professional development in PBIS for current and prospective educators. The framework builds upon the policy requirement by focusing on effective implementation in the form of data systems, curriculum, classroom practice standards, and staff capacity building. The framework requirement coupled with autonomy in implementation allows districts to tailor their approach to their unique contexts.
The Colorado legislature also embraced school discipline reform in 2007 with an emphasis on restorative justice (RJ). The Colorado Restorative Justice Council, a technical assistance organization created through legislative action, defines RJ as, “philosophically based in fostering relationships, strengthening understanding, repairing harm, and building strong communities. Identifying and addressing the needs and harms that occur when there is conflict in the school community by cultivating empathy and modeling conflict resolution skills serves students and adults alike.” Along with the formation of the RJ Council to provide technical assistance to schools and districts, the Colorado legislature encouraged schools and districts to implement RJ into policy and practice through a legislative declaration. Colorado has become a model for RJ and the RJ Council has developed a wealth of resources, including a guide to RJ implementation.
In order to truly address discipline disparities and determine the consequences of exclusionary discipline, reliable, disaggregated data is necessary to identify areas of concern. Under ESSA, states must collect, disaggregate and publish school discipline data. For more information related to these ESSA requirements see the sidebar.
Broader efforts to improve school climate and student supports also increase prosocial behavior, without specifically addressing discipline. Social-Emotional Learning (SEL) has gained momentum as one such approach, with all 50 states adopting SEL standards for early learning. Some states, including Kansas have adopted SEL standards for all grades K-12. Although Maryland has not implemented K-12 standards for SEL, the Maryland legislature enacted HB 920 in 2017, which requires professional development in SEL for school personnel. For a detailed look at SEL, consult this NCSL LegisBrief.
Trauma-informed practices have also been emphasized as best practice when helping students cope with trauma that can lead to poor student social, emotional and academic outcomes. The Massachusetts legislature tasked the state education agency with developing a framework for safe and supportive schools, as well as convening a commission to support and report on the implementation of the framework. The framework emphasizes the importance of creating an environment safe for students who have experience trauma and other adverse childhood experiences (ACEs). Tennessee requires training for educators and administrative staff on ACEs that includes the impact of ACEs on development and behavior, risk factors, trauma-informed classroom practices, and early identification. Consult this NCSL LegisBrief for more information on adverse childhood experiences.
States continue to pursue innovative approaches to school discipline and school climate that provide districts with the flexibility and the tools needed to address discipline disparities and the negative impact of exclusionary discipline. State legislature have led the way in creating more equitable school discipline policy that fosters safe and supportive learning environments and positive student outcomes.
Guiding Questions for Legislators
- How are school districts in your state collecting, disaggregating, and reporting on school discipline data—including by race, national origin, gender, income or disability status? How is the state utilizing this data to inform decisions and practices within the state, such as for accountability purposes, school climate supports, etc?
- How are school discipline and school climate policies aligned with school improvement efforts in your state?
- How are school personnel prepared to implement restorative practices, or other discipline measures in your state? What ongoing professional development is provided to school personnel? How are teacher preparation programs incorporating restorative practices into the program?
- What is the current school discipline policy landscape in your state, including legislative or regulatory requirements, state education agency initiatives, and school district efforts?
- Addressing the Root Causes of Disparities in School Discipline: An Educator’s Action Planning Guide (National Center on Safe Supportive Learning Environments, 2015)
- Educating the Whole Child: Improving School Climate to Support Student Success (Learning Policy Institute, 2018)
- From Reaction to Prevention: Turning the Page on School Discipline (Skiba, Russell J., Losen, Daniel J., 2015)
- GAO-18-258, K-12 EDUCATION: Discipline Disparities for Black Students, Boys, and Students with Disabilities (U.S. Government Accountability Office, 2018)
- Protecting Students’ Civil Rights: The Federal Role in School Discipline (Learning Policy Institute, 2019)
- The Status of School Discipline in State Policy (Education Commission of the States, 2019)