As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.

In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.

While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.

For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.

Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.

By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.

Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.