Friday, September 20, 2019

 RacismLogo02

Daniel J. Losen

From: Daniel J. Losen,  Discipline Policies, Successful Schools, Racial Justice, and the Law, 51 Family Court Review 388 (July, 2013)

In March 2010, Secretary of Education Arne Duncan stood on the Edmund Pettis Bridge in Selma, Alabama and spoke on the importance of strengthening civil rights enforcement in education, high-lighting racial disparities in the use of suspension and expulsion (Duncan, 2010). The Secretary suggested that students with disabilities and Black students, especially males, were suspended far more often than their White counterparts and often punished more severely for similar misdeeds. Subsequently, U.S. Attorney General Eric Holder and Secretary Duncan each addressed a conference of civil rights lawyers in Washington D.C. and affirmed their departments' commitment to remedying these disparities (Zehr, 2010). As part of their promised efforts, they indicated that new guidelines would be released to help states and districts determine whether their discipline policies may have an unlawful “disparate impact” under the U.S. Department of Education's Title VI regulations that are enforced by the Department's Office for Civil Rights (OCR).   The guidance is still forthcoming, but a simple application of the Title VI regulations to school discipline would read as follows:

Under the “disparate impact” theory, a method of discipline that is racially neutral on its face but has a discriminatory effect may be found unlawful absent sufficient justification such as educational necessity. Even if a school's action is justified, it still may be unlawful if equally effective, less discriminatory alternatives are available (Kim, Losen & Hewitt, 2010).

The disparate impact approach looks beyond the question of whether similarly situated students were disciplined differently along racial lines. By focusing on the impact, and by considering the policy justification and the alternatives, the legal framework enables enforcement agencies (and complainants) to address any discipline policy or practice that burdens children of color more than others. Concerns that unconscious racial bias may have influenced the adoption or implementation of an unnecessarily harsh disciplinary policy or practice can also be addressed if they produce racially *389 disparate outcomes (Gladwell, 2005). Most important, proof of racial bias, conscious or unconscious, is not required under disparate impact analysis.

Although every district is unique, the data described below suggests that prong one of the legal analysis, whether a neutral policy or practice has a racially disparate negative impact, would often be met. Next, prong two of the analysis, whether the policy or practice of suspending children is educationally necessary, is explored. Finally, in accord with the third prong of the legal framework, the research presented suggests that there may be equally effective and less discriminatory alternatives to frequent reliance on out-of-school suspensions. Together, the research presented raises Title VI regulatory compliance questions for school districts with large disparities in rates of out-of-school suspension that have not explored alternatives. Equally important, the research raises serious policy concerns about the frequent use of suspensions and suggests there are benefits to pursuing a range of viable alternatives to ensuring safe and effective educational environments.

WHAT IS KNOWN ABOUT POLICIES THAT REMOVE STUDENTS FROM SCHOOL?

Policies that result in out-of-school suspensions and expulsions are described as “exclusionary,” because they remove students from school. The emphasis of the analysis here is placed on out-of-school suspensions, rather than expulsions, in part, because schools expel rather than suspend the most serious offenders, such as students who pose a real danger to others. Further, the use of suspensions dwarfs expulsions by about 32 to 1. According to U.S. Department of Education's (ED) 2006 Civil Rights Data Collection (CRDC), over 3.25 million students, approximately 7 per cent of all students enrolled in K-12, are estimated to have been suspended at least once (ED, 2011). That means that on average, for each day public schools are in session in America approximately 18,000 public school students are suspended out of school for at least a day. In contrast, on average, nationwide, there are about 560 expulsions per day.

DATA FROM THE U.S. OFFICE FOR CIVIL RIGHTS (OCR) SHOWS LARGE INCREASES IN SUSPENSION RATES

Since 1968, the federal government has been collecting data on out-of-school suspension and expulsion (Hawley & Ready, 2003). OCR administers a biennial survey, which typically includes one third to one half of U.S. public schools and districts. In 2000, a nearly universal survey was conducted and another universal survey is scheduled for 2011-12. Schools are instructed to count each suspended student only once, even if the student received several suspensions. This headcount data can be used to determine what percentage of a given subgroup was suspended. Researchers point out, however, that the unduplicated data yield a conservative estimate of students' time out-of-school because the data do not capture repeat suspensions or the length of the suspensions (Losen & Skiba, 2010).

Frequency and Racial Disparity

An analysis of OCR data describing the number of students, without duplication (not incidents), shows a large increase in K-12 suspension rates for all groups since the early 1970s (Figure 1), more than doubling since the early 1970s for all non-Whites, but not for Whites (Losen & Skiba, 2010). Concurrently, the Black/White gap more than tripled, rising from a difference of three percentage points in the 1970s to over 10 percentage points in 2006. Approximately one out of every seven Black students enrolled was suspended at least once compared to about one out of every 20 White students.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Figure 1 Racial impact of the rising use of suspension.

MIDDLE SCHOOL, RACE AND SEX

The 2010 report, Suspended Education: Urban Middle Schools in Crisis, revealed profound racial and gender disparities at the middle-school level, showing much higher rates than appear when *390 aggregate K-12 data are analyzed (above) (Losen & Skiba, 2010). For example (Figure 2), based on OCR data from every state, 28 per cent of Black males in middle school were suspended, compared to just 10 per cent of White males. Moreover, 18 per cent of Black females were suspended, compared to just 4 per cent of White females. The report's further analysis of data for 18 of the nation's largest districts found that in 15 of them, at least 30 per cent of all enrolled Black males were suspended one or more times. Across these 18 urban districts, hundreds of individual schools had extraordinarily high suspension rates--50 per cent or higher for Black males.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Figure 2 Racial disparities in middle-school student suspension rates by race/ethnicity and sex.

Racial disparities in discipline also appear within the subgroup of students with disabilities. Reported rates of suspensions of at least one day, showed that in ten states in 2007-2008 more than one in five Black students with disabilities were suspended, and three states (Nebraska, Wisconsin, and Nevada) suspended over 30 per cent of all Black students with disabilities, with Nebraska the highest at 37 per cent. In contrast, in those same states, White students with disabilities were suspended at half to one fifth the rate of Blacks, with White rates never exceeding 12 per cent (Data Accountability Center, 2007-08).


Is the Frequent Use of Suspension Educationally Necessary and Justifiable?

The data clearly demonstrate that some student subgroups receive a disproportionate number of exclusionary punishments. However, it may be useful to address a frequently suggested explanation *391 for some of the largest disparities: that some children--especially Black children--simply misbehave more than others.

One problem with answering this question is that without neutral observers in classrooms, there is no objective baseline for comparison. One can imagine that a teacher's snap judgment to refer a student for suspension may be influenced by a multitude of additional subjective considerations including the relationship the teacher has with the student, and with the child's parents. Both cultural and class differences may influence these relationships and judgments. If we assume that unconscious racial bias is pervasive, and varied in degrees, one would expect that teachers in the aggregate would have a greater tendency to perceive that Black students were more often misbehaving, and that this perceptual tendency would show up in higher punishments for Blacks for offenses that involve more subjective judgment (e.g., insubordination, disruption). Unconscious bias against Black students would unlikely manifest itself as blatant different treatment. Instead, one might expect to see subtle bias reflected in sizeable disparities in rates of discipline for certain racial groups over a year or more.

Ultimately, asserting that a higher frequency of misbehavior explains stark racial disparities in suspensions skirts the central question under “disparate impact.” That is whether frequently suspending students out-of-school is a sound educational policy response to the wide range of misbehaviors at issue. That said, it is worth noting the evidence of different treatment from a variety of sources.

Greater Suspension Rates Are Not Clearly Linked to More Frequent or More Serious Misbehavior

Research on student behavior, race and discipline has found no evidence that Black over-representation in school suspension is due to higher rates of misbehavior (Kelly, 2010). Strikingly, the Council of State Governments Report found that Black students were more likely to be disciplined for less serious ““discretionary” offenses, and that when other factors were controlled for, higher percentages of White students were disciplined on more serious nondiscretionary grounds, such as possessing drugs or carrying a weapon (Fabelo et al., 2011). This robust study controlled for 83 variables that made the racial comparison one of similarly situated students. Further, a 2010 study by Johns Hopkins researcher Dr. Catherine Bradshaw (2010), based on 21 schools, found that even when controlling for teacher ratings of student misbehavior, Black students were more likely to be sent to the office for disciplinary reasons. These, and numerous other empirical studies (Skiba et al., 2002; Skiba et al., 2009) suggest that Black students are being unfairly singled out when it comes to prosecuting misbehavior that requires more of a subjective evaluation.

Similar conclusions are suggested by an analysis of recent data from North Carolina (Figure 3) concerning first-time offenders. As the sample below illustrates, Black first-time offenders in the State of North Carolina were far more likely than White first-time offenders to be suspended for minor offenses, including cell phone use, disruptive behavior, disrespect and public displays of affection.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Figure 3 North Carolina Black/White suspension rates suspensions for selected categories of infractions; first offense.

*392 Data on first-time offenders, disaggregated by race and type of offense, is not generally accessible or reported to the public, but was obtained by lawyers who filed an OCR complaint against Wake County School District that asserted that district data, like the state data charted above, demonstrated that for the same category of offense, far higher percentages of Black first-time offenders received out-of-school suspensions than of White first-time offenders (NAACP et al., v. Wake County Board of Education et al., 2010).

Other research, also suggest that suspension rates are significantly influenced by factors other than differences in student misbehavior. For example, a statewide study of Indiana that controlled for race and poverty, concluded that the attitude of a school's principal toward the use of suspension correlated highly with its use (Rausch & Skiba, 2005). Principals who believed frequent punishments helped improve behavior and who blamed behavioral problems on poor parenting and poverty also tended to suspend more students than those principals who strongly believed in enforcing school rules yet regarded suspension as a measure to be used sparingly. This evidence raises the possibility that schools with high levels of poverty and racial isolation are more likely to embrace the kind of harsh discipline policy and school leadership embodied by the iconic bat-and-bullhorn principal Joe Clark. According to Time Magazine: “On a single day in his first year, he threw out 300 students for being tardy or absent and, he said, for disrupting the school. ‘Leeches and parasites,’ he calls such pupils. Over the next five years he tossed out hundreds more” (Bowen, 1988).

Clark's methods, portrayed by Morgan Freeman in the popular movie Lean on Me, can be summarized as kicking out the bad kids so the good kids can learn. Despite the common-sense appeal, and near heroic status that Clark achieved, there is no evidence that Clark's approach worked to improve the education of well-behaved students, let alone for the students removed from school (Biama & Moses, 1989). To the contrary, the schools run by the low suspending principals in Indiana had higher test scores after controlling for race and poverty (Rausch & Skiba, 2005).

Still, many believe a heavy reliance on out-of-school suspension is necessary to protect the learning environment for well-behaved students. Misperceptions about the use and benefits of suspending students may contribute to the public embrace of the practice.

Three Common Misconceptions Used to Justify Frequent Use of Suspension

Contrary to popular belief, most suspensions are for minor and nonviolent offenses, not for guns, drugs or serious violent acts. Skiba and Rausch (2006) reported that 95 per cent of suspensions fell into two categories: disruptive behavior and other. Only 5 per cent of all out-of-school suspensions in the state they studied were issued for disciplinary incidents typically considered serious or dangerous, such as possession of weapons or drugs. Similarly, the Texas study demonstrated that 97 per cent of the disciplinary actions were discretionary, meted out for violations of schools' conduct codes (Fabelo et al., 2011). Accordingly, the high rates of suspension for minor offenses raise questions about their justification, questions we might hesitate to pursue if they were responses to frequent dangerous or unlawful misbehavior.

Three reasons appear to account for the common use of out-of-school suspension or expulsion for nonviolent or repeated school code violations:

• to improve the student's behavior in the future by getting the parents' attention and active involvement;

• to deter other students from misbehaving; and

• to ensure that the school environment is conducive to teaching and learning.

These speak to the second “educational necessity” prong of the “disparate impact” analysis.

*393 Out-of-school Suspension to Get Parental Attention

Ideally, if suspensions heightened parental awareness, they would foster a more effective collaborative home/school effort to teach appropriate behavior. Disruptive behavior would decrease improving the learning environment. In reality, to the extent that a child's persistent misbehavior is a signal of weaknesses in parenting or problem in the home environment, there is little reason to believe that removing a child from school to spend more time at home will improve behavior. Certainly, less extreme approaches can get parents to pay attention.

Moreover, the Academy of American Pediatrics' Committee on School Health (2003), which studied the impact of suspensions and expulsions, pointed out the following related issues:

Children with single parents are between two and four times as likely to be suspended or expelled from school as are children with both parents at home, even when controlling for other social and demographic factors .... For students with major home-life stresses, academic suspension in turn provides yet another life stress that, when compounded with what is already occurring in their lives, may predispose them to even higher risks of behavioral problems (American Academy of Pediatrics, 2003).

In addition, poor and single parents may feel that they must leave a child home unsupervised or risk losing their employment. Thus, there seems little reason to accept the claim that exclusion is an effective way to secure the kind of productive parental support that will improve the behavior of those children most likely to be excluded from schools.

Out-of-school Suspensions as Deterrence

If frequent use of suspensions deters future misbehavior, we would expect to see a positive cycle, with high levels of suspension one year leading to improved behavior in subsequent years. Yet, according to the American Psychological Association's (2008) published review of the literature, there is no evidence that zero tolerance disciplinary policies, as applied to mundane and nonviolent misbehavior, improve school safety or student behavior. Longitudinal studies have shown that students suspended in sixth grade are more likely to receive office referrals or suspensions by eighth grade, prompting some researchers to conclude that suspension may act more as a reinforcer than a punisher for inappropriate behavior (Tobin, Sugai & Colvin, 1996). Another study, using longitudinal data on students from 150 schools in Florida's Pinellas County, found a strong relationship for both Black and White students between the number of sixth-grade suspensions students received and the number of suspensions they subsequently received as seventh-and eighth-graders (Raffaele Mendez, 2003). In sum, research offers no support for the theory that suspensions deter future misbehavior.

Out-of-school Suspension to Improve the Teaching and Learning Environment

Certainly suspending disruptive children might improve teaching conditions by relieving some of the teacher's burden and stress. Yet the question posed by the data is not as simple as how to respond to a few difficult students generating most of the behavior problems. Rather, the observed “unduplicated” rates of suspension are on average 28 per cent of the enrollment of Black males attending middle school.

While some students undoubtedly need a more restrictive educational setting, the need for such interventions on a case-by-case basis does not justify the high rates. If suspending large numbers of disruptive students out-of-school, with no guarantee of adult supervision, helped improve instruction and the learning environment, better academic results should be expected. But the research indicates that this is not the case. As stated above, research on the frequent use of school suspension has indicated that, after controlling for race and poverty, higher rates of out-of-school suspension correlate with lower achievement scores (Skiba & Rausch, 2006) or showed no academic benefits (Fabelo et al., 2011).

*394 Moreover, qualitative researchers have documented how the same student can behave very differently in different classrooms (Harry & Klingner, 2006). Disruptions tend to increase or decrease with the skill of the teacher in providing engaging instruction and in managing the classroom, As engagement goes up, misbehavior and suspensions tend to go down (Osher et al., 2010). Many teachers say they would like help improving these areas.(Kratochwill, n.d.). Researchers also find a strong connection between effective classroom management and improved educational outcomes. And these skills can be learned and developed (Green, 2010). According to the American Psychological Association: “When applied correctly, effective classroom management principles can work across all subject areas and all developmental levels .... They can be expected to promote students' self-regulation, reduce the incidence of misbehavior, and increase student productivity” (Kratochwill, n.d.).

Negative Impact on Students Who Are Removed from School

Because children are not expendable, we must be concerned about how disciplinary removal affects the removed students, and not just those who remain in class. One review of research exploring why students drop out found that, “[s]everal studies ... have demonstrated how schools contribute to students' involuntary departure by systematically excluding and discharging troublemakers and other problematic students” (Rumberger, 2004). Responding to this sort of evidence, states and districts are increasingly treating suspensions and other indicators of poor behavior as early warning indications of dropout risk (Vaznis, 2010).

Further, and as noted earlier, the exclusion of these students presents immediate risks to their success and well-being. In the words of the Academy of Pediatrics (2003):

Without the services of trained professionals (such as pediatricians, mental health professionals, and school counselors) and without a parent at home during the day, students with out-of-school suspensions and expulsions are far more likely to commit crimes. A Centers for Diseases Control and Prevention study found that when youth are not in school, they are more likely to become involved in a physical fight and to carry a weapon .... The lack of professional assistance at the time of exclusion from school, a time when a student most needs it, increases the risk of permanent school dropout.

In fact, many in law enforcement have echoed the Academy's concerns about the repercussions from having high numbers of unsupervised suspended students (Fight Crime: Invest in Kids, 2009).

As the study from the Council of State Governments “Breaking School Rules” study definitively demonstrated, there are strong links between suspensions and dropping out, and heightened risks of juvenile justice involvement (Fabelo et al., 2011). These increased risks raise serious questions about the justification for suspending children, especially for relatively minor violations. This is particularly the case because most anticipated benefits of exclusion have not been documented.

Poverty and Disparate Impact Theory

As a matter of civil rights law, the connection between poverty, race and misbehavior must be addressed. As a defense, school districts might simply argue that poverty, not race, is the determining factor underlying disparate impact. Even lacking a convincing policy justification, the regulatory framework does not protect against a disparate impact on students who are poor. Research does show that poverty correlates with an increased risk for suspension (Skiba et al., 2009). But according to the Council of State Governments' study (Fabelo et al., 2011), “when the relationship of socioeconomic status to disproportionality in discipline has been explored directly, race continues to make a significant contribution ... independent of socioeconomic status.”

*395 It is also true that the high correlation of poverty and race makes it difficult to isolate race in relevant research (Losen & Orfield, 2002). Likewise, it is equally difficult to prove that poverty alone explains for all of the observed racial disparities. In an administrative compliance review context, the burden at this stage has traditionally fallen on the school district to prove that what appeared to be a racially disparate impact of a policy or practice can be explained sufficiently by poverty and not race. Assuming that a given school or district has not met the burden of proving that poverty caused the observed racially disparate impact at issue, yet has argued successfully that educational necessity drives the policy or practice, the remaining question is whether equally effective less discriminatory alternatives are available.

Are Better Alternatives Available?

Evidence does suggest the viability of alternatives to frequent disciplinary exclusion. In Baltimore public schools, for example, recent reforms illustrate one such alternative policy. As reported in The New York Times (Tavernise, 2010):

Alonso took on the culture of the schools, which relied heavily on suspensions for discipline, a practice Dr. Alonso strongly opposed. “Kids come as is,” he likes to say, “and it's our job to engage them.” ... Now school administrators have to get his deputy's signature for any suspension longer than five days. This year, suspensions fell below 10,000, far fewer than the 26,000 the system gave out in 2004 .... Instead, schools handled discipline problems more through mediation, counseling and parent-teacher conferences, and offered incentives like sports and clubs. Mental health professionals were placed in every school with middle grades ....

The Baltimore example suggests that alternatives to the harsh yet increasingly popular measures may prove more effective in creating school communities that are more productive and inclusive. Moreover, there is research evidence that suggests there are many effective alternatives that promote safe and orderly schools and reduce delinquency--while keeping students in school (Dwyer, Osher, & Warger, 2008; Gagnon & Leone, 2001; Gottfredson, 1997). Some of those alternatives are described briefly below.

Systemwide Positive Behavior Interventions and Supports

Systemwide Positive Behavior Interventions and Supports (alternatively abbreviated as either PBIS or SWPBS) is a well-established systemic and data-driven approach to improving school learning environments. Its emphasis is on changing underlying attitudes and policies concerning how behavior is addressed (Sugai & Horner, 2002). Several prominent civil rights organizations have been seeking greater federal support for PBIS, and several child advocacy groups point to successful PBIS-based interventions (Dignity in Schools Campaign, 2010; Advocates for Children and Youth, 2006).

PBIS consists of three different levels of intervention. The schoolwide level affects every member of the school community. Its goal is to ensure a safe and effective learning environment by emphasizing appropriate student behavior and simultaneously working to reduce punitive disciplinary measures. At this level, PBIS entails frequent monitoring of office referrals for discipline and setting schoolwide goals for reducing these referrals. The system of interventions and supports is designed to shift the focus from the individual student as the primary problem to the “collective behaviors, working structures, and routines of educators” and to “the whole school as the unit of analysis” (Warren et al., 2006). Numerous studies have found positive results with schoolwide PBIS (Lassenet et al., 2006; Metzler et al., 2001; Horner et al., 2009; Muscott et al., 2008).

The second and third levels of intervention provide additional supports and services for smaller numbers of students who exhibit challenging behavior. These include interventions conducted in *396 individual classrooms and focus more on specialized instruction of school expectations, skills training for students, or other strategies tailored to specific behaviors.

One study of an otherwise successfully implemented PBIS system, however, demonstrated that Black and Latino students nevertheless received more severe punishment for the category minor misbehavior and concluded that one cannot assume that interventions intended to improve behavior will be effective to the same degree for all groups (Skiba et al., 2009). The researchers suggested that PBIS might benefit by using data disaggregated by race, and that a more gender and disability conscious, culturally responsive PBIS approach is possible. PBIS systems do, in fact, enable users to produce school ethnicity reports. Although, underutilized, the use of the ethnicity reports by districts implementing PBIS appears to be rising (Vincent, 2008).

Support and Training for Teachers and Leaders

A wealth of research links effective classroom management with improved educational outcomes (Brophy, 1986). The significantly higher rates of suspensions as students move from elementary to middle school suggest that classroom management issues become greater as young children become adolescents and are more likely to challenge authority figures. Teachers serving adolescents may need more specialized training and greater understanding of adolescent development. Large racial differences in suspension rates also raise questions about whether training to bolster classroom management skills might be even more useful if it included components of multicultural sensitivity to make teachers aware that implicit bias may affect how they discipline their students. Likewise, the data suggest that teachers might benefit from increased support and training in working with students with disabilities, who are increasingly mainstreamed in general education classrooms.

Leadership training might also generate improvements. As noted earlier, variations in a leader's approach to school discipline can make a profound difference in attendance and educational outcomes. Therefore, significant gains might be made toward both reducing school exclusion and improving academic progress if we replaced the attitude of kickout proponents like Joe Clark with the attitude embraced by Baltimore's superintendent Dr. Alonso: “Kids come as is, and it's our job to engage them” (Tavernise, 2010).

In addition to PBIS and professional development strategies, other methods include “ecological approaches to classroom management” and “social emotional learning.” Research suggests these might be most effective if implemented in combination with PBIS (Osher et al., 2010).

Discussion: Implications for Change

What is clear at this point is that policy decisions increasingly favoring harsher discipline are not justified by existing research. Suspending students reduces instructional time and often results in those most in need of adult supervision being left unsupervised. The observed racial disparities suggest the possibility of unlawful discrimination. Even without a perfect solution, the enforcement of the disparate impact standard can spur on educators to replace harmful policies and practices with more reasonable and less discriminatory research-based ones. While the legal approach may help alleviate problems in many districts, the disparate impact approach should also inform the broader policy changes that are likely needed.

Improvement in Policy and Assessment

There is an emerging consensus that an evaluation of public education should include multiple measures, not simply test results. Proposed indicators of effectiveness and improvement include an increased percentage of students earning a high school diploma, reductions in chronic absenteeism and grade retention, and an increasing number of students taking and passing advanced-level courses. *397 The frequency of disciplinary exclusion, however, is often considered only as an indicator of school order and safety--as if student discipline had little connection to overarching educational goals.

Even outside the context of an administrative law challenge, the disparate impact analysis can help policymakers see that frequent disciplinary removal is not likely educationally justifiable and is likely to have a negative impact on minority students and their families. Moreover, if policies concerning the assessment of schools took into account analysis of disciplinary data like that discussed here, it could help strengthen our measures of school effectiveness and positively influence achievement.

It is also necessary to acknowledge that current discipline trends are not occurring in a vacuum. Federal policy currently provides an incentive for school leaders to remove low-achieving students from the cohort of students used to evaluate school performance. These lower achievers are more likely to be disruptive (Kelly, 2010). No Child Left Behind has imposed accountability measures for schools based primarily on student test results--but only for the test scores of students who attend a school for a full academic year (Elementary and Secondary Education Act 2002, Public Law 107-110). There is, in fact, research supporting the possibility that frequent suspensions are used to avoid accountability for the test scores of lower achievers (Figlio, 2003), and civil rights advocates have expressed concern that test-driven accountability for schools encourages frequent suspension for minor offenses-- that “push-out” low-achieving students, especially students of color (Advancement Project, 2010). This suggests that the disparate impact analysis should also be used to evaluate accountability policies and practices, not to mention resource distribution (Losen, 2004).

Improvement in Enforcement and Reporting

The reporting of Civil Rights data and application of disparate impact theory offer tools to ensure that specific subgroups of students do not suffer discrimination in their schools. Until recently, the evidence suggests that these tools had not been utilized to stop discriminatory practice.

To ensure stronger enforcement, it is essential that more information be made available to the public. The lack of annually and uniformly collected data, and the lack of comprehensive and coherent reports to the public about discipline at the federal, state, district and school levels make the current picture incomplete. Although the latest federal civil rights data collection will substantially fill some of the holes in our knowledge base, many gaps will remain as the CRDC collection is neither annual nor typically required of every school.

At the moment, it is exceedingly difficult for parents, civil rights advocates and policymakers to determine whether discrimination in discipline may be occurring in a particular school or district and to press for relief in cases where it is. Moreover, as new policies are adopted, it will be essential to monitor conditions to determine whether they are having the desired effects.

Recommendations

The current overemphasis on out-of-school suspension as a response to misbehavior is unwise and unproductive. While efforts to persuade policymakers to replace harmful or ineffective policies and practices are hampered by paucity in publicly reported information, enough is known to suggest several changes in the nation's present course. Therefore, and based on the research reviewed above, the following recommendations for improved policies and practices will help safeguard the civil rights of our school children and create more effective and equitable learning environments:

• Public school educators should routinely collect, reflect upon, and publicly report data on school disciplinary removal. Reports at the state, district, and school level (where permissible) should include data disaggregated by race/ethnicity, gender and disability status in terms of numbers of each group disciplined. These reports should also include the percentage of each group that experiences suspension and expulsion, as well as disaggregated incidence data on the type of infraction and whether the infraction was a first offense.

*398 • Civil rights enforcement agents should use the disparate impact standard of legal review as grounds to pursue remedies for the unjust and unnecessary removal of children from school.

• When Congress reauthorizes the Elementary and Secondary Education Act and the Individuals with Disabilities Education Act, it should provide positive incentives for schools, districts and states to support students, teachers and school leaders in systemic improvements to classroom and behavior management where rates of disciplinary exclusion are high--even where disparities do not suggest unlawful discrimination.

• Federal and state policy should specify the rate of out-of-school suspensions as one of several key factors to be considered in assessments of school efficacy, especially for low-performing schools.

• Researchers should investigate connections between school discipline data and key outcomes such as achievement, graduation rates, teacher effectiveness, and college and career readiness.

• Systemwide improvements should be pursued through better policies and practices at all levels--including an effort to improve teachers' skills in classroom and behavior management.

Ultimately, U.S. policymakers must find more effective ways to educate all of the nation's children, including those that may be challenging to engage.

REFERENCES

Advancement Project. (2010). Report: How zero tolerance and high stakes testing funnel youth into the school-to prison pipeline. Retrieved February 28, 2011, from http:// www.advancementproject.org/sites/default/files/publications/01-EducationReport-2009v8-HiRes.pdf

Advocates for Children and Youth. (2006, April). School suspension: Effects and alternatives. Retrieved December 10, 2010, from www.acy.org.

American Academy of Pediatrics. (2003, November). Policy statement: Out-of-school suspension and expulsion. (A statement of reaffirmation for this policy was published on August 1, 2008), Vol. 112 No. 5, 1206-1209. Retrieved November 29, 2010, from http:// aappolicy.aappublications.org/cgi/content/full/pediatircs;112/5/1206

American Psychological Association Zero Tolerance Task Force. (2008, December). Are zero tolerance policies effective in the schools? An evidentiary review and recommendations. American Psychologist, 63, 852-862.

Bowen, E. (1988, February). Education: Getting tough. Time Magazine. Retrieved December 9, 2010, from http:// www.time.com/time/magazine/article/0,9171,966577-2,00.html#ixzz17eDfRhsf

Biama, D. V., & Moses, G. (1989, March 27). His pupils want someone to lean on, but Joe Clark may simply want out. People Magazine. Retrieved December 9, 2010, from http://www.people.com/people/archive/article/0,,20119876,00.html

*399 Bradshaw, C. P., Mitchell, M. M., O'Brennan, L. M., & Leaf, P. J. (2010). Multilevel exploration of factors contributing to the overrepresentation of Black students in office disciplinary referrals. Journal of Educational Psychology, 102, 508-520, 514.

Brophy, J. (1986). Teacher influences on student achievement. American Psychologist, 41, 1069-1077.

Data Accountability Center. (2007-08). Table 5-18. Calculated as a percentage of students with disabilities ages 3-21. Retrieved February 9, 2012, from www.ideadata.org

Dignity in Schools Campaign. (2010 March). Re: School climate, school discipline and the reauthorization of the Elementary and Secondary Education Act. Retrieved January 22, 2011, from http:// www.dignityinschools.org/files/Dignity_in_Schools_House_ESEA_Letter.pdf

Duncan, A. (2010, March 8). Crossing the next bridge. Remarks of the U.S. Secretary of Education, Selma, Alabama: U.S. Department of Education. Retrieved December 10, 2010, from http:// www2.ed.gov/news/speeches/2010/03/03082010.html

Dwyer, K., Osher, D., & Warger, C. (2008). Early warning, timely response: A guide to safe schools. Washington, DC: U.S. Department of Education.

Elementary and Secondary Education Act. Public Law 107-110--Jan. 8, 2002, §1111(b)(3)(C)(xi). Retrieved December 12, 2010, from http:// www2.ed.gov/policy/elsec/leg/esea02/107-110.pdf

Fabelo, T., Thompson, M. D., Plotkin, M., Carmichael, D, Marchbanks, M. P., & Booth, E. A. (2011). Breaking schools' rules: A statewide study of how school discipline relates to students' success and juvenile justice involvement. New York: Council of State Governments Justice Center.

Fight Crime: Invest in Kids. (2009). Comments pursuant to notice of proposed information collection request. New York: Author.

Figlio, D. (2003). Testing, crime, and punishment. Journal of Public Economics, 90, 837-851.

Gagnon, J. C, & Leone, P. E. (2001, Winter). Alternative strategies for youth violence prevention. In R. J. Skiba & G. G. Noam (Eds.), New directions for youth development (no. 92); Zero tolerance: Can suspension and expulsion keep school safe? (pp. 101-125). San Francisco: Jossey-Bass.

Gladwell, M. (2005). Blink, the power of thinking without thinking. Boston: Little Brown and Co.

Gottfredson, D. C. (1997). School-based crime prevention. In L. Sherman et al. (Eds.), Preventing crime: What works, what doesn't, what's promising: A report to the United States Congress (pp. 1-74). Washington, DC: U.S. Department of Justice, Office of Justice Programs.

Green, E. (2010, March 7). Can good teaching Be learned? New York Times Magazine, 30-46.

Harry, B., & Klingner, J. (2006). Why are so many minority students in special education? Understanding race and disability in schools. New York: Teachers College Press.

Hawley, W. D., & Ready, T. (Eds.). (2003). Measuring access to learning opportunities. Washington, DC: The National Academies Press.

Horner, R. H., Sugai, G., Smolkowski, K., Eber, L., Nakasato, J. Todd, A., et al. (2009). A randomized wait-list controlled effectiveness trial assessing school-wide positive behavior support in elementary schools. Journal of Positive Behavior Interventions, 11, 133-144.

Kelly, S. (2010). A crisis in authority in predominantly Black schools? Teachers College Record, 112, 1247-1274. Retrieved October 18, 2010, from http://www.tcrecord.org/library

Kim, Y. K., Losen, D. J., & Hewitt, D T. (2010). The school-to-prison pipeline: Structuring legal reform (1st ed.). New York: New York University Press.

Kratochwill, T. (n.d.). Classroom management: Teachers modules. Washington, DC: American Psychological Association. Retrieved December 3, 2010, from http://wwwapa.org/education/k12/classroom-mgmt.aspx

Lassenet, S. R., Steele, M. M., & Sailor, W. (2006). The relationship of school-wide positive behavior support to academic achievement in an urban middle school. Psychology in the Schools, 43, 701-712.

Losen, D. L. (2004). Challenging racial disparities: The promise and pitfalls of the No Child Left Behind Act's race-conscious accountability. Howard Law Journal, 47, 243-298.

Losen, D. J. (2011). Discipline policies, successful schools, and racial justice. Boulder, CO: National Education Policy Center. Retrieved February 7, 2012, from http://nepc.colorado.edu/publication/discipline-policies

Losen, D. L., & Edley, C, Jr. (2001). Why zero tolerance is a civil rights issue. In W. Ayers, R. Ayers, & B. Dohrn (Eds.), Zero tolerance: Resisting the drive for punishment in our schools (pp. 230-255). New York New Press.

Losen, D. L., & Orfield, G. (Eds.). (2002). Racial inequity in special education. Cambridge, MA: Harvard University Press.

Losen, D. L., & Skiba, R. J. (2010, September). Suspended education: Urban middle schools in crisis. Los Angeles, CA: The Civil Rights Project at UCLA and The Southern Poverty Law Center. Retrieved December 5, 2010, from http:// civilrightsproject.ucla.edu/research/k-12-education/schooldiscipline/suspended-education-urban-middle-schools-in-crisis/Suspended-Education_FINAL-2.pdf

Metzler, C. W., Biglan, A., Rusby, J. C, & Sprague, J. R. (2001). Evaluation of a comprehensive behavior management program to improve school-wide positive behavior support. Education and Treatment of Children, 24, 448-479.

Muscott, H. S., Mann, E. L., & LeBrun, M. R. (2008). Positive behavioral interventions and supports in New Hampshire: Effects of large-scale implementation of schoolwide positive behavior support on student discipline and academic achievement. Journal of Positive Behavior Interventions, 10, 190--205.

NAACP et al., v. Wake County Board of Education et al. (2010, Sept. 24). Complaint filed by Southern Coalition for Legal Justice. Retrieved December 19, 2010, from http:// www.law.unc.edu/documents/civilrights/titlevicomplaintwcsb9242010final.pdf

*400 Osher, D., Bear, G. G., Sprague, J. R., & Doyle, W. (2010). How can we improve school discipline? Educational Researcher, 39, 48-58. Retrieved December 10, 2010, from http://er.aera.net

Raffaele Mendez, L. (2003). Predictors of suspension and negative school outcomes: A longitudinal investigation. In L. Wald & D. Losen (Eds.), Deconstructing the School-to-prison Pipeline (pp. 24-25). San Francisco: Jossey-Bass.

Raffaele Mendez, L. M., & Knoff, H. M. (2003). Who gets suspended from school and why: A demographic analysis of schools and disciplinary infractions in a large school district. Education and Treatment of Children, 26, 30-51.

Rausch, K. M., & Skiba, R. J. (2005, April). The academic cost of discipline: The contribution of school discipline to achievement. Paper presented at the Annual Meeting of the American Educational Research Association, Montreal, Canada.

Rumberger, R. W. (2004). Why students drop out-of-school. In R. Orfield (Ed.), Dropouts in America: Confronting the graduation rate Crisis (pp. 143-144). Cambridge, MA: Harvard Education Press.

Skiba, R., Horner, R. H., Chung, C, Rausch, M. K., May, S. L., & Tobin, T. (2009). Race is not neutral: A national investigation of African American and Latino disproportionality in school discipline. Paper published on CD Rom for U.S. Department of Justice Civil Rights Division, U.S. Department of Education Office for Civil Rights conference Civil Rights and School Discipline: Addressing Disparities to Ensure Equal Educational Opportunity, September 27-28.

Skiba, R. J., Michael, R. S., Nardo, A. C, & Peterson, R. L. (2002). The color of discipline: Sources of UNC's Center for Civil Rights. Retrieved December 19, 2010, from titlevicomplaintwcsb9242010final.pdf.


Skiba, R. J., & Rausch, M. K. (2006). Zero tolerance, suspension, and expulsion: Questions of equity and effectiveness. In C. M. Evertson & C. S. Weinstein (Eds.), Handbook for classroom management: Research, practice, and contemporary issues (pp. 1063-1089). Mahwah, NJ: Erlbaum.

Sugai, G., & Horner, R. (2002). The evolution of discipline practices: School-wide positive behavior supports. Child and Family Behavior Therapy, 24, 23-50.

Tavernise, S. (2010, December 1). A mission to transform Baltimore's beaten schools. New York Times. Retrieved December 3, 2010, from http:// www.nytimes.com/2010/12/02/education/02baltimore.html? emc=eta1pagewanted=print

Tobin, X, Sugai, G., & Colvin, G. (1996). Patterns in middle school discipline records. Journal of Emotional and Behavioral Disorders, 4, 82-94.

U.S. Department of Education. (2006). National and state projections. Retrieved March 24, 2011, from http://ocrdata.ed.gov/Projections_2006.aspx

Vaznis, J. (2010, November 29). Thousands called dropout risks. The Boston Globe. Retrieved November 29, 2010, from http:// www.bosoton.com/news/education/k_12/articles/2010/11/29/thousands_called_ dropouts_risks/

Vincent, C. (2008). Do schools using SWIS take advantage of the school ethnicity report? Retrieved January 24, 2011, from http:// www.pbis.org/evaluation/evaluation_briefs/nov_08_(1).aspx

Warren, J. S., Edmonson, H. M., Turnbull, A. P., Sailor, W., Wickham, D., Griggs, S. E., et al. (2006). Schoolwide application of positive bBehavior support in an urban high school. Journal of Positive Behavior Interventions, 8, 131-145.

Zehr, M. (2010, December). Obama administration targets “disparate impact” of school discipline. Education Week. Retrieved December 11, 2010, from http://www.edweek.org/ew/articles/2010/10/07/07disparate_ep.h30.html

Subscribe

Thie list provides notice of UPDATES. There is generally one email per month. Your email is not sold or shared with anyone.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

  patreonblack01