Fix School Discipline Toolkit for Educators | Page 12

CALIFORNIA AND FEDERAL
LAWS REQUIRE THE USE OF
ALTERNATIVES TO OUT-OFSCHOOL DISCIPLINE
Not only do alternatives to out-of-school suspension
work better, increase school success, funding and
student outcomes, they are required by federal and
state law!
In California, education is a fundamental right “at
the core of our free and representatives form of
government”14 and “necessary for full participation in
the ‘uninhibited, robust, and wide-open’ debate that
is central to our democracy.”15
The excessively punitive disciplinary policies and
practices that give rise to school push out and
the “school-to-prison” pipeline can be found to be
unlawful because they effectively force students
out of school, denying them this fundamental right.
There is no legitimate interest in employing such
a system, where research shows that such policies
serve no educational goals: they are ineffective at
reducing misbehavior, do not make schools safer
or more welcoming, and result in lower academic
achievement levels for impacted students.16 As such,
when a school district permits or supports the use of
exclusionary discipline measures with frequency and
for all but the most egregious misbehavior, students
can be deprived of their fundamental right to an
education under the California Constitution.17
The Equal Protection Clause of the Fourteenth
Amendment18 and Title VI of the Civil Rights
Act of 196419 prohibit discrimination on the basis
14 Serrano v. Priest, 18 Cal. 3d 728, 767-68 (1976) (Serrano II)
15 Hartzell v. Connell, 35 Cal. 3d 899.908 (1984).
16 See, e.g., Skiba R., et al., Are Zero Tolerance Policies Effective in the
Schools? A Report by the American Psychological Association Task Force
(2006); Skiba, R. & Rausch M., Zero Tolerance, Suspension and Expulsion:
Questions of Equity and Effectiveness, in C.M. Everston & C.S. Weinstein
(Eds.) Handbook of Classroom Management: Research, Practices, and
Contemporary Issues (2005): Skiba, R.,Zero Tolerance, Zero Evidence: An
Analysis of School Disciplinary Practice (2000).
17 Serrano II, 18 Cal. 3d at 760-768.
18 The equal Protection Clause states, in relevant part, that “[n]o State
shall…deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend XIV, § 1.
19 Title VI of the Civil Rights Act of 1964 provides, in relevant part, that
“[n]o person in the United States shall, on the grounds of race, color, or
national origin, be excluded from participation n, be denied the benefits

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How we can fix school discipline

of race, color, or national origin. The California
Education Code and other state statutes prohibit
discrimination in state-financed programs and also
provide that “schools have an affirmative obligation
to combat racism, sexism, and other forms of bias,
and responsibility to provide equal educational
opportunity.”20 That there are gross disparities in
the manner in which suspension and expulsion laws
are being applied to students of color and students
with disabilities is evidenced in data showing
disproportionate suspension rates across students
similarly situated from different racial and ethnic
groups and with or without disabilities.
In January of 2014, the United States Departments
of Justice and Education released joint guidance to
school districts and others about their obligations
to address discrimination and disparate treatment
in school discipline.21 In a Dear Colleague letter, the
Department stated: “In short, racial discrimination
in school discipline is a real problem.”22 Where the
federal government finds disparate impact, which
can be shown through statistical evidence that one
group receives more frequent or different discipline
than another group, it will look to see whether the
school district could have implemented “comparably
effective alternative policies or practices that
would meet the school’s stated educational
goal with less of a burden or adverse impact on
the disproportionately affected racial group.”23
“Successful programs may incorporate a wide range
of strategies to reduce misbehavior and maintain
a safe learning environment, including conflict
resolution, restorative practices, counseling, and
structured systems of positive interventions.”24 The
Departments reiterated that all types of discipline,
including behavior management practices in the
classroom and class referrals, are subject to the
federal anti-discrimination laws.25

of, or be otherwise subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C.§ 2000(d).
20 Cal. Ed. Code § 200. Section 220 provides that “[n] person shall be
subjected to discrimination on the basis of disability, gender, nationality,
race or ethnicity, religion, sexual orientation … in any program or activity
conducted by an educational institution that receives” funding from the
state.
21 Dear Colleague Letter on the Nondiscriminatory Administration of
School Discipline, 1/8/14, http://www.justice.gov/crt/about/edu/documents/dcl.pdf
22 Id. at 4.
23 Id. at 7.
24 Id. at 1.
25 Id.