In a July 2019 briefing report, the United States Commission on Civil Rights warned that students of color with disabilities face exclusionary discipline, like suspensions and expulsions, at much higher rates than their peers without disabilities. What is the Commission, what were its findings and recommendations, and what do they mean for your school or school district?

What is the Commission on Civil Rights?

The Commission describes itself as an independent, bipartisan, fact-finding federal agency that aims to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws. The Commission studies alleged deprivations of civil rights, including alleged discrimination based on race, color, religion, sex, age, disability, and national origin in schools. The Commission expresses its views through reports and other publications that are available on its website. The Commission is chaired by Catherine E. Lhamon, the former head of the U.S. Department of Education’s Office for Civil Rights (OCR) under President Obama. The Commission’s report, therefore, must be viewed against the backdrop of controversy about alleged overreach by Lhamon and the Obama administration in the area of civil rights.

What Were the Commission’s Findings and Recommendations?

The Commission made the following key findings:

  • Students of color do not commit more disciplinable offenses than white peers, but they receive substantially more school discipline than their white peers.
  • Students of color receive harsher and longer punishments than white peers for the same offenses.
  • Students with disabilities are approximately twice as likely to be suspended during a school year as compared to students without disabilities.
  • Schools suspend or expel black students with disabilities at a significantly higher rate than their proportion of the population of students with disabilities.
  • The majority of out-of-school suspensions of black students with disabilities are for non-violent behavior.

Students with disabilities are approximately twice as likely to be suspended during a school year as compared to students without disabilities, and schools suspend or expel black students with disabilities at a significantly higher rate than their proportion of the population of students with disabilities.

Based on those and other findings, the Commission made several recommendations, including:

  • OCR should provide guidance to schools on how to comply with federal nondiscrimination laws related to race and disability in the imposition of school discipline.
  • Schools should provide teachers with resources, guidance, training, and support to ensure nondiscriminatory discipline in schools
  • Congress should provide funding for states and school districts to provide training and support recommended by the Commission.
  • OCR should rigorously enforce the civil rights laws over which it has jurisdiction, to address allegations of discrimination in school discipline policies.

What Does the Report Mean for Schools?

During the current administration, OCR has signaled that it will not enforce complaints of discrimination in school discipline as aggressively as it did under the Obama administration. For example, OCR withdrew Obama-era discipline guidance and ended a practice of considering three years of data for a school in every case where a discriminatory discipline complaint was raised. It is therefore unlikely that the Commissions and reports will lead to a significant upswing in enforcement actions by OCR on these matters.

OCR’s enforcement priorities often quickly shift when there are changes in presidential and congressional leadership, however. With the election looming, school leaders should understand and consider the recommendations in the Commission’s report to be in the best position if a student raises a complaint under this administration or any future administration to come. Changes to discipline practices to prevent discrimination against special education students of color will also provide a more inclusive environment for students with special needs.

Improving in these three areas requires a minimal commitment by schools and can significantly mitigate the risk of successful challenges to discipline.

In our experience, OCR most commonly criticizes schools for the following failures during investigations of complaints of discriminatory discipline:

  • A lack of training of school administrators and staff as a preventative measure before any complaint is made;
  • An insufficient plan to review and analyze data on a classroom, school, and district level to determine if students of one group are disciplined more for no valid reason; and
  • An insufficient response when data shows that a teacher, a school, or the district has a history of unexplainable disparate treatment.

Improving in these three areas requires a minimal commitment by schools and can significantly mitigate the risk of successful challenges to discipline.

For assistance in reviewing your school’s practices in this area, contact one of Franczek’s special education team members.