New guidance from the U.S. Department of Education says schools cannot use a student’s race when deciding how to discipline them.
The guidance, a “Dear Colleague Letter,” says that “discipline policies must treat students even-handedly and must neither favor nor disfavor any student based on their race.” It follows the Department’s July rulemaking, which removed disparate-impact provisions from its Title VI regulations.
Separate guidance issued under the Obama and Biden administrations told schools that even racially neutral discipline rules could violate Title VI if they disproportionately affected students of a particular race. (The Obama administration’s guidance was rescinded in 2018 under the first Trump administration.)
The Education Department argues that previous approach pressured schools to “discipline students differently based on race in order to engineer equitable disciplinary outcomes across racial groups.”
Two districts are currently being investigated by the Department’s Office for Civil Rights for alleged Title VI violations. In Fayetteville, Ark., teachers were reportedly instructed to consider students’ racial identities as part of a “restorative justice” push. In Milwaukee, district leaders reportedly criticized race-neutral discipline policies as reflecting systemic “whiteness.”
Minnesota connection
In 2017, the Minnesota Department of Human Rights (MDHR) sent letters to 43 school districts and charter schools, alleging racial disparities in discipline rates for black and American Indian students.
The letters warned that those disparities could violate the Minnesota Human Rights Act and called on the districts to take corrective action to avoid a lawsuit.
Most did.
The signed settlement agreements required districts to make a number of changes, including sharply reducing suspensions and providing “implicit bias” training. But as my colleague Katherine Kersten documented, MDHR did not address the “mounting evidence that race-based discipline policies produce disorder and undermine learning.”
The policy of grounding school discipline in racial quotas has had disastrous consequences virtually everywhere it’s been tried. It has provoked classroom disorder and violence and undermined effective education in cities from Los Angeles to New York City.
Contrary to MDHR’s claim, the Minnesota Human Rights Act “does not confer rights on demographic groups,” Kersten continues.
It prohibits discrimination in education against individuals, and provides that individual students and their parents can request an investigation if they believe discrimination has occurred at school.
Paradoxically, by encouraging—indeed, compelling—Minnesota schools to treat students differently in discipline matters based on their skin color, MDHR actually appears to be promoting violation of both federal law and our state’s Human Rights Act.
The federal courts have addressed this issue before. In a unanimous 1997 decision, People Who Care v. Rockford Board of Education, the U.S. Court of Appeals for the Seventh Circuit rejected a provision that imposed racial constraints on student discipline. According to the court:
Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with another provision of the decree, which requires that discipline be administered without regard to race or ethnicity.
The MDHR settlements lasted three school years (from 2018-19 through 2020-21). But the policies associated with those agreements did not disappear when the settlements expired.
During the 2023 legislative session, Minnesota passed a “non-exclusionary discipline” law requiring schools to use non-punitive interventions before suspending or expelling a student. The Minnesota Department of Education says that this policy was informed by research conducted with leaders from 42 districts that had been subject to MDHR settlement agreements.
The U.S. Education Department says its new guidance restores Title VI’s requirement that schools discipline students without regard to race. Minnesota districts using race-conscious discipline practices should reevaluate this approach or risk facing federal Title VI consequences.
