Addressing Race Disparities in K‒12 School Discipline

Richard A. Epstein:, New York University
Ashley Inman:, 707 332-1184, Education Next Communications Office

Addressing Race Disparities in K‒12 School Discipline

Does the U.S. Department of Justice and Department of Education’s “Dear Colleague Letter” miss the mark on civil-rights enforcement?

In January 2014, the U.S. Department of Justice (DOJ) and Department of Education (ED) jointly released a “Dear Colleague Letter” containing guidance on how schools should avoid discriminating against students on the basis of race when administering disciplinary action. The letter warns that if the percentage of minorities receiving disciplinary action is disproportionately high, even when resulting from ostensibly race-neutral policies such as zero-tolerance, schools could be faulted for civil-rights violations. In a new Education Next article, Richard A. Epstein addresses concerns, both practical and legal, with the letter and with the procedures by which the DOJ and ED seek to impose their guidance, a process that avoids the notice and comment protections built into the Administrative Procedure Act.

Referencing Title IV and Title VI of the Civil Rights Act, the letter warns against discipline policies that result in “different treatment based on the student’s race,” or policies that while seemingly race-neutral, actually have “a disproportionate and unjustified effect on students of a particular race.” Epstein’s critique of the letter includes these points:

• Under the guidelines, the switch to a policy that substitutes lesser sanctions than suspension or expulsion raises the same civil-rights problem if it captures a fraction of black students that is larger than their proportion in the student body. “Disproportionate [disciplinary] rates should not be regarded as unjustified merely because they reflect higher rates of improper behavior by minority students than by white students.”

• While students who are expelled or suspended can easily fall behind, be held back, or drop out of school, Epstein warns that similar negative impacts may await other students if the offenders are kept in school. Epstein warns that it is the “net effect” of discipline policies on all students that needs to be considered.

• How should schools go about achieving proportionate numbers of expulsions and suspensions as they try to avoid any civil-rights violations? Epstein asks, “Should some white students be summarily suspended, expelled, or otherwise sanctioned to make the numbers come out correctly? Or should schools give a pass to black students who have committed serious offenses in order to achieve the same ends?”

• Epstein says the DOJ and ED err when arguing against disciplinary policies on the basis of “disparate impact,” a phrase with a legal history that, “when applied to schools, imputes race-conscious behavior on the part of school administrators.” He asks how the agencies intend to follow through on questions about subjective enforcement, since “virtually every disputed case could give rise to some inference of actual or intended discrimination.” He adds, “It is highly likely that any such investigation will extend to cover supposedly similar incidents involving nonminority students. This aggressive ruling therefore pushes enforcement to the outer edge of the legal authority under Title VI.”

Civil Rights Enforcement Gone Haywire: The federal government’s new school-discipline policy” will be available at and will appear in the Fall 2014 issue of Education Next.

About the Authors

Richard A. Epstein is professor of law at New York University, senior fellow at the Hoover Institution, and professor of law emeritus and senior lecturer at the University of Chicago. The author is available for interviews.

About Education Next

Education Next is a scholarly journal published by the Hoover Institution that is committed to careful examination of evidence relating to school reform. Other sponsoring institutions are the Program on Education Policy and Governance at Harvard University, part of the Taubman Center for State and Local Government at the Harvard Kennedy School, and the Thomas B. Fordham Foundation. For more information about Education Next, please visit:

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