Today, in new guidance issued to educational institutions via a Dear Colleague Letter (DCL), Kim Richey, Assistant Secretary for Civil Rights, told schools that discipline policies must “treat students even-handedly and must neither favor nor disfavor any student based on their race.” To support the removal of the requirement to consider race in the discipline of students, the DCL states, “neither Title VI nor the Constitution requires the use of race in student discipline and that the use or consideration of race in student discipline violates Title VI and the Constitution absent truly extraordinary circumstances that satisfy strict scrutiny.” According to the U.S. Department of Education (ED) press release, the guidance follows ED’s rulemaking in July that removed several disparate impact provisions from Federal regulations implementing Title VI of the Civil Rights Act of 1964 (Title VI). Along with the new guidance, ED also announced that the Office for Civil Rights (OCR) has opened two Title VI investigations into school districts that allegedly require personnel to consider race when making disciplinary decisions.

COPAA reminds members and colleagues that Dear Colleague Letters are neither dispositive nor binding. In addition, Section 618(d) of the IDEA and its implementing regulations (34 C.F.R. §§ 300.646–300.647) continue to mandate that states annually collect and analyze data to determine whether significant disproportionality based on race or ethnicity exists in the state and in its local educational agencies (LEAs).