By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting
SUMMARY OF FACTS
The U.S. Department of Education’s Office for Civil Rights (“OCR”) opened a compliance review of California’s Victor Valley Union High School District (“the District”) in August 2014 to examine whether the District violated Title VI of the Civil Rights Act of 1964. Specifically, OCR investigated whether the District discriminated against African American students by disciplining them more frequently and more harshly than similarly situated white students.
The evidence upon which OCR relied in its decision included multiple witness statements from district and school administrators, as well as school employees with personal knowledge of the District’s disciplinary practices and data.[1] Within those witness statements, there were credible concerns that the District discriminated against African American students at certain schools involving suspensions, expulsions, truancy, and other citations issued through the Clean Sweep program.[2] For example, the District was 3.4 times more likely to issue citations to African American students than white students. OCR also interviewed students who reported more frequent and harsh discipline than their white peers for dress code violations and being loud or other subjective offenses like “defiance,” “disruption,” and “inappropriate behavior.”[3] OCR’s review of student disciplinary files confirmed the students’ allegations. Students also reported different treatment from school resource officers, describing harsh treatment and inappropriate and discriminatory use of pepper spray.
Further, OCR determined that circumstantial evidence supported claims of discrimination. Statistical analysis demonstrated that African American students were substantially overrepresented at every level of District discipline compared to their white peers. Other evidence emerged showing disproportionate harm, including mischaracterizing behavior resulting in more severe consequences, using pre-expulsion contracts – which do not appear in the District’s disciplinary policy – to expel students for violations that would not typically result in expulsion, and sending students home from school without officially suspending them. Some of the District’s practices also violated California state law. Lastly, OCR found that the District’s recordkeeping practices were out of compliance.
As a result of its review, OCR determined that, based on the totality of the circumstances, the District’s practices evidenced racial discrimination in student discipline.
RESOLUTION AGREEMENT
As a result of its findings, OCR and the District agreed to a resolution with the following terms. The District will:
- Employ a Director of Positive School Climate, retain at least one expert consultant, and consider the input of a Stakeholder Equity Committee.
- Examine the root causes of the racial disparities in the discipline of its students, including undergoing data review and analysis, reviewing relevant literature, assessing implicit bias, evaluating employee training practices, and identifying corrective actions to address root causes. The District will then develop a Corrective Action Plan.
- Review its student discipline policies and procedures, proposing revisions consistent with the Resolution Agreement.
- Develop a protocol to review and ensure the accuracy and completeness of its student discipline recordkeeping, including approximately 25 different data points or categories.
- Evaluate data monthly to assess whether the District is appropriately implementing student disciplinary processes, policies, and procedures.
- Identify three individuals to conduct training for all District employees who supervise students, make discipline referrals, and/or impose disciplinary sanctions.
- Provide informational sessions for students and parents at all District schools that will provide an explanation of the District’s disciplinary policies.
- Revise its Memorandum of Understanding with the City of Victorville and the San Bernardino County Sheriff’s Department in light of the Resolution Agreement.
- Administer an annual comprehensive climate survey to students, teachers/staff, and parents/guardians of all District schools.
- Identify any students excluded from learning as a result of discriminatory practices from 2018 until the present. The District will offer each student the appropriate amount of compensatory education, and must offer online compensatory services if the student is no longer a student in the District.
Each agreed-upon requirement has a corresponding deadline.
KEY TAKEAWAYS
- The Resolution Agreement outlines a significant number of stipulations in response to OCR’s findings. Meeting the requirements set forth in the Resolution Agreement will cost the District time, money, and resources. Noncompliance comes with a cost, and the cost here is much higher than the cost of compliance.
- Districts need an administrator overseeing compliance with Title VI and other federal laws. As more and more schools implement full-time Title IX coordinator roles, we also expect to see growth in the appointment of Title VI coordinators, though many districts and schools frame this as an equity position, rather than using the Title VI coordinator title. Although the racial discrimination in the District was systemic, the Letter accompanying the Resolution Agreement also outlines several discriminatory practices by individuals. The details outlined in the Letter underscore the need for oversight at the district level as well as the school level. It is reasonable to infer that the District did not have an employee ensuring compliance and anti-discrimination efforts based on OCR’s need to specify the addition of such a role in the Resolution Agreement. Failing to have an employee oversee these kinds of compliance efforts – or expecting an administrator to include federal compliance within the “other duties as assigned” portion of their job description – can lead to disastrous outcomes, as it did here.
- OCR heavily relied upon data and statistical analysis to draw its conclusions, all of which the Letter outlines. Schools and districts can use data in similar ways to assess their own processes and identify problem areas before they spiral out of control or result in complaints. Schools and districts should review their own recordkeeping and data collection practices to determine whether those practices yield useful and actionable data and make data collection adjustments as appropriate.
- Schools and districts should review any Memoranda of Understanding they may have with local law enforcement agencies or other community organizations. Parties to those memoranda should refresh and renew those agreements on a regular basis to ensure the agreements still meet the needs of all parties and comply with federal and state law mandates.
- Schools and districts should review their training options and determine whether adopting required harassment and discrimination training makes sense for their employees and students, depending on the particular challenges in their district and schools.
- As part of training and ongoing compliance efforts, all schools and districts should assess for alignment between their disciplinary policies and actual practices. The daylight in this case between what Victor Valley was doing and what its policies authorized is a common gap, and one that is fairly easily addressed once it is correctly identified.
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[1] The Letter accompanying the Resolution Agreement goes into extensive detail of the evidence OCR collected during its review. For brevity, this piece summarizes the evidence.
[2] The Clean Sweep program authorized school administrators to issue citations to students, requiring them to appear in juvenile court for disciplinary infractions. School administrators may issue citations to students aged ten through seventeen for disciplinary incidents involving loitering, tobacco, littering, graffiti, alcohol, and marijuana, among others. In turn, a hearing officer may impose fines, community service, probation, or driver’s license suspension. The District used Clean Sweep at four schools, but not at the two schools with the lowest African American enrollments and among the highest white enrollments in the District.
[3] Letter at Page 2.