Complaint against the Fall River Public Schools by ACLUM and CCRR
Office for Civil Rights
U.S. Department of Education 8th Floor
5 Post Office Square
Boston, MA 02109-3921
June 20, 2012
Re: Complaint against the Fall River Public Schools under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973
This Complaint, filed by the Center for Civil Rights Remedies at the Civil Rights Project of UCLA (CRP) and the ACLU of Massachusetts (ACLUM), alleges that the frequent use of out- of-school suspension in the public schools of Fall River, Massachusetts, violates the Department of Education’s regulations interpreting Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973.1
Applying a “disparate impact” theory, the Complaint seeks to vindicate the rights of all Fall River students—including Black and Latino students, students with disabilities, and especially Black and Latino students with disabilities—who are disproportionately harmed by suspension policies and practices in Fall River. The Complaint asks the Department of Education’s Office for Civil Rights (OCR) to investigate the Fall River Public Schools and encourage the district to adopt new policies and practices that use out-of-school suspension only as a last resort.
I. Introduction and Summary
The Fall River Public Schools (FRPS) suspend many students out of school, and they disproportionately suspend Black students, Latino students, and students with disabilities. For the 2009-2010 school year, data recently published by OCR itself show that FRPS suspended 25.9 percent of Black students, 23.1 percent of Latino students, and 13.4 percent of White students enrolled in Kindergarten through 12th Grade. FRPS also suspended 23.8 percent of all students with disabilities.
When race and disability overlapped, suspension rates were even higher. Most alarmingly, the district suspended 42.1 percent of all Black students with disabilities. Yet, for white students without disabilities, the suspension rate was 11.8 percent. Moreover, data on out-of-school suspensions published by the Massachusetts Department of Education show that in 2010-11, Fall River suspended 18.1 percent of all students. That suspension rate was the second highest in the state (excluding charter schools). In contrast, nearly 100 school districts across the state (again excluding charter schools) suspended 1 percent or less of their enrollment that year.
These high and disparate rates are not due to written policies that intentionally discriminate against students of color or students with disabilities. In fact, this Complaint does not allege intentional discrimination by anyone involved in the Fall River Public Schools. Instead, we concede that Fall River’s policies are facially neutral, and were likely written with the intention of ensuring a safe and orderly learning environment.
But Fall River’s suspension policies and practices are unnecessarily harsh. In addition to adversely impacting students of color and students with disabilities, they result in frequent out- of-school suspensions for all students. This approach to school discipline is not supported by research on best educational practice. To the contrary, research indicates that relying on out-of- school suspensions will undermine rather than enhance the goal of providing a safe and productive learning environment. The Fall River Public Schools’ suspension policies and practices therefore violate Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on disability.
As interpreted by Department of Education regulations, Title VI and Section 504 prohibit government practices that have the effect—even if not the intent—of discriminating by race or disability.
Fall River’s suspension practices cannot survive this disparate impact analysis. Most important, the data establishing disparities by race and disability in Fall River were collected and certified by the Fall River Public Schools themselves, in response to a “Civil Rights Data Collection” survey conducted by OCR on the 2009-2010 academic year. These data were publicly reported for the first time in March 2012.
The now-public data show clear disparities based on race and disability. The largest single disparity was for students of color who also had disabilities. For example, there was more than a 30 percentage point difference between the rate of suspension for Black students with disabilities and White students without disabilities.
There is ample evidence that these disparities persist today. Although data disaggregated by race and disability are available only for the 2009-2010 academic year, more recent data show that Fall River’s overall suspension rate is on the rise. Meanwhile, both during the 2009-2010 year and now, the Fall River Public Schools have used disciplinary codes that authorize out-of- school suspension not only for acts of violence, but also for public-order offenses. For example, Fall River’s middle school students can be suspended for detracting from “good order,” and its high school students can be suspended for failures of “courtesy.”
These practices and policies are not justified by educational necessity for purposes of either Title VI or Section 504. Research from the Council of State Governments, the American Pediatrics Association, the American Psychological Association, and several other sources has demonstrated that frequently suspending students out of school is associated with higher levels of grade retention, academic failure, dropping out, and involvement in the juvenile justice system. Despite the good intentions of teachers and administrators, frequent out-of-school suspensions simply do not create safer or more productive learning environments.
Based on this research, some states are taking steps to limit the use of out-of-school suspensions to only the most serious offenses. In Maryland, the state Board of Education has proposed regulations intended to reduce the use of out-of-school suspensions and eliminate racial disparities in discipline.4 In Connecticut, which enacted legislation limiting out-of-school suspensions, Governor M. Jodi Rell explained:
Students should be removed from the school setting only under the most exceptional circumstances. . . . Keeping children out of school is a direct line to delinquent behavior. Students get farther behind in their course work. They lose hope of catching up. It’s a recipe for failure.
Because Fall River’s suspension practices have a disparate impact and are not supported by educational necessity, they fail the disparate impact analysis under both Title VI and Section 504. But even if it were necessary to consider the existence of less discriminatory alternatives, Fall River’s suspension practices would fail that inquiry, too.
Alternative disciplinary policies would likely lower Fall River’s high rates of out-of- school suspension for all students—including students of color and students with disabilities— while at the same time enhancing school discipline. Many alternatives are available. One especially promising option is the practice known as Positive Behavioral Interventions and Supports. Schools in Florida that have implemented this alternative with high fidelity have reduced out-of-school suspensions from an average of 43 days per 100 students to 25 days per 100 students. Alternatives like PBIS improve circumstances for all students, including students of color and students with disabilities, because they improve discipline while using out-of-school suspensions only as measures of last resort.
This Complaint’s goal is to turn those alternatives into Fall River’s reality. We hope to reach a Resolution Agreement with the Fall River Public Schools that will call for new policies and practices that are less severe and more effective. Consistent with our hope for a mutually agreeable outcome, this Complaint does not allege that the Fall River Public Schools intentionally discriminated against anyone. Instead, it asserts that the administration of Fall River’s discipline policy has an unlawful disparate impact on Black students, Latino students, students with disabilities, and most profoundly on Black and Latino students with disabilities.
We believe that OCR is uniquely situated to investigate our Complaint and facilitate a Resolution Agreement. OCR is the only administrative body that can find an unlawful disparate impact or enforce a remedy pursuant to such a finding. Therefore, we hope that OCR’s further investigation will lead to new discipline practices and procedures in the Fall River Public Schools that do not have unjust and harmful outcomes.