Complaint filed against the Durham Public School District
Washington DC (Metro) April 16, 2013
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202
Re: Complaint against the Durham Public School District under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973
This Complaint, filed by Advocates for Children's Services of Legal Aid of North Carolina ("ACS"), on behalf of individual clients, and the Center for Civil Rights Remedies at the Civil Rights Project of UCLA ("CRP"), on behalf of all other similarly situated students, alleges that the frequent use of out-of-school suspension in the public schools of Durham, North Carolina, violates the U.S. Department of Education's regulations interpreting Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973.
Applying a "disparate impact" theory, the Complaint seeks to vindicate the rights of all Durham Public School students - including Black students, students with disabilities, and especially Black students with disabilities - who are disproportionately harmed by suspension policies and practices in the Durham Public School District. The Complaint asks the U.S. Department of Education's Office for Civil Rights ("OCR") to investigate the Durham Public School District and encourage the district to adopt new non-discriminatory policies and practices that use out-of-school suspension only as a last resort.
- I. Introduction and Summary
The Durham Public School District ("DPS" or "Durham") suspends thousands of students out of school each year and disproportionately suspends Black students, and especially Black students with disabilities. The two individual students described in this Complaint, both of whom are Black students with disabilities, provide a snapshot of the systemic problems that exist in DPS. These individual complainants serve as examples of the harm caused by the disparate impact of DPS disciplinary policies and practices, but they are not alone.
Data recently published by OCR confirms that, for the 2009-10 school year, DPS suspended 2,425 Black students at least one time. This constitutes 14.1% of all Black students enrolled in DPS. In contrast, only 3.3% of all White students enrolled in DPS received a suspension in 2009-10. In other words, the risk for Blacks students to be suspended is more than four times the risk for White students to be suspended. DPS also suspended 17% of all students with disabilities, compared with 8.4% of all students without disabilities.
There are profound racial disparities in the suspension of students with disabilities as well. 23.3% of all Black students with disabilities enrolled in Kindergarten through 12th grade were suspended at least once in 2009-10. Yet for white students with disabilities, the suspension rate was 6.3% of their enrollment. The Black/White gap was much larger among students with disabilities. Specifically it was 9.5 points between students without disabilities, but 17 points between students with disabilities.
The district-wide data disparities described above, and most of the detailed analysis provided in this Complaint, were based on data collected and certified by the Durham Public Schools in response to the Civil Rights Data Collection, a survey conducted by the U.S. Department of Education’s Office for Civil Rights (OCR) on the 2009-10 academic year and reported publicly by OCR itself in March of 2012. In that data, there were clear disparities based on race and disability.
However, it is important to note that each student is only counted once in the OCR data on out-of-school suspensions. In reality, individual students are often suspended multiple times in a given year, which is reflected in the incident rate. Most of data presented herein do not include the actual number of times an individual student is suspended from school. Thus, while these data give an accurate picture of how much school discipline practices effect a given population, they are a conservative estimate of the disparate use of suspensions, as they do not calculate incident rates. As this Complaint will demonstrate, when using state data on the number of suspensions meted out to each racial group in Durham, the racial disparities are even larger when incident rates are compared.
These high and disparate rates of suspension 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 employed by DPS. Instead, we concede that DPS policies are facially neutral and were likely written with the intention of ensuring a safe and orderly learning environment.
However, as interpreted by Department of Education regulations, Title VI and Section 504 of the Rehabilitation Act of 1973 prohibit government practices that have the effect—even if not the intent—of discriminating by race or disability. Under this “disparate impact” view, if a public school district’s disciplinary policies or practices disparately harm students of color or students with disabilities, they are unlawful unless they are justified by educational necessity and there are no less discriminatory means of achieving the same educational goals.
Durham's suspension practices cannot survive this disparate impact analysis, especially when looking at Durham's middle and high schools. As this Complaint will describe, and as the individual complainants stories will further illustrate, the district-wide disparities are small compared with the disparities found in Durham’s middle and high schools. For example, disturbingly, in DPS middle schools 37.2% of all enrolled Black males with disabilities were suspended at least once in 2009-10. That is nearly three times the rate of White middle school males with disabilities (12.5%), 7 times the rate for White middle school males without disabilities (4.9%), and represents a gap of over 32 percentage points. The Black/White gap at the high school level between Black females with disabilities (25%) and White females without disabilities (0%) is nearly as large at 25 percentage points.
In addition to the recent experiences of the two individual complainants, there is ample evidence that these disparities persist throughout DPS. Recent data from the North Carolina Department of Public Instruction ("DPI") show that Durham's overall incident rate for grades 9-12 rose from 25.19 per 100 students in 2010-11 to 33.40 per 100 students in 2011-12.
Meanwhile, from at least the 2009-10 school year until now, DPS has disciplinary codes that authorize out-of-school suspension for minor, non-violent behaviors. For example, Durham students can receive out-of-school suspension for unexcused absences, dress code violations such as wearing "sunglasses" or even mere inappropriate language or "cursing." For example, in 2012, one of the individual complainants was suspended out of school for five days for talking during a test and playing with his calculator. DPS imposed this suspension even though the school was aware the student had been diagnosed with Attention deficit-hyperactivity disorder (ADHD) and had a learning disability.
The Durham Public School District's suspension policies and practices are unnecessarily harsh and are not justified by educational necessity for purposes of either Title VI or Section 504. In fact, a recent article in a local newspaper acknowledged the need for DPS to address the racial disparities in suspension rates within the district. One DPS board member decried the problem of racially disparate suspensions in DPS, stating: "Black children are going to feel like they are made to be unwelcome. Perhaps we aren’t using the right strategies.... We have got to stop suspending children of color.”
Beyond local acknowledgement of the problem, national research on best educational practice does not support Durham's approach to school discipline. 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. 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, states such as Connecticut are taking steps to limit the use of out-of-school suspensions to only the most serious offenses, as described later in this Complaint.
Because Durham'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, Durham's suspension practices would fail that inquiry, too.
Alternative disciplinary policies would likely lower DPS's high rates of out-of-school suspension for all students—including students of color and students with disabilities—while at the same time ensuring a more constructive impact from school discipline. Many alternatives are available. One especially promising option is the practice known as Positive Behavioral Interventions and Supports ("PBIS"). 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.
Select school districts across the country are adopting more effective discipline policies that improve the learning environment without depriving children of valuable instructional time. Recently, for example, the Oakland Unified School District in California entered voluntarily into an agreement with OCR. In May 2012, OCR initiated a Compliance Review, investigating several issues including whether Black students were disciplined more harshly or more frequently than White students. Just a few months later in September 2012, the Oakland District voluntarily entered a Resolution Agreement with OCR. This voluntary agreement seeks to minimize the time students are suspended from school due to misbehavior and provide supports to students who are struggling, among other provisions.
Similarly, the Meridian Public School District in Mississippi and the U.S. Department of Justice entered a voluntary agreement to reduce both the high frequency and racial disparities in suspension and other forms of school removal. This consent decree would amend Meridian's federal school desegregation order that prohibits racial discrimination against students. The comprehensive agreement includes limiting school removals including suspensions, implementing positive and age-appropriate discipline systems, and monitoring discipline data to address racial disparities.
This Complaint’s goal is to turn these types of alternatives into reality in Durham. We hope to reach a Resolution Agreement with the Durham 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 DPS intentionally discriminated against anyone. Instead, it asserts that the administration of Durham's discipline policy has an unlawful disparate impact on Black students, students with disabilities, and most profoundly on Black 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 investigation will lead to new discipline practices and procedures in the Durham Public Schools that do not have unjust and harmful outcomes.
TO READ THE FULL COMPLAINT SEE THE ATTACHED DOCUMENT.
