[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30449-30453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11990]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

[Docket ID ED-2021-OCR-0068]


Request for Information Regarding the Nondiscriminatory 
Administration of School Discipline

AGENCY: Office for Civil Rights (OCR), U.S. Department of Education.

ACTION: Request for information.

-----------------------------------------------------------------------

SUMMARY: This notice is a request for information in the form of 
written comments that include information, research, and suggestions 
regarding the administration of school discipline in schools serving 
students in pre-K through grade 12. OCR solicits these comments to 
inform determinations about what policy guidance, technical assistance, 
or other resources would assist schools that serve students in pre-K 
through grade 12 with improving school climate and safety, consistent 
with the civil rights laws that OCR enforces, to ensure equal access to 
education programs and activities. OCR has promulgated regulations to 
implement civil rights laws and periodically provides policy guidance 
and technical assistance to clarify these statutory and regulatory 
requirements. Information received through this request may be used to 
assist OCR in preparing further guidance, technical assistance, and 
other resources.

DATES: We must receive your comments on or before July 23, 2021.

ADDRESSES: Written comments may be submitted as indicated below:
     Federal eRulemaking Portal: Using the Docket ID number 
above, please go to www.regulations.gov to submit your comments 
electronically. Information on using Regulations.gov, including 
instructions for accessing agency documents, submitting comments, and 
viewing the docket, is available on the site.
     Mail: If you do not have internet access or electronic 
submission is not possible, you may mail written comments to the Office 
for Civil Rights, U.S. Department of Education, Potomac Center Plaza 
(PCP), 550 12th Street SW, Washington, DC 20024. Mailed comments must 
be postmarked by July 23, 2021, to be accepted. Comments submitted by 
email or fax will not be accepted.
    Privacy Note: The Department's policy is to make all electronic 
comments received from members of the public available for public 
viewing in their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to

[[Page 30450]]

include in their comments only information that they wish to make 
publicly available.

FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, Director, Program 
Legal Group, Office for Civil Rights, Potomac Center Plaza (PCP), Room 
6125, 550 12th Street SW, Washington, DC 20024. Telephone: (202) 245-
7272. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), please call the Federal Relay Service (FRS), toll 
free, at 1-800-877-8339.
    If you have difficulty understanding English, you may request 
language assistance services for Department information that is 
available to the public. These language assistance services are 
available free of charge. If you need more information about 
interpretation or translation services, please call 1-800-USA-LEARN (1-
800-872-5327) (TTY: 1-800-877-8339).

SUPPLEMENTARY INFORMATION:

I. Background

A. OCR's Role in Enforcing Federal Civil Rights Laws

    OCR enforces Federal civil rights laws and their implementing 
regulations, including those that prohibit discrimination based on 
race, color, or national origin (Title VI of the Civil Rights Act of 
1964, 42 U.S.C. 2000d et seq., 34 CFR part 100) (Title VI); sex (Title 
IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., 34 CFR 
part 106); disability (Section 504 of the Rehabilitation Act of 1973, 
29 U.S.C. 794, 34 CFR part 104, Title II of the Americans with 
Disabilities Act of 1990, 42 U.S.C. 12131 et seq., 28 CFR part 35); \1\ 
and age (Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., 34 CFR 
part 110). These laws prohibit discrimination in the programs or 
activities of schools and other entities that receive Federal financial 
assistance from the Department (recipients), or, in the case of Title 
II, are public entities, regardless of whether they receive Federal 
financial assistance.
---------------------------------------------------------------------------

    \1\ OCR shares, with DOJ, responsibility for compliance with 
Title II with regard to educational institutions. 28 CFR subpart 
35.190(b)(2); 28 CFR subparts 35.172-35.174.
---------------------------------------------------------------------------

    These laws apply to a wide range of entities, including all State 
educational agencies (SEAs); approximately 17,600 local educational 
agencies (LEAs); over 5,000 postsecondary institutions; 80 State 
vocational rehabilitation agencies and their subrecipients; and other 
institutions that receive Departmental financial assistance, such as 
libraries, museums, and correctional institutions.
    OCR fulfills its mission to protect civil rights in many ways, 
including by (1) responding to civil rights complaints filed by members 
of the public; (2) proactively conducting compliance reviews and 
directed investigations to enforce Federal civil rights laws; (3) 
monitoring recipients' adherence to resolution agreements reached with 
OCR; (4) issuing policy guidance to increase recipients' understanding 
of their civil rights obligations and students' and families' awareness 
of students' civil rights; (5) providing technical assistance and other 
information to recipients and the public; and (6) administering and 
disseminating the Civil Rights Data Collection (CRDC).
    OCR develops policy guidance based on legal developments, its 
enforcement work, and civil rights data trends. In addition, OCR 
develops policy guidance, technical assistance, and other informational 
materials in response to compliance concerns raised by public 
inquiries, requests for technical assistance, and engagement with a 
wide array of education and civil rights stakeholders. OCR's policy 
guidance and technical assistance are designed to ensure that every 
student has equal access to education programs and activities free from 
discrimination. These guidance and technical assistance documents are 
available on OCR's website at www.ed.gov/ocr/frontpage/faq/readingroom.html.

B. OCR and Other Federal Agency Policy Guidance on the 
Nondiscriminatory Administration of School Discipline

    As described below, OCR and other Federal agencies have taken 
multiple approaches to analyze and address longstanding issues related 
to the nondiscriminatory administration of school discipline and the 
creation of positive school climates.
    OCR and the U.S. Department of Justice Civil Rights Division (CRT): 
In 2014, following input from a wide array of stakeholders, OCR and CRT 
jointly released a Dear Colleague letter on the nondiscriminatory 
administration of school discipline and related materials 
(``guidance'') to identify, avoid, and remedy discrimination based on 
race, color, or national origin in the administration of school 
discipline and create a positive school climate.\2\ The guidance 
emphasized the requirements of Titles IV and VI of the Civil Rights Act 
of 1964, which protect students from race, color, or national origin 
discrimination, and discussed both racial and national origin 
discrimination due to different treatment of, and unjustified disparate 
impacts on, students of color. The guidance also noted how the growing 
and disproportionate use of exclusionary discipline policies, such as 
in-school and out-of-school suspensions, caused students to lose 
instructional time and created the potential for significant, negative 
educational and other long-term impacts that contributed to the school-
to-prison pipeline.
---------------------------------------------------------------------------

    \2\ Dear Colleague Letter on Nondiscriminatory Administration of 
School Discipline (January 8, 2014) (rescinded) available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html. See also, ED-DOJ School Discipline Guidance package website 
(archived) available at https://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html#guidance.
---------------------------------------------------------------------------

    In 2018, OCR and CRT issued a Dear Colleague letter that rescinded 
the 2014 guidance.\3\ This rescission followed a report and 
recommendations issued by the 2018 Federal Commission on School 
Safety.\4\ In 2018, OCR also issued a question-and-answer document with 
information on how OCR assesses a school's compliance with Title VI 
with respect to the administration of school discipline.\5\
---------------------------------------------------------------------------

    \3\ Dear Colleague letter (December 21, 2018) available at 
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf.
    \4\ Federal Commission on School Safety listening session 
transcripts, report and recommendations are available at https://www.ed.gov/school-safety.
    \5\ OCR's Questions and Answers on Racial Discrimination and 
School Discipline (December 21, 2018) is available at https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-vi-201812.pdf.
---------------------------------------------------------------------------

    U.S. Government Accountability Office (GAO) and the U.S. Commission 
on Civil Rights (USCCR): GAO released a report in March 2018 in which 
it analyzed CRDC discipline data from the 2013-14 school year. This 
report found that Black students, boys, and students with disabilities 
were disproportionately disciplined ``regardless of the type of 
disciplinary action, level of school poverty, or type of public school 
attended.'' \6\
---------------------------------------------------------------------------

    \6\ U.S. Government Accountability Office, K-12 Education: 
Discipline Disparities for Black Students, Boys, and Students with 
Disabilities, 12 (March 2018) available at https://www.gao.gov/products/gao-18-258.
---------------------------------------------------------------------------

    Likewise, in its 2019 report--BEYOND SUSPENSIONS: Examining School 
Discipline Policies and Connections to the School-to-Prison Pipeline 
for Students of Color with Disabilities--the USCCR found that:

Students of color as a whole, as well as by individual racial group, do 
not commit more disciplinable offenses than their white peers--but 
black students, Latino students, and Native American students in the 
aggregate receive substantially more school discipline than their white 
peers and

[[Page 30451]]

receive harsher and longer punishments than their white peers receive 
for like offenses.\7\
---------------------------------------------------------------------------

    \7\ U.S. Commission on Civil Rights, BEYOND SUSPENSIONS: 
Examining School Discipline Policies and Connections to the School-
to-Prison Pipeline for Students of Color with Disabilities, 161 
(July 23, 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf.

    OCR's Civil Rights Data Collection (CRDC): OCR's most recent 
analysis of discipline data from the 2017-18 CRDC shows that these 
racial disparities persist. In particular, the data show that students 
of color are disproportionately subjected to disciplinary actions in 
contrast to their White peers.\8\ With respect to referrals to law 
enforcement, which includes school-based arrests and the issuance of 
citations and tickets, CRDC data revealed that in 2017-18, Black 
students represented only 15 percent of the total student enrollment 
but accounted for 29 percent of all students referred to law 
enforcement--almost twice their share of overall student enrollment. 
White students, on the other hand, accounted for 47 percent of total 
student enrollment in 2017-18, but only 38 percent of referrals to law 
enforcement.
---------------------------------------------------------------------------

    \8\ In 2017-18, 50.9 million students were enrolled in pre-K 
through grade 12 in public schools across the country. The data and 
all percentages are from the 2017-18 CRDC released in October 2020 
and updated in May 2021. Downloadable data files of information from 
the CRDC are available at https://www2.ed.gov/about/offices/list/ocr/docs/crdc-2017-18.html. The definitions used by the CRDC can be 
found at https://crdc.communities.ed.gov/#communities/pdc/documents/17270.
---------------------------------------------------------------------------

    These disparities in referrals to law enforcement are apparent in 
the treatment of students with disabilities as well. Students served 
under the Individuals with Disabilities Education Act (IDEA) \9\ 
represented 13 percent of total student enrollment but 27 percent of 
students referred to law enforcement in 2017-18. During that school 
year, Black students with disabilities represented 18 percent of all 
students provided services under IDEA but 32 percent of those who were 
referred to law enforcement.
---------------------------------------------------------------------------

    \9\ The Office of Special Education Programs (OSEP) in the 
Department's Office of Special Education and Rehabilitative Services 
(OSERS) administers the IDEA. For information about the IDEA, please 
see osep.communities.ed.gov and www.ed.gov/osers/osep/index.html.
---------------------------------------------------------------------------

    With respect to other exclusionary discipline practices, CRDC data 
from 2017-18 show that Black students represented 38 percent of 
students who received one or more out-of-school suspensions--over two 
times their share of overall student enrollment (15 percent). In 
addition, Black students accounted for 36 percent of all expulsions and 
33 percent of students who were expelled without educational 
services.\10\ By contrast, White students accounted for 47 percent of 
overall student enrollment but received comparatively fewer expulsions: 
36 percent of all expulsions and 41 percent of students who were 
expelled without educational services. American Indian or Alaska Native 
students received expulsions at rates (1.1 percent and 1.8 percent, 
respectively) that were slightly higher than their share of total 
student enrollment (1.0 percent).
---------------------------------------------------------------------------

    \10\ The 2017-18 CRDC collected expulsions data for students who 
were expelled with education services, students who were expelled 
without educational services, and students who were expelled under 
zero-tolerance policies. A zero-tolerance policy is a policy that 
results in mandatory expulsion from a student's regular school for 
the remainder of the school year or longer if the student commits 
one or more specified offenses. Examples of specified offenses 
include those involving guns or other weapons, violence, or similar 
factors, or combinations of these factors.
---------------------------------------------------------------------------

    Disparities worsen when you examine the intersection between race 
and sex. According to the 2017-18 CRDC data, Black girls were the only 
group across all races or ethnicities for girls where a disparity in 
school suspensions was observed. Black girls accounted for 11.1 percent 
of in-school suspensions and 13.3 percent of out-of-school suspensions, 
which is almost two times their share of total student enrollment of 
7.4 percent. Black boys accounted for 7.7 percent of total student 
enrollment and received both in-school suspensions and out-of-school 
suspensions at rates (20.1 percent and 24.9 percent, respectively) 
almost three times their share of total student enrollment--the largest 
disparity across all race/ethnicity and sex groupings.
    Students with disabilities were also overrepresented in 
exclusionary disciplinary actions as shown by CRDC data from 2017-18. 
Despite representing only 13 percent of the student population, they 
represented 25 percent of all students who received one or more out-of-
school suspensions and 15 percent of those who were expelled without 
educational services in 2017-18. Black students with disabilities 
represented 26 percent of expulsions without educational services 
although they accounted for only 18 percent of all students provided 
services under IDEA in 2017-18.

C. Commitment to Equity and This Request for Information

    On January 20, 2021, President Joe Biden issued an Executive Order 
On Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government to affirm the Administration's policy of 
and commitment to pursuing ``a comprehensive approach to advancing 
equity for all, including people of color and others who have been 
historically underserved, marginalized, and adversely affected by 
persistent poverty and inequality.'' \11\
---------------------------------------------------------------------------

    \11\ Executive Order 13985 On Advancing Racial Equity and 
Support for Underserved Communities Through the Federal Government 
(January 20, 2021), available at https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.
---------------------------------------------------------------------------

    Consistent with this approach, OCR is issuing this notice to 
solicit information on school climate and discipline practices in our 
nation's schools serving students in pre-K through grade 12, and how 
best to support and build schools' capacity to promote positive, 
inclusive, safe, and supportive school climates in a nondiscriminatory 
manner.

II. Solicitation of Comments

A. Information Solicited

    The Department requests information from students, families, 
educators, school leaders, SEAs, LEAs, community-based organizations, 
civil rights organizations, and other stakeholders regarding the 
ongoing discipline challenges in our nation's schools. OCR is also 
interested in learning about discipline issues arising during this 
unprecedented time of school closures, virtual learning, hybrid 
learning, and reopening schools during the COVID-19 pandemic, as well 
as promising practices for addressing student discipline and creating 
positive school climates in these unique learning environments.
    In particular, OCR is soliciting responses to the questions and 
requests below in the form of written comments to inform determinations 
about what policy guidance, technical assistance, or other resources 
would aid schools serving students in pre-K through grade 12 in 
providing positive, inclusive, safe, and supportive school climates and 
ensuring the nondiscriminatory administration of school discipline 
under the laws OCR enforces.

B. Instructions for Responding to This Request for Information

    When responding to this request for information, please be as 
specific as possible in your comments. If you are aware of any 
supportive research (qualitative or quantitative) or promising school- 
or community-based programs, please include citations, websites, or 
other information that might enable OCR to follow up on the information 
you have shared.
    OCR recognizes students may experience multiple forms of

[[Page 30452]]

discrimination at once and encourages commenters to identify and 
address individual and intersectional discrimination as appropriate. 
This might include, for example, comments on disproportionate 
discipline of students of a certain race, color, or national origin who 
are also male, female, LGBTQI+, and/or who are also students with 
disabilities.
    If you are commenting on materials that OCR has issued in the past, 
please indicate if you believe OCR should consider affirming, changing, 
or rejecting such materials in future guidance, and the reasons for 
your recommendations.
    Please do not submit comments focused on OCR's handling of 
complaints filed with OCR as this topic is beyond the scope of this 
request for information and will not be considered.

C. Request for Information

    Please address one or more of the following questions or requests:
    1. What are your views on the usefulness of current and previous 
guidance OCR and CRT have issued on school discipline? We would 
appreciate your comments on the guidance documents described above, 
including the 2014 guidance, the 2018 Dear Colleague letter, and the 
2018 Questions & Answers on Racial Discrimination and School Discipline 
guidance.
    2. What ongoing or emerging school discipline policies or practices 
are relevant to you or the communities you serve, including any that 
you believe raise concerns about potentially discriminatory 
implementation or effects on students' access to educational 
opportunities based on race, color, national origin, sex, or 
disability?
    3. What promising practices for the administration of 
nondiscriminatory school discipline or creating positive school 
climates have you identified?
    4. What are your views on this non-exhaustive list of disciplinary 
policies, practices, and other issues below?
    (a) Discipline of students in pre-K through third grade, including 
in-school and out-of-school suspensions.
    (b) Use of exclusionary disciplinary penalties, such as suspensions 
or expulsions, for minor, non-violent, or subjectively defined types of 
infractions, such as defiance or disrespect of authority.
    (c) Discipline issues relating to dress and grooming codes 
(including restrictions on hairstyles).
    (d) Corporal punishment.
    (e) Inappropriate use of seclusion and restraint for disciplinary 
purposes.
    (f) Referrals to and the resulting interactions with school police, 
school resource officers, or other law enforcement.
    (g) Referrals to alternative schools and programs.
    (h) Threat assessment practices.
    (i) Students bringing weapons or using them at school.
    (j) Use of surveillance technologies in a discriminatory manner.
    (k) School policies or practices related to teacher and staff 
training related to discipline, the role teachers play in referrals of 
students for discipline, and the role of implicit bias in disciplinary 
decisions.
    (l) Discipline related to attendance and time management.
    (m) Discipline of victims of race, color, or national origin 
harassment, sex harassment, or disability harassment for misconduct 
that arises as a result of such harassment.
    (n) Zero tolerance or strict, three-strike policies.
    (o) Reintegration of students who return to school after a long-
term out-of-school suspension or expulsion.
    (p) Discipline issues relating to virtual learning.
    (q) Discipline issues relating to returning to in-person 
instruction.
    (r) Discipline issues relating to activities off school campus or 
in virtual school settings, such as bullying through social media 
usage.
    5. What types of guidance and technical assistance can OCR provide 
to best help SEAs and LEAs create positive, inclusive, safe, and 
supportive school climates and identify, address, and remedy 
discriminatory student discipline policies and practices (for example, 
Dear Colleague letters, Frequently Asked Questions documents, fact 
sheets, tool kits, videos on the nondiscriminatory administration of 
school discipline or positive school climate, and guidance on returning 
students to in-person instruction)?
    6. What promising practices that have reduced the use of discipline 
or the disparities in the use of discipline between different groups of 
students (including promising evidence-based programs and success 
stories from particular school districts) should OCR consider 
highlighting in any future guidance or resource materials?
    7. How do school discipline policies impact (a) students' 
opportunity to learn; (b) academic achievement; (c) students' mental 
health; (d) drop out and graduation rates; (e) school climate and 
safety; (f) access to instructional time; (g) teacher retention and 
satisfaction; (h) the rates at which staff refer students for formal 
discipline; (i) student participation in STEM courses, honors and 
advanced placement courses, arts and theater, and extra-curricular 
programming; (j) impact of discipline records on access to scholarships 
or on enrollment in college; (k) student participation in ceremonies 
(for example, graduation ceremonies and National Honor Society 
ceremonies); and (l) life outcomes (for example, earnings, reliance on 
public support, income, employment opportunities, and housing)?
    8. To what extent can hiring and professional development practices 
be designed and aligned to ensure that teachers and staff are 
adequately prepared to manage classrooms and work with students in a 
fair and equitable manner?
    9. Describe any data collection, analysis, or record-keeping 
practices that you believe are helpful in identifying and addressing 
disparities in discipline. Conversely, describe any barriers or 
limitations in these areas, and any ideas you may have on how to 
overcome them.

III. Conclusion

    OCR appreciates the contributions of students, families, educators, 
school leaders, SEAs, LEAs, community-based organizations, civil rights 
organizations, and others to this request for information. We will 
review every comment, and, as described above, electronic comments in 
response to this request for information will be publicly available on 
the Federal eRulemaking Portal at www.regulations.gov.
    Please note that OCR will not directly acknowledge or respond to 
comments, including comments that contain specific questions or 
inquiries. OCR issues a limited number of policy guidance and technical 
assistance documents each year. Receipt of comments in response to this 
request for information does not imply that OCR has decided to issue 
policy guidance, technical assistance, or other resources.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other

[[Page 30453]]

documents of the Department published in the Federal Register, in text 
or Portable Document Format (PDF). To use PDF, you must have Adobe 
Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Suzanne B. Goldberg,
Acting Assistant Secretary for Civil Rights.
[FR Doc. 2021-11990 Filed 6-7-21; 8:45 am]
BILLING CODE 4000-01-P