Herring is urging DOE and DOJ to reinstate and expand guidance designed to help schools administer student discipline equitably

RICHMOND (May 24, 2021) – Attorney General Mark R. Herring has joined 23 attorneys general in urging U.S. Secretary of Education Miguel Cardona and U.S. Attorney General Merrick Garland to reinstate and expand a 2014 guidance package designed to help public elementary and secondary schools meet their obligations under federal law to administer student discipline equitably.

Attorney General Herring and his colleagues sent a letter on May 24, 2021, pointing out that exclusionary discipline remains prevalent across the country and continues to disproportionately impact students of color.

“Unfortunately, all too often instances of school discipline can fall disproportionately on students of color, which can negatively impact their lives for years to come,” said Attorney General Herring. “While the previous administration did not make equitable student discipline a priority, we must change this stance and instead put an emphasis on addressing discrimination in school discipline and working to prevent it.”

Additionally, years of federal data show that students with disabilities are subjected to exclusionary discipline at twice the rate of students without disabilities. Similarly, data is now emerging that LGBTQ students may also be targeted more frequently with exclusionary and other more severe forms of discipline. This data prompted Attorney General Herring and his colleagues to request that the guidance package be expanded to also address discrimination in school discipline based on only on race but also on sex, sexual orientation, gender identity, and disability.

Attorney General Herring’s letter also quantifies the lifelong impact these discriminatory practices can have on students, including contributing to an increased rate of incarceration. Statistics show that students who receive more frequent discipline, including suspensions, are more likely to serve jail or prison time.

In 2014, the Department of Education (DOE) and the Department of Justice (DOJ) jointly issued a guidance package that explained federal law prohibits school discipline that intentionally discriminates or unintentionally results in a disparate impact based on a student’s race, color, or national origin.

Four years later, the Trump administration’s DOE and DOJ withdrew the guidance. Attorney General Herring and his colleagues are asking the departments to address this critical issue affecting some of our most vulnerable children by reinstating and expanding the 2014 guidance.

According to the DOE’s Office of Civil Rights, 2015-2016 Civil Rights Data Collection determined:
• Black male students represented eight percent of enrolled students yet accounted for 25 percent of students who received out of school suspension
• Black female students represented eight percent of students enrolled and 14 percent of out of school suspensions
• Expulsion rates for all Black students accounted for 33 percent of all expulsions despite accounting for a total of 16 percent of students enrolled

Additionally, the National Bureau of Economic Research recently found that attending a school with an above-average use of suspension increases a student’s future chances of being incarcerated by 17 percent. If the student is a minority, the chance of incarceration increases by an additional 3.1 percent.

Joining Attorney General Herring in sending today’s letter are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.