CALIFORNIA AND FEDERAL LAWS REQUIRE THE USE OF ALTERNATIVES TO OUT-OFSCHOOL DISCIPLINE Not only do alternatives to out-of-school suspension work better, increase school success, funding and student outcomes, they are required by federal and state law! In California, education is a fundamental right “at the core of our free and representatives form of government”14 and “necessary for full participation in the ‘uninhibited, robust, and wide-open’ debate that is central to our democracy.”15 The excessively punitive disciplinary policies and practices that give rise to school push out and the “school-to-prison” pipeline can be found to be unlawful because they effectively force students out of school, denying them this fundamental right. There is no legitimate interest in employing such a system, where research shows that such policies serve no educational goals: they are ineffective at reducing misbehavior, do not make schools safer or more welcoming, and result in lower academic achievement levels for impacted students.16 As such, when a school district permits or supports the use of exclusionary discipline measures with frequency and for all but the most egregious misbehavior, students can be deprived of their fundamental right to an education under the California Constitution.17 The Equal Protection Clause of the Fourteenth Amendment18 and Title VI of the Civil Rights Act of 196419 prohibit discrimination on the basis 14 Serrano v. Priest, 18 Cal. 3d 728, 767-68 (1976) (Serrano II) 15 Hartzell v. Connell, 35 Cal. 3d 899.908 (1984). 16 See, e.g., Skiba R., et al., Are Zero Tolerance Policies Effective in the Schools? A Report by the American Psychological Association Task Force (2006); Skiba, R. & Rausch M., Zero Tolerance, Suspension and Expulsion: Questions of Equity and Effectiveness, in C.M. Everston & C.S. Weinstein (Eds.) Handbook of Classroom Management: Research, Practices, and Contemporary Issues (2005): Skiba, R.,Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary Practice (2000). 17 Serrano II, 18 Cal. 3d at 760-768. 18 The equal Protection Clause states, in relevant part, that “[n]o State shall…deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. 19 Title VI of the Civil Rights Act of 1964 provides, in relevant part, that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation n, be denied the benefits 10 How we can fix school discipline of race, color, or national origin. The California Education Code and other state statutes prohibit discrimination in state-financed programs and also provide that “schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and responsibility to provide equal educational opportunity.”20 That there are gross disparities in the manner in which suspension and expulsion laws are being applied to students of color and students with disabilities is evidenced in data showing disproportionate suspension rates across students similarly situated from different racial and ethnic groups and with or without disabilities. In January of 2014, the United States Departments of Justice and Education released joint guidance to school districts and others about their obligations to address discrimination and disparate treatment in school discipline.21 In a Dear Colleague letter, the Department stated: “In short, racial discrimination in school discipline is a real problem.”22 Where the federal government finds disparate impact, which can be shown through statistical evidence that one group receives more frequent or different discipline than another group, it will look to see whether the school district could have implemented “comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group.”23 “Successful programs may incorporate a wide range of strategies to reduce misbehavior and maintain a safe learning environment, including conflict resolution, restorative practices, counseling, and structured systems of positive interventions.”24 The Departments reiterated that all types of discipline, including behavior management practices in the classroom and class referrals, are subject to the federal anti-discrimination laws.25 of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.§ 2000(d). 20 Cal. Ed. Code § 200. Section 220 provides that “[n] person shall be subjected to discrimination on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation … in any program or activity conducted by an educational institution that receives” funding from the state. 21 Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, 1/8/14, http://www.justice.gov/crt/about/edu/documents/dcl.pdf 22 Id. at 4. 23 Id. at 7. 24 Id. at 1. 25 Id.