By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
As school districts struggle to understand a flurry of recent Executive Orders, Dear Colleague letters and other pronouncements from the current federal administration, it is difficult to determine where in fact federal law has and has not changed. In this article, we review the state of federal law related to disparate impact analysis and student discipline, including discipline for students with disabilities. As the article discusses, while there have been new Executive Orders and Dear Colleague letters addressing these issues, there has been no substantive change enacted by Congress, or even enacted through the approval of new federal regulations, that would justify changing existing district policies and protocols.
On February 14, 2025, the United Stated Department of Education, Office for Civil Rights, issued a dear colleague letter intended to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the United States Department of Education.” Subsequently, on April 23, 2025, Executive Order 14280 was issued. The order reiterates and expands upon the guidance document from the USDE with respect to practices concerning discipline of students in elementary and secondary schools and requires issuance of further guidance by the Department of Education and other agencies. The impact of these documents on school district practices and obligations could be significant with respect to complying with their obligations under federal law. Specifically, obligations under the Individuals with Disabilities Education Act with respect to identifying and addressing disproportionality with respect to discipline of students with disabilities.
Initially, it is important to emphasize that the letter and executive order cannot change existing federal law. Rather, they reflect the current administration’s position with respect to addressing discipline of students in public schools, which is at odds with existing federal statutes and established legal precedent. In fact, federal case law has long recognized and supported utilizing a disparate impact analysis when assessing the legality of policies, procedures and actions of entities, including government institutions, and their impact on racial and ethnic groups. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). As a result, on April 24, 2025, a federal court enjoined the Department of Education from “enforcing and/or implementing” the February 14 dear colleague letter and that court order remains in effect as of the release of this article.
Likewise, the IDEA explicitly mandates that disproportionality among seven racial and ethnic groups with respect to, among other areas, discipline, be identified and addressed through appropriate remedial actions, and that those actions must be funded in part with IDEA B grant funds. Such actions include review and revision of policies, practices and procedures causing such disproportionate impacts. This obligation is also recognized and emphasized in the 2023 guidance from the New Jersey Attorney General and Commissioner of Education addressing discipline of students in New Jersey’s public schools in the context of the New Jersey Law against Discrimination. The federal guidance and directives discussed below must be considered in light of this contextual background, extensive research on disparities in student discipline based on race for comparable behavior, and the state and school district’s future actions determined in accordance with applicable law, rather than policy statements reflecting novel and untested legal interpretations.
The dear colleague letter followed Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, dated January 21, 2025, which directed the United States Attorney General and the secretary of the U.S. Department of Education to issue guidance to all institutions that participate in federal student aid programs regarding compliance with the Supreme Court’s June 2023 decision in Students for Fair Admission v. Harvard (SFFA), which held that race-conscious admissions policies unconstitutional. The letter states that educational institutions have “embrace[d] … pervasive and repugnant race-based preferences and other forms of racial discrimination” in “every facet” of their operations. The letter further asserts that educational institutions have “toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.” The letter proclaims that educational institutions that are engaging in these actions “have attempted to further justify them… particularly during the last four years,” as being necessary in furtherance of DEI initiatives, “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” The dear colleague letter stresses that the Supreme Court’s prohibition of race-conscious admissions should be extended to virtually all aspects of an institution’s educational operations, including “admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” The letter further condemns the dissemination of “benefits or burdens based on race.” The letter also takes the position that even facially race-neutral programs constitute unlawful discrimination if such programs are motivated by “racial considerations,” such as using student essays, writing samples, or extracurricular activities as a basis for implementation of race-based preferences.
The OCR advises all educational institutions to:
- ensure that their policies and actions comply with existing civil rights law;
- cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
- cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
Institutions that fail to comply with Title VI as interpreted by the OCR face potential loss of federal funds “consistent with applicable law.”
EO and Dear Colleague Letter at Odds with IDEA Disproportionality Requirements
Taken together, the dear colleague letter and executive order set forth federal policies that could place state departments of education and school districts in a challenging position with respect to complying with requirements under the IDEA and State requirements with respect to identifying and, when appropriate, addressing disproportionate discipline of students with disabilities. For example, the IDEA requires that States develop procedures to address both disproportionality and significant disproportionality with respect to discipline of students with disabilities. These procedures mandate that states assess all school districts’ data with respect to disciplining students with disabilities among seven racial and ethnic groups and make determinations whether districts are disproportionate with respect to disciplining students based on a comparison of the seven racial and ethnic groups. For those districts determined to be disproportionate in accordance with the State risk ratio set in accordance with IDEA, they must utilize a portion of their IDEA grant funds (15%) to undertake appropriate actions to identify and address the causes of the disproportionality, with the ultimate goal of eliminating the disproportionality among the racial and ethnic groups.
The IDEA requirements necessitate that school districts take steps to assess their discipline data, look to root causes for disproportionately disciplining students in any of the seven racial and ethnic groups, and put policies and procedures in place to address and reduce or eliminate the disproportionality. Such policies and procedures necessarily take race and ethnicity into consideration as a factor being considered when assessing discipline of students with disabilities, and when assessing the neutrality and fairness of discipline policies and the decisions of staff imposing student discipline. While it is not certain how state and school district policies will be assessed by the current OCR, enforcement actions pursuant to the dear colleague letter and executive order appear diametrically opposed to the requirements of IDEA to identify and effectively address disproportionate discipline of students in specified racial and ethnic groups under IDEA. Clearly, implementing IDEA’s disproportionality requirements could invite scrutiny from the OCR for running afoul of its guidance as well as the yet to be developed guidelines required by the executive order.
Moving Forward
School leaders are urged to consult with your board attorney in order to ensure continued compliance with established federal and state law moving forward. The recent federal guidance and executive orders addressing student discipline on their face appear in direct contradiction to the requirements of IDEA and applicable case law, as well as the NJLAD.
While legal and policy questions remain as to what the impact of the dear colleague letter and executive order will be in the context of disproportionality requirements under IDEA (or the overall impact on discipline policies and State funding), federal and state law, as well as applicable case law, clearly require a disparate impact analysis and require that the state and school districts identify and correct disparities in discipline among seven racial and ethnic groups. The IDEA also clearly mandates that IDEA B grant funds be utilized to engage in these identification and resolution efforts. Continuing to honor these well-established federal and state legal requirements appears to be the best way to ensure nondiscriminatory discipline policies are implemented moving forward.