Office for Civil Rights Enforcement Falls Short

Justice System Reform

“We must make sure our students’ background or identity – including their race, ethnicity, or national origin; their sex; or whether or not they have a disability – neither limits their opportunity nor dims their horizon. Instead, we must achieve equity and excellence at every level of our education system, in every school, for every student.”

– Catherine E. Lhamon, Assistant Secretary for Civil Rights from “Delivering Justice: Report to the President and Secretary of Education, Fiscal Year 2015”

Last week, the Office for Civil Rights (OCR) of the United States Department of Education released its annual report for fiscal year 2015. The report describes OCR’s activities over the last year, including numbers of discrimination complaints received and resolved in 2015. OCR reported that, in 2015, it received a record-high 10,392 discrimination complaints and entered 629 resolution agreements nationwide. Unfortunately, there remains no resolution for two of North Carolina’s largest school districts – the Wake County Public School System (“Wake”) and Durham Public Schools (“Durham”) – where OCR complaints alleging race and disability discrimination in school discipline practices have been pending for years.

OCR is charged with enforcing a myriad of federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in all educational programs or activities that receive federal financial assistance. This includes enforcement of these laws in thousands of preschool through twelfth grade and post-secondary schools, which serve almost 80 million students annually. Responding to and resolving civil rights complaints is one of OCR’s core functions. However, while the number of complaints rises each year, OCR staff numbers are shrinking. The lack of sufficient resources means more and more complaints go unresolved (See Table 1), leaving communities in Wake and Durham struggling with how to address discrimination in their schools.

A coalition of advocates filed an OCR complaint against Wake in September of 2010 alleging, among other things, that the district’s discipline practices had a discriminatory impact on Black students. When the complaint was filed, the most recent data showed that Black students made up 26.1% of the total student population, but received 62.3% of short-term suspensions (10 days or fewer) and 67.5% of long-term suspensions (more than 10 days). A few years later, in April 2013, a similar OCR complaint was filed in Durham, where Black students were four times as likely to be suspended as White students. Both complaints asked OCR to help the districts implement systemic reforms that would address the negative impact the widespread disparities in discipline had on Black students.

Although OCR opened both complaints for investigation shortly after filing, there has been no corrective action and OCR has been silent on when resolution might come. In the meantime, discriminatory discipline practices persist in both districts. In the five school years since the Wake OCR complaint was filed, over 42,000 short-term suspensions and over 1,110 long-term suspensions have been imposed on Black students. Even though Wake imposes fewer short-term suspensions than it did when the complaint was filed, disparities are higher than ever, with Black students receiving 63.5% of short-term suspensions during the 2014-2015 school year. In Durham, disparities have come down slightly after peaking in the 2013-2014 school year. However, Black students in Durham still receive 81.7% of short-term suspensions and 79.7% of long-term suspensions, despite constituting less than half the student population.

Since the complaints were filed, OCR teams have visited Wake twice (in 2011 and 2016) and Durham once (in 2013). Each time, the team assured the community and the complainants that OCR was continuing to investigate. However, as the years pass with no action by OCR, it has become increasingly difficult for impacted communities to have faith in OCR’s ability to protect their civil rights.

Fortunately, despite OCR’s inaction, advocates in Wake and Durham have continued to fight for systemic reforms that will address these disparities. In Wake, community pressure led to the creation of a “Comprehensive Plan for Equitable Discipline Practices” in May 2015. Similarly, in February 2016, Durham approved changes to its discipline policies in an effort to reduce the use of out-of-school suspension and make discipline more fair and equitable. While these changes represent a step in the right direction, many advocates had hoped that the reforms would go further and it is unknown how effective they will be until the current school year’s discipline data is available. Further, since the actions are not part of a formal OCR resolution agreement, there is no federal oversight or accountability to ensure the plans are implemented fully and with fidelity across the districts.

OCR staff members do not shoulder all the blame for the agency’s inaction. It is clear that OCR is severely understaffed even while it faces record-high caseloads (See Table 2). This resulted in fewer case resolutions in 2015 than in the previous two years. It also resulted in substantially fewer compliance reviews than years past, including fewer proactive investigations related to racial disparities in discipline. The demand for federal assistance and accountability is higher than ever, yet OCR is ill-equipped to provide the needed support.

Although the lack of enforcement by OCR is discouraging, it should not deter advocates in Wake and Durham as they continue to push their local districts to implement systemic school discipline reforms. Advocates should also continue to push OCR to do its job by regularly requesting updates on investigations and supplying new data and information to OCR staff as it becomes available. Federal law guarantees that students should be free from discrimination and nothing, not even lack of resources, excuses OCR’s failure to address the ongoing discrimination in Wake and Durham. OCR must be held accountable and advocates must continue to be the “squeaky wheel” that keeps the investigation on the radar of OCR and the general public.

As stated in OCR’s report “Our students in schools today don’t have time to wait for their rights.” Nowhere is this truer than in Wake and Durham. The question is, what is OCR going to do about it?

Peggy Nicholson is Co-Director of the Youth Justice Project of the Southern Coalition for Social Justice.