The U.S. Department of Education on Tuesday instructed schools not to take race into account in student discipline policies and said that considering data showing a racially disparate impact of such policies violates federal law.
“Regrettably, prior administrations have imposed disparate-impact liability in the context of school discipline throughout the United States,” Kimberly M. Richey, the assistant secretary for civil rights, said in the “Dear Colleague” letter. “The imposition was never sound as a matter of law or justice, and, as this guidance explains, schools must cease consideration of race throughout their disciplinary policies and practices, absent truly extraordinary circumstances.”
The letter says Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in federally funded programs, as well as the U.S. Constitution “prohibit intentional discrimination, not unintentional disparate impact.”
Richey said students, parents, teachers, and schools have been “hamstrung by erroneous interpretations” of federal law, citing various forms of guidance issued under Presidents Barack Obama and Joe Biden, both Democrats.
The Aug. 18 dear colleague letter comes less than a month after the Education Department issued a final rule, on a fast track without a public comment period, that eliminated regulations going back more than 60 years recognizing liability for disparate impact, such as when statistics demonstrate a discriminatory effect of a school policy on discipline rates or other matters involving groups of students, even when there is no intentional bias.
With the promulgation of that regulation, the new letter says, the “whipsawing effect” of different presidential administrations’ approaches to formal rules and informal guidance on disparate impact comes to an end.
“Future administrations must adhere to the original public meaning of Title VI and the Constitution and reject disparate impact liability,” the letter states.
The letter also follows an April 2025 executive order from President Donald Trump in which he directed Secretary of Education Linda McMahon to develop guidance for schools instructing them not to take race into account when addressing student behavior. In that order, he lambasted school discipline based on “‘equity’ ideology.”
Letter attracts criticism and praise
The dear colleague letter was criticized by supporters of the use of disparate-impact analysis in student discipline but lauded by groups aligned with the Trump administration’s views.
“This is an expansive view of this notion of race-blind application of the law,” said Eric Duncan, director of P-12 policy at EdTrust, which researches and advocates against racial inequities in education. “This is not a legally backed policy change.”
Statistics show that “Black students are being overly disciplined and excluded from the classroom based on minor offenses,” he said.
The Trump administration “is using this as an opportunity, as a signal, that they’re not going to go after districts” that adopt discipline codes that have a disparate impact on minority students, Duncan said.
Adaku Onyeka-Crawford, director of the Opportunity to Learn program at the Advancement Project, a civil rights organization, said via email that the new guidance “will at best, ignore, or at worst, threaten schools that strive to ensure that Black, Indigenous and other students of color are not disproportionately deprived of educational opportunities by unfair or harsh discipline.”
“In addition to being cruel, today’s guidance is poorly argued, relying on unsupported assertions, cherry-picked and out-of-context quotes, and misrepresentations of legal precedent,” Onyeka-Crawford added.
Carolyn Gorman, a fellow at the Manhattan Institute, the conservative-leaning think tank, took to X to applaud the dear colleague letter, calling it “VERY welcome common sense!”
“Making discipline conditional on things other than an individual student’s behavior makes it harder for students to understand what the outcome of their behavior is going to be,” Gorman said in an interview.
Racial disparities in school discipline may exist, but other factors such as poverty level, family dynamics, and educational outcomes play a role, too, she said.
As for the Trump administration’s effort to declare the debate over on whether federal law permits the consideration of disparate-impact statistics, Gorman said, “It would be nice if this were put to bed because schools are not benefited by having to deal with this whiplash.”
Looking back to Obama and Biden eras
The 20-page Dear Colleague letter devotes much of its discussion to criticizing Obama- and Biden-era guidance on school discipline. The letter itself doesn’t carry the force of law, but it explains how the Trump administration interprets federal law and will approach enforcement of civil rights laws.
The Obama administration’s 2014 guidance embraced the use of disparate-impact analysis and had the effect of “pressuring school administrators to adopt race-based disciplinary policies or practices without regard to any finding of fault, and without regard to their deleterious effects on school safety and orderliness,” Richey says in the letter.
“The effect was to push schools to ramp down enforcement generally, and especially to ramp it down when disciplining a student of a given race might lead to students of that race being overrepresented in aggregate discipline incidents as compared to students of other races,” Richey said.
The first administration of President Donald Trump rescinded the Obama guidance in 2018.
While the Biden administration did not immediately or fully restore the Obama guidance, Richey asserts that the Biden administration “effectively” reinstated it with a 2023 Dear Colleague letter.
“Again, schools were pressured to collect, analyze, and adjust their disciplinary policies in light of racial disciplinary data,” and “the Biden administration’s actions were met by confusion,” Richey said, and its “flawed understanding of Title VI was issued against a backdrop of increasing violence in schools.”
The letter concludes that “it is race discrimination under Title VI for the school to evaluate the racial outcomes of their discipline policies and to make decisions based on or because of those racial outcomes.”
“By contrast,” the letter continues, “it is not race discrimination when a school adopts a facially neutral discipline policy with mandatory punishments if the school evenhandedly enforces the policy with respect to race and did not adopt the policy because of race.”
