 Hello, my name is Professor Vanille Urando at the University of Dayton School of Law. I'm Professor Emeritus there and I'm going to do a mini lecture on whether or not the out-of-school suspensions of Dayton of black children are lawful. I have been working on this issue of the school-to-prison pipeline by focusing on one of the early points in the pipeline that is the suspension of children from school, the out-of-school suspension of children from school. I mostly place my focus on working to educate the community and also on working to get the moratorium both at the state and federal level on zero tolerance policy and on out-of-school suspensions. However, recently I was asked by the NAACP legal affairs committee to give a small lecture for their group and to focus on the legal aspect and being a lawyer, I readily agreed. And so this lecture is a focus on whether or not the suspensions are legal, in my opinion. As a lawyer, you have to start the discussion of whether something is legal or not, always discuss with what law are you talking about. Are you talking about the State Civil Rights Act? Are you talking about Title VI of the Civil Rights Act of 1964? You have to be specific about the law that you're using because in order to determine whether or not something is legal, you have to know what the elements are that must be proven or disproven. In this case, I'm going to use the Title VI of the Civil Rights Act of 1964. That act made discrimination based on race by any organization that received federal funds illegal. In generally, the law makes intentional acts illegal by interpretation. The law itself doesn't limit itself to intentional acts, but the court has limited to intentional lack. By regulation, the courts have, excuse me, the law has been included to cover what's called disparate impact. Disparate impact are those things that are not intentionally done, but have a racially discriminatory effect. One of the problems with this law is that this aspect of the law is that courts have held that individuals cannot sue for disparate impact. All they can do is file a complaint with an agency. However, the federal government has indicated through their guidance that they put out that they would entertain complaints to them about disparate impact or indiscipline. So there's a window of opportunity right now. The window of opportunity is we have a federal agency who is interested in the discriminatory impact of disciplinary policies. So the elements, sort of like I would teach this class, they're basically four elements and elements can be broken up and you could say three in terms of how you break them up. So is there a method of discipline that is racially neutral on its face? Does that method of discipline in terms of its implementation have a discriminatory effect? If so, you at that point, it may be found unlawful if there is not a sufficient justification for doing it. One justification would be that it's educationally necessary. Even if that it's shown to be educational necessary, it can still be unlawful if they're equally effective and less discriminatory alternatives available. Now this most of this lecture is based on a wonderful article done by Daniel Lawson, Discipline Policies, Successful Schools, Racial Justice and the Law. The article is on my website racism.org. I highly encourage you to go to that article and read it. So the first step, is there a discriminatory effect? The racial neutral policy that we are looking at is out of school suspensions. If you look at code of conducts, if you look at what is written on their face, they're racially neutral. I am going to use Dayton, Ohio statistics because I am heavily involved in a Dayton, Ohio campaign to get things changed. But it should be known that Dayton statistics are not the worst. And that's a good thing to because if they're not the worst, think about you can think about how bad is it getting. Dayton is probably in the middle of the pack of urban schools in Ohio. It's probably in the middle of the pack for charter schools. There are both public schools and charter schools that have worse statistics. But nevertheless, Dayton provides us a good opportunity to take a look at this. So the thing right now, we're just looking, is there a discriminatory effect? That is intentionally or not black kids being treated differently than other kids in the implementation of this suspension, out of school suspensions. Now these numbers are rate per 100 kids. This rate allows you to compare different population sizes. So for instance, 65% of Dayton's population is black. So if you just compared occurrences, you would expect more occurrences in Dayton. However, what a rate does is translate makes a unit number that can be compared. And so no matter what the size of population, if there's not something else going on, you would be expecting about the same rate per 100 in different population size. And you don't see that with Dayton. Black students have a rate of 60.6 per 100. And Asian students, which have the lowest is have 8.3. That is black students are 7.3 times, has 7.3 times more suspensions per 100. Now this is not the percent of students that get suspended. I don't have that number because it's not available on the on the data that I use. We use 2012-2013 discipline reports, Ohio Advanced Report Data, and they don't release the percent of students. And the percent of students would tell you the actual risk that a particular student has to get to getting suspended because it tells you the number of students that get at least one suspension. Nevertheless, the number of suspensions per 100 students tells us that there is a racial disparity here. We see that black boys are 5.1 times more suspensions per 100 students. And surprisingly, while the number of suspensions per 100 students are lower than black boys, you see here 43 per 100 students for black girls, 77.2 per 100 students for black boys. The rate, the black girls are 43 times more, excuse me, have 43 times more suspensions per 100 students. And so they are actually at a greater risk. They have greater suspensions as compared to their gender group. So both black girls and black boys have racially disparate discriminatory suspensions. So now I know what someone's going to say because I hear it in their head. Well, isn't that about economics? Isn't it that they're more poor blacks and poor blacks come from an environment that makes them higher at risk behavior wise? And so consequently, that would explain. Lucky for us, the Ohio actually collects economic disadvantage data, and we can compare that. And what we see is, yes, blacks who are economic disadvantage have a higher out of school suspension rate than anyone else. Anyone else. And so does multiracial children. But here's the surprise. Blacks who are not economically disadvantaged, hear what I'm saying? Blacks and multiracial kids who are not economically disadvantaged have a higher rate of suspension than everyone but the blacks who are economically disadvantaged. They have a higher rate of suspension than whites who are economic disadvantaged, and they have a higher rate of suspension, a much higher rate of suspension, doing whites who are not economically disadvantaged. In fact, blacks who are not economically disadvantaged have twice as many out of school suspensions than whites who are not economically disadvantaged. And they have a significantly difference than whites who are economically disadvantaged. So while economics makes a difference, race also makes a difference. And so the racial disparity continues to exist even in the face of economic disadvantage. Another issue that I think you should take a look at is what's happening to disabled kids. Because that's another area of law that we're not going to look at. There's all kinds of disability law that controls what can happen with disabled kids. And what we see is black disabled kids are at a greater risk. Black disabled kindergartners are 39.1 times more, excuse me, have 30 times point one times more suspensions. And it goes on. So one question you need to ask yourself if you're talking about wanting to look at the law is, is your school's system adequately protecting the rights of disabled black children? But we're not going to look at disability law now. So what we've essentially established that there's a discriminatory effect that happens in terms of how a date in public school is implementing its out of school suspension policy. And I suspect that you'll find that in almost every school, the data supports that. One of the things it's in, I have found it's important to get into the specific data and not use national data. Now, Ohio is one of the places that provides a lot of data on its website, Ohio Education Department of Education. Some districts don't provide that information. So this disparate disciplinary action, this discrimination, discriminatory effects could be unlawful if they are not, if they are not educational and necessary, a sufficient justification. What would be the sufficient justification that is educational necessary and no one would argue with that, that if in fact, and not just education for that individual child education for the school district to be able to provide an educational environment, then you would say, okay, this is what happens. It would be educationally necessary if in fact, black students were behaved, worse behaved. And so that the reason why there are more out of school suspensions for black students is not because they are applying the policy in a discriminatory way, but because black students are in fact behaving worse. Now, the data says that that's not the problem, that when you control for severity of illness, excuse me, thinking back to my other hat, which is healthcare, when you control for severity of behavior, what you find is that black kids are disciplined more harshly for the same behavior, that the difference in suspension rates is really housed in the philosophy of the principle and the administrators, because those are the two people that have a check on what the teacher does. And so that you can get some schools like in our, we have one school school in our area, Westwood, that in 2012 had 88 suspensions per 100 kids, and we had another school, Louise Troy, who had 11 suspensions per 100 kids. Those schools are on the same side of town, serve the same population group. And so the behavior can't be explained by that, but can be explained by what the principal is doing and what the school district is doing. And in fact, I think that holds true in Dayton, because when we talked with different people in the administration, we were told that principals were given a lot of leadway in how they implemented the code of conduct. But I think there's other data that in Dayton, at least that supports the idea that black kids are being disciplined more harshly for the same behavior. When we looked at discipline in 2012 by the types of behavior that was being disciplined, we found the most amazing information, disturbing information. This chart shows the grade level and the discipline category in which there were only black kids suspended. That is no Asian, no white, no Hispanic, no multiracial, only black kids suspended. You can see that fighting and violence, only black kids in the first, second, and third grade. The one that I found that most disturbing for me is harassment and intimidation, because it seems to be a label that's being put only on black kids. Every grade level except second and seventh grade. And second grade had no suspensions in that grade level. Seventh grade had some suspensions of white kids in that level. But every grade, every other grade level up to 10th grade, black kids are the only kids being suspended for harassment and intimidation. Now, I'm thinking back to when I grew up, and I grew up in the 40s and the 50s. And I remember my foster mother saying to me in the 60s, I remember my foster mother, my foster mother who was college educated but worked clean houses. And that wasn't unusual because many blacks, most blacks who got a college education found that there were no jobs at that time, which is working hard, but not no jobs for the college educated. So she cleaned house. And she would come home and she would constantly say to us, white kids don't do this. White kids don't run in the house. White kids don't leave vegetables on their plate. White kids don't shout. Whatever behavior she didn't like in us, it was white kids don't. White kids don't do that. And you would begin to believe that white kids were perfect. And based on this data, you would begin to believe that black kids are horrible because they're the only ones doing the fighting and the violence, the harassment and the intimidation, the use of drugs, the use of tobacco. And I just don't believe that. I believe that this supports what other research has shown, that black kids are being engaged in the same behavior that other kids are engaged in, but they are being disciplined more harshly and more frequently for that behavior and other disciplined methods than out-of-school suspension is being used for the other students. So it is not educational necessary because black kids are behaving more in a way that requires it. I want to go back just a second. The other educational necessary is preschool to third grade suspension should be educationally unnecessary, even if black kids were behaving more, were worse behaved, because all of the developmental sciences say that that suspending preschool to third grade is developmentally inappropriate. So, and as we can see, blacks have significant more suspensions in those grade levels than whites. So what are some of the other reasons that are used to justify say that it's educationally necessary? One justification is getting the parents' attention and active involvement. Certainly that would be the ideal. If suspensions heighten the parental awareness of what's going on and got them more actively involved, that certainly would be a reason to say that they were educationally necessary. But the reality is that the behavior often can be a signal that there's something going on at home that is at the root of the problems, especially for the very young children. And so suspending them to home doesn't provide any assurances that parents are going to have any heightened awareness. And in fact, the problem becomes that parents, many parents of every educational economic background are so overextended that a suspended child only becomes a stressor. It doesn't become something that really, that they can engage in. They don't take off of work to be with that child. They put that child in daycare. Or worse, they have a older sibling stay home from school. Or they, in fact, the child stays home alone. So it may not be effective. And if getting attention is one of the things we want to do, there's certainly less extreme approaches than out of school suspension to get parents' attention. Certainly not an educational necessity for the child, because if in fact the home is a stressor, then suspension becomes just another stressor. So out of school suspension is an ineffective way of getting parents' attention and active involvement. The other reason that is often provided is to provide a deterrence for other students and to deter future behavior. So if that's in fact what happens, if we want to deter future behavior, what you would expect to see is that the behavior, the child would come back from detention with improved behavior. And what you see is that there's no evidence that those children actually change their behavior. There's no evidence that it does anything to improve safety, which is another issue. The people give to ensure safety of the children. And so children come back to school and they actually get more suspensions. And it may be that one of the reasons that occurs is because if some children, especially children who are left home alone and children who are left home with an older sibling may find that preferable to be in the school and dealing with the school environment. And there's no research evidence that suspending one child defers another child from the behavior. In fact, one of the, one issue that people constantly raise up is safety of children and staff. And that might be a good reason, and that might, it would be a good reason if in fact children came back with such a changed behavior. So if you've got a child that bites, you've got a child, a child of kids. If you have a child that throws temper tantrums and throws things. If you suspend them and when they come back, they no longer do those things. That would definitely be a point of ensuring safety of children and staff. But those children come back with those same behaviors. And so the out of school suspensions is ineffective for ensuring safety of children and staff because the only thing that's going to ensure safety in children and staff is to make changes in that child behavior. And in the school is the place where that can occur. Finally, along with that goes ensuring that is conductive to teaching. And it's true that some students need to be taken out of the classroom because of the disruptiveness of their behavior. But that doesn't mean that need to be suspended from school. There are alternatives that would allow the classroom to continue and move forward while the child to receive help, other additional help. Plus there's research that shows that putting a different, the same student in different classrooms tend to decrease the disruptions. Because to some extent the skill of the teacher is an issue as to how disruptive a child's behavior is. As engagement goes up, as teaching engagement goes up, classroom disruptive behavior goes down. So to the extent that a teacher or a class or a school is having a significant problem with disruptive behavior, the question might be, are those, are they really engaging the students in a way that needs to be engaged? So you can see from my discussion that I don't believe that out of school suspensions can be justified as an educational necessity. And without that justification, anywhere there's a discriminatory effect, they would be unlawful. But even if justified, a school district may still legally need to change if there's a less discriminatory alternative. And so the question is, are there less discriminatory alternatives? And the answer is yes. Start with the fact that out of school suspensions are ineffective for changing behavior and that they are educationally harmful. When you start there, then you have to look, okay, what alternatives that are more effective in changing behavior and less educationally harmful? And we have system-wide positive behavior interventions and support. We have restorative justice, peer mediation, an early childhood intervention and referral team, and support and training for teachers, including classroom management, cultural incompetent teaching, and bias-free discipline. One or all of those in combination can, are better alternatives to suspension, to out of school suspension. I want to talk a minute, I'm not going to go into detail because there's plenty of information on the internet and I wanted to keep this kind of short. It's already at 40 minutes, but I wanted to talk about the difference between culture incompetent teaching and bias-free discipline because there is a difference. But implicit bias, you can have implicit bias in the way you judge people and still do culturally competent teaching. Culturally competent teaching is about integrating differences about culture and recognizing differences in cultural needs and integrating it into your teaching. Even a culturally competent teacher can have implicit biases that have them look negatively or positively. For instance, 80 percent of whites have a pro-white bias so that when they look at whites, they judge whites' behavior in a much positive way than when they look at non-whites. By the same token, just hiring blacks of people of color won't get you a bias-free discipline because 30 to 40 percent of blacks have a pro-white bias. Bias, to get rid of bias-free discipline, they will have to implement alternatives and training that actually deals with bias and not just with cultural competency. And just getting rid of suspensions won't get rid of bias-free discipline. Whatever is implemented, I think Cincinnati is evidence of that. Cincinnati has one of the lowest suspension rates in the state, 2.9 or something per 100. And yet when you look at their other disciplinary methods, they continue to have a discriminatory effect in their other disciplines. And that's because they continue to have bias discipline. You have to actually work on getting rid of bias-free discipline and not just to get rid of the discriminatory effect in other discipline-marry methods. And the question you might ask is, why then focus on out-of-school suspensions at all? And that's because out-of-school suspensions are harmful in a way that other disciplinary methods are not. Out-of-school suspensions more than peer media is the leading indication of academic difficulty, which of course that makes perfect sense. If you're suspending a child, even for one day, they're missing that lesson for that day. And if they have repeated the suspension, then it's all accumulative. And at some point it accumulates enough where they drop out of school and eventually the future incarceration. So this is how it all connects to the school-to-prison pipeline. So under Title VI, Civil Rights Act of Nineteenth, SKU's 64 Disparate Impact Theory, does the practice of out-of-school suspensions have a discriminatory effect? The answer for Dayton is yes. You would have to look at the data in your school district to be able to answer that question. If you answer no to that question, then the rest of the questions are irrelevant. Stop. You can't go anywhere with it. Once you answer yes, the question is the practice educational necessity. I believe the answer to that question is no. But even if the answer is yes, there's still the question, is there equally effective, less discriminatory alternatives? Now, let me go back to the second question. If the practice is not educational necessary, then it doesn't matter whether there are equally effective, less discriminatory alternatives. If the practice is not educational necessary, then the practice should stop, period. Doesn't matter what alternatives there are. The only time when the issue of alternatives come into play is if you say that the practice is educationally necessary. In that point, you ask the question, well, are there equally effective, less discriminatory alternatives? Since the answer to that question is yes, there are equally effective, less discriminatory alternatives available. So any school district who has this array of answers to these questions should be looking at making changes. Part of the problem is that oftentimes school districts are not proactive in wanting to do this. And it often takes an actual legal suit or complaint to the Department of Education. Because remember what I told you at the very beginning, the way the law is set up now, you cannot file a lawsuit under this theory. All you can do is file a complaint with the Department of Education. So you should consider whether or not it's in your strategy to file a complaint. Do you think things are so bad? Is the school board and our school district so nonresponsive to this issue that you think that only a complaint with the Department of Education? I would encourage you to not sit too long on that in terms of whether you think that is an issue. Because we have a friendly Department of Justice now. In two years, we may have another administration. Well, we definitely will have another administration. It won't be the Obama administration. And that means whether it's Democrat or Republican, that they may have different priorities. Right now, this is a priority for the Obama administration. So it may be something that you will want to actively consider. Activists working on eliminating school pushouts should use the Despair Impact Standard of Law Review as grounds for surimities for the unjust and unnecessary removal of Black children from school. Please take a look at Daniel Lawson's article. I think you'll find it very detailed and very informative. Thank you.