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VI. Disproportionate impact in other jurisdictions

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A. United States

The Harvard Civil Rights Project Report

The most comprehensive national report on zero tolerance and disciplinary policies in the U.S. education system, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies, was co-written by the Advancement Project and the Civil Rights Project at Harvard University and published in 2000.[90] One of the main areas that the report looked at was the disproportionate impact that zero tolerance policies have on racial minority children and children with disabilities.

Several decades of research and analysis of such data have shown that students of colour are disproportionately impacted by school discipline policies.[91] Two recent studies are discussed. In 1998, the Department of Education found that African American students represent 32% of out-of-school suspensions, even though they represent only 17% of public school enrollment nationally. By contrast White students, who represent 63% of enrollment, represented only 50% of suspensions and 50% of expulsions. A 1999 study by the Applied Research Center also showed that Black children, particularly males, are disciplined more often and severely than any other minority group.[92] The report also found that zero tolerance policies are having a “profound” impact on children with special needs, although the 1997 amendments to the Individuals with Disabilities Education Act provide protection for them.[93]

The report is critical of the Office for Civil Rights (OCR) of the U.S. Department of Education for its failure to consistently apply the adverse impact doctrine in processing school discipline complaints and initiate investigations without waiting for complaints. The known cases suggest that the OCR tends to apply the intentional discrimination standard. However, in one case where the OCR found that Latino and African American students were being disproportionately impacted by the application of discipline, it did apparently apply the adverse impact doctrine, after failing to find proof of intentional discrimination. It then negotiated with the school district to implement positive strategies such as conflict resolution, peer counselling, workshops on race issues, and training for administrative staff on racial stereotyping, profiling and communication styles. This led to a sharp drop in the racial disparities.[94]

The report also cites evidence to make the following points about the application of zero tolerance policies in discipline matters:

  • It conflicts with the healthy developmental needs of children, particularly students at-risk, whose problems tend to be exacerbated rather than remedied.[95]
  • There are long-term detrimental consequences for the child, including loss of educational opportunities and an increased risk of dropping out, engaging in conduct that affects the safety of their families and communities, and incarceration.[96]
  • There is a need for high quality alternative education programs whose standards and resources match those of regular schools.[97]
  • There is an increased criminalization of children, often for conduct that does not threaten the safety of others.[98]
  • It has not reduced violence or increased safety in schools.[99]
  • Some schools are defying the status quo by creating a safe environment with a low number of disciplinary referrals. Common features of these schools include a positive, more inclusive model of discipline; training teachers on positive classroom management techniques and the root causes of misbehaviour; promotion of a school-wide Code of Conduct; a focus on prevention and strategies for addressing crises; the application of sanctions on a case-by-case basis; and the implementation of programs such as peer courts, conflict resolution, early intervention, mentoring, mediation, and character education.[100]

The Individuals with Disabilities Education Act

The federal Individuals with Disabilities Education Act[101] is viewed by many in the United States as a sound legal framework for accommodating students with disabilities within the school system, including in the application of discipline.[102] The purpose of the Act is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services to meet their unique needs....” [Emphasis added] The provisions on discipline in the Act flow from this principle.[103]

First, a child with a disability who is removed from school must still have access to educational services. As such, the rule is that a child with a disability who is suspended or otherwise removed from a school for more than 10 days must be accommodated within an appropriate interim alternative educational setting.

Second, a child with a disability cannot be removed from a regular school placement indefinitely. As such, there are caps, even for the most serious infractions. A child with a disability who is subject to discipline by school personnel for carrying a weapon to school or knowingly possessing or using illegal drugs or selling a controlled substance may be removed from the school, but for no more than 45 days. A hearing officer may also order that a child with a disability be removed from school if there is substantial evidence that the child is substantially likely to injure him or herself or others and reasonable efforts have been made to minimize the risk of harm in the child’s current placement, but for no more than 45 days.

Third, a child whose behaviour was a manifestation of disability must be accommodated. Any disciplinary action which involves changing the placement of a student with a disability for more than 10 days is subject to a manifestation determination review of the relationship between the child’s disability and the behaviour subject to the discipline action. The Individual Education Plan (IEP) team who conducts the review can only find that the behaviour was not a manifestation of disability if:

  1. the child’s IEP and placement were appropriate and the special education services, supplementary aids and services, and behaviour intervention strategies were provided consistent with the child’s IEP and placement (that is, there was no failure to accommodate the child);
  2. the child’s disability did not impair the ability of the child to understand the impact and consequences of the behaviour; and
  3. the child’s disability did not impair the ability of the child to control the behaviour.

If the review determines that the child’s behaviour was not a manifestation of disability, then the relevant disciplinary procedures will apply to the child in the same way they would be applied to a child without a disability, except that the child with a disability must be accommodated in an alternative educational setting for any suspension or other removal from the school for longer than 10 days.[104]

Finally, the Act requires States and the Secretary of Interior to collect statistics to determine if significant disproportionality based on race is occurring with respect to placement in particular educational settings, and to review and, if appropriate, revise policies, procedures and practices.[105] This would cover the placement of Black and other racial minority students with disabilities in alternative educational settings following the application of disciplinary procedures.

B. United Kingdom

There is also evidence in the United Kingdom that Black students, particularly of Caribbean origin, are disproportionately impacted by the application of discipline in schools. Figures from schools in England in 1997-98 showed that Black Caribbean students comprised 6.2% of students permanently excluded from school, but only represented 1.5% of the school population (the ratios for Black African boys and Black Other boys were 1.6:1.0% and 2.3:0.7%, respectively). By contrast, White students constituted 83.9% of students permanently excluded from school, but made up 88.6% of the student population. Not all racial minority students were disproportionately impacted by permanent exclusions. Asian students (Indian, Pakistani, Bangladeshi and Chinese), like White students, were subject to a lower number of permanent exclusions relative to their proportion of representation in the student population.[106] Data from schools in England and Wales in 1994-95 was similar.[107]

C. Nova Scotia

Collection of Race Statistics and Rejection of Zero Tolerance

Nova Scotia seems to be the only province in Canada where there has been some collection and analysis of school board statistics on race and the application of discipline. The Black Learners Advisory Committee was able to access data from the Halifax Regional School Board from 1987 to 1992, which showed that Black students were being disproportionately impacted by the application of suspensions. Although Black students represented only eight percent of the student population, they accounted for sixteen to twenty percent of suspensions.[108]

Nova Scotia has also recently gone through a process of considering and rejecting the adoption of a zero tolerance policy in the education system. As in Ontario, the Progressive Conservative Party platform promised a “zero tolerance policy for violent behaviour and drugs” in schools in the lead-up to the 1999 provincial election.[109] In contrast to Ontario, however, the government ultimately decided not to adopt a zero tolerance approach to discipline in schools.

Shortly after forming a government, a School Conduct Committee, which represented a broad range of stakeholders in the education field, was set up with a mandate to develop a Code of Conduct for review and adoption by the Minister of Education. Part of that mandate included identifying zero tolerance guidelines. The Committee reviewed zero tolerance policies in jurisdictions across North America and decided to recommend that a zero tolerance policy not be adopted for use in Nova Scotia. The Committee reasoned that the concept of zero tolerance fails to meet the principles of consistency and fairness, which are necessary for a discipline policy to be effective through its acceptance by stakeholders. In regards to fairness, the Committee was specifically concerned that zero tolerance policies affected a “disproportionate number of poor, minority and special needs students.”[110] The recommendation was accepted by the government.[111]

The Department of Education is also planning to implement a province-wide system of data collection of behaviour infractions and related consequences in the 2003-04 school year, which may include differentiation on the basis of race and special needs.[112]

[90] The Advancement Project and the Civil Rights Project, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies (Boston: Harvard University, 2000). Appendix I, Tab 29.
[91] Ibid. Examples of studies can be found in footnote 21 of the report: Children’s Defense Fund, “School Suspensions: Are They Helping Children?,” Cambridge, MA: Washington Research Project (1975); Clarence H. Thornton and William T. Trent, “School Desegregation and Suspension in East Baton Rouge Parish: A Preliminary Report,” 57 Journal of Negro Education 482 (1988); Anna C. McFadden, George E. Marsh II, Barrie Jo Price, and Yunhan Hwang, “A Study of Race and Gender Bias in the Punishment of Handicapped Children,” 24 The Urban Review 239 (1992); Kids First Coalition, “Locked Out: Exposing the Suspension Epidemic in the Oakland Public Schools,” Oakland, CA (June 1999).
[92] Ibid. 7.
[93] Ibid. 8-9.
[94] Ibid. 33-34.
[95] Ibid. 10-11.
[96] Ibid. 11-12.
[97] Ibid. 13.
[98] Ibid. 13-14.
[99] Ibid. 14-15.
[100] Ibid. 24-25.
[101] 20 U.S.C. Sections 1400 et seq. See Appendix I, Tabs 34 and 35.
[102] The Opportunities Suspended report states that the law provides “a plethora of protections for children with special needs that, if fully complied with, would provide extremely valuable safeguards for this group of students.” Supra note 90 at 35.
[103] Supra note 101 at s. 1400(d).
[104] Ibid. at 1415(k).
[105] Ibid. at 1418(c).
[106] L. Appiah, and N. Chunilal, Examining School Exclusions and the Race Factor (London: The Runnymede Trust, 1999), 2. See Appendix I, Tab 39.
[107] Commission for Racial Equality, Exclusion from School and Racial Equality: A Good Practice Guide (London: 1997), 3. See Appendix I, Tab 40.
[108] BLAC Report on Education: Redressing Inequality-Empowering Black Learners, vol. 1 (Halifax: Black Learners Advisory Committee, 1994).
[109] John Hamm’s Plan for Nova Scotia: Strong Leadership... a clear course (Halifax: Nova Scotia Progressive Conservative Party, 1999), 25.
[110] School Code of Conduct Committee, Report on School Conduct Code, December 2000, 1, 9. See Appendix I, Tab 41.
[111] A. Power, Rethinking Zero Tolerance: Beyond the Quick Fix, Paper Presented at the 2nd Annual Human Rights Symposium: Focus on Racial Discrimination, Osgoode Hall Law School Professional Development Program, 23 May 2003 [unpublished], 1. See Appendix I, Tab 42.
[112] Ibid. at 5.

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