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Race Prohibited from Consideration in Student Discipline

On August 18, 2026, the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued guidance on student discipline and compliance with Title VI. Specifically, this guidance addressed the use of race in student discipline and specifically prohibited it. The Dear Colleague Letter can be found here.

Previously, race was considered in student discipline in the context of disparate impact, meaning that a district’s practices were examined to ensure there was not a disproportionate number of students of a particular race disciplined by the district. As a result, districts kept student discipline records that reflected the race of students and the proportionality of those races within the broader student population. OCR found that student discipline decisions were at times made on the basis of race, i.e., districts did not discipline students for fear of having to report that there was a statistical anomaly among different race populations.

In its August 18, 2026 Guidance, OCR stated that such a practice violates Title VI of the Civil Rights Act because it results in disciplinary decisions based on race, despite the Constitution and existing law expressly prohibiting decision-making based on race “absent extraordinarily rare circumstances.” Thus, per OCR’s latest guidance “the use or consideration of race in student discipline is illegal unless the school surmounts strict scrutiny, which occurs only in truly extraordinary circumstances.”

What does this mean for you as an administrator?

It means that race can no longer factor into any student discipline decision. All students must be treated equally with respect to discipline and districts can no longer forego discipline on the basis that there is an overrepresentation of a population receiving discipline. According to OCR’s Guidance, “a school discriminates based on race when it decides to forego, reduce, or increase discipline because of the student’s race. Similarly, a school discriminates based on race when it foregoes, reduces, or increases a student’s discipline to ensure that the discipline matches that of another student simply because that other student is of a different race. Such race-based or race-conscious decision-making, like racial quotas and racial balancing, constitutes race discrimination.” Thus, discipline can neither be increased nor decreased on the basis of race, nor should considerations regarding the statistics of students disciplined increase or decrease another student’s discipline. Effectively, student discipline must be meted out based on the behavior and relevant disciplinary factors excluding race, and collective statistics regarding race may no longer be factored into any student’s disciplinary consequences.