In what will hopefully be the death knell of an ill-conceived and poorly executed policy, the Office for Civil Rights of the U.S. Department of Education and the U.S. Department of Justice Civil Rights Division recently have warned local and state departments of education that the application of zero tolerance in student discipline policies is a potential basis for a finding of discrimination on the basis of race, color or national origin.

In the face of growing concern about issues of student safety and discipline, zero tolerance became a convenient short hand to describe a set of policies that impose a one-size-fits-all disciplinary policy that denies school administrators any discretion in dealing with certain, serious disciplinary infractions such as the sale of drugs or possession of a weapon on school grounds. These policies, which typically result in mandatory suspension or expulsion of the offending student, deny administrators the ability to consider the unique circumstances of each case and each student and to craft an individualized educational and disciplinary response to such behavior.

What has long been suspected by both educational professionals and experienced attorneys has now been confirmed in the recent “Dear Colleague Letter” to school administrators issued by the Departments of Justice and Education. They advised that recent data shows that “exclusionary discipline is applied disproportionately to children of color and students with disabilities…. Our department’s Civil Rights Data Collection shows that African-American students without disabilities are more than three times as likely as their white peers to be expelled or suspended.”

In his public comments accompanying the release of the Dear Colleague Letter, Attorney General Eric Holder provided a stinging rebuke of the underlying policy itself. “Zero tolerance polices—however well intentioned—make students feel unwelcome in their own schools. They disrupt the learning process. And they can have significant and lasting negative effects on the long-term well-being of our young people—increasing their likelihood of future contact with juvenile and criminal justice systems.”

In a clear and unambiguous reference to the legal implications of zero tolerance policies, the Dear Colleague Letter provides an extensive analysis of the legal framework supporting disparate impact claims as a basis for proving illegal and unconstitutional discrimination based on race, color or national origin. It is now clear that state and local boards of education are on notice that zero tolerance discipline policies, no matter how politically satisfying, are seriously flawed and need to be reexamined. Ironically, because state law mandates that certain categories of misconduct result in suspension or expulsion, local boards of education may face a dilemma: either follow state law and suffer a claim of illegal discrimination or attempt to create beneath the radar responses that offer their administrators more discretion in dealing with student misconduct.

We urge the state Board of Education and the General Assembly to take a leadership role in examining the many troubling and disturbing issues raised in l Holder’s and Education Secretary Arne Duncan’s recent letter. This is not an unfamiliar issue for our elected and judicial leadership. Ill-conceived mandatory minimum sentences and the debacle of the federal sentencing guidelines are all the reminder we need that zero tolerance policies, under whatever guise, are a policy disaster and a prescription for claims for illegal discrimination. •