The U.S. Department of Education on Tuesday instructed schools not to take race into account when developing or applying student discipline policies, saying that using statistics showing disparate outcomes violates federal law unless extraordinary circumstances exist.
Federal guidance shifts on disparate impact
In a Dear Colleague letter released Aug. 18, Kimberly M. Richey, the assistant secretary for civil rights, wrote that prior administrations’ reliance on disparate-impact liability in school discipline was mistaken. The letter asserts that Title VI of the Civil Rights Act of 1964 and the U.S. Constitution prohibit intentional discrimination, not unintentional disparate effects.
“Regrettably, prior administrations have imposed disparate-impact liability in the context of school discipline throughout the United States,” Richey wrote. “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 department said the new letter follows a recent regulatory change that revoked decades of recognition of disparate-impact liability in federally funded programs. The department also linked the guidance to an April 2025 executive order from President Donald Trump directing the Education secretary to develop instructions that schools should not take race into account.
What the guidance says and what it changes
The letter instructs schools that considering data showing racial disparities in suspension or other discipline rates violates federal law. It characterizes earlier administration guidance and informal documents as having “hamstrung” students, parents, teachers and districts by imposing an incorrect legal standard, and it directs schools to stop relying on race-conscious analysis of disciplinary outcomes except in extraordinary circumstances.
The department noted that the new guidance arrives less than a month after it issued a final rule that eliminated regulatory language — some of which dated back more than 60 years — recognizing disparate-impact liability for policies that have a discriminatory effect even without proof of intentional bias.
- It states that schools may not use race as a factor in discipline policies or practices.
- The department rejects disparate-impact liability as a basis for enforcing Title VI in the discipline context.
- The guidance reflects the department’s interpretation of Title VI and the Constitution as prohibiting only intentional discrimination.
Timeline of recent federal actions
| Action | Date |
|---|---|
| Executive order directing guidance not to consider race in schools | April 2025 |
| Education Department final rule removing disparate-impact recognition | Issued less than a month before Aug. 18, 2026 |
| Dear Colleague letter from Assistant Secretary Kimberly M. Richey | Aug. 18, 2026 |
Implications for districts and civil-rights enforcement
The guidance marks a significant departure from the approach taken under previous administrations, which used disparate-impact analysis to challenge disciplinary practices that produced statistically disparate outcomes for students of different races. School systems that have been subject to investigations or agreements based on such analyses could see the legal basis for enforcement altered.
The department framed the change as restoring the original public meaning of Title VI and bringing consistency across administrations. It said the shift ends what it described as a “whipsawing effect” of alternating guidance and rules from different presidents.
The letter does not itself create new criminal or civil penalties; rather, it directs how the department will interpret and enforce federal civil-rights law in federally funded schools going forward. It leaves open the possibility that truly extraordinary circumstances might warrant different treatment, but it sets a high bar for any race-conscious consideration of discipline.
School districts, civil-rights advocates and education lawyers are likely to scrutinize the new guidance for its practical effects on local discipline policies and on the department’s future enforcement actions. The department’s removal of disparate-impact recognition in rulemaking and this accompanying guidance together represent a major recalibration of federal civil-rights oversight in education.
As districts weigh policy revisions, the debate over how to address persistent racial disparities in school discipline is expected to continue in courtrooms, school board meetings and state capitols.
