Disparate Impact in School Discipline

What Is “Disparate Impact” and Why Did the Department of Education Rescind It?

The Department of Education recently rescinded guidance that relied on a legal theory known as disparate impact in school discipline.

Although this has made headlines, the debate over disparate impact didn’t begin this year—or even with the Biden administration. It has shaped federal school discipline policy for more than a decade.

Here’s what parents should know.

What Is Disparate Impact?

Disparate impact is the idea that a school policy may be considered discriminatory based on its results, even if the policy applies equally to every student.

For example, imagine a school has a rule that says students who repeatedly disrupt class may be suspended.

The rule applies to every student.

But if one racial group is suspended at higher rates than another, a disparate impact analysis asks whether those statistical differences indicate discrimination—even if there is no evidence that school officials intentionally treated students differently because of race.

How Is That Different from Intentional Discrimination?

Intentional discrimination means treating students differently because of their race.

For example, if two students commit the same offense but receive different punishments because of their race, that would violate federal law.

Disparate impact is different.

Instead of asking whether students were treated differently, it asks whether different racial groups experienced different disciplinary outcomes.

How Did This Become Federal Policy?

2014: Obama Administration

The Obama Departments of Education and Justice issued a Dear Colleague Letter telling schools that they could face federal civil rights investigations if discipline policies resulted in unjustified racial disparities. The guidance encouraged schools to examine disciplinary data and warned that even race-neutral policies could violate Title VI if they had a disparate impact on students of a particular race.

2018: Trump Administration

After the Federal Commission on School Safety reviewed the policy, the Trump administration rescinded the 2014 guidance.

The Commission concluded that the disparate-impact approach was legally questionable and had created a chilling effect on school discipline by discouraging teachers and administrators from enforcing classroom rules.

2021–2023: Biden Administration

The Biden administration began the process of restoring the disparate-impact approach, first by seeking public comment and then issuing a new joint Dear Colleague resource in 2023.

We at Defending Education believe that th e new guidance again encouraged schools to consider racial disparities in discipline data and highlighted federal enforcement actions against districts whose discipline statistics showed racial disparities.

2025: Department Rescinds the Guidance

The Department has now rescinded that guidance, returning to an interpretation that focuses on intentional discrimination rather than statistical disparities alone.

Why Defending Education Opposes Disparate Impact?

Defending Education believes Title VI prohibits intentional racial discrimination, not unequal statistical outcomes by themselves.

Our March 2025 letter argues that schools should discipline students based on their individual conduct—not their race—and that federal law should not pressure schools to make disciplinary decisions in order to achieve racially proportional statistics.

The Central Question

The debate over disparate impact is not whether schools should discriminate. They should not.

The central question is whether schools should be judged primarily by how they treat individual students or by whether discipline statistics are proportional across racial groups.

Defending Education believes Title VI requires schools to treat students equally under the law and that statistical disparities alone should not be treated as proof of unlawful discrimination.