As public school districts continue to navigate the relationship between local policies and federal government policy initiatives, they have a new topic to consider arising out of an April 24, 2025, Executive Order—Reinstating Common Sense School Discipline Policies.
This latest Executive Order focused on K-12 education refers to 2014 guidance from the Department of Education and Department of Justice describing how discipline decisions could create a disparate impact violation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin. A disparate impact arises when a nondiscriminatory policy has a disproportionate and unjustified effect on students of a particular protected status. The Executive Order asserts that the 2014 guidance “effectively required schools to discriminate on the basis of race by imposing discipline based on racial characteristics, rather than on objective behavior alone.”
The Executive Order itself does not have any immediate requirement for school districts, but it is a harbinger of what school districts can expect in the next few months. The Department of Education is directed to issue new guidance within 30 days concerning school discipline obligations as viewed through the lens of the Executive Branch’s priorities. Further, within 120 days the Department of Education, in coordination with other agencies, must issue a report that, among other things, provides “model school discipline policies that promote common sense, protect the safety and educational environment of students, do not promote unlawful discrimination, and are rooted in American values and traditional virtues.”
As with other Executive Orders pertaining to K-12 education, school districts will be in a wait-and-see mode about whether they should consider adjusting any practices. We anticipate the guidance will come in the form of a Dear Colleague Letter or similar “guidance” document without the force of law, but it will represent the Department of Education’s interpretation of the law. State Education Agencies and school districts will have to assess if their discipline policies and philosophies could conflict with the guidance and if they do arguably conflict, what the risks and consequences are if they are not adjusted.
Finally, there are a tremendous number of pending lawsuits across the country challenging whether the Executive Branch has the authority to require practice changes through executive orders, guidance letters, or by threatening to withhold funding. As those cases progress, the resulting decisions may also inform the choices that school districts will have to make when guidance is issued pursuant to the Reinstating Common Sense Executive Order.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
