A groundbreaking analysis published in The Conversation by Markowitz et al. in 2023 reviewed over 3.5 million teacher-written disciplinary comments and found conclusive patterns of racial and gender bias in how educators describe student behavior. Black students, especially boys, were far more likely to be described using emotionally charged and negative language than their White peers. This is not a new concern—but it is newly quantifiable at scale. These findings raise serious legal and civil rights implications, particularly for families navigating public education systems.
This article explores these issues from a legal standpoint, especially focusing on how such bias may constitute unlawful discrimination under federal and New Jersey law. We incorporate recent state-specific guidance from the New Jersey Division on Civil Rights (DCR), contextualize the disparities with New Jersey data, and lay out legal options available to affected students and their families.
National Study Findings: A Quantitative View of Bias
In their study, researchers from the University of Oregon, Michigan State University, and the University of Missouri examined language used in student disciplinary referrals across multiple states. Teachers consistently wrote longer and more detailed reports for Black students, particularly boys, and used language steeped in aggression. Verbs such as “hit,” “shoved,” and “threatened” appeared more frequently in referrals for Black students, whereas White students—especially girls—were described in neutral or sympathetic terms.
Even in cases where the misconduct was similar, the narrative framing diverged starkly. Boys of all racial groups were described using impersonal language, suggesting a psychological distancing by educators. These linguistic patterns do more than reflect personal bias; they shape administrative responses and ultimately determine academic outcomes. They also influence how school officials and third-party actors, including police officers stationed on campuses, interpret and respond to behavior.
Federal Legal Framework: Title VI and OCR Enforcement
At the federal level, Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program receiving federal financial assistance, including public schools. The U.S. Department of Education’s Office for Civil Rights (OCR) enforces this statute. Title VI liability arises under two main legal theories: disparate treatment and disparate impact.
Disparate treatment involves intentional discrimination—treating students differently because of their race. Disparate impact, on the other hand, involves facially neutral policies that result in adverse outcomes for a protected group without sufficient educational justification. Both forms are prohibited, and schools can be held accountable even when they lack discriminatory intent.
OCR has investigated numerous cases involving disproportionate discipline of minority students. Consent decrees often require school districts to revise their disciplinary procedures, provide implicit bias training, and collect disaggregated data on student discipline. These remedies aim to root out structural inequities that may not be visible without close examination.
New Jersey’s Leadership in Civil Rights Enforcement
New Jersey has been at the forefront of addressing discriminatory discipline through state law. The New Jersey Law Against Discrimination (LAD) prohibits discrimination on the basis of race, gender, disability, sexual orientation, and other protected categories. In August 2023, the New Jersey Division on Civil Rights (DCR) released an authoritative document, Guidance on Discrimination in School Discipline, offering detailed analysis of how the LAD applies to school policies and practices.
The guidance makes clear that differential treatment—whether deliberate or unconscious—can constitute a LAD violation. The same applies to policies that disproportionately harm protected student groups, unless those policies serve a substantial, nondiscriminatory interest and no less harmful alternatives exist. Importantly, schools cannot rely on intent alone to defend their actions; the focus is on outcomes and impact.
The DCR also emphasizes that these protections extend beyond administrators. Teachers, school resource officers, hall monitors, and even contracted staff who are empowered to discipline students must comply with LAD standards. Discrimination at any level of the disciplinary process—from classroom management to suspensions—is subject to review.
New Jersey’s own discipline data mirrors the concerns highlighted in the national study. According to the DCR’s findings, Black students in the state are suspended at over three times the rate of their White peers. The disparities are even more pronounced for Black girls, who constitute nearly half of all female out-of-school suspensions but make up less than seven percent of enrolled female students. Additionally, students with disabilities face disciplinary action 1.7 times more often than their non-disabled peers. In early education, Black children in pre-K through second grade represent over 40 percent of suspensions, despite comprising only 15 percent of enrollment (NJ AG’s Guidance, 2023).
These statistics are not merely alarming—they are legally actionable. The LAD empowers both state regulators and private plaintiffs to demand accountability.
Legal Remedies for Families and Students
Families whose children have been subjected to biased or disproportionate discipline have multiple avenues for redress. They may file an administrative complaint with either the federal Office for Civil Rights (OCR) or the New Jersey Division on Civil Rights (DCR), generally within 180 days of the incident. These agencies can investigate, mediate, and enforce corrective measures.
Alternatively, families may pursue a private lawsuit under the LAD within two years of the alleged violation. Such lawsuits can result in court orders mandating policy changes, monetary damages, and reimbursement of attorneys’ fees. Importantly, claims under the LAD do not require a showing of intent. If a policy or practice disproportionately harms a protected group, it may be unlawful—even if everyone was treated “the same.”
Legal counsel can be instrumental in navigating these avenues. An attorney can help families obtain and analyze disciplinary records, identify patterns of discriminatory treatment, and select the most effective legal strategy. They can also assist in negotiating settlements or litigating claims where necessary.
Solutions for Schools: Legal Compliance and Best Practices
For schools and districts, the legal risks are clear—but so are the solutions. First, schools must commit to reviewing and revising all disciplinary policies through an equity lens. Language that penalizes subjective infractions such as “insubordination” or “disrespect” must be carefully evaluated, especially when these terms are disproportionately applied to students of color.
Training is another essential component. Staff must receive ongoing education on the LAD, Title VI, and implicit bias. One-off workshops are insufficient. Training should be continuous, interactive, and responsive to local data.
Disaggregated data monitoring is also critical. Schools must collect, analyze, and publish discipline data broken down by race, gender, disability status, and other protected characteristics. Disparities should trigger internal reviews and corrective action.
Finally, schools should consider adopting restorative justice models, trauma-informed teaching, and other practices that prioritize connection over punishment. These alternatives have been shown to reduce suspensions and improve academic outcomes without compromising school safety.
Conclusion
The findings of the national study and New Jersey’s own disciplinary data make one fact painfully clear: racial and gender biases continue to shape the educational experiences of our children, particularly when it comes to discipline. Legal frameworks like Title VI and the LAD are powerful tools for redress, but their true power lies in prevention.
Families should not have to file lawsuits to ensure their children are treated fairly. Schools must take proactive steps to examine their policies, train their staff, and rebuild trust with communities of color. When they fail to do so, the law stands ready—not only as a shield for the vulnerable but as a lever for systemic change.
If you believe your child has been unfairly disciplined in a New Jersey school, legal options are available. Our firm is committed to helping families understand their rights and pursue justice where necessary. Contact us today for a confidential consultation.
Sources:
- Markowitz, D. M., McIntosh, K., Santiago-Rosario, M. R., & Kittelman, A. (2023), The Conversation
- New Jersey Division on Civil Rights. (2023). Guidance on Discrimination in School Discipline
- U.S. Department of Education, Office for Civil Rights. Civil Rights Data Collection
- Kirwan Institute. (2014). Implicit Racial Bias and School Discipline Disparities