Dear Betsy DeVos, Don't Bring Back Discrimination in School Discipline


Repealing Obama-era disciplinary guidance won’t make schools safer, just more unequal

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Following the Marjory Stoneman Douglas High School mass shooting, courageous and inspiring students around the country are demanding action, refusing to believe that we can do nothing to stem America’s gun violence epidemic. In stark contrast, U.S. Secretary of Education Betsy DeVos has responded with plans to chair a new task force on school safety that will, among other things, consider the wholly nonresponsive goal of repealing Obama-era discipline guidance.

The departments of Justice and Education, whose civil rights units we had the privilege to lead during the Obama administration, crafted the 2014 guidance documents that are now under attack. Intended to help schools serve students more effectively, the guidance explains long-standing federal law prohibiting racial discrimination in school discipline and concretely outlines how schools can satisfy this law while maintaining classroom peace. The guidance makes clear to school administrators and communities what the law is and how to apply it to treat all students fairly. In addition, the guidance provides practical resources to reduce disparities in exclusionary discipline and improve school climate, including a 50-state compendium of laws related to school discipline. A best practices document highlights alternatives to out-of-school disciplinary techniques that work to maintain classroom peace. The goal was simply to ensure that all children have a chance to learn and thrive.

The reality is, many American schools have a problem: separate and unequal discipline practices that discriminate on the basis of race. We know from careful investigations we oversaw at the departments of Justice and Education that children of color and those with disabilities often receive harsher disciplinary interventions than their white and nondisabled counterparts—for the same offenses. In one investigation, school staff could not identify nondiscriminatory reasons for racially different disciplinary treatment of students in more than a quarter of the files investigated.

"Repealing the guidance would signal to everyone that the federal government is willing to overlook the reality of discrimination against children of color and students with disabilities."

In another investigation, a black kindergartner received a five-day out-of-school suspension for pulling a fire alarm when a 9th grade white student received a one-day out-of-school suspension for the same offense. In still another example, a black student with no prior disciplinary history received a one-day out-of-school suspension for smoking tobacco whereas a white student who had been disciplined for smoking twice before received only detention for the third smoking offense. In essence, these children of color pay a discipline tariff based simply on their identity. This is illegal. And wrong.

And data that schools have reported to the federal Civil Rights Data Collection suggest that these discriminatory practices may be widespread in classrooms and schools across the country: School officials suspend and expel black children at a rate three times higher than white children and are twice as likely to suspend and expel children with disabilities than nondisabled children. In addition, schools suspend black girls at a rate 5.5 times higher than the rate at which they suspend white girls. For Native American girls, the suspension rate is three times the rate of their white counterparts. While not proof of discrimination, these numbers present compelling reasons to investigate whether discrimination exists and, if so, how to correct it. The 2014 guidance currently under threat of repeal by Secretary DeVos was issued to address precisely these disparities.

Rescinding the guidance would not result in safer, nurturing schools. It would remove a crucial tool from educators’ toolbox, giving them no direction about how to address classroom situations and leaving students vulnerable to racial discrimination that has plagued American schools since the very first school desegregation agreements that the civil rights offices of both the Department of Justice and the Department of Education were created to secure and enforce.

The disciplinary guidance—and educators’ diligence and commitment in using and applying it—has sparked important changes in school experiences for students across the nation. Repealing the guidance would stall that progress in many places, leaving more students of color and those with disabilities vulnerable to being needlessly thrown out of school. It would communicate an ugly message to them that their schools are not prepared for them and do not believe in their potential for success. In addition, repealing the guidance would signal to everyone that the federal government is willing to overlook the reality of discrimination against children of color and students with disabilities. That is the wrong message.

Every student deserves to attend a safe, high-quality school where students, teachers, and staff are treated with dignity and respect. Students also deserve to learn in an environment without fear of either overpolicing or mass shootings. And the law makes clear that students have the right to attend schools without fear that their race will dictate the severity of discipline school administrators mete out.

As has happened throughout our history, young people are leading the way. While pushing for consequential solutions to gun violence, students are marching in the streets, the halls of Congress, and state capitals, urging our leaders to take meaningful action to stop the school shooting epidemic taking their peers’ lives. If Secretary DeVos has her way, these students will return to schools with fewer constitutional protections and more discrimination. We owe it to our nation to prevent that.

Vol. 37, Issue 26, Page 22

Published in Print: April 11, 2018, as School Safety Shouldn’t Come at the Cost of Justice
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