School Climate & Safety

Biden Administration Asks Districts to Investigate Their Discipline Disparities

The recommendations stop short of restoring Obama-era guidance
By Evie Blad — June 09, 2023 7 min read
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The Biden administration has opened a new chapter in the years-long debate over racial disparities in school discipline, recently urging schools to ensure their policies are applied fairly and consistently to students in all racial and ethnic groups.

In a May 26 joint letter to education leaders, the U.S. departments of Justice and Education said schools that unfairly discipline students could be found in violation of Title VI the Civil Rights Act of 1964, which prohibits racial discrimination in federally funded programs.

“Discrimination in student discipline forecloses opportunities for students, pushing them out of the classroom and diverting them from a path to success in school and beyond,” said the letter.

The document is less extensive and less forceful than 2014 guidance issued by the Obama administration that drew years of criticism from conservative lawmakers, who argued it led to weak school discipline policies. The Trump administration rescinded that guidance in 2018.

The new resource includes 14 examples of school districts that changed policies and implemented practices like training during the last three presidential administrations after officials in the Education Department’s office for civil rights launched investigations into their disciplinary procedures.

It comes after some conservative state lawmakers in states like Florida, North Carolina, and Texas introduced bills to allow educators to suspend more students for reasons like disruptive behavior. Those proposals are motivated in part by concerns from some educators that student behavior has worsened after the COVID-19 pandemic.

Concern continues about racial disparities

Civil rights and student groups have pushed back against so-called zero tolerance efforts, citing persistent racial disparities in school discipline rates and a need for supportive measures for students. While Black students made up 15.1 percent of students enrolled in public schools in the 2017-18 school year, they made up 38.2 percent of students who were suspended that year, according to the most recent federal data. There are similar disparities in other forms of discipline, including expulsions and school-based arrests.

Civil rights groups gave a mixed reception to the new discipline recommendations. Some, like The Leadership Conference on Civil and Human Rights, praised the document as “critical information.” But others said the document does not go far enough.

“It falls short of addressing all of the ways students experience race discrimination,” said Katherine Dunn, the director of Advancement Project’s Opportunity to Learn program.

Unlike the Obama-era guidance, the Biden administration’s document does not directly address the issue of “disparate impact.” That legal term describes the idea that school discipline policies that disproportionately affect students in one racial or ethnic group might violate federal law—even if those policies are neutral on their face and applied evenhandedly.

Investigators probing disparate-impact claims would determine whether those policies serve an important educational purpose, and whether the school had sufficiently considered alternative forms of discipline, the 2014 document said. It included flow charts and examples to explain the concept.

For example, if Asian American students were disproportionately sent to the principal’s office for tardiness because they predominantly live in a neighborhood with few transportation options, investigators would seek to determine if the punishment—being excluded from the classroom—appropriately addresses the concern of being late to class.

The recent recommendations from the Biden administration encourage districts to explore their disciplinary data to ensure policies are appropriate and fairly applied but don’t explicitly link them to disparate impact.

“Significant disparities by race—beginning as early as preschool—have persisted in the application of student discipline in schools,” the new recommendations said. “While racial disparities in student discipline alone do not violate the law, ensuring compliance with Federal nondiscrimination obligations can involve examining the underlying causes of such disparities.”

The Education Department referred to the new document as recommendations detailing how civil rights laws have been applied in the past. That contrasts with guidance, the term used to describe the 2014 “Dear Colleague” letter that detailed the Obama administration’s interpretation of those laws.

Neither document carries the force of law, but they help school and district administrators understand what could spark a federal investigation into their practices.

Examples of civil rights investigations

In a 2018 agreement, used as an example in the new document, administrators in the Durham, N.C., district agreed to review student data and complete implicit bias training to address concerns that Black students were about six times more likely to be suspended than white students, and were more frequently disciplined for subjective offenses, like “noncompliance.”

Dunn, of the Advancement Project, said her organization had hoped for new federal guidance that more forcefully condemned unfair discipline, called on schools to minimize the use of police, and addressed emerging civil rights concerns, like social media monitoring and the use of artificial intelligence for facial recognition and weapons detection in schools. Some of the strategies the sample districts used to resolve civil rights concerns—like new contracts with school police or professional development for teachers—have not been proven effective, she said.

“To think about this [document] replacing what the Trump administration rescinded, it falls short,” Dunn said.

The federal Education Department began collecting public comment on school discipline policies in June 2021 after Biden issued an executive order on racial equity. The new recommendations will be followed by a series of webinars on discipline, student supports, and school climate work, the agency said. As it released the new resource, it also provided links to previous reports on school climate strategies.

The new document follows dramatic contrasts in how the last two administrations approached civil rights.

The Trump administration rescinded the Obama-era discipline guidance at the recommendation of a school safety commission formed after a 2018 shooting at a Parkland, Fla., high school. Following that tragedy, some survivors’ families and GOP members of Congress pointed fingers at an alternative discipline program created by the Broward County, Fla. district, which includes Parkland, that had Obama administration officials had highlighted as a model. Stricter discipline policies may have given the school more chances to intervene before the gunman, a former student, attacked, they argued.

Civil rights groups called that justification a distraction from needed debates about school safety and supporting vulnerable students and students of color. Surveys of school administrators at the time showed many did not attribute changes in their school discipline policies, like the adoption of restorative justice, to the Obama directive.

A mixed response

The new recommendations were quietly released May 26, the Friday before a holiday weekend. Since then the response from both civil rights groups and conservative political organizations has been relatively muted, especially compared to the previous debate.

“I think it would be challenging for some critics of the Biden administration to explain what is wrong with this,” said Michael Petrilli, president of the right-leaning Thomas B. Fordham Institute.

Petrilli and his conservative colleagues criticized the 2014 guidance as federal overreach because it encouraged alternatives to suspensions and other forms of exclusionary discipline. Some also suggested the directive addressing disparate impact led schools to set quotas or ineffective policies.

Some of those critics still find fault with the Biden document, Petrilli said. But others see it as more nuanced, he said.

“If I’m a school district, I don’t feel as alarmed by this document as I might have in 2014,” Petrilli said. “The worry was always that school districts would feel an enormous amount of pressure to eliminate or hide their discipline disparities. [The Biden administration] didn’t say, ‘If you’ve got discipline disparities, expect a knock on the door.’ ”

Dunn criticized the document for some of the same reasons Petrilli praised it. More forceful and direct language about disparate impact would provide a roadmap for students to file civil rights complaints, she said, motivating districts to take action, she said.

But other civil rights groups praised the resource.

“We applaud the Biden administration for reminding schools and districts of their ongoing obligation to administer school discipline in a way that does not discriminate,” said a statement from Liz King, the senior director of the education equity program at The Leadership Conference.

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