School districts have decisions to make about how—or whether—to change their approach to school discipline, following the Trump administration’s decision last month to repeal Obama-era guidance concerning racial disparities in suspensions and expulsions.
With the end of the guidance, which was intended to ensure that students of color aren’t disciplined more harshly than their peers, districts that want to implement policies in line with the guidelines now lack a certain amount of political cover to do so.
At the same time, it’s unclear how much of a difference the guidance itself made in terms of district practice: A recent survey of 950 districts conducted by AASA, the School Superintendents Association, found that only 16 percent of districts previously changed their discipline policies in response to the guidance.
In announcing her decision to scrap the directive, a move made in conjunction with the Justice Department, U.S. Secretary of Education Betsy DeVos issued a statement saying that “every student has the right to attend school free from discrimination. They also have the right to be respected as individuals and not treated as statistics.”
But she also said, “In too many instances ... I’ve heard from teachers and advocates that the previous administration’s discipline guidance often led to school environments where discipline decisions were based on a student’s race and where statistics became more important than the safety of students and teachers.”
Educators who had met with DeVos about the guidance as she weighed rescinding it had a variety of views on its impact. Some said that it led to less control in their classrooms and that students perceived schools as more lax, which led to misbehavior.
But teachers who supported the directive had told DeVos that problems with discipline are often the result of how districts implement policies, not with the guidance itself. Schools need to properly train teachers in alternative ways of dealing with problematic behavior and in ways to relate to students that prevent behavior from escalating in the first place, they said.
DeVos’ announcement of the repeal of the guidance might not be the last time she publicly addresses the issue. With Democrats now in control of the House of Representatives, there’s a good chance that Rep. Bobby Scott, D-Va., the House education committee chairman, will grill DeVos or another Education Department official on Capitol Hill about the decision. Scott and other Democrats warned DeVos against repealing the guidance prior to her decision.
The 2014 guidance was jointly issued by the Education and Justice Departments. The nonbinding document suggested that schools could run afoul of civil rights laws if they disciplined students of color at higher rates than other students. Perhaps its most controversial element was its assertion that schools’ discipline policies could violate those laws if they had a “disparate impact” on disciplinary actions for different groups of students, even if the policies were written without discriminatory intent.
Observers had expected DeVos to formally toss out the guidelines for many months. That expectation became all but a certainty when the Trump administration put out a school safety report calling for the guidance to go—DeVos served on the commission that authored the report, along with other Trump cabinet members.
DeVos rescinded the guidance three days after the issuance of a report from the Federal Commission on School Safety, which Trump formed in response to the 2018 school shooting in Parkland, Fla. The report called for an end to the guidance, saying in part, “Surveys of teachers confirm that the guidance’s chilling effect on school discipline—and, in particular, on the use of exclusionary discipline—has forced teachers to reduce discipline to non-exclusionary methods, even where such methods are inadequate or inappropriate to the student misconduct, with significant consequences for student and teacher safety.”
That view echoed complaints from critics that the Obama guidlines were too heavy-handed.
But the guidance’s supporters, including civil rights advocates, said it shielded students of color from unfair consequences for discipline infractions, and that it highlighted schools’ frequent, unequal treatment for those students.
They also pushed back on the idea that the guidance had a connection to the school shooting in Parkland. Parkland’s Broward County district had been using a discipline policy at the time of the shooting that had been held up as a model by the Obama administration.
“Rescinding this important school discipline guidance signals that the federal government does not care that too many schools have policies and practices that push children of color out of school,” Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights, said in response to DeVos’ decision.
The 950-district survey from AASA also found that less than 1 percent of all respondents said the guidance had a negative impact on school personnel’s ability to administer discipline, while 7 percent said it had a positive impact.
The guidance’s original rollout also was praised by community-level youth and racial justice groups from cities around the country who’d spent years pushing for less-punitive discipline and the end of zero-tolerance policies they said led to harsher punishments for students of color. They also took aim at broad infractions like “defiance” that can be applied subjectively—and inconsistently.
But conservative groups had argued that schools and districts, fearing costly civil rights investigations, imposed too many restrictions on student discipline, leading to chaotic learning environments. The discipline guidance was an act of federal overreach that led schools to remove needed discretion from teachers, they said.
Separately, some local teachers’ unions have criticized their districts’ discipline changes, saying they weren’t adequately prepared for the changes.
Michael Petrilli, the president of the Thomas B. Fordham Institute and a critic of the Obama guidance, stressed that even without that directive, students who feel they have been discriminated against on the basis of race through a school’s disciplinary decisions can still file a formal complaint with the Education Department, and the department can still investigate.
“The radical departure was in 2014, when the Obama administration embraced this disparate impact approach and came very close to requiring a quota system for discipline,” Petrilli said.
He added that the end of the guidance “opens the door to a much healthier conversation about school discipline,” one that focuses on providing teachers the resources and help they need to deal with tough disciplinary decisions, while at the same time not over-suspending children.
The end of the guidance does not mean that schools can’t adopt policies on their own that aim to address racial disparities in discipline. But it does change the federal agency’s approach to civil rights enforcement.
The guidance also stated that school police shouldn’t be involved in routine student discipline. And it warned districts that they were responsible for ensuring that the officers placed on their campuses respect the civil rights of students.
DeVos’ decision means that close to two years into her tenure, she has revoked prominent Obama guidance related to transgender students, school diversity, sexual assault, and discipline.
Education Week Assistant Editor Alyson Klein contributed to this article.
A version of this article appeared in the January 16, 2019 edition of Education Week as Discipline Spotlight Back on States, Districts