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Betsy DeVos Revokes Obama Discipline Guidance Designed to Protect Students of Color

By Andrew Ujifusa — December 21, 2018 7 min read
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U.S. Secretary of Education Betsy DeVos has rescinded guidance created by the Obama administration to ensure that students of color aren’t disciplined more harshly than their peers.

“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. In too many instances, though, 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,” DeVos said in a statement Friday announcing her decision, which was made in conjunction with the Department of Justice. “Our decision to rescind that guidance today makes it clear that discipline is a matter on which classroom teachers and local school leaders deserve and need autonomy. I would encourage them to continue to implement discipline reforms that they believe will foster improved outcomes for their students.”

The 2014 guidance was jointly issued by the Obama-era Education and Justice Departments. A nonbinding document, the guidance 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 have been expecting DeVos to formally toss out the guidance 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.

To justify its call for the guidance to be revoked, the Federal Commission on School Safety’s report stated, among other things, that, “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 guidance was 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, Fla., which spurred the president to create the school safety commission. 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 adminstration.

“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 for Civil and Human Rights, said in a Friday statement responding to DeVos’ decision.

The administration was already considering revoking the guidance before the Parkland shooting.

As our colleague Evie Blad wrote about the guidance recently, “Federal data show black and Latino students are disciplined at higher rates than white students, and the discipline guidance said schools have an obligation to address those disparities.”

View From Schools and Elsewhere

A survey of 950 school district leaders conducted by AASA, the School Superintendents Association, found that just 16 percent had modified their discipline policies and practices because of the guidance. Less than 1 percent of all respondents found that the guidance had a negative impact on school personnel’s ability to administer discipline, while 7 percent said it had a positive impact.

Educators who met with DeVos about the directive 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 support the directive told DeVos that problems with discipline are often the result of how districts implement policies, not with the guidance itself, teachers who support the directive told DeVos. 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.

A variety of organizations representing educational researchers, administrators, teachers, and racial justice groups had panned plans to rescind the guidance. It’s a false choice to say schools can’t be safe and make efforts to ensure equitable treatment of students, they said, noting that suspensions are often issued for non-violent offenses. Rescinding the guidance runs counter to the report’s other recommendations, which call for safe and supportive learning environments that promote strong relationships between students and teachers, they said.

The guidance’s 2014 rollout was also 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.

“The recommendation to rescind Obama-era school discipline guidance reflects Betsy DeVos’ deep-seated and fundamentally flawed view that combatting discrimination against students of color and those with disabilities is a worthless pursuit,” the Alliance for Educational Justice said in a statement after the school safety report was released. “This view is rooted in the disgusting belief that certain students, including youth of color, belong to an underclass of students attending our nation’s public schools who are unworthy of supportive learning environments and our protection.”

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. And 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 guidance, 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 mirror the Obama guidance’s push to addresss 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 Staff Writer Evie Blad contributed to this post

Photo: Max Schacter, father of Parkland victim Alex Schacter, right, speaks with President Donald Trump during a roundtable discussion on the Federal Commission on School Safety report, in the Roosevelt Room of the White House on Dec. 18, 2018, in Washington. From left, Trump, Secretary of Education Betsy DeVos, Sheriff Kevin Byars, Marshall County, Ky., and Schacter. (Evan Vucci/AP)

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