Law & Courts

School Civil Rights Took Spotlight Under Obama

By Evie Blad — May 31, 2016 9 min read
A federal civil rights investigation was prompted last year by video of a Spring Valley High School security officer forcibly removing a student from her chair after she refused to leave her class in Columbia, S.C.

A school police officer violently throws a black high school student from her desk before arresting her for refusing to put away her cellphone. A young student is put in handcuffs for defiant behavior. A school imposes drastically different punishments on a black student and a white student for the same behavior.

In years past, such stories may have been dismissed as isolated incidents. But, under the Obama administration, civil rights and student groups have quickly turned to federal data to make the case that these events are part of a larger pattern of unfair and excessive discipline in schools, particularly for students of color.

And they’ve found a partner in the U.S. Department of Education’s office for civil rights, which is charged with identifying and rooting out unfair and discriminatory treatment in public schools.

By all accounts, that office has been particularly aggressive during this presidency by putting schools on notice about their responsibilities on everything from suspensions to bullying, by increasing the data it collects on inequitable treatment in schools, and by committing itself to transparency by posting its resolutions and investigations online.

“We know from our data that our kids today are not experiencing the equality that is their federal promise and that is their birthright,” Catherine Lhamon, the assistant secretary for civil rights at the Education Department, said in an April speech.

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Because of outreach efforts by the agency and the awareness generated by its distinctively public, active approach—one that has attracted criticism as well as praise—the office for civil rights processed a record 10,392 civil rights complaints in 2015 about potential violations at public K-12 schools and colleges and universities that receive federal funding, it said in a report to Congress in May.

Those complaints led to about 3,000 investigations and more than 1,000 of them led to significant resolutions, in which districts and schools committed to changing policies or practices, the report said. Statistics dating back to 1990 show upticks in civil rights investigations during Democratic administrations, but the trend line dramatically spiked under Obama’s presidency. During that time period, white students also became a minority in public schools as other populations grew.

Now, midway through President Obama’s last year in office, it’s clear that the work of the office for civil rights may be one of the most notable parts of his Education Department’s legacy.

Improved Data

Supporters say that, after years of local-level work, cooperation between the agency, the White House, and advocacy groups brought unprecedented focus to issues like the “school-to-prison pipeline,” a term to describe overly punitive and discriminatory discipline practices that lead to poor outcomes for African-American, Hispanic, and Native American children.

At an April discussion at the American Education Research Association conference in Washington, advocates recalled singular moments during the Obama administration: the nation’s first black president acknowledging problems they’d been working to surface for years, former Attorney General Eric Holder committing to “dismantle the school-to-prison pipeline,” and former Secretary of Education Arne Duncan challenging states to shift funds from prisons toward education systems.

“When we see that kind of alignment on the national level, it provides kind of wind in the sails of local groups,” said Thena Robinson-Mock, the director of the Advancement Project’s Ending the Schoolhouse to Jailhouse Track Campaign.

Among the signs of growing support for the advocates’ work was when American Federation of Teachers President Randi Weingarten, who previously supported zero-tolerance discipline, retracted her support in a winter 2015 issue of the union’s American Educator magazine.

Civil Rights Guidance

The U.S. Department of Education’s office for civil rights has been particularly active during the administration of President Barack Obama, regularly issuing guidance to inform schools and districts how it interprets and enforces federal civil rights laws. Here is a sampling of significant guidance.

School Discipline
In a January 2014 letter, federal officials warned schools that school discipline policies could be considered discriminatory if they affect one racial or ethnic group at a disparate rate, even if they weren’t written with a discriminatory intent. That interpretation faced criticism from conservative lawmakers who said it would lead some schools to set quotas to keep their disciplinary statistics in line.

Transgender Students
In a May 2016 letter, officials said schools are obligated under Title IX of the Education Amendments of 1972 to honor transgender students’ gender identities by giving them access to corresponding locker rooms, restrooms, and classes. Republican governors around the country encouraged schools to defy the guidance, and the assertion is the subject of a handful of federal lawsuits.

Bullying
In several letters, federal officials have said schools can violate federal civil rights laws by responding inadequately to the bullying or harassment of students, including students with disabilities; lesbian, gay, bisexual, and transgender students; and students from racial and ethnic minority groups.

Sexual Violence
In an April 2011 letter, officials said K-12 schools, colleges, and universities are obligated to thoroughly investigate and respond to student reports of sexual assault.

Source: Education Week

“These policies were promoted by people, including me, who had hoped they would standardize discipline procedures and free students from the disruptions of misbehaving peers; it was analogous to the broken windows theory of policing,” Weingarten wrote. “We were wrong.”

That alignment includes more and better data. Under the Obama administration, the office for civil rights stepped up the biannual reporting it requires from schools on issues including discipline, funding, staffing, and access to advanced coursework for all student demographic groups. Rather than taking a representative sample of schools, the agency now collects data from nearly every U.S. public school every two years.

It also added new questions about issues like pre-K expulsions, chronic absenteeism, and bullying, and it expanded access to the data, making them available to the public on a searchable website.

Among the most recent data from the 2011-12 school year: Students of color are more likely than their white peers to be suspended, expelled, or arrested at school; to attend schools with inexperienced or underqualified teachers; and to attend schools with fewer advanced courses.

The office is expected to release updated data this summer.

Data about school equity are important “in the way achievement scores or graduation rates are important,” said Daniel Losen, the director of the Center for Civil Rights Remedies at the University of California, Los Angeles, has applauded the department’s work to expand access to and the accuracy of civil rights data, and pushed for annual data collection.

“The data are critically important to assessing what is working well and also in uncovering less-than-genuine reports of success,” Losen said.

‘Disparate Impact’ Evolves

The office for civil rights has also released reams of guidance, informing schools of how it planned to enforce civil rights laws, and sometimes drawing criticism from lawmakers and policy watchers who said it was overstepping its authority.

In 2014, Duncan and Holder released a letter calling on schools to cut back on suspensions and other forms of exclusionary discipline, making the Obama administration the first to release guidance on discrimination in school discipline. The document said school discipline policies could be considered unfair if they have a disproportionate impact on students from certain racial or ethnic groups, even if those policies weren’t written with a deliberately discriminatory intent, a concept known as “disparate impact.”

According to federal data, South Carolina schools suspended 12.7 percent of students during the 2009-10 school year, while North Dakota schools, in comparison, suspended 2.2 percent of students, Duncan said in a speech announcing the discipline guidance at a Baltimore high school.

“I am absolutely confident that students in South Carolina are not six times more likely than their peers in North Dakota to pose serious discipline problems worthy of an out-of-school suspension,” Duncan said. “That huge disparity is not caused by differences in children; it’s caused by differences in training, professional development, and discipline policies. It is adult behavior that needs to change.”

And changing policies and practices can also drive down racial disparities in discipline rates, the 2014 guidance said.

To expose effective strategies, the office for civil rights posts its complaint resolutions online, showing how schools and districts plan to remedy civil rights violations. Common strategies include retraining staff, setting limits for school-based police officers, and rewriting policies.

“It matters to draw attention to this problem and talk about what we want to see changed,” Lhamon said in April.

Investigations have revealed unchecked discrepancies in how students are disciplined. For example, federal officials point to schools in Christina, Del., where investigators discovered that, while a black kindergartner received a five-day suspension for pulling a fire alarm, a 9th grade white student received a one-day suspension for a similar offense.

But problems can also be more subtle, researchers have said. For example, broad rules against things like defiance can be applied in a subjective manner that can be exacerbated by a teacher’s implicit biases.

Civil Rights Complaints

While the number of school-related civil rights complaints filed with the federal government has tended to spike during Democratic presidential administrations, the growth during President Obama’s tenure in office is unprecedented.

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Source: U.S. Department of Education

Some critics, including conservative lawmakers and representatives of local school boards, have criticized the office for civil rights’ more aggressive approach. While they say all schools should aim to promote equity for students, they question whether the agency has overstepped its authority and whether it has adequately consulted with the school leaders who must carry out its interpretations of civil rights laws.

“I think this has been a very aggressive OCR, and I don’t say that in an admiring way,” said Michael J. Petrilli, the president of the Thomas B. Fordham Institute. “For all of the hullabaloo around the common core and concerns from conservatives about federal overreach, this is the office that has been meddling in schools’ affairs.

“Especially on this issue of school discipline,” he continued, “they have gotten into the daily routines of schools in a way that is not about promoting students’ civil rights, but is about promoting some very prescriptive rules about school discipline. I don’t think that’s an appropriate federal role.”

Francisco Negrón, the general counsel for the National School Boards Association, said new data-collecting requirements have been cumbersome for schools.

And some of the office for civil rights’ guidance hasn’t been informed enough by “the real life, on-the-ground experience of school leaders,” he said. “Those are the folks who are ultimately going to be applying guidance and regulations to make sure that students are really achieving in school.”

Like Petrilli, Negrón is concerned that guidance on disparate impact may lead schools to hold back on discipline needed to create orderly learning environments out of concern for how it will affect their suspension statistics.

But advocates say the office’s work has made a positive contribution to the lives of students by exposing previously overlooked inequalities and by helping contribute to the momentum for policy changes on the state and local level. As the nation transitions to a new federal education law and prepares to elect a new president, they hope to see a continued focus on equity.

The Every Student Succeeds Act, the replacement for No Child Left Behind, includes a requirement for states and schools to collect more data on equity and how they are tackling issues like high discipline rates.

But a new president could appoint leaders to the Education Department with significantly different views on federal civil rights laws, set different enforcement priorities, and sign off on budget cuts to the office for civil rights, which is already processing more complaints with fewer staff than it has had in the past.

Advocates and researchers at the AERA conference agreed that such changes could slow down the work they’ve done in cooperation with the federal agency, but they insisted the attention raised by their efforts would continue to help propel a focus on equity.

“I think a new administration will be hard-pressed to move away from this work and to justify that movement,” said Lisa Thomas, the American Federation of Teachers’ associate director for educational issues.

Losen agreed.

“People want to do the right thing by kids,” he said. “I think that’s what this all boils down to.”

A version of this article appeared in the June 01, 2016 edition of Education Week as Civil Rights Office Gets Aggressive

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