Special Education Opinion

The Haunting Reality of Discrimination in School Discipline

By Catherine E. Lhamon — July 29, 2019 5 min read
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One of my few regrets following my time as the assistant secretary for civil rights at the U.S. Department of Education in the second term of the Obama Administration is that I did not succeed in publicly producing guidance focused on discipline of students with disabilities. Such guidance would have been a companion to the 2014 joint guidance we issued together with the U.S. Department of Justice, focused on race-based discrimination in school discipline. Unfortunately, the Trump Administration withdrew even that guidance in December 2018 and did not replace it with alternative information about how to satisfy nondiscrimination law.

I am especially grateful, therefore, that my colleagues at the U.S. Commission on Civil Rights, which I chair, voted to take up this topic and last week released our report focused on the civil rights issues related to discipline of students of color with disabilities. The report documents that discrimination based on race and disability in school discipline practices has plagued education across the United States for decades and can wreak significant harm on students and school communities.

The discipline investigations I led as assistant secretary pain me to this day. I expect I will be forever haunted by the memory of the mother who, while still in the school parking lot in her car, heard her 9-year-old child’s screams from well within a school building, while the school subjected her child to unlawful and life-threatening prone restraint in school.

These students' experiences represent the humanity that data can only partially describe."

I cannot forget the 5-year-old child whose school subjected him to manual restraint at least 37 times in a single school year without ever discussing the use of restraints with the appropriate parties or reflecting the use of restraints in his behavior intervention plan. The school ultimately threatened his mother and grandmother that if one of them did not arrive to school to pick him up within 45 minutes because of his behavior, then the school would report them to social services or to the police.

I remain stunned that district staff needed the federal government to correctly identify how to address disability-based harassment when a school disciplined a student rather than a teacher who told the student with multiple mental-health diagnoses that she should kill herself. In a crowded hallway and on videotape, the teacher proceeded to taunt the student over a past suicide attempt, suggesting she should succeed this time.

These students’ experiences represent the humanity that data can only partially describe. Their educators’ challenge to impart classroom instruction, while maintaining order and responding in real time to the many vagaries of human interaction that occupy any school day, impose significant stressors on the imperative also to satisfy civil rights obligations to each and every child. But that imperative nonetheless controls and the students deserve nothing less than to live its promise every day.

I have done the spade work to review investigation files, sifting facts and applying law to those facts, evaluating students’ and educators’ experiences in schools. I know from that work what is not abstract: when differences in similarly situated students’ experiences cannot be explained by neutral criteria dissociated from race or from disability, discrimination occurs. And children learn the messages their schools send to them about their perceived worth as people and their place in their communities. I am grateful for our longstanding federal laws protecting children from these harms, and I continue to support aggressive enforcement of those laws to make those protections real in students’ lives.

Of course, mere statistical disparity must not drive a federal mandate for change. As the commission’s report documents, it does not and has not. The office for civil rights’s appropriate role—the one Congress has assigned to it for six decades—is to investigate facts and, where it determines that the law has been violated, to work with schools to ensure they operate nondiscriminatory practices going forward. OCR’s mandate is to investigate any complaint over which it has jurisdiction; that mandate now and historically has meant that the office investigates hundreds of complaints alleging discrimination in school discipline practices. During the final two years alone of the Obama Administration, OCR received 464 complaints regarding disability-based discrimination in school discipline, 163 complaints specifically regarding use of restraint or seclusion in schools, and 494 complaints regarding race-based discrimination in school discipline.

I am grateful that even in the Trump Administration, the Department of Education’s office for civil rights persists in resolving individual cases with appropriate recognition of the searing harm race- and disability-based discrimination in discipline practices can inflict on students and on school communities. OCR does its job best when it efficiently, fairly, and thoroughly resolves those investigations to protect student rights, shares its expertise about how to apply the law to facts to prevent discrimination from occurring in the first instance, and works with school districts around the country to satisfy the law before children are hurt.

I appreciate the commission’s detailed review of the law, literature, and existing federal enforcement practices in our report and stand firmly behind the recommendations. Those recommendations include urging OCR to vigorously enforce civil rights laws by addressing allegations of discrimination in school discipline policies. The commission also urges the Office for Civil Rights to return to offering guidance to school communities on how to comply with these nondiscrimination laws related to race and disability in the imposition of school discipline. The commission also noted that it is critical for teachers to have resources, guidance, training, and support to ensure nondiscriminatory discipline in schools. Congress should fund these types of programs, including through grant programs from the departments of Education and Justice.

My children and all children, and our nation, will benefit from the satisfaction of the commission’s recommendations in schools.

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