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Is DeVos Near Ending School Discipline Reform After Talks on Race, Safety?

By Mark Keierleber | November 20, 2017

The investigation began with a racist slur and a punch to the face. A white high school student at California’s Lodi Unified School District spat a racial epithet at a black classmate, who lashed out with his fists in the school hallway the next morning.

The white student didn’t fight back physically, but both were suspended. When school officials doled out harsher punishment to the black student, however, he claimed racial discrimination in a complaint to the U.S. Department of Education’s Office for Civil Rights. Because of his race, the student alleged, he was punished more severely.

Although OCR didn’t rule in the black student’s favor, it launched a compliance review spanning several years, reaching a settlement with the district in 2016 to address “concerns that it disciplines African-American students more harshly than white students.”

Lodi school officials, along with district leaders across the country, had been warned. A 2014 “Dear Colleague” guidance letter from the Obama administration’s Education and Justice departments advised that discipline policies could constitute “unlawful discrimination” under federal civil rights law if they didn’t explicitly mention race but had “a disproportionate and unjustified effect on students of a particular race.”

That letter — and other efforts to reduce exclusionary discipline, such as suspensions, in favor of reforms like restorative justice — sparked a backlash from critics who accused the department of government overreach and of prompting chaos and disorder that could most harm students of color.

Now, with President Donald Trump and Education Secretary Betsy DeVos at the helm of education policymaking, and with the department tapping two opponents of the Obama-era guidance for key posts, researchers and policy experts on both sides of the debate are bracing for a big reversal that will deal a major blow to civil rights groups.

On Friday, Education Department officials met with some of the guidance letter’s staunchest critics, including a former Minnesota teacher who suffered a brain injury after breaking up a fight in a high school lunchroom. Among the officials in attendance was Hans Bader, a recently hired department staff attorney who has accused the Obama administration of creating “racial quotas” in school discipline.

Department officials at the meeting didn’t indicate how they intend to proceed, said Mike Petrilli, president of the Thomas B. Fordham Institute, who attended the session. Rather, the gathering allowed them to hear from teachers and a parent who argued that curbing suspensions has put educators and students in danger. Moving forward, officials seemed open to a “listening tour and getting to hear different perspectives,” Petrilli said.

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Civil rights groups and Democratic lawmakers were quick to act after the meeting, noting that the department has an obligation to protect students’ civil rights and ensure school safety.

“The 2014 guidance helps schools avoid the arbitrary application of school discipline, identify unexplained racial disparities, and take steps to address them,” Monique Dixon, deputy director of policy and senior counsel at the NAACP Legal Defense and Educational Fund, said in a statement. “We urge the Trump administration to also hear from teachers, parents, and students, who have fought for decades for fair school discipline policies, before taking any steps to repeal or replace the school discipline guidance.”

For some critics, change can’t some soon enough. “I’ve been holding my breath” for DeVos to rescind the Obama-era guidance, said Max Eden, a senior fellow at the Manhattan Institute. In fact, he said he was “unpleasantly surprised” the guidance wasn’t scrapped within Trump’s first 100 days in office.

“It’s a pretty clear-cut case of the federal government overstepping its bounds to call the judgment of teachers into question, and in some ways impugn their motives, in order to satisfy civil rights groups,” Eden said. “This is the kind of stuff Trump was elected to stop.”

Hires offer hints

Opponents of the 2014 guidance found some encouragement last fall from DeVos, who tabled a similarly contested Obama-era “Dear Colleague” letter about the evidentiary standard schools should use to adjudicate sexual assault accusations. “The era of ‘rule by letter’ is over,” she said in September.

That proclamation became the basis for a Wall Street Journal op-ed by Jason Riley, a senior fellow at the Manhattan Institute, who urged DeVos to throw out the guidance on discipline as well. Suspension reductions, he wrote, “are being felt in schools across the country, leaving black and Hispanic students, the policy’s theoretical beneficiaries, worse off.”

Bader, who has long criticized the federal government’s role in education, has written about disparate impact in school discipline on multiple occasions for the Competitive Enterprise Institute, a libertarian think tank where until recently he was a senior attorney. Much of his blogging has pointed back to the advocacy and research work by Eden and Riley.

In one post, Bader said New York City’s efforts under Mayor Bill de Blasio to curb suspensions have resulted in “increased violence, drug use, and gang activity.” Disparities in discipline, he has argued, “reflect higher rates of misbehavior among blacks,” and the Obama administration’s attempts to reduce differences have pressured districts “to adopt racial quotas.”

The nomination of Kenneth Marcus as DeVos’s assistant secretary for civil rights also points to looming changes. Marcus, who served in the same role under former president George W. Bush, has written about the limitations — and legal implications — of disparate impact theory. As president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law in Washington, he has focused on fighting “the resurgence of anti-Semitism” in higher education.

In a 2009 report, Marcus wrote that disparate impact can be used to identify and eliminate intentional and unconscious discrimination “that cannot be proved through other means,” but attempts to use the mechanism to level racial disparities that are not the result of bias violate the 14th Amendment’s equal protection clause.

During a 2013 panel discussion, he said he spent “untold hours” investigating districts for discrimination when he led OCR under Bush. Regarding student discipline, Marcus said, it’s fair to look at districts that punish minority students more frequently than their white classmates, but districts should dig deeper to find the root cause of disparities rather than looking for ways to level the numbers.

“My concern is that too often under disparate impact,” he said, “discrimination is defined by the impact without looking to see whether people are truly being treated differently because of their race or ethnicity as opposed to other factors entirely.”

The Education Department, Bader, and Marcus did not respond to requests for comment.

Discipline gap

The school discipline debate spans decades. As far back as 1975, a report by the Children’s Defense Fund observed widespread disparities in the way schools doled out exclusionary discipline to white and black students, quoting then–OCR director Peter Holmes, who blamed “widespread discrimination in the application of disciplinary sanctions” as the likely culprit.

Four decades later, disparities in suspensions persist, and their root causes — and strategies to eliminate them — remain contested. In interviews with The 74, researchers and advocates on both sides of the debate were quick to criticize their adversaries, who, both groups said, have conflated correlation with causation in data and been influenced by ideological bias.

“In terms of what works best, we’re still learning, and we do need more robust research on things like restorative practices,” said Daniel Losen, director of the Center for Civil Rights Remedies at UCLA’s Civil Rights Project.

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The Obama administration’s efforts to “rethink discipline” followed the release of a 2011 report by the Council of State Governments Justice Center, which studied nearly a million Texas students over six years and controlled for 83 variables — including demographics, attendance, and course completion rates — to isolate the effects of race on discipline. While 97 percent of suspensions and expulsions were handed out for “discretionary” offenses like classroom disruption, black students were 31 percent more likely to be punished for that kind of behavior than their white or Hispanic peers, the report found. Students from the three groups were removed from school at comparable rates for so-called mandatory violations, like bringing drugs to school.

Additionally, the report found students who were suspended or expelled were more likely to repeat a grade, drop out of school, or land in the juvenile justice system — a concept known as the school-to-prison pipeline.

Other reports have pointed to implicit racial bias as a contributor to disparate treatment. One recent study by the UCLA Civil Rights Project found that, during the 2014–15 school year, California students missed about two days of instruction each time they were suspended, and on average, black students missed 32 more days than their white classmates. Missed instruction, the report noted, contributes to lower academic achievement.

On Monday, researchers at Tulane University in New Orleans released a report on discipline disparities in Louisiana from 2001 to 2014, determining that black and low-income students were nearly twice as likely to be suspended for similar infractions as their white peers, and received longer suspensions. For fights between black and white students, the report found, black students received slightly longer suspensions equivalent to one extra day for every 20 fights.

It appears the “rethink discipline” efforts did prompt a reduction in punitive school discipline. Nationwide, the most recent Civil Rights Data Collection from the Education Department observed a 20 percent drop in out-of-school suspensions between the 2011–12 school year and 2013–14, when 2.8 million kids were suspended. However, the racial disparities persisted: The federal data found that black K-12 students were 3.8 times as likely to receive an out-of-school suspension as their white peers during the 2013–14 school year. The “discipline gap” was about as wide among preschools, where black students were 3.6 times as likely to be suspended.

“When we saw that still, in this century, black students were three times more likely than their white peers to be subject to exclusionary school discipline, that was enormously distressing and a real call to action,” said Catherine Lhamon, the Education Department’s assistant secretary for civil rights under President Barack Obama, who sent the 2014 guidance letter. Lhamon now chairs the U.S. Commission on Civil Rights, which is investigating Trump administration enforcement of federal civil rights laws.

Along with the public guidance letter, Lhamon said, the Obama administration overturned an internal memo from 1981, when Supreme Court Justice Clarence Thomas led OCR, that instructed department investigators not to intervene in local and state policy decisions around school discipline. That memo, Lhamon said, marked “a turn away from meaningful enforcement.”

“It is amazing to me that OCR had had no intervening policy guidance to staff or to the public that explained the actual harm that can come from race discrimination in the form of school discipline,” Lhamon said, “and the ways that OCR does investigate and should investigate to enforce the law.”

She said discipline disparities don’t necessarily confirm that policies uphold implicit racial bias; rather, the guidance document urged districts to look at racial differences to determine whether policy changes were necessary, as required under existing federal civil rights law. In response, districts across the country changed policies because school leaders saw “better ways to educate their students and to keep students in schools, which is ultimately what all of us want,” she said.

At Indiana University’s Equity Project, Director Russell Skiba argued that racial disparities cannot be explained by differences in behavior or poverty. And although he noted that disparities don’t necessarily point to implicit bias, either, Skiba said the Education Department guidance was helpful in eliminating potential harm.

“It’s not just saying ‘don’t suspend,’ it’s providing quite a bit of guidance to schools about what they should do instead,” he said. “I think the guidance has been very helpful, it’s based on the best of what we know, and I would hate to see it dismantled.”

However, it appears members of the public — including teachers and parents — aren’t on board with the Obama administration’s approach. In a nationwide poll by the journal Education Next, a majority said they oppose federal or district policies that prevent schools from disciplining different groups at different rates.

Following foes

Critics of Obama’s approach to discipline, like Petrilli, discredit much of the existing research, contending that discipline disparities could result from a swath of factors. While he agreed that some districts have certainly engaged in discrimination, Petrilli — contrary to Skiba — pointed to factors like growing up in poverty, living in high-crime neighborhoods, and having single mothers.

Opponents often cite a 2014 report in the Journal of Criminal Justice, which relied on a large sample of kindergartners and pointed to early and prolonged behavior problems among students as a factor behind disparities — suggesting racial bias in student discipline may not be as prevalent as other researchers have proposed.

Eden has argued that there’s “remarkably little conclusive evidence as to whether the difference in suspension rates is a product of racial bias, whether suspensions harm students, and how alternative disciplinary approaches stack up.” In a report published earlier this year, Eden analyzed several years of student and teacher surveys in New York City and argued that efforts to limit suspensions led to greater chaos in schools.

“I think there’s a strong argument that says we’ve got to allow educators in tough schools to be able to use tools at their disposal to keep the environment orderly and safe,” Petrilli said. “The concerns of the peers have got to be just as high on our list of priorities as the concerns of kids who may be suspended.”

Some critics, including Eden, have argued that the Obama guidance document actually intimidated school leaders into reducing suspensions, putting students at risk — particularly black and Hispanic kids that the more lenient discipline policies were supposed to benefit.

In September, an 18-year-old student at New York City’s Urban Assembly School for Wildlife Conservation stabbed two classmates — one fatally — after, he said, he “just snapped” from constant bullying. A few years before, the school had implemented discipline reforms centering on restorative justice, and around the same time, perceptions of safety plummeted. Parents had even taken it upon themselves to patrol the hallways. The stabbing, which prompted dozens of students to seek out schools elsewhere, is an example of discipline reform run amok, Eden contended.

In the Lodi case, he argued that investigators, although they didn’t find fault with the way school leaders disciplined the black and white students, observed districtwide disparities without looking at individual schools.

“They’re content for districtwide numbers, which basically means the federal government is telling school districts that, ‘Your schools can’t really operate that differently from one another, no matter what kind of population they serve or what those needs or circumstances are,’ ” he said.

For Lhamon, however, the investigation of Lodi Unified was clear-cut. During the 2014–15 school year, black students were five times as likely as their white peers to be kicked out of school for willful defiance or disruption, and nearly seven times as likely to be suspended for tardiness or truancy. It’s “hard to see a seven-times-more likely disparity and not find intent,” she said. “But also, the disparity itself makes a trained investigator ask questions about whether those disparities are justified.”

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