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The education community braced for guidance on student discipline. It never came

Mark Keierleber | April 20, 2023

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During a heated Senate confirmation hearing in July 2021, civil rights attorney Catherine Lhamon made clear her goal to confront longstanding, dramatic racial disparities in school discipline at a moment when racial inequities — in policing, education and society more broadly — were at the center of the national discourse.

She’d done it before, to fanfare and criticism. As the head of the Education Department’s civil rights division during the Obama administration, Lhamon wrote a forceful “Dear Colleague” letter in 2014 that put districts nationwide on notice: stark racial gaps in suspension rates could indicate discrimination, and the federal Office for Civil Rights planned to hold them accountable to civil rights laws. The guidance led education leaders nationwide to reform their school discipline policies while conservative pundits and politicians accused the department of using the threat of investigations to force districts into creating “racial quotas” and coercing them to adopt school discipline reforms in place of suspensions and expulsions.

At the hearing to consider her return to her post as the Education Department’s assistant secretary for civil rights and six months after President Joe Biden signed an executive order to advance racial equity across the federal government, Lhamon said it was critical for the Biden administration to reinstate the discipline guidance, which the Trump administration rescinded in 2018 amid fears of mass school shootings.

“I think it’s crucial to reinstate guidance on the topic and I think it’s crucial to be clear with school communities about what the civil rights obligations are and how best to do the work in their classrooms,” Lhamon said during the confirmation hearing, where she was grilled by Republican lawmakers on a range of contentious issues, including efforts to combat campus sexual assault and the inclusion of transgender students in school athletics. Republicans leveraged the issues in a failed bid to block Lhamon’s nomination, and Vice President Kamala Harris cast a tie-breaking vote to confirm Lhamon for a second stint in the department.

Yet more than two years into Biden’s presidency, updated guidance on racial disparities in school discipline are nowhere to be found — and civil rights advocates have begun to wonder whether the department ever plans to release them. Rather than taking heat from Republicans, the inaction has generated outrage from the left.

In a letter sent to the Education Department Wednesday and shared exclusively with The 74, advocates with the Federal School Discipline and Climate Coalition demanded the department “immediately release a revised and updated version” of the guidance and accused officials of failing “to provide adequate accountability, oversight and enforcement of civil rights laws.”

“The persistence of egregious exclusionary and disproportionate discipline throughout the nation must be laid directly at the feet of this administration’s unwillingness to lead in the area of school discipline and civil rights,” according to the coalition, a group of racial justice activists and researchers who’ve been advocating for police-free schools and non-punitive discipline policies since 2011. “In many districts, the lack of leadership and guidance from [the Education Department] has weakened communities’ abilities to advocate for policies that reduce and eliminate exclusionary discipline.”

In an interview with The 74, a senior Education Department official declined to say whether updated guidance is in the works or to provide a timeline. But the department’s Office for Civil Rights, the official said, is currently investigating 343 cases related to racial discrimination in student discipline. The 2014 guidance outlined the department’s interpretation of federal civil rights rules and urged districts to adopt restorative justice and other discipline reforms, but the senior department official said the civil rights office has no difficulty enforcing federal discrimination rules aside from the challenges that come with taking on an “enormous caseload.”

In one case from last year, the Education Department came to a resolution agreement with the Victor Valley Union High School District in California after a federal investigation found the school system disciplined Black students more frequently and harshly than their white classmates. Along with “statistical evidence” of racial disparities in student discipline, investigators observed a pattern where Black and white students were disciplined differently for committing similar infractions. Under the agreement, the district was required to revise its student discipline policies and implement a plan to eliminate disparities.

“We are as always grateful to school communities that effectively instruct all students without discrimination and we look forward to working with those school communities that need further assistance to comply with the law,” Lhamon said in a written statement when asked by The 74 about criticism that the department had failed to act.

Faced with a record number of civil rights complaints, which are set to be outlined in an annual report later this month, the civil rights office recently revised policies to allow a greater use of mediation to resolve cases more quickly.

Even critics of the 2014 “Dear Colleague” letter are left wondering why the department hasn’t released an update to the student discipline guidance — particularly after officials suggested they were forthcoming. In June 2021, the Office for Civil Rights requested public feedback on strategies to implement school discipline in a nondiscriminatory manner. That callout led to more than 3,600 comments from people across the political spectrum.

A year later, in July 2022, the Education Department released guidance that sought to address school discipline disparities between children with disabilities and those who are not enrolled in special education. Reporting at the time suggested that similar guidance, related to racial disparities in discipline, would be released later that summer.

A political liability

That the guidance was never released, observers said, likely comes down to one factor: politics.

“It shouldn’t take this much time, especially if they were going to largely dust off what was published in 2014,” said Michael Petrilli, president of The Thomas B. Fordham Institute, who worked at the Education Department during the George W. Bush administration and has been an outspoken critic of school discipline reform. He said the Biden administration would be rightly concerned over the issue becoming a campaign platform for Republicans, who have already rallied supporters to condemn schools that teach about racism in American history or that allow transgender students to participate in school sports.

“The only thing that makes sense to me is that somebody relatively senior, either at the Department of Education or in the White House, has decided that this is not a good time,” Petrilli said. “Either they decided not to do it, or they’re waiting until the time seems right — and it never seems like a good time with the news in the real world.”

Biden entered office at a moment of heightened attention to persistent racial inequities. After a Minneapolis police officer murdered George Floyd in 2020 and Black Lives Matter protests swept the country, dozens of districts removed school-based police officers from their campuses. But the issue was reminiscent of the politically toxic “defund the police” movement, and several school systems that banished cops from classrooms reversed course just months later.

As pandemic-era remote learning came to an end and students returned to school buildings, educators sounded the alarm about an uptick in student misbehavior and disruptions. In a federal survey released last year, more than 8 in 10 school leaders said the pandemic had a negative effect on students’ behavioral development. More than a third reported an uptick in physical attacks or fights between students, and more than half reported increased classroom disruptions due to student misconduct.

A recent teachers union poll reached similar findings. Nearly 90% of teachers said that “poor student discipline and a lack of support for dealing with disruptive students” is a serious problem, the American Federation of Teachers poll found.

Lawmakers across the country have responded with state legislation that would make it easier for schools to punish students, including a new Kentucky law with bipartisan support that allows schools to “permanently remove” disruptive students. After a 6-year-old boy with a history of disturbing behavior shot his teacher in January at a Virginia elementary school, educators complained that school leaders had become too lenient with students. In response to the drumbeat of school shootings, districts have bolstered school security, including with armed police officers.

“You’re seeing states across the country passing these return-to-zero-tolerance and mass exclusion laws in several states, and I think that could have been avoided had the Biden administration been taking a strong stand throughout and reissuing the guidance,” said Russ Skiba, professor emeritus at Indiana University whose research focuses on school discipline.

Yet it’s this exact movement toward harsher student punishment rules that make discipline reform efforts a politically fraught undertaking, Petrilli said.

“You can imagine somebody with a political perspective saying, ‘You know, is this really a good issue to run on when we’re getting clobbered on the defund the police stuff, on the crime issue?’” Petrilli said. “I would certainly think this would be dangerous for Democrats to be associated with a soft on discipline kind of approach in the same way it is dangerous for them to be associated with a soft on crime approach.”

Meanwhile, racial justice advocate Breon Wells called the administration’s failure to address the issue a political miscalculation and accused Biden of failing to act on the promises of his campaign, which relied heavily on support from Black voters.

“To us what it feels like is that they are choosing the politically comfortable way over the delivering of these promises to people and, more specifically, Black and brown students,” said Wells, a member of the Federal School Discipline and Climate Coalition and the CEO and founder of The Daniel Initiative, a strategic communications firm. “There is no convenient path to rectify the wrongs and the injustices that have prevailed and been baked into a system.”

Persistent disparities

Nationally, stark racial disparities have persisted for years. For about as long, the factors that drive those disparities have been the subject of heated partisan debate.

Black youth represented 15% of students nationwide during the 2017-18 school year but were the subject of 29% of law enforcement referrals, according to the most recent federal data. Black youth also accounted for 38% of students who received one or more out of school suspensions and 33% of those who were expelled.

The 2014 guidance sought to close the gap. In a move that led to controversy, the department warned schools 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,” known as disparate impact. Such statistical evidence is a key indicator of potential violations, the letter noted, but civil rights investigators would review “all relevant circumstances” before imposing sanctions.

While the document acknowledged that racial disparities in student discipline rates may be “caused by a range of factors,” it said that the “substantial racial disparities” couldn’t be attributed entirely to “more frequent or more serious misbehavior by students of color.”

A growing body of academic research has dug into the root causes of racial disparities in school discipline, including evidence that educators discipline Black students differently than their white classmates. One report, in the peer-reviewed journal Social Forces, found that nearly half of the racial disparities in school discipline could be attributed to teachers treating Black and white students differently, suggesting that the “difference in punishment may be due to racial bias” among educators. In fact, just 9% of the variations could be attributed to different behaviors between Black and white children, researchers found. Another report, by the Education Research Alliance for New Orleans, found that Black and low-income students received longer suspensions than their white and better-off classmates for the same types of infractions.

Meanwhile, a significant body of research suggests that suspensions, expulsions and school-based arrests can be detrimental to student learning, including lowered academic performance and an increased likelihood of dropping out. Yet research on alternatives promoted in the 2014 discipline guidance, including restorative justice, has found that even as suspensions have decreased, they’ve generally failed to close racial disparities.

Petrilli has acknowledged that racial discrimination exists in school discipline but maintains that the harmful effects of suspensions and the influence of discriminatory bias in racial disparities is overblown, arguing that other factors, like poverty and the effects of growing up in a single-parent home, are key contributors. The 2014 guidance, he said, overstated the degree to which bias influenced the disparities. Any updated guidance from the Biden administration, Petrelli said, should remove threats of investigations based on a district’s racially disparate discipline data.

“If, after controlling for differences in socioeconomic status, for example, there’s still large disparities, that is a time that we would dig in and do an investigation,” he said. “That would be a middle ground.”

Yet for members of the Federal School Discipline and Climate Coalition, guidance on racial disparities in school discipline is the lowest denominator in a larger need to overhaul the country’s approach to school safety and student discipline. But the administration has failed to take a strong position, the group argued, on several critical civil rights issues.

In a “Dear Colleague” letter last month, Education Secretary Miguel Cardona urged local policymakers to “move swiftly toward condemning and eliminating” corporal punishment in schools, which remains legal in 19 states. On the same day, it released a “guiding principles” document that districts review their student discipline policies and ensure they “do not unfairly disadvantage a group of students,” including “unclear language that results in disproportionate discipline of certain students.”

But the corporal punishment guidance, the advocates argued, amounted to “cherry picking politically safe issues,” and called Cardona’s letter “halfhearted.” The guiding principles document, the group said, was “woefully inadequate” and appeared to be thrown together last minute.

Coalition convener Christopher Scott said it’s time for the administration and Education Department leaders to stop shying away from tough conversations about race.

“They are failing to protect the civil rights of Black and brown students, youth and children because they don’t want to tackle the issue of race because it is taboo for them and is seen as not being politically efficient or leading to political wins,” said Scott, a senior program manager at the Open Society Policy Center. “It is not about what is going to keep you in office, it is about doing your job and protecting the civil rights of Black and brown students, youth and children. That’s why you exist.”

This article was published in partnership with The 74. Sign up for The 74’s newsletter here.

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