Civil rights and education experts say signs are pointing to the Trump administration education department’s finally getting around to rethinking the Obama-era “guidance” on school discipline that many say has hurt minority students most and made schools more dangerous.
Former President Barack Obama became known for inserting civil rights issues into a great many of his policies, including those involving campus sexual assault procedures, public school bathrooms and locker rooms, and how schools implement disciplinary procedures.
The Trump administration has scrapped Obama’s transgender bathroom and campus sexual assault policies, and – according to civil rights experts – may now be poised to tackle the former president’s school discipline “guidance” that threatens school districts with federal investigation if their discipline measures resulted in statistics that showed a greater proportion of minority students are disciplined than white students.
Manhattan Institute senior fellow Max Eden, explained at National Review in November how the Obama-era school discipline policy “extended Black Lives Matter’s ideology down into America’s classrooms”:
Social-justice activists assumed that just as racial disparities in the criminal-justice system must be evidence that cops are (at least implicitly) racist, so too racial disparities in school suspensions must be evidence that teachers are (at least implicitly) racist. Therefore, teachers — like cops — have to be restrained.
According to the Obama administration’s 2014 “Dear Colleague” guidance, any school district whose disciplinary measures show “disparate impact” – meaning a disproportionately greater number of minority students are affected – is open to investigation by the Departments of Justice and Education, regardless of whether the behavior leading to the discipline is unacceptable.
The Obama administration justified its policy with concerns about the “school to prison pipeline” for minority students:
The increasing use of disciplinary sanctions such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement authorities creates the potential for significant, negative educational and long-term outcomes, and can contribute to what has been termed the “school to prison pipeline.”
In place of traditional disciplinary measures, the Obama administration recommended such alternate techniques as “conflict resolution, restorative practices, counseling, and structured systems of positive intervention.”
However, critics of the Obama policy say it essentially placed “racial quotas” on school discipline and is teaching minority students they can avoid consequences for disruptive and violent behavior simply because of their race or ethnic background.
After much speculation about whether education secretary Betsy DeVos would actually take on the Obama-era school discipline policy, she hired former senior attorney for the Competitive Enterprise Institute Hans Bader – a noted critic of the use of “disparate impact” statistics to muscle school districts.
“To try to reduce unintended racial disparities, schools, encouraged by the Office for Civil Rights, are replacing suspension for violent offenders with talking circles and ‘restorative justice’ (even as they continue to suspend kids for things like toy guns),” Bader told Breitbart News in March 2015. “As a result, school violence is increasing, and students are escaping discipline for things like threatening teachers and setting classmates’ hair on fire.”
Higher disciplinary rates for black students “reflect higher rates of misbehavior among blacks, not zero-tolerance policies,” Bader also wrote in 2014 at the Daily Caller.
Writing at the Washington Examiner in October, Natalie Goodnow and Will Flanders of the Wisconsin Institute for Law and Liberty (WILL) reported results from their recent study that demonstrated Obama’s policy “contributed to a massive decrease in suspensions in Wisconsin public schools, subverted local control over disciplinary policies, and, in cases, made schools and teachers less safe.”
The authors observed:
Our data … shows that poverty and disability — not race — are the primary factors that determine whether a student is suspended in the largest Wisconsin school districts. While statewide racial disparity in suspensions appears to have declined, the picture looks different when you zoom in to the district level data. For example, at Milwaukee Public Schools, which serves almost half the state’s African-American students, the suspension rate has fallen more for white students than for African-American students.
The data is clear: The Obama administration’s actions have made some schools less safe.
“Simply refusing to suspend students who have earned a suspension doesn’t solve the underlying problem and it needlessly polarizes the country,” the researchers assert. “School disciplinary policy should be based on sound science and research, not spurious ideological doctrines about race.”
In April 2016, Hoover Institution media fellow Paul Sperry also wrote at the New York Post that, as a result of the Obama-era policy, “public school districts are no longer suspending even violent students; but now, under pressure from Black Lives Matter, they are suspending teachers who complain about not suspending bad kids.”
“An alarming number of other school districts are coddling violent kids, while punishing the teachers they attack,” Sperry wrote. “Most teachers blame the district’s new code of conduct. ‘Negative student behavior is being tolerated at the expense of safety,’ a local union spokesman said.”
Similarly, Katherine Kersten at the Star Tribune wrote that in St. Paul, Minnesota, one teacher commented the Obama-era school disciplinary policy resulted in “a segment of kids who consider themselves untouchable.”
“Most parents will tell you that if you eliminate consequences for kids’ bad behavior, you can expect a lot more of it,” Kersten continued. “It’s common sense. But we’re not talking about common sense here. We’re talking about a powerful ideology that has gripped the imagination of Twin Cities school officials — and far beyond.”
Eden says social justice activists who are celebrating the much lower reported suspension rates in public schools are “cheering on a twisted tragedy.”
“[I]n the handful of districts where student and teacher surveys let us measure school climate, we tend to see one of two things happen as suspensions drop: Schools get less safe or school administrators cheat,” he observed.
Eden was a panelist several weeks ago at a public briefing, held by the U.S. Commission on Civil Rights and titled, “The School-to-Prison Pipeline: The Intersections of Students of Color with Disabilities.”
— USCCR (@USCCRgov) December 12, 2017
The purpose of the briefing was to “examine compliance with federal laws designed to protect students of color with disabilities from discrimination, and whether laws adequately protect these students from discriminatory disciplinary actions and policies.”
Americans deserve better. This civil rights rollback is dangerous for all of us. https://t.co/L8Qfo6mUOo
— Catherine E. Lhamon (@CatherineLhamon) June 15, 2017
The Civil Rights commission is composed of eight individuals, four of them appointed by the president and four by Congress. The commissioners serve six-year terms and are not confirmed by the Senate.
Currently, four members of the commission are Democrats, three are independents, and one is a Republican. The four presidential appointees were all selected by former President Barack Obama.
In June, the commission announced it was launching a two-year “comprehensive assessment” into the Trump administration, in light of proposed budget cuts and staff eliminations that it claims would cause the civil rights of people of color, the LGBT community, and other “marginalized” groups to be at risk.
Nevertheless, groups concerned about the constitutionality of regulations based on “guidance” from the federal government, say the Obama-era school discipline policy is harming low-income students.
According to the Federalist Society’s Regulatory Transparency Project – which studies the costs and benefits of regulations and agencies:
Curbs on suspensions of students who routinely disrupt class or violate important school rules harm, not help, black students, who are often victims of violence perpetrated by students of their own race. As Professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”
Roger Clegg, President and General Counsel of the Center for Equal Opportunity – and a former Deputy Assistant Attorney General in the Civil Rights Division from 1987-1991 – told Breitbart News the Obama administration essentially made policy unilaterally through its “Dear Colleague” letters, without going through the proper notice and comment procedures.
“What the disparate impact approach means is if there is a disproportionate statistical result from a policy, that policy can be ruled illegally discriminatory,” he explained, “even though the policy is neutral on its face, is neutral as intended, and is neutrally applied.”
Clegg said the Trump administration should rescind the Obama school discipline policy.
“The problem is that it pushes schools not to discipline students – who ought to be disciplined – in order to get their racial numbers right,” he added. “And the people who are going to be hurt most by that are the students who want to learn, but are not going to be able to learn.”