Trump Officials Plan to Rescind Obama-Era School Discipline Policies
By ERICA L. GREEN and KATIE BENNER
Betsy DeVos, the education secretary, is planning to rescind Obama-era rules that were aimed at ensuring that minority students were not unfairly disciplined.
WASHINGTON — The Trump administration is planning to roll back Obama-era policies aimed at ensuring that minority children are not unfairly disciplined, arguing that the efforts have eased up on punishment and contributed to rising violence in the nation’s schools, according to documents obtained by The New York Times.
The decision culminates a nearly yearlong effort begun by the Trump administration after the massacre at Marjory Stoneman Douglas High School in Parkland, Fla. The deaths of 17 students and staff members on Feb. 14 prompted lawmakers in both parties to demand tougher gun laws, but after a brief flirtation with gun control, President Trump abandoned that focus and instead empowered a school safety commission, led by Education Secretary Betsy DeVos.
Almost immediately, the commission turned away from guns and instead scrutinized the Obama administration’s school discipline policies, though none of the most high-profile school shootings were perpetrated by black students. The commission’s focus was part of a broader effort to reject the previous administration’s race-conscious education efforts, which have included siding with Asian students suing Harvard to end affirmative action and delaying an Obama-era rule to prevent disproportionate numbers of minority children from being funneled into special education classes.
The documents obtained by The Times — a draft letter and a draft chapter of the safety commission’s research — focus significantly on race and promote the idea that the federal crackdown on potentially discriminatory practices has made schools more dangerous.
“The federal government’s paramount obligation is to guarantee student safety, including when it is acting to ensure that educational programs and policies are administered in a racially neutral fashion,” the commission wrote. “However, where well-meaning but flawed policies endanger student safety, they must be changed.”
Disability and civil rights advocates will almost certainly denounce the latest policy maneuver. The Obama administration policies were adopted after strong evidence emerged that minority students were receiving more suspensions and tougher punishments than white students for the same or lesser offenses, while disabled students were too quickly being shunted into remedial or special-education programs.
“Safety is a red herring intended to raise fears about our own children,” said Eve Hill, a disability rights lawyer at Brown, Goldstein & Levy who worked on the Obama-era discipline guidance while a lawyer in the Justice Department’s Civil Rights Division.
The Education and Justice Departments plan to send a joint letter this week announcing the rescinding of policy statements dating to 2014, according to a draft letter signed by Kenneth L. Marcus, the Education Department’s head of civil rights, and Eric S. Dreiband, assistant attorney general for civil rights.
The 2014 Obama policy advised schools on how to dole out discipline in a nondiscriminatory manner and examine education data to look for racial disparities that could flag a federal civil rights violation. Though the guidance is nonbinding, critics have argued that the edict pressured districts to keep suspensions low at the expense of student safety.
“The guidance burdened local school districts, potentially exceeded the departments’ legal authority and may have made students less safe,” Trump civil rights officials wrote.
Neither the draft letter nor the commission report was final.
A Justice Department spokeswoman defended the review as an effort to make sure policies “do not go beyond the law or are inconsistent with the Constitution.”
“We are continuing to review documents to prevent improper rule making and executive branch overreach,” said Kelly Laco, the spokeswoman. “The Justice Department remains committed to enforcing the law and protecting all Americans from all forms of illegal race-based discrimination.”
The Education Department did not respond to requests for comment.
The school safety commission is expected to issue recommendations Tuesday on a range of issues, including mental health resources, positive behavioral support programs and school security. Trump officials wrote that six documents related to the Obama administration’s “Rethink Discipline” package will be rescinded based on the commission’s recommendation.
The commission’s report argues in favor of narrowing a legal avenue for the federal government to combat discrimination in the nation’s schools by rejecting “disparate impact theory,” which holds that seemingly neutral policies can harm certain racial groups. That was the underpinning for the Obama administration’s disciplinary policies.
Instead, the panel will hold, the administration will act on evidence of explicit discrimination, not just statistics that indicate one group may be failing or falling behind.
“When there is evidence beyond a mere statistical disparity that educational programs and policies may violate the federal prohibition on racial discrimination, this administration will act swiftly and decisively to investigate,” the commission wrote.
In addition to Ms. DeVos, the commission included former Attorney General Jeff Sessions, Secretary of Health and Human Services Alex M. Azar II and Secretary of Homeland Security Kirstjen Nielsen.
Ms. Hill, the disability rights lawyer, warned that if the government stopped looking at whether a policy disproportionately affects certain groups, it would be harder to make discrimination claims in debates over voting rights, education, health care, transportation and housing policies.
Trump officials argued in the commission report that the Obama administration employed a “dubious” reading of Title VI of the Civil Rights Act to assert that the civil rights law extended to evenhanded policies that may unintentionally harm certain groups.
The report referred to two Supreme Court rulings, one in 1978 and another in 2001, that affirmed that Title VI extended only to intentional discrimination.
In undermining court rulings, the commission said the Obama administration “gave schools a perverse incentive to make discipline rates proportional to enrollment figures, regardless of the appropriateness of discipline for any specific instance of misconduct.”
The Obama-era guidelines were released when federal data showed that black students were three times as likely to be suspended or expelled, and black and Hispanic students made up more than half of the nation’s school-related arrests and referrals. In the nearly half-decade since the guidelines were issued, those numbers have not improved.
Obama administration officials wrote in 2014 that discipline rates may be caused by a range of factors but that they could not be explained solely “by more frequent or more serious misbehavior by students of color.”
“In short, racial discrimination in school discipline is a real problem,” they wrote.
The Education and Justice Departments under Mr. Trump argue that they are not convinced that large racial gaps are attributable to discrimination.
“Research indicates that disparities that fall along racial lines may be due to societal factors other than race,” they wrote.
In the year before Parkland, Ms. DeVos met with education advocacy groups to hear their support for and opposition to the Obama-era guidelines.
Proponents of the guidance argued that it had been an invaluable resource for schools and districts that want to foster a positive school environment and had improved educational outcomes for minority children.
Other educators told Ms. DeVos that they felt powerless to manage bad behavior in their classrooms and were pressured by administrators to turn a blind eye to dangerous incidents.
The Obama-era discipline policy seemed like an unusual target, since the suspect in the Parkland shootings was white, had been expelled from school and had been referred to law enforcement agencies several times. But opponents of the policy seized on the fact that the suspect, Nikolas Cruz, had been part of an alternative discipline program called Promise in Broward County Public Schools. Although the Florida program started a year before the guidance was issued, conservatives, with the backing of Senator Marco Rubio, Republican of Florida, pointed to the program as an example of potentially dangerous policies endorsed by the Obama administration.
The commission cited several studies and surveys that showed discontent with the discipline policy. It also included examples from states like Texas and Wisconsin where discipline was found to play a role in students’ academic performance.
The draft report contains only a fleeting mention of arguments for keeping the Obama-era guidelines.
“Those who spoke in support of the guidance focused on reducing the racial disparities in the discipline numbers without addressing the adverse consequences on school safety and climate,” the commission wrote.
On how the Obama-era discipline guidelines might have led to the Parkland shooting, the draft report was silent.