Late last month, Education Secretary Betsy DeVos rolled back a federal policy guidance on school discipline policies, citing school safety concerns. The move has advocates concerned about efforts to fight the school to prison pipeline. Photo: AP
Paved with suspensions and expulsions, there's a route from education to incarceration known as the "school to prison pipeline" that disproportionately affects students of color, those with disabilities and other minority groups across the country.
A 2014 policy guidance issued by civil rights divisions in the U.S. Department of Justice and Department of Education cited data that found African-American students are more than three times as likely as their white peers to be expelled or suspended, and more than half of those involved in school-related arrests are Hispanic or African-American.
Advising schools to use expulsions and suspensions as a last resort, the letter reminded them that the federal government "may hold schools accountable for discriminatory actions" if their discipline policies had a statistically disproportionate effect on students of a particular race.
Last month, Secretary of Education Betsy DeVos rescinded the document. In a statement, she said she'd heard from numerous teachers and advocates that "the previous administration's discipline guidance often led to school environments where discipline decisions were based on a student's race and where statistics became more important than the safety of students and teachers."
But the rollback has concerned advocates such as Joel Ferber from Legal Services of Eastern Missouri. The legal aid group's Education Justice Program works to disrupt the path from classrooms to jail cells by helping keep kids in school; Ferber said his organization fears Devos' change will have an "adverse impact on … efforts to combat the school-to-prison pipeline."
"Our experience and the data show that school discipline policies and practices are applied in a discriminatory manner, disproportionately affecting children of color negatively," he added.
DeVos' Dec. 21 decision came on the heels of recommendations by the Federal Commission on School Safety, which President Donald Trump established a month after a school shooting in Parkland, Florida, left 17 people dead.
The Commission, chaired by DeVos, found that the Obama-era guidelines had a chilling effect on the use of exclusionary discipline by school leaders who feared retaliatory civil rights investigations — leading to dangerous situations in class. The report quoted comments from a survey by the School Superintendents Association that said "there is a feeling that by keeping some students in school, we are risking the safety of students."
Jonathan Butcher, a Heritage Foundation education policy analyst who was quoted in the report, told Law360 that the Parkland shooting was an example of how efforts to increase tolerance allowed a mass murderer to rampage.
"This student was referred to Broward County's version of this whole reduction in exclusionary discipline," he said, noting that the suspected shooter, Nikolas Cruz, had been written up for nearly 70 different infractions between middle and high school but never developed a juvenile criminal record.
Cruz's lack of a record was partly due to a 2013 agreement between the local school district and law enforcement that aimed to reduce school-based arrests over nonviolent offenses like profanity or minor vandalism.
In a 2014 interview, the district's superintendent Robert Runcie said his staff had joked that the Obama administration "might have taken our policies and framework and developed them into national guidelines."
According to Butcher, the district and the Obama DOE's focus on stemming the school to prison pipeline jeopardized school safety.
"There was this mindset in the school district of law enforcement not creating juvenile records," he said. "[Cruz] didn't have one, and that was partly why he was not stopped from getting a firearm."
But while groups like the Heritage Foundation encouraged DeVos' decision to rescind the Obama-era guidance, juvenile justice advocates across the country advised against it.
The advocacy group America's Promise Alliance, which published a report in June 2018 citing research that found more than 75 percent of black boys suspended for 10 days or more will be arrested by their late 20s, urged DeVos not to roll back the document.
The National Association of State Boards of Education also opposed the change because the guidelines were "important guardrails ... for helping school districts identify, avoid and remedy discriminatory discipline."
The Virginia-based Legal Aid Justice Center went so far as to argue the rollback will "make schools less safe."
LAJC's JustChildren Program legal director Rachael Deane told Law360 that although civil rights laws protecting against discrimination remain on the books, the guidance "was in place to try to stop many of the practices that cause the school to prison pipeline to happen."
As an example, she pointed to a complaint her organization and the American Civil Liberties Union of Virginia filed at the DOE over Richmond City Public Schools' discipline policies. They found the district authorizes out-of-school suspension for all grade levels, including pre-kindergarten, for minor offenses such as cutting class, tardiness and cell phone possession.
Exclusionary discipline over such conduct is applied unevenly; Virginia DOE data shows that African-American students who make up less than 75 percent of the student population represent nearly 95 percent of students who were long-term suspended. Students with disabilities, a 17.7 percent slice of the population, account for more than 37 percent of long-term suspensions.
As a result, both groups end up disproportionately referred to law enforcement — black students at a rate 4.69 times higher than white peers and students with disabilities at a rate 1.54 times higher than those without disabilities.
The LAJC and ACLU's complaint cited the now-rescinded 2014 federal guidance, which stated that "suspended students … are more likely to be suspended again, repeat a grade, drop out of school, and become involved in the juvenile justice system."
Deane said eliminating that official position is an attempt "to stop some of the progress that's been made at the federal and state level on common sense school discipline reform."
But according to DeVos' supporters, existing civil rights laws will help protect against discrimination. Butcher said rolling back a guidance that had caused schools to prioritize avoiding legal jeopardy over school safety is a way for government to encourage "school-specific, targeted responses."
"If Washington sets up a blanket policy about how a school is supposed to handle the issues of suspension and expulsion, it's just not possible for those policies to be able to fit, you know, 50 million public school kids across the country," Butcher said. "The approaches to safety are going to need to vary based on the circumstances of the school."
--Editing by Pamela Wilkinson.
Have a story idea for Access to Justice? Reach us at email@example.com.