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• By Morgan Craven, J.D.  • IDRA Newsletter • August 2023 •

In 2014, the U.S. Departments of Education and Justice under President Obama issued guidance documents designed to help school districts across the country address race-based discrimination in school discipline. The problem the documents were meant to tackle was clear: students of color, particularly Black students, are disproportionately punished and policed in U.S. schools, even though they are not more likely to break school rules (IDRA, 2023).

The Obama-era guidance did not create new law; rather it advised school districts on how to comply with existing civil rights laws and regulations, including Title VI and Title IV of the Civil Rights Act of 1964 which prohibit discrimination on the basis of race, color, and national origin. The guidance – informed by extensive literature reviews; input from advocates, lawyers and experts; and conversations with students, parents and educators – provided recommendations to reduce discriminatory discipline practices in schools and included resources for creating safe, supportive school environments for all students.

Importantly, the guidance also advised school districts on how the departments planned to investigate potential violations of students’ civil rights. Those investigations could take into account the “disparate impact” of a discipline policy, allowing the departments to find discrimination occurred if students of color were disproportionately punished, even if the language of the discipline policy itself appeared to be racially neutral.

To determine if a school district had run afoul of its duty to protect all students, the departments could examine data showing a disparate impact of the policy on students of color, investigate whether the disciplinary practice met important educational goals despite that impact, and evaluate whether alternatives to the punishment were considered by the school administrators.

These guidance documents were critical to identifying and remedying harms that are crystal clear to anyone taking even the most basic look at discipline data in school districts across the country. For example, in 2017-18, Black students made up 15% of public school enrollment in the United States but accounted for 38% of students who received one or more out-of-school suspensions (OCR, 2021). Black girls were the only group of girls that faced punishment disparities – they were suspended at rates nearly twice that of their enrollment (OCR, 2021).

These students – some as young as preschool age – are unfairly missing learning opportunities that their peers are getting, due to discipline policies and practices in their schools.

The Obama-era guidance documents were an important statement, issued by the federal government in an attempt to address the deep harms of punitive discipline practices in schools, alert schools of the responsibilities they have to protect all students, and advise school officials of the types of violations that would be investigated and addressed by the enforcement divisions of the Departments of Education and Justice.

However, President Trump’s administration rescinded the Obama guidance in 2018 (Binkley, 2018). Relying on select research, interviews and focus groups from a federal panel investigating school safety, the administration issued a report targeting many of the discipline recommendations and investigation guidelines advanced by the Obama administration. Using unsupported connections between school violence and discipline, the report argued, incorrectly, that reducing punitive and exclusionary discipline practices would only serve to increase school violence (Federal Commission on School Safety, 2018).

We know the opposite is true: addressing root causes of challenging behaviors in meaningful and proactive ways, equipping school staff with skills and systems to welcome all students into their classrooms, and moving away from punitive discipline practices that push young people out of the classroom, helps students and strengthens school communities (Craven, 2022).

President Trump’s report also challenged the use of disparate impact evaluations in school discipline investigations, claiming the legal analysis should never have been applied in that context (Federal Commission on School Safety, 2018).

Since the election of President Biden, IDRA and other advocates across the country have been calling for the Departments of Education and Justice to issue new discipline guidance that brings back some of the important resources from, and addresses gaps identified in, the Obama-era guidance.

In 2022, the Department of Education issued guidance specifically focused on addressing discipline policies and practices that discriminate against students with disabilities (2022). While this guidance was important, advocates and families across the country pointed out that it was not complete, as it did not specifically focus on race-based discrimination in school discipline.

In May 2023, the Departments of Education and Justice issued a “resource” and a series of fact sheets – not official guidance documents –on the impact of discipline on students of color and strategies for schools to address exclusionary discipline and promote stronger school climates (U.S. Department of Education, 2023).

The Resource on Confronting Racial Discrimination in Student Discipline includes a “Dear Colleague” letter describing the potential negative outcomes of racial discrimination in school discipline; the impacts of the pandemic on student mental and behavioral health, and how COVID-19 emergency relief funds can be used to implement safe and inclusive practices and strategies (OCR & CRD, 2023).

The resource also includes summaries of several federal investigations into school discipline policies and practices conducted by the Department of Education’s Office for Civil Rights and the Department of Justice’s Civil Rights Division. These summaries are not explicit descriptions of the guidelines the departments use in their investigations. Instead, they provide examples of how the departments have applied the law to specific fact patterns in school discipline cases and give examples of remedies obtained following investigations.

The resource touches on how the departments view data of racial disparities in discipline as one tool in the overall analysis of whether a violation of the law occurred. Specifically, the resource notes that “while racial disparities in student discipline alone do not violate the law, ensuring compliance with federal nondiscrimination, obligations can involve examining the underlying causes of such disparities” (OCR & CRD, 2023).

It is important to note that this “resource” is not the same as official agency guidance documents, like those issued in 2014.  Official guidance documents “include interpretative rules – which advise the public of an agency’s interpretation of the statutes and regulations it administers – and general statements of policy, which advise the public about an agency’s intended use of its discretionary authority” (Bowers, 2021).

Unlike summary resources or fact sheets, official guidance documents can provide to schools, students, parents and advocates a stronger, more clear understanding of the most current research and best practices and the expectations they should have for schools to protect the rights of historically-marginalized students.

And, importantly, guidance documents can provide a clearer statement of the standards and guidelines the federal government intends to use in investigations to determine when discrimination has occurred and how to provide a meaningful remedy.

This clarity can empower families and other advocates in local communities and states to proactively demand an end to discriminatory punitive discipline and policing practices, including by filing complaints with the federal government.

In addition to continuing to advocate the release of robust federal discipline guidance, it is critical for all who are invested in the success of students to continue to push for:

• An end to harmful punitive school discipline and school-based policing practices in state, local, and federal policies.
• A truthful narrative of school safety that emphasizes supporting students and building trusting relationships over school hardening, surveillance and policing measures.
• Investments in the people and practices – including mental and behavioral health professionals and networks of support – that create safe and welcoming schools where all students can succeed.
• Robust data collection that shows outcomes and opportunities for all students, including those with intersecting identities.
• Federal investigations into discriminatory school discipline and policing practices that harm young people, including students of color, students with disabilities, girls and LGBTQ+ students.

Practices that knock students off the pathway to college are never acceptable, and when those practices also discriminate against certain students, we must all be clear in denouncing them.

Resources

Binkley, C. (December 21, 2018). Trump officials cancel Obama-era policy on school discipline. AP News.

Bowers, K.R. (April 19, 2021). Agency Use of Guidance Documents. Congressional Research Service.

Craven, M. (June 15, 2022). What Safe Schools Should Look Like for Every Student A Guide to Building Safe and Welcoming Schools and Rejecting Policies that Hurt Students, Issue Brief. IDRA.

Federal Commission on School Safety. (December 18, 2018). Final Report of the Federal Commission on School Safety.

IDRA. (February 2023). A Black Student Centered Policy Agenda. [Updated in 2024: A Policy Agenda to Support Black Students]

OCR. (June 2021). An Overview of Exclusionary Discipline Practices in Public Schools for the 2017-18 School Year. Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection.

OCR & CRD. (May 2023). Resource on Confronting Racial Discrimination in Student Discipline. Office for Civil Rights, U.S. Department of Education and Civil Rights Division, U.S. Department of Justice.

U.S. Department of Education. (July 19, 2022). New Guidance Helps Schools Support Students with Disabilities and Avoid Discriminatory Use of Discipline, news release.

U.S. Department of Education. (May 26, 2023). U.S. Departments of Education and Justice Release Resource on Confronting Racial Discrimination in Student Discipline, news release.

Morgan Craven, J.D., is the IDRA national director of policy, advocacy and community engagement. Comments and questions may be directed to her via email at morgan.craven@idra.org.

[©2023, IDRA. This article originally appeared in the August 2023 edition of the IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]