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DeVos Meets With Supporters, Critics of Discipline Rules as GAO Says Racial Disparities Persist

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By Evie Blad and Alyson Klein

U.S. Education Secretary Betsy DeVos met with supporters and critics of an Obama-era directive on school discipline Wednesday as she considers whether to rescind the document.

That 2014 civil rights guidance—jointly issued by the U.S. Departments of Education and Justice—put schools on notice that they may be found in violation of federal civil rights laws if they enforce intentially discriminatory rules or if their policies lead to disproportionately higher rates of discipline for students in one racial group, even if those policies were written without discriminatory intent.

The meetings happened on the same day the Government Accountability Office released an investigation that found that black students are consistently disciplined at higher rates than their peers. While black students represented 15.5 percent of public school students in 2013-14, they made up 39 percent of students suspended, according to the most recent federal data analyzed in the report.

"These disparities were widespread and persisted regardless of the type of disciplinary action, level of school poverty, or type of public school attended," GAO investigators found.

At the heart of the debate of the discipine guidance is why those differing discipline rates occur and the role of the federal government in addressing them. Also at issue: whether schools' efforts to limit "exclusionary discipline," such as expulsions and suspensions, have helped students feel more supported or have too severely limited teacher discretion in disciplining students.

DeVos and her team have not committed to a particular time frame for making a final decision on whether to keep, toss, or tweak the guidance. That decision is also on the agenda of a new school safety task force assembled by the White House, which DeVos chairs.

The department has so far held 12 roundtables on school discipline issues, but this was the first one that DeVos has personally participated in, said Nate Bailey, a spokesman for the secretary.

Separately, the secretary has met with lawmakers, including Rep. Bobby Scott, D-Va., the top Democrat on the House education committee, who is a strong supporter of the Obama administration's approach, and Sen. Marco Rubio, R-Fla., who urged DeVos to re-examine the guidance after the Feb. 14 school shooting in Parkland, Fla.

The summit with DeVos, which was also attended by Assistant Attorney General for Civil Rights John Gore, was split into two roundtables. The first featured supporters of the guidance including six educators; researchers; civil rights organizations; representatives from Educators for Excellence, a national advocacy group for teachers; and the National Education Association, a 3 million-member union. The second panel included critics and those with concerns about the guidance: researchers, six educators, and representatives from the National School Boards Association and the AASA, the school superintendents association.

DeVos opened the sessions by marking the 50th anniversary of the assassination of Dr. Martin Luther King Jr. and "highlighting the continued need to achieve the full realization of his life's work," the Education Department said in a statement. "She discussed the clear problem, revealed both in the data and in the stories told, of disparate treatment in discipline." 

What the Obama-era discipline guidance says

Civil rights guidance cites previous court decisions to clarify for schools and districts what policies and practices could run afoul of federal anti-discrimination laws that relate to issues like race and disability status. Such guidance is not binding like federal law, but it informs schools what could trigger a civil rights investigation from federal agencies.

The discipline guidance says schools' policies could violate the law if they intentionally treat students differently on the basis of race or if they seem to be written in a neutral fashion but lead to unjustified, disproportionately higher rates of discipline for students in one racial group. That's a concept called disparate impact, which you can read more about here.

If a school finds black students (or students in any other racial group) in violation of a rule at higher rates than their peers, that rule must be necessary to "meet an important educational goal," the guidance says. And before settling on a punishment, the school must consider appropriate alternatives that have less of an impact on the disproportionately affected racial group. The guidance's test for "disparate impact" of a disciplinary policy mirrors the past interpretation of courts in civil rights cases centered on school discipline.

The new GAO report included case studies of schools and districts that have been subject to federal investigation for their practices. In Tupelo, Miss., for example, investigators found that black students were disciplined more harshly than their non-black peers for a range of offenses, including broad rules against things like "defiance" and "other misbehavior" that could be subjectively interpreted. "For example, among several students who were disciplined for the first offense of using profanity, Black students were the only ones who were suspended from school, while White students received warnings and detention for substantially similar behavior," the report said.

Schools that have been investigated for such disparities have agreed to rework their policies to limit the use of suspensions for non-violent offenses, to collect and analyze discipline data to look for inconsistencies, and to train their teachers and administrators in issues like implicit biases and classroom management.

What critics of the discipline guidance told DeVos

Critics say the document has had a chilling effect on local decisionmaking in school discipline.

Racial differences in discipline rates can't entirely be explained by different treatment in schools, those critics contend. They argue that black students are more likely to be exposed to out-of-school factors, like poverty, which can cause them to misbehave more.

Schools that are afraid of sparking federal investigations have limited teachers' ability to discipline students without providing useful alternatives, those critics have said. Others, aiming to drive down suspension rates, have set annual goals that some have seen as problematic "quotas."

To keep discipline rates down, schools either don't discipline students for some misbehavior or they fudge discipline data in creative ways, Max Eden, a senior fellow at the Manhattan Institute, said after meeting with DeVos. Teachers are afraid of speaking out about problematic discipline policies for fear of retaliation from their districts or concerns that the media will portray them as uncaring, he said.

Nicole Stewart, a former vice principal at Lincoln High School in San Diego, said she told DeVos about the district's practice of "blue slipping" students, sending them home with an unexcused absence so their punishment isn't counted as a suspension. That means counselors and educators don't always know a student's full behavioral history, she said.

A student at Stewart's former school recently brought a knife to school, but because he didn't brandish it in a threatening manner, he was not referred for an automatic expulsion, she said. Administrators could have recommended him for an expulsion hearing, but they determined his behavior was related to a disability (under separate federal laws, students can't be disciplined for manifestations of diagnosed disabilities). Two weeks later, the student returned to school with a knife and slashed a peer's throat in the hallway, Stewart said, retelling a story that was recently covered by the Voice of San Diego.

"We are not modeling as a system what consequences look like in the real world," she said.

The AASA released a more moderate statement following the meeting. Preliminary results of a survey of 850 school leaders in 47 states show that the guidance "has not been transformative in changing discipline policies and practices for districts," the organization said in a statement. "The claims that it, alone, has transformed districts from safe school environments to unsafe ones is hard to justify. Similarly, our data demonstrate that the guidance has not had a significant effect in reducing out-of-school-time for students or improving racial disproportionality in discipline."

Sixteen percent of districts that have changed discipline practices because of the guidance "have struggled," the survey found, identifying pushback from parents and teachers, and inadequate funding for student supports as challenges. But "the vast majority" of leaders who said they've changed their districts' discipline practices said they've seen payoff from their efforts to review discipline data, provide training and adopt practices like restorative justice and positive behavioral supports, the statement said.

What supporters of the discipline guidance told DeVos

Supporters of the discipline guidance say it has been instrumental in protecting the civil rights of students who are often overlooked. And the directive has motivated states and districts to re-examine their disciplinary practices, making changes that have benefited all students, they said.

Many problems that have been attributed to the guidance are actually problems with how districts have implemented their own discipline policies, they said. Teachers need training and resources to support their students, and schools shouldn't remove the ability to suspend students for some offenses without helping teachers with alternative discipline practices, they said.

Nina Leuzzi, a pre-kindergarten teacher in Boston, said she told DeVos that scrapping the guidance could give educators across the country the impression that policymakers at the highest levels aren't concerned about yawning discipline disparities.  

"Keeping and improving the guidance ... allows schools, districts, the nation to take powerful and crucial steps towards reducing the imbalance present in the treatment of students of color, students with disabilities, LGBTQ students and ending unnecessary exclusions and biased discipline," she said. "Focusing on equity and civil rights should be our first priority."

Marisa Crabtree, who met with DeVos Wednesday and has taught at Lincoln high school in Los Angeles for 14 years, remembered a time when, as a rookie teacher, she asked an older peer what to do when her students come to class without pencils and notebooks. "Oh, you can always suspend them," she remembers that teacher saying.

"I remember thinking that's just ridiculous," Crabtree said. Students might come to class unprepared because they can't afford notebooks or because they have a chaotic home life, she said.

Los Angeles began changing its disciplinary policies in 2012, before the federal guidance was adopted. And, in the years since, California has also adopted laws that restrict schools' ability to suspend younger students for infractions like "defiance."

Some Los Angeles Unified teachers have complained that the district hasn't been quick enough to train them in practices like restorative justice, which is designed to address student misbehavior through conversations and repair the harm. Crabtree said she understands those concerns. It can take time for a big school system like hers to change, and some teachers can be frustrated in the process.

But she says the new policies have made her a better teacher and have given her strategies for addressing problems before they spiral into severe misbehavior.

"I think the federal guidance policies have actually driven that change" in many districts, she said.

What the GAO report says

The GAO report found disproportionately high rates of discipline for black students, students with disabilities, and boys.

"This report underscores the need to combat these gross disparities by strengthening, not rescinding, the 2014 Discipline Guidance Package, which recommends specific strategies to reduce the disparities without jeopardizing school safety," said Rep. Scott, who requested the investigation.

The report examined six kinds of discipline: in-school suspensions, out-of-school suspensions, corporal punishment, referrals to law enforcement, expulsions, and school-related arrests. It found disparately high rates of discipline for black students across all categories.

Students Suspended from School Compared to Student Population, by Race, Sex, and Disability Status, School Year 2013-14

GAO staff visited a total of 5 districts and 19 schools in California, Georgia, Massachusetts, North Dakota, and Texas. School staff there "reported various challenges with addressing student behavior," the report says.

"They described a range of issues, some complex—such as the effects of poverty and mental health issues. For example, officials in four school districts described a growing trend of behavioral challenges related to mental health and trauma. While there is no one-size-fits-all solution for the issues that influence student behavior, officials from all five school districts GAO visited were implementing alternatives to disciplinary actions that remove children from the classroom, such as initiatives that promote positive behavioral expectations for students."

Schools have pursued such practices, the report says, because "research has shown that students who are suspended from school lose important instructional time, are less likely to graduate on time, and are more likely to repeat a grade, drop out of school, and become involved in the juvenile justice system. The effects of certain discipline events, such as dropping out, can linger throughout an individual's lifetime and lead to individual and societal costs."

The report says the differences in discipline rates cannot be entirely attributed to differential treatment by schools.

"Children's behavior in school may be affected by health and social challenges outside the classroom that tend to be more acute for poor children, including minority children who experience higher rates of poverty," it says.

But it also notes research that shows some teachers perceive students' behavior differently depending on their race.

One study cited in the report used eye-tracking technology to show that "teachers gazed longer at Black boys than other children when asked to look for challenging behavior based on video clips."

The report also found that national rates of suspensions started dropping in the years before the guidance was released, which means the changes cannot be entirely credited to—or blamed on—the federal guidance.

Photo: U.S. Secretary of Education Betsy DeVos testifies before a Senate committee in June. --Susan Walsh/AP

Further reading on school discipline and civil rights:

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