The Department of Education and the Department of Justice officially rescinded a piece of Obama-era guidance designed to protect students from racist school discipline on Friday. The repeal comes after the Trump administration’s Federal Commission on School Safety, chaired by Education Secretary Betsy DeVos, released a report earlier in the week recommending the withdrawal of this guidance.
The move was immediately blasted by civil rights advocates and Democratic leaders, who say it represents a retreat from the protection of vulnerable student groups, who receive disproportionately harsh school punishments compared to their peers. In the Federal Commission on School Safety report, Trump officials framed the rescission as one that would give schools more local control over their disciplinary practices and keep students safe from violent or disruptive peers.
But according to civil rights advocates, there is scant evidence that the guidance ever made schools less safe, and repealing the guidance will help perpetuate the school-to-prison pipeline. The school-to-prison pipeline is the idea that students who get pushed out of schools, via suspensions or expulsions, are more likely to end up in the criminal justice system.
The Obama guidance, put forth in 2014, was non-binding, and entailed a set of recommendations for state and local school leaders to help make school discipline practices more equitable. The guidance warned schools that they may be violating civil rights law if certain groups of students are consistently disciplined more harshly than others, even if a school’s policies are not intentionally discriminatory.
“By rescinding this guidance, Secretary DeVos and Acting Attorney General Whitaker are creating confusion for schools and making it harder for students of color to learn without being discriminated against.”
The guidance was reportedly on the chopping block even before the deadly Parkland school shooting in February. But after the shooting, leaders like Sen. Marco Rubio (R-Fla.) tried to connect it to the tragedy. The school shooter had attended a restorative justice initiative in his district, and Sen. Rubio argued that the program helped the student evade law enforcement. Civil rights groups have panned the argument, calling it tenuous and politically motivated.
On Tuesday, as part of a larger school safety report that had recommendations on school security measures and mental health services, the administration signaled its intention to rescind the guidance. The report suggested that the guidance had a chilling impact on school discipline and specifically criticized the legal doctrine of disparate impact. Disparate impact is the idea that even neutral discipline policies can be illegal if they have the effect of disproportionately impacting one group of students.
The rescission of the guidance has no formal impact on the law. Schools are still required to protect students from discrimination based on race, color and national origin. But education stakeholders still worry that it will send an important symbolic message to schools and students, leading to less vigorous enforcement of these issues at the federal level.
Education Secretary DeVos championed the decision in a statement Friday.
“Every student has the right to attend school free from discrimination. They also have the right to be respected as individuals and not treated as statistics. In too many instances, though, I’ve heard from 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,” said DeVos.
Democratic leaders instead argued that the move will have a dangerous impact on the most vulnerable students.
“By rescinding this guidance, Secretary DeVos and Acting Attorney General Whitaker are creating confusion for schools and making it harder for students of color to learn without being discriminated against,” said Sen. Patty Murray (D-Wash.) in a statement.