Brustein & Manasevit’s Federal Update

The U.S. Department of Education (ED) announced in late December that it would rescind guidance on school disciplinary policies issued in 2014 by the Obama administration.  The guidance was issued jointly by ED and the Department of Justice.  While it did not modify statutory or regulatory requirements, the guidance was controversial because it suggested that schools could violate federal civil rights laws if school disciplinary policies had a “disparate impact” on different groups of students, even if those policies were written without the intent to discriminate.  In particular, it discouraged so-called “zero-tolerance” policies which resulted in suspension or expulsion for a student’s first disciplinary violation, based on evidence which suggested that students of color and those with disabilities were more often impacted by such policies.

The decision came after a yearlong examination of school safety policies and procedures by the Federal Commission on School Safety, housed at ED and overseen by Secretary of Education Betsy DeVos.  “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,” DeVos said in a statement about the rescission.  “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.”

She also talked about the importance of State and local decision-making: “[o]ur decision to rescind that guidance today makes it clear that discipline is a matter on which classroom teachers and local school leaders deserve and need autonomy.  I would encourage them to continue to implement discipline reforms that they believe will foster improved outcomes for their students.”

The administration is reportedly planning new guidance to replace the rescinded document.  It is not yet clear how this would incorporate the principle of disparate impact, which was the basis of the previous guidance.  This concept says that policies which impact groups of individuals differently – even if written neutrally – are a form of discrimination prohibited under the Civil Rights Act of 1964.  The Federal Commission on School Safety report raised questions, however, about whether disparate impact analysis was supported by the Civil Rights Act, calling the interpretation of “questionable validity” and “dubious, at best.”

In the interim, the administration has issued a “Dear Colleague” letter and a brief FAQs document on racial discrimination and school discipline which describes the investigation process to be followed on school disciplinary complaints.

Resources:

• Andrew Ujifusa, “Betsy DeVos Revokes Obama Discipline Guidance Designed to Protect Students of Colors,” Education Week: Politics K-12, December 21, 2018.
• Laura Meckler and Devlin Barrett, “Trump Administration Considered Rollback of Anti-Discrimination Rules,” Washington Post, January 3, 2019.
• Anya Kamenetz, “DeVos To Rescind Obama-Era Guidance on School Discipline,” NPR, December 18, 2018.
• Erica L. Green and Katie Benner, “Trump Officials Plan to Rescind Obama-Era School Discipline Politics,” New York Times, December 17, 2018.

Author: JCM