The federal government has an essential role in protecting students of color. School discipline policies and procedures have an adverse impact on the educational outcomes of students. According to a 2018 report from the Center for Promise, harsh school discipline policies and practices lead students to disconnect from school. Discipline policies are often reactive to behavior and rarely have a preventative component to address the behavior. Further, discipline policies disproportionately affect students of color, especially Black boys. Policies often do not consider what the students experience in school and at home that might affect their behavior.
Fortunately, there is a push to revise disciplinary policies. These reforms are centered around phasing out exclusionary discipline for non-violent offenses. While some states and school districts are beginning to revise their policies, the lack of federal oversight in school discipline is preventing the progress of exclusionary discipline reform. While critics claim that the federal government does not have a role in school discipline reform, there is precedent. Ultimately, increased federal intervention into school discipline reform is essential as we move toward ending exclusionary discipline.
It’s all in the Data
Exclusionary discipline is the practice of temporarily removing students from the school as a form of punishment. This includes suspensions and expulsions. Suspensions and expulsions are considered paths of the school-to-prison pipeline, as students who experience exclusionary discipline are more likely to have continued experiences with the criminal justice system.
The Civil Rights Data Collection (CRDC) is a survey that measures student access to courses and resources related to federal civil rights laws. The 2015-2016 CRDC, released in 2018, evaluated how safe students are at school by collecting data on law enforcement referrals (students reported to a law enforcement agency/official for an incident on school grounds during school-related events including school transportation) and school-related arrests (arrest of a student for any activity on school grounds, off-campus school activity, or due to a referral by any school official), restraint and seclusion, and school discipline.
In the 2015-16 school year, Black males made up eight percent of total male enrollment but 25 percent of out-of-school suspensions and 23 percent of expulsions. During the same period, Black students made up 15 percent of total student enrollment but made-up 31 percent of referrals to law enforcement or school-related arrests.
Federal Guidance Rollercoaster
In 2011 the Obama Administration announced efforts to respond to the school-to-prison pipeline with the “Supportive School Discipline Initiative.” Some of the goals of the Supportive School Discipline Initiative are:
- to develop guidance to ensure that school discipline policies and practices comply with the nation’s civil rights laws and to promote positive disciplinary options to both keep kids in school and improve the climate for learning and
- to promote awareness and knowledge about evidence-based and promising policies and practices among state judicial and education leadership.”
To accomplish this, the Department of Education and the Department of Justice coordinated with non-profit organizations to address inappropriate school discipline. This initiative resulted in a school discipline guidance package. In 2014, the Administration released a discipline package that aimed to help states, districts, and schools develop policies and practices that comply with federal law. The resource package consisted of a Dear Colleague letter on civil rights and discipline to show how schools can meet their legal obligations to administer student discipline without discriminating against students based on race, color, or national origin; and guiding principles that use emerging research and best practices to describe action steps that can help guide state and local school districts to improve school climate and discipline.
In December 2018, the Trump Administration released their own Dear Colleague letter withdrawing the policy and guidance issued by the Obama Administration. The Trump Administration described the guidance as too harsh and claimed that it took decision-making away from local officials to address school safety.
In June 2021, the Biden Administration issued a Request for Information asking members of the public to submit comments on the administration of school discipline in pre-K through 12 schools. Additionally, 38 Attorneys Generals have called on the Biden Administration to reissue the guidance and expand it to include school discipline based on sex, sexual orientation, gender identity, and disability.
The overrepresentation of Black, Brown, and Indigenous students in exclusionary discipline is a social justice issue. Extensive research shows the direct link between exclusionary discipline consequences and entrance to the prison and the criminal justice system.
There needs to be an increase in investigation and litigation
While reinstating the guidance is an essential first step, it is important to remember that it is just that. Guidance. Just because the information is there does not mean that school districts and states have to use it or are held accountable in any way. That is why the federal government needs to lean into framing exclusionary discipline as a civil rights issue that violates federal law.
The original guidance introduced was jointly issued with the Department of Justice, which provided legal guidance on how discriminatory student discipline practices were potential violations of Title IV and Title VI of the Civil Rights Act of 1964. Titles IV and VI protect students from discrimination based on race in connection with all school academic and educational programs and activities, including programs a school administers to ensure and maintain school safety and student. The Department of Justice is empowered to investigate public schools and colleges and even prosecute. However, the Department rarely wields this power.
The Department of Justice should wield its investigative power to prosecute public schools that continue to use exclusionary discipline that disproportionally impact students of color. The increased oversight is positioned on holding schools accountable for federal Civil Rights law violations. Thus, the federal government has authority. Although investigation can take a long time to complete, it should not deter the government from authorizing them. The threat of increased oversight can sometimes be enough to force change, and the actual consequences that schools can face will also be an incentive.
Reinstating the Obama Administration’s federal guidance is a step in the right direction. It will allow states and school districts to have and use research that provides tangible evidence that reform is necessary. However, there needs to be more done to reform school discipline and truly hold schools and states accountable.
Jessi Dixon is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.
