DeVos review of racial bias guidance stirs controversy

Greg Nash

Civil rights groups are fighting to stop Education Secretary Betsy DeVos from rolling back Obama-era guidance on school discipline that aimed to protect black students from being punished more severely than their white peers.

DeVos met with education advocates on the left and right last week to talk about the joint guidance the Education and Justice departments issued in 2014 to help schools avoid policies that discriminate, even unintentionally, against black students.

{mosads}Some Republicans and conservatives have argued the guidance has made schools less safe and contributed to the deadly Parkland, Fla., high school shooting in February.

Others say the administration is using the shooting as an excuse to roll back critical guidance that helps protect students from discrimination under federal civil rights laws.

“I think they are conflating the two,” said Todd A. Cox, director of policy for the NAACP’s Legal Defense and Educational Fund.

“And like the election integrity commission, which was designed to look for evidence of voter fraud that was nonexistent, they are using that horrible tragedy to attack the guidance.”

Though DeVos told those who attended last week’s listening sessions that no decision has been made, civil rights advocates aren’t buying it.

“I think it’s clear their intent is to pull the guidance,” said Brenda Shum, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, who attended the listening session.

In a response to a request for comment, the Education Department directed The Hill to a press release summarizing who attended the listening sessions and what was discussed. The sessions were closed to press.

The guidance issued by the Obama administration reminds schools that receive federal funds of their legal obligations to administer student discipline without discriminating on the basis of race, color or national origin.

While it maps out best practices, including using suspension as a discipline of last resort, the recommendations aren’t mandatory.  The guidance, however, does detail the department’s process for investigating claims of discrimination. 

Shum and others say the school discipline guidance is likely to be the latest casualty in what they view as the administration’s war on civil rights protections.

In her first year in office, DeVos has rescinded Obama-era guidance for colleges on handling sexual assaults and rolled back guidance that allowed transgender students to use the bathroom that corresponds with their gender identity.

“We see the guidance and enforcement of Title VI as an outgrowth of the Brown v. Board of Education decision and inextricably linked to that legacy,” Cox said.

“Any rollback to vigorous enforcement of Title VI or rollback of the guidance we see as an attack on the legacy of Brown.”

While DeVos was discussing the guidance last week, the Government Accountability Office (GAO) released a report that found black students, boys and students with disabilities are disproportionately disciplined with suspensions and expulsions. It’s a disparity, the report said, that’s widespread and persistent regardless of whether the school is in a high-income or a low-income community.

Advocates have seized on the GAO report to further their argument for why the guidance is needed.

But Max Eden, a senior fellow at the Manhattan Institute, said the report failed to consider that the disparity in discipline might be due to variables other than implicit bias.

Variables that can’t necessarily be captured include neighborhood crime and family structure, he said.

“I think that claiming implicit bias is a weak excuse for actually paying attention to what’s really going on with these students,” said Nicole Landers, who co-founded the Parent2Parent Network to connect parents who are concerned about school violence.

But in its report, GAO said it talked to five school districts about the challenges that schools face in addressing student conduct, given the complex issues that influence student behavior, including poverty, mental health issues and family dysfunction.

The report said officials at a school in Texas reported attendance issues with students who are homeless or in foster care because they lack transportation and clothing. 

Instead of addressing these other issues, Landers and Eden argue the guidance has scared school officials away from disciplining and reporting bad behavior.

As a result, they argue, schools have become more dangerous.

In a New York Post op-ed in January, Eden said the “threatening ‘guidance’” tells schools “even if your rules are fair and administered equally, we may accuse you of ‘unlawful discrimination’ if some groups get punished more than others.”

“School leaders got the memo: Don’t punish kids, especially not minority kids. Because if you do, you may face a never-ending civil-rights investigation and the threat of losing federal funding,” he wrote.

AASA, the School Superintendents Association, said the fight over the guidance has gotten out of hand.

“The argument that it has had a catalyzing effect in signaling to school districts they have to take school discipline more seriously or change their policies I think is overblown, as is the statement that it’s making schools unsafe,” said Sasha Pudelski, the group’s advocacy director.

AASA said preliminary data from a survey of 850 school leaders in 47 states it conducted over the past two weeks shows only 16 percent of schools have changed their disciplinary policies as a result of guidance. And of that, Pudelski said small percentages have seen positive and negative effects.

It’s why AASA is not taking a position one way or another on whether the guidance should be kept.

“This is not a regulation. This is guidance, so it’s unbelievable to me that so much is being made of a guidance document,” she said. “It’s not law. It’s a recommendation.”

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