How Trump repeal of Obama-era school discipline guidelines could affect California

March 20, 2018

U.S. Secretary of Education Betsy DeVos.

If U.S. Education Secretary Betsy DeVos decides to repeal Obama-era school discipline reform guidance — which she’s often hinted at, most recently during a 60 Minutes interview — the action could hamper discipline reform efforts in districts throughout California, especially in those where the pace of reform has been slow, say civil rights and youth advocates.

However, any effort to roll back the federal guidelines would have no real effect on California’s statewide discipline policies or its newly established accountability measures, according to state officials.

“At the district level, and especially at the school level, we still see very harmful school climates and high suspension rates,” said Amir Whitaker, a staff attorney for the ACLU of Southern California. “The repeal at the federal level, although it won’t affect policy directly, sends the wrong message to schools.”

At issue are the Obama administration’s “Rethink Discipline” guidelines, which were first introduced in 2014 as part of President Barack Obama’s “My Brother’s Keeper” initiative. They emphasized alternatives to suspensions and expulsions and highlighted data showing that students of color and those with disabilities were up to three times as likely as white students to face these punishments, often for similar nonviolent offenses.

The guidelines came at a time when a significant number of districts nationwide were facing scrutiny for disproportionate discipline outcomes. It became a particularly contentious issue in large urban districts, where the high suspension rates of African-American students, relative to their white classmates, led to community outcry and media attention. Many districts responded by enacting policies aimed at significantly reducing suspensions and expulsions.

Both Los Angeles Unified and Oakland Unified, for example, agreed to federal monitoring of their discipline policies after data showed disproportionate suspensions of students of color in their schools, especially African-American boys. The monitoring ended earlier this month in Oakland and it is ongoing in L.A. Unified.

The two are among a handful of California districts in recent years to ban in all grades suspensions for “willful defiance,” which is a vague category of suspension that can be used to remove a student for such actions as refusing to be quiet during class, purposefully disrupting class and/or insulting a teacher. Some advocates have long said that this rationale for suspensions is too subjective and disproportionately targets students of color and disabled students.

In 2014, the state passed a law banning “willful defiance” suspensions in grades K-3 statewide. That law is scheduled to sunset in July and there is currently a bill circulating through Sacramento that would both extend and expand the ban.

Last year, the state Department of Education unveiled the “California School Dashboard,” which is the primary way in which the state tracks how districts are performing in key areas under Gov. Jerry Brown’s sweeping school finance reform known as the Local Control Funding Formula (LCFF). Suspension rates are among the statewide indicators that districts are rated on through a color-coded system. Soon, chronic absenteeism will also be a part of the dashboard.

The focus on school discipline as part of the state’s accountability system has led to significant drops in suspension and expulsion rates in districts statewide and nationally. But along with the decline has come a heightened sense of anxiety among some teachers and administrators who feel that classrooms are less safe and more chaotic now that their ability to remove troublesome students through suspensions has been curtailed.

On March 12, the same day DeVos’ 60 Minutes interview aired, President Donald Trump announced a new “Federal Commission on School Safety” to be led by DeVos. Among other actions, the commission will consider rescinding Obama’s “Rethink Discipline” guidance, according to the text of the White House announcement.

Meanwhile, Florida Sen. Marco Rubio — and later Trump — went so far as to say that Obama-era discipline policies were partly to blame for February’s massacre of 17 people at Marjory Stoneman Douglas High School in Parkland, Fla. Their argument is the reduced emphasis on suspensions, expulsions and police involvement on school campuses could have allowed the shooter, Nikolas Cruz, to fall through the cracks. Many, however, refute that argument because Cruz had been expelled from school and police had been called to his home dozens of times.

Disagreements over impact of Obama guidance

Whatever the Federal Commission on School Safety does, it will have little effect on the discipline reforms underway in California, said David Kopperud, a consultant in the state Department of Education’s Coordinated Student Support Services Division.

“California districts are doing a good job of implementing programs that are alternatives to suspensions, which are still disproportionate but going down for all groups,” Kopperud said. “We will continue to address these issues even if they aren’t emphasized at the federal level…it’s not going away in California.”

The ACLU, along with other civil rights groups and youth advocates, agree with Kopperud that the state has made significant progress with discipline reform. But the pace of reform among individual districts has been uneven and the advocates worry that without federal pressure local school administrators will be less inclined to make changes.

“It drew attention to an issue that data show has grown as a problem,” said Dan Losen, director of UCLA’s Center for Civil Rights Remedies, of the “Rethink Discipline” guidance. “It has helped reveal unintentional harms that bad policy may be visiting on kids of color.”

On March 12, the ACLU and more than a dozen other civil rights groups sent a letter to Gov. Brown urging him to sign SB 607, a bill authored by state Sen. Nancy Skinner, D-Oakland, that would extend the statewide “willful defiance” suspension ban and expand it to include all grades, K-12.

Brown vetoed a similar bill in 2012 before signing the legislation mandating the K-3 ban. Brown has refused to comment on Skinner’s bill, but has indicated he won’t sign the bill if it reaches his desk. Brown’s primary argument in his veto message is such a large-scale statewide ban violates the spirit of local control in school funding and policymaking.

Max Eden, a senior fellow specializing in education policy for the Manhattan Institute in New York City, said that local control is the key to true school reform and pressure from the state or federal governments on discipline policies hinders efforts by teachers and administrators to make meaningful changes at the school level.

“To me rescinding this (federal) guidance is the best hope for discipline reforms to actually work,” said Eden, who has done significant research on discipline policies in districts nationwide. “The guidance strikes fear into superintendents and principals to reduce suspensions full stop.”

Eden says this creates a dynamic in which district leaders, rather than working with teachers on improving discipline outcomes, respond to the pressure from above and mandate that schools reduce suspensions without providing adequate resources.

Eden goes on to say that alternatives to traditional discipline, like Positive Behavior Intervention and Supports, in which schools focus on modeling positive behaviors, and restorative justice, which focuses on mediation over punitive discipline, will continue without “top-down pressure to reduce suspensions.”

Advocates fear darker motives

The civil rights and youth advocates, however, say the Trump administration’s recent actions appear to be a harbinger of something darker than a disagreement over whether reforms are best achieved with bottom-up or top-down approaches.

“The fear is that it may signal a change of direction or unwillingness of the administration to investigate civil rights complaints,” said Brad Strong, senior director for education policy for Children Now, an Oakland-based advocacy organization. “If that is indeed what they are signaling, that is outrageous.”

Losen shares Strong’s concerns and said it’s important to understand that the 2014 “Rethink Discipline” guidance is not new law or policy, it’s a clarification of law established when Congress passed the Civil Rights Act of 1964.

Specifically, it clarifies the rules districts must follow under Title IV and Title VI of the act, which forbid discriminatory practices, Losen said. Schools and other institutions cannot implement policies that have a “disparate impact” on certain racial groups, such as discipline policies that impact students of color — or those with disabilities — more than they do white students.

Losen worries that the Trump administration’s efforts to rescind the Obama-era discipline guidance “may be just a trial balloon” for a later assault on the Civil Rights Act.

“The signal I’m concerned about is much broader than education,” he said.

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