Here's What the End of Obama-Era Discipline Guidance Means for Schools

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UPDATED, DEC. 21:

The Trump administration rescinded Friday guidance issued by the Obama administration to ensure that schools don’t unfairly discipline students of color, who face suspensions and other consequences at rates higher than their peers.

A recommendation to scrap the guidance, jointly issued by the U.S. Departments of Education and Justice in 2014, was included in a report released Dec. 18 by the Federal Commission on School Safety, led by U.S. Secretary of Education Betsy DeVos. The commission’s report is signed by both DeVos and acting Attorney General Matthew Whitaker.

Are you a little confused about what this means and how it will actually affect what’s happening in schools? Here’s a primer.

What is the discipline guidance?

Federal agencies often issue nonbinding civil rights guidance to inform local organizations, like school districts, how they plan to enforce civil rights laws.

The discipline guidance put in place under President Obama suggested schools could run afoul of federal civil rights laws if they disciplined students of color at higher rates than their peers. Federal data show black and Latino students are disciplined at higher rates than white students, and the discipline guidance said schools have an obligation to address those disparities.

Why is the guidance controversial?

The stickiest part of the guidance is its language on “disparate impact,” which is the principle that disciplinary policies may violate civil rights laws if they lead to higher rates of discipline for some student groups, even if they are written without discriminatory intent.

Citing court precedents, it included guidelines for determining if a school rule that leads to more discipline for one student group could violate civil rights law:

The policy must be necessary to meet “an important educational goal.” For example, a school rule banning more than two braids might disproportionately affect black students, and it might not be justified for educational purposes.
If the policy is necessary to meet an important educational goal, the school must show it has considered alternative policies that meet that goal while placing less of a “burden or adverse impact” on one group of students.

Civil rights groups praised the directive, saying it provided assurance that schools couldn’t get away with problematic policies and that it would catalyze efforts to address implicit bias.

Critics of the directive said it was too heavy handed. Investigating a single complaint, the Obama administration’s civil rights arm would look at a school’s greater discipline data to see if there are disparities. And some, including some conservative groups, disagreed with how often the administration asserted that exclusionary discipline, like suspensions, caused too much of an adverse impact on students. That position led some districts to curb the use of suspensions too aggressively, creating chaotic learning environments, they said.

What does the discipline guidance have to do with school shootings?

The Trump administration has rescinded several key pieces of education civil rights guidance, and it was reviewing the discipline directive well before the February school shooting in Parkland, Fla., which inspired the formation of the safety commission.

Some critics of the guidance highlighted an alternative discipline program created by the Broward County district, which includes Parkland. That program was designed to limit arrests of students, diverting them to alternative programs instead, and it was highlighted as a model by Obama administration officials. Critics said schools may have been able to better intervene with the Parkland gunman, a frequently disciplined former student, if they had more strict disciplinary policies. But a state commission formed to review the shooting found the district’s disciplinary program was not to blame.

More broadly, there is no specific profile of a school shooter, the U.S. Secret Service has found. Attackers come from a variety of backgrounds, and many don’t have any record of breaking school rules at all.

Why did the Trump administration want to rescind the guidance?

The safety commission under DeVos concluded that the guidance was too heavy handed and stifled local decision making.

“Teachers are best positioned to identify and address disorderly conduct,” the report says. “However, guidance issued by the prior Administration advocated a federal solution that undercut the ability of local officials to address the impact of disciplinary matters on school safety. The guidance also relies on a dubious reading of federal law. The guidance should be rescinded and information about resources and best practices for improving school climate and learning outcomes should be developed for schools and school districts.”

Educators who met with DeVos about the directive had a variety of views on its impact. Some said that it led to less control in their classrooms and that students perceived schools as more lax, which led to misbehavior.

Others, including Educators for Excellence, have argued that problems are often the result of how districts implement policies, not with the guidance itself. Schools need to properly train teachers in alternative ways of dealing with problematic behavior and in ways to relate to students that prevent behavior from escalating in the first place, they said.

Pitting school safety against student civil rights is creating a false choice for schools, supporters of the guidance told DeVos.

My school district changed its discipline policies in recent years. Will it now revert back to the old ones?

Rescinding the guidance won’t force any schools to take action, but it may remove a layer of political cover and justification from districts that have adopted new discipline programs in recent years.

And while some school administrators have concerns about parts of the guidance, many say it did not spark changes in their schools. In a survey of 950 district leaders in 47 states administered by AASA, the School Superintendents Association, just 16 percent of respondents said their districts had modified discipline policies and practices as a result of the guidance.

Of those who’d made changes because of the directive, “4.5 percent of those respondents—or less than 1 percent of all respondents—indicated the 2014 discipline guidance has had a negative or very negative impact on school personnel’s ability to address disciplinary issues of students or remove students who are disruptive, aggressive, or abusive to students or staff.” And 44 percent of respondents who’d made changes because of the guidance—7 percent of the total number of respondents, “indicated that it has been a positive experience and/or has led to positive outcomes for the district,” the survey found.

And many made those changes before the guidance was even issued. A 2013 survey that AASA administered in partnership with the Council of State Governments before the federal guidance was issued found that 56 percent of district leaders had recently revised their student codes of conduct. Common changes included graduated systems for responding to misbehavior and changes in policies related to exclusionary discipline, like suspensions and expulsions.

Why did they make those changes? Many cite research about the effects of school belonging and climate on students’ ability to learn and stay engaged in the classroom. And many states have passed their own laws that restrict schools’ discretion in disciplinary decisions with an eye toward making punishment more fair.

Without guidance, what can students do if they are concerned about unfair school discipline?

If students believe their school’s disciplinary policies are unfair, they can still challenge them in court. Courts have flagged schools’ policies for having disparate impact in the past. But it would be easier for a student to file a federal civil rights complaint than to file a court case, supporters of the guidance say, and federal investigators could more easily detect and prove disparities.