Time for Secretary DeVos to Rescind Obama-Era School Discipline Policies

Students exit a bus at Venice High School in Los Angeles, Calif., December 2015. (Jonathan Alcorn/Reuters)
The ‘Dear Colleague’ letter is unfair & has had harmful consequences for all.

School’s out for the summer, but the biggest question the Trump administration should answer before the fall remains: Will Secretary of Education Betsy DeVos stop Washington from coercing school districts to adopt former President Barack Obama’s progressive approach to school discipline and safety?

The Obama administration’s 2014 “Dear Colleague” letter on school discipline still hovers over local school districts. That letter advanced policies pioneered in Broward County, Fla., which — as local reporting has shown — created a climate that may have allowed confessed Stoneman Douglas shooter Nikolas Cruz to slip through the cracks without a criminal record, despite committing multiple crimes. The tragedy prompted the Trump administration to launch a school-safety commission, tasked in part with recommending whether to repeal the Dear Colleague letter. But, months after the tragedy, the letter remains on the books, maintaining federal pressure on school districts to follow Broward’s lead.

The letter was purportedly issued to warn schools that the U.S. Department of Education’s Office for Civil Rights would investigate schools based on the rates at which students of different races are disciplined. It advised school districts that traditional discipline policies ought to be used only “as a last resort.”

Secretary DeVos should not concede the arguments from groups such as the Southern Poverty Law Center, which signed a letter in March issued by the Leadership Conference on Civil Rights that said, “Rescinding the guidance would send [the message] . . . that the Department does not care that schools are discriminating against children of color by disproportionately kicking them out of school.” Secretary DeVos should deny the premise that teachers are racist. Instead, she should articulate that teachers deserve to be trusted, not second-guessed by so-called civil-rights groups and federal bureaucrats. It certainly hasn’t helped that rank-and-file Republicans remain silent on the issue.

The 2014 letter is an affront to the separation of powers, federalism, and the rule of law. Nothing in the Constitution, legislation, or even regulation authorizes the secretary of education to dictate local school-discipline policy. Rather, the Obama administration did an end run around the Administrative Procedure Act by issuing a sweeping new policy by fiat.

The 2014 letter is an affront to the separation of powers, federalism, and the rule of law. Nothing in the Constitution, legislation, or even regulation authorizes the secretary of education to dictate local school-discipline policy.

The Civil Rights Act unambiguously, and entirely properly, says that schools may not treat students differently based on their race. But the Obama administration declared that the Civil Rights Act forbids not only disparate treatment in school discipline, but also disparate impact. According to the 2014 letter, schools could face a federal investigation and potential loss of funding even if their rules are fair and applied evenhandedly.

Rules ought to be judged based on whether they are fair and just, right or wrong. It is wrong for students to curse at their teachers, so it is right for schools to punish that behavior. But according to the letter, if students of a particular race or group swear at their teachers more than average, then a school should not enforce “exclusionary” consequences.

This perversion of justice should sound absurd. But it is a logical extension of the ideological assumptions undergirding the letter. According to former secretary of education Arne Duncan, “Racial discrimination in school discipline is a real problem today, and not just an issue from 40 to 50 years ago.” This is worse than just a profound slander against some of the most compassionate professionals in America. It dismisses the reality that there are deeper issues in American society, such as broken homes, which affect the lives — and behaviors — of children. By blaming the school, we ignore the devastating effects of single-parent homes, which data demonstrate, sadly, plague black children at higher rates than their peers. The same troubling demographic story is true for intergenerational poverty and neighborhood violence.

Furthermore, second-guessing teachers on discipline hurts students, especially low-income students of color. Robust studies of suspension bans in Philadelphia and Los Angeles find such policies have negative effects on student achievement. In surveys conducted in New York City, Seattle, and Reno, students said they felt less safe, respected, and supported following these reforms. Local unions have polled teachers on the subject of school discipline in a dozen cities, and the surveys consistently indicate that the new progressive (or “restorative”) approach to discipline simply doesn’t work.

But social-justice activists and education journalists have framed the Dear Colleague letter as a policy intended to fight discrimination. This makes rescinding the directive a rhetorically challenging proposition, even though the American public overwhelmingly disapproves of the ideas it advances by more than a two-to-one margin. Secretary DeVos should make such poll results, along with the research demonstrating that limiting suspensions can harm students, part of her position statements on the issue.

Whenever Secretary DeVos so much as listens to someone critical of Obama’s discipline directive, congressional Democrats send an angry letter. Last year, for example, 55 members signed a letter entitled, without much apparent self-consciousness, “Urge Secretary DeVos to Reduce Discipline in Schools.” With the admirable exception of Senator Marco Rubio (R., Fla.), who raised serious questions in the wake of the Parkland tragedy, members of Congress on both sides of the aisle have remained mum. Federal lawmakers should assume the best in teachers until proven otherwise and make student safety the priority. Congress should make the case to Secretary DeVos to rescind the Dear Colleague letter and let the educators who interact with students every day make decisions about how to care for children.

Max Eden is a senior fellow at the Manhattan Institute. Jonathan Butcher is a senior policy analyst at, and Lindsey M. Burke is the director of, the Center for Education Policy at the Heritage Foundation.


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