Abstract: This article takes a careful look at political and policy tools that presidential administrations have at their disposal for ameliorating educational inequalities. These tools, the authors suggest, include issuing federal guidance that informs and supports states and districts as they work to implement policies and practices that comply with federal law. However, as the authors point out, the extent to which administrations have chosen to leverage these opportunities to advance educational equity has varied over time.

The Civil Rights Data Collection and other national data sources found:

• During the 2015–16 school year, African American male students comprised 8% of students enrolled and 25% of students who received an out-of-school suspension. By contrast, White male students comprised 25% of students enrolled and 24% of students who received an out-of-school suspension. National data show that African American girls are 5.5 times more likely and Native American girls are 3 times more likely to be suspended from school than White girls (Onyeka-Crawford et al., 2017). The discriminatory application of exclusionary discipline policies is also tied to disability (U.S. Department of Education, 2015-16), gender, and LGBTQ status (Palmer et al., 2016).

• During the 2013–14 school year, the most recent year for which data are available, African American children represented 19% of public preschool enrollment and 47% of those who received more than one out-of-school suspension (U.S. Department of Education, 2013-14). By contrast, White students represented 41% of public preschool enrollment and 28% of those who received more than one out-of-school suspension. A study that includes both private and public preschool programs reveals similar disparities—African American preschoolers are 2.2 times more likely to be suspended or expelled than other children (Malik, 2017).
   
• During the 2015–16 school year, African American students represented 15% of student enrollment and 31% of students referred to law enforcement or arrested. By contrast, White students represented 49% of student enrollment and 36% of students referred to law enforcement or arrested. Students with disabilities represented 12% of student enrollment and 28% of students referred to law enforcement or arrested (U.S. Department of Education, 2015-16).
   

ALTERNATIVES TO EXCLUSIONARY DISCIPLINE PRACTICES

During the Obama administration, both the Department of Education and Department of Justice recognized their federal responsibility to respond to discriminatory practices, putting forward nonbinding guidance documents designed to remedy these disparities in discipline rates and to support states, districts, and schools in creating safe and inclusive learning environments by (1) identifying the harm zero-tolerance and similar policies have on students, (2) identifying the discriminatory application of exclusionary discipline practices, and (3) sharing research-based policies and practices to reduce disparities in exclusionary discipline and improve school climate.

Research is clear that zero-tolerance policies and the use of exclusionary discipline for nonviolent behavior are largely ineffective in changing student behavior or creating safe learning environments (Skiba, 2014). The rescinded guidance contained considerable research about effective policies and practices, which include:

• Replacing zero-tolerance policies and suspensions and expulsions for low-level offenses with strategies that teach social-emotional skills (Advancement Project, 2014). These strategies include teaching students skills that enable positive relationships, help them resolve conflicts peaceably, and prevent bullying (Taylor et al., 2017). They also include targeted behavioral supports and methods for promoting student-school bonds (Boccanfuso & Kuhfeld, 2011). A review of more than 200 studies found, for example, that programs that teach social and emotional skills have yielded significant positive effects on student attitudes about self, others, and school; they also improved school safety (Durlak et al., 2011). Research also indicates that these efforts increase graduation rates, achievement, and positive behavior (Taylor et al., 2017).
   
• Providing targeted support for educators. Research demonstrates that interpersonal, instructional, and environmental supports produce better school performance when they include caring teacher-student relationships that foster commitment and bonding to school; engaging teaching approaches, such as proactive classroom management and cooperative learning; and safe and orderly environments that encourage and reinforce positive classroom behavior (Blum & Libbey, 2004) and contribute to students’ immediate and long-term behavioral change (Catalano et al., 2002).
   
• Eliminating disproportionate rates in student discipline by providing training on implicit bias and asset-based youth development for teachers and administrators, school resource officers, police, juvenile court judges, and others (Staats, 2015). Research shows that implicit bias is an important factor in disciplinary disparities. Educators may perceive student behaviors differently based on a student’s race, contributing to the disproportionate rates of exclusionary discipline. Implicit racial bias often manifests as negative stereotypes of students of color (Rudd, 2014). This may be a function of more generalized implicit biases regarding race and criminal or delinquent behavior, including an association between race and a perceived threat of aggression (Gilliam et al., 2016). Such biases can negatively influence a teacher’s academic expectations for students, as well as his or her treatment of students (Blum & Libbey, 2004).
   
• Developing and implementing a model school discipline policy and agreements that clarify when educator discipline versus law enforcement discipline is warranted, such as through a memorandum of understanding. This includes eliminating referrals to law enforcement for all nonviolent, noncriminal offenses and replacing them with effective staff-led strategies for classroom management, conflict resolution, and mediation (National School Board Association, 2013).
   
• Creating relationship-centered schools that support strong family and community engagement. The voices of youth, family, and the community are particularly important in low-income communities of color in which experiences with the school system have been, and can still be, less inclusive. Parent and community involvement can contribute to an improved school climate and higher-quality learning programs for students (Henderson & Mapp, 2002).

Many states and districts have already adopted less punitive approaches to school discipline with the goal of creating more inclusive learning environments. According to a recent analysis of state legislation, over the last seven years many states have placed limitations on punitive discipline, encouraged the use of alternative strategies, and implemented planning and reporting requirements (Rafa, 2019). In the 2017 legislative session, for example, lawmakers proposed at least 35 bills related to suspension and expulsion and 26 bills related to alternative school discipline strategies. Of those, 14 were enacted. In 2018, at least 11 states and the District of Columbia enacted 15 bills broadly related to suspension, expulsion, or disciplinary alternatives (Rafa, 2019).

To reduce the use of exclusionary practices and replace zero-tolerance policies, California established social-emotional supports for students, as well as restorative justice practices centered on promoting respect, taking responsibility, and strengthening relationships (U.S. Department of Education, 2019). Supporting these efforts, the California Commission on Teacher Credentialing passed new standards for teachers and administrators, including competencies in teaching social-emotional skills and in using restorative practices. In addition, the California Department of Education initiated forums and workshops to make districts, administrators, and teachers aware of successful alternatives to suspensions (California Department of Education, 2016).

As a result, California has achieved a sharp decrease in suspension rates while making schools safer. Between 2011 and 2016, suspensions declined by 34%, driven by a 77% decline in suspensions for “willful defiance,” and expulsions dropped by 40% (California Department of Education, 2016). According to national data, school-based firearm incidents in the state, which were well above the national average from 2009 to 2010, were far below the national average by 2015–16, declining by more than 50% in the 7-year period. Significant decreases also occurred in rates of school-based fights, bullying incidents, and classroom disruptions over that period. These declines have held true for all racial and socioeconomic groups and school levels, narrowing disciplinary gaps among racial and ethnic groups across the state (California Department of Education, 2017).

RESCISSION OF THE FEDERAL DISCIPLINE GUIDANCE

The Trump administration chose to rescind the guidance on December 21, 2018, despite no evidence that Obama’s discipline guidance was making schools less safe. In fact, trends suggest schools were becoming safer while the guidance was in place. For example, the “percentage of public schools recording one or more incidents of violence, theft, or other crimes was lower in 2015–16 (79%) than in every prior survey year. (Incident rates ranged from 85 to 89% between 1999–2000 and 2009–10.) Similarly, the percentage of public schools that reported one or more incidents of violence, theft, or other crimes to the police was lower in 2015–16 (47%) than in every prior survey year (ranging from 60 to 65% between 1999–2000 and 2009–10)” (Musu-Gillette et al., 2018).

The Trump administration used a report released by its Federal Commission on School Safety in 2018 to justify the rescission, despite the minimal research cited in the 180-page report. Among the few references to research in the report is a study that claims that the relationship between suspensions and race is “likely produced by pre-existing behavioral problems of youth that are imported into the classroom.” However, the study’s conclusion goes beyond the empirical evidence presented and does not demonstrate a relationship between actual, observed misbehavior and suspension. Rather, the research shows a relationship between adults’ perceptions of students’ social skills and behaviors and suspensions. The influence of racial bias is not accounted for in the study or in the commission’s report overall. 

The administration also eliminated the focus on correcting discriminatory discipline policies and practices and identifying appropriate remedies when a civil rights violation occurs. Although some states and districts are implementing evidence-based approaches, those efforts are far from universal. While some states and districts will likely continue their efforts to implement policies that create safe and inclusive learning environments, others will undoubtedly take their cue from this administration and implement ineffective policies that make students less safe.

The administration’s rescission of the discipline guidance occurs within the context of its other efforts to roll back civil rights protections. Another report released by the Federal Commission on School Safety in 2018 recommends that when investigating claims of discrimination, only those that can be proven to be motivated by discriminatory intent, regardless of discriminatory impact, should be addressed. The Trump administration is seriously considering this recommendation, directing the Department of Education and “senior civil rights officials to examine how decades-old ‘disparate impact’ regulations might be changed or removed…. Under the concept of disparate impact, actions can amount to discrimination if they have an uneven effect even if that was not the intent (Meckler & Barrett, 2019).” If the administration continues on this path, students will have less recourse when discipline policies are discriminatorily applied, although these actions will likely be legally challenged.

This approach is a reversal of the prior administration’s approach. Under the Obama administration, when the U.S. Department of Education’s Office for Civil Rights received an individual complaint related to complex issues, such as school discipline, the investigation could include steps to determine whether the allegations were part of a pattern of discrimination (Huseman & Waldman, 2017). As the data previously cited demonstrate, discriminatory treatment related to school discipline is often found to be a pattern of treatment for particular groups of students, specifically students of color and students with disabilities. A narrow approach ignores this reality and is likely to result in a required remedy that does not address the broader school, district, or state policies that lend themselves to discriminatory application.

The Trump administration’s rescission of the discipline guidance does not abdicate the federal government’s responsibility for protecting students’ civil rights under federal law. At best, it misses the opportunity to support states and districts in creating inclusive and equitable learning environments that research shows keep students safe. At worst, it ignores the role of implicit bias in school discipline and encourages practices that criminalize student behavior. One of the federal government’s greatest responsibilities is to protect students’ civil rights. The failure to meet this responsibility can perpetuate negative consequences for students of color and other historically underserved students and can have a harmful and lasting impact on their life outcomes.

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Jessica Cardichon: Jessica Cardichon, Ed.D., J.D. is Director of Federal Policy and Director of the Washington, DC office for the Learning Policy Institute, an organization which conducts and communicates independent, high-quality research to improve education policy and practice. Working with policymakers, researchers, educators, community groups, and others, the Institute seeks to advance evidence-based policies that support empowering and equitable learning for each and every child.

Linda Darling-Hammond: Linda Darling-Hammond, Ed.D., is President and CEO of the Learning Policy Institute, an organization which conducts and communicates independent, high-quality research to improve education policy and practice. Working with policymakers, researchers, educators, community groups, and others, the Institute seeks to advance evidence-based policies that support empowering and equitable learning for each and every child.