Following the review of the Obama administration’s 2014 “Dear Colleague” Letter, a federal commission led by Education Secretary Betsy DeVos has recommended rescinding its guidance aimed at reducing racial discrimination – both overt and implicit – in school disciplinary policies.

If rescinded, the 2014 guidance would no longer impact disciplinary policies. However, educators and administrators would still be required to comply with any state and local laws born of the guidance.

Background

The 2014 “Dear Colleague” Letter was issued jointly by the Department of Education’s Office for Civil Rights and the Department of Justice’s Civil Rights Division (the Departments). Among other recommendations, the Departments advised schools and school districts to examine how their disciplinary policies and practices, particularly concerning in-school and out-of-school suspensions, expulsions and referrals to law enforcement authorities, could have a disparate impact on students of a particular race.

The Departments explained that these “exclusionary disciplinary policies” cause students to miss instructional time and derail their educational growth and development, potentially contributing to what has been termed the “school to prison pipeline.” In an effort to curb such discriminatory disciplinary policies, the Departments provided guidance to schools and districts on “how to identify, avoid, and remedy discriminatory discipline.”

NPR reports that after the issuance of the 2014 guidance, “more than 50 of America’s largest school districts instituted discipline reform.” More than half of all states attempted to revise their laws to reduce suspensions and expulsions. Although findings suggest that suspensions have declined in the wake of these measures, particularly for Hispanic students, “progress has been incremental, and black high school students are still twice as likely as whites to be suspended nationwide. So are students in special education.”

Despite these results, some educators, law enforcement professionals and parents have questioned whether the 2014 guidance, and districts’ response to it, has made schools less safe. After the school shooting that resulted in the murder of 17 students and school personnel at Marjory Stoneman Douglas High School in Parkland, Florida on February 14, 2018, the Trump administration established the Federal Commission on School Safety (Commission), led by Betsy Devos.

2018 School Safety Report

On December 18, the Commission issued its School Safety Report, addressing a number of areas, including a review of the 2014 guidance. The Commission found that as a result of the 2014 guidance, and “fearful of potential investigations, some districts may have driven their discipline policies and practices more by numbers than by teacher input.” In so doing, some districts may have ignored student misbehavior and compromised school safety. The Commission also pointed to “significant concerns” about the “legal framework upon which the Guidance is based.”

The Commission recommends that that the Departments rescind the 2014 guidance and develop information for schools and school districts, identifying resources and best practices “to assist schools in improving school climate and learning outcomes as well as in protecting the rights of students with disabilities during the disciplinary process while maintaining overall student safety.”

The Commission also advises that the Departments will continue to enforce Title VI of the Civil Rights Act of 1964, which prohibits discrimination in any program or activity that receives Federal funds or other Federal financial assistance.

Effect on Schools and School Districts

Assuming that the Departments rescind the 2014 guidance, schools and school districts will no longer be required to follow it as a basis for shaping disciplinary policies and practices.

However, schools and districts should be aware that individual students or their parents could still file complaints on the basis of any perceived discriminatory discipline with the DOE, alleging discrimination under Title VI, or with the DOJ alleging discrimination under Title IV of the Civil Rights Act of 1964, which prohibits discrimination in a number of public settings such as schools.

Schools and districts must also consider any changes to state law that went into effect as a result of the 2014 guidance. As long as those laws are still on the books, they are still in effect. The School Safety Report and any subsequent rescission of the 2014 guidance likely will not change the enforceability of those laws.