One of the Trump administration’s last acts of 2018 was the rescission of Obama-era guidance for reducing racial disparities in school discipline. Education Secretary Betsy DeVos and Acting Attorney General Matthew Whitaker tried to claim the Parkland mantle, but their actions here have nothing to do with school safety. They have sent a purely political message that the federal government does not care that too many schools are kicking out too many students. Still, that doesn’t mean that their obligations under the law have changed. People For the American Way and PFAW’s African American Ministers In Action are among the civil rights allies demanding that they reverse course and fulfill their obligations to students—not make it easier for schools to discriminate. You can download our letter here.

Dear Secretary DeVos, Acting Attorney General Whitaker, Assistant Secretary Marcus, and Assistant Attorney General Dreiband:

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States, and the 119 undersigned organizations, we write to express our strong opposition to the rescission of the January 8, 2014 joint school discipline guidance package, including the “Joint Dear Colleague on the Nondiscriminatory Administration of School Discipline,” and urge you to immediately recommit the Department of Education and the Department of Justice to vigorous enforcement of our civil rights laws and to a meaningful response to racial discrimination in school discipline.

Ensuring that all our children are safe and welcomed in schools is incredibly important to our organizations, our partners and the communities we represent. Students, parents, educators and civil rights advocates asked the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) for years to get involved and address the overuse and discriminatory use of suspension and expulsion. The 2014 Dear Colleague letter clarifies that ED and DOJ expect schools and districts to treat all children fairly and provides practical tools and guidelines for educators to create safe, healthy, and inclusive environments for all students. The guidance documents were created to help schools serve students more effectively by explaining the harms of pushing children out of school; reminding them that racial discrimination is illegal, including discrimination in school discipline; and providing recommendations and resources to reduce disparities in exclusionary school discipline and improve school climate. Rescinding the guidance sends the opposite message: that the Departments do not care that schools are discriminating against children of color by disproportionately excluding them from school and that the Departments will not fulfill their role in helping educators create and maintain safe schools that afford all students equal educational opportunities. Because of this message, a commitment from both departments to their duty to uphold the law is urgently needed.

The federal government’s role in ensuring schools are free from discrimination has been articulated and confirmed by the U.S. Supreme Court in the 1954 Brown v. Board of Education decision, by Congress in the Civil Rights Act of 1964, and by ED in regulations implementing that law. ED and DOJ are both civil rights agencies and are responsible for protecting students from discrimination on the bases of race, color, national origin; sex; disability; and age.ⁱ Under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and the Age Discrimination Act of 1975, ED is tasked with enforcing these laws in response to complaints of discrimination and through proactive compliance reviews, data collection, and technical assistance.ⁱⁱ All of the laws that ED and DOJ enforce require regulations, policy guidance, and oversight in order to provide their intended benefits to students. Since its creation, ED has served the important role of protecting children from discrimination and advocating on their behalf when their civil rights were violated. We reject any effort to undermine the protections and supports these laws provide, through the rescission of guidance used to inform all parties of their rights and obligations under the law. We also oppose any effort to limit resources and practical tools available to help recipients of federal funding proactively comply with the law.

This administration has taken one action after another to make schools less safe for LGBTQ students, sexual assault survivors, immigrant students, students of color, students with disabilities, and any child who experiences systemic discrimination. Researchers estimate that suspensions, most of which are for minor behaviors, result in tens of millions of days of lost instruction.ⁱⁱⁱ Black students are three times more likely to receive an out of school suspension and twice as likely to be subjected to a school-based arrest;^iv and Native American students make up 1 percent of all children in schools, but 2 percent of children referred to law enforcement.^v These racial disparities can also be seen for students with disabilities and LGBTQ students. 23.2 percent of all Black children with disabilities have been suspended out of school while only 8.4 percent of White children with disabilities have been suspended,^vi and 47 percent of Black LGBTQ students and 44 percent of Latino LGBTQ students have been disciplined at school compared with 36 percent of White LGBTQ students.^vii Students of color are often disciplined for subjective offenses when their White peers are not. Multiple studies have shown several negative effects on suspended children,^viii such as falling behind academically; being held back; dropping out of school; and interacting with the juvenile justice system, as well as harm to children when their peers are suspended.^ix All children are harmed when schools overuse punitive exclusionary discipline.^x All children deserve and should be included in a warm, welcoming and responsive school that provides  the education they need to be ready for college, career, and life. Suspension and expulsion, especially when used in a discriminatory manner, undermine that goal and deny children the education they need.

Because the disproportionate use of exclusionary discipline could not be explained by differences in child behavior, it was clear that action was needed to change the policies and practices of adults throughout the educational system.^xi The 2014 guidance documents were created to assist states, districts, and schools in developing practices and policies to enhance school climate and comply with federal civil rights laws. However, just as the guidance did not create or change law, rescinding the guidance does not affect the statutes and regulations that the guidance clarifies. Schools are still prohibited from discriminating against students and ED is still obligated to enforce civil rights law. The guidance documents themselves must be combined with additional state and local supports to ensure schools are safe and fair for their students. Schools and their teachers need sufficient support and resources, and sufficient enforcement action needs to be taken, including by ED, to ensure that the promise of the guidance documents and our civil rights laws really result in improved educational opportunity and equity for children.

Students deserve, and the law requires, a Department of Education and a Department of Justice that are working to protect all students from discrimination and to provide an excellent education for all students. This guidance package provides valuable resources for districts, continued vigorous federal enforcement of the law, and is critical to making sure students’ civil rights are upheld. At such a tenuous time, when progress on school discipline has been too slow and too limited, rollback of this much needed guidance hampers progress and undermines children’s pursuit of their education. And when the nation is focused on the importance of building safe and inclusive school environments, rescinding the guidance sends exactly the wrong message. It is incumbent upon ED to ensure that progress continues, equal educational opportunity is real, and those who would seek to turn back the clock and undermine progress are stopped. We urge this administration to reverse course and provide educators and schools the resources and information they need to protect children and support their learning, development and success; not make it easier for them to unfairly and illegally exclude children of color from school.

If you have any questions, please contact Leadership Conference K12 Program Analyst Anum Malik at [email protected] or 202.548.7171.