The false debate over discipline reform continues raging with this misleading piece in USA Today from Gail Heriot, a University of San Diego law professor and conservative member of the U.S. Commission on Civil Rights, urging repeal of Obama-era discipline guidance.
Under the headline, “Reducing suspensions for Black students is an Obama-era misstep. Betsy DeVos can end it,” Heriot argues that the discipline guidance has led to widespread disorder in classrooms. She offers little evidence to support her claim.
She begins with an outright falsehood, claiming the Department of Education “announced that it will cut off federal funding to schools that suspend African-American students at higher rates than White or Asian students.” There has never been any such announcement. Her only link is to a 2015 article in The Atlantic that, in no way, supports her statement.
The hyperbole continues as Heriot points out that “hundreds of school districts have now been subject to massive investigations for having ‘bad numbers’ or, as lawyers call it, racial ‘disparate impact.’”
To back up this statement, Heriot links to a page on the website of the U.S. Department of Education that shows a grand total of 534 discipline-related active investigations at the end of the Obama administration. She never mentions that these investigations are launched in response to public complaints, not by department lawyers acting on their own.
Moreover, in a nation with 50 million public school students where millions of kids are suspended every year, a mere 534 investigations hardly suggests excessive enforcement. If anything, it suggests the opposite. An awful lot of kids are still getting suspended and no one is being held accountable. In fact, not a single discipline investigation in the history of the U.S. Department of Education has resulted in the withdrawal of federal funds. Not one!
Both Heriot and The Atlantic article cite an opinion poll from 2015—just one year after the Obama guidance was issued—showing broad opposition to the guidance among teachers. But, the wording of the question is also false. It asks: “Do you support or oppose federal policies that prevent schools from expelling or suspending Black and Hispanic students at higher rates than other students?”
The fact is, there are no “federal” policies that “prevent schools from expelling or suspending Black and Hispanic students at higher rates than other students.”
The 2014 federal guidance encourages schools to reflect on whether its discipline practices are affected by racial bias and reminds them that discriminatory discipline practices may violate student civil rights. It offers tools and resources for alternatives to suspension. Nowhere in the guidance is suspension or expulsion prohibited.
As the Parkland tragedy shows, well after implementing restorative justice programs, Broward County Schools continued suspending and expelling students. In fact, school shooter Nikolas Cruz was expelled from Marjorie Stoneman Douglas High School, where the shooting occurred, and was sent to an alternative school.
Heriot also links to a discredited report from the Manhattan Institute drawing on student, teacher and parent perception surveys in New York City to suggest disorder is increasing. In fact, the very same surveys show the opposite—that New York City teachers overwhelmingly feel safe in their schools, as do parents and students.
Meanwhile, the New York Post ran a story over the weekend showing that suspensions in New York City public schools are up 20 percent for the second half of 2017 and weapons arrests, assaults and sex crimes all “increased markedly” in the fourth quarter of 2017. In other words, the increase in suspensions appears to coincide with more disorder, not less.
This story out of New Haven shows the opposite effect. The introduction of restorative justice programs and a reduction in suspensions yield more orderly classrooms, as well as higher student achievement.
There’s an honest dialogue to be had about lost learning time for better-behaved students as a result of reducing suspensions of disruptive students. And, poorly-implemented discipline reform can put teachers at physical and emotional risk. A series of videos we produced shows that African-American teachers, students and parents all want orderly classrooms and none argue for eliminating suspensions.
But Heriot’s take on discipline reform isn’t honest dialogue. She offers no evidence that Obama-era discipline guidance is leading to disorder in classrooms and downplays the overwhelming evidence that students of color and students with disabilities are being disproportionately disciplined.
Heriot closes her op-ed by insisting that the federal government “cannot use Title VI (federal civil rights laws prohibiting discrimination on the basis of race) as a club to dictate broad discipline policy. That needs to be set locally.”
In fact, the guidance affirms local control on the very first page: “The Departments (of Justice and Education) recognize that schools may use disciplinary measures as part of a program to promote safe and orderly educational environments.”
If a non-lawyer like me can understand that, why can’t a law professor like Heriot?