Obama’s School Discipline Policies Still Causing Widespread Chaos

June 18, 2018

by Karen R. Effrem, MD


Conservative, pro-family and pro-school safety groups continue to duke it out with progressive, pro-gun control, social justice warriors over the contentious school discipline issue. In general, the conservatives see the federal government’s Obama-era school discipline guidance as dangerous and want it repealed, while the progressives see it as a matter of “equity” and “social justice,” wanting it continued. The raging debate and stark contrast was on full display when one compares a letter sent to Betsy DeVos by the Wisconsin Institute for Law and Liberty (WILL) and an op-ed at Forbes.com by a liberal supporter of social emotional learning (SEL) and Common Core, Professor Linda Darling Hammond.

The WILL letter clearly describes how misguided and legally incorrect the Obama “Dear Colleague” letter is. That discipline guidance is based on Sections 601 and 602 of the Title VI of the Civil Rights Act of 1964. Section 601 prohibits racial or national origin discrimination regarding participation in or benefit of any federal program. Section 602 sets up enforcement of Section 601 via regulation by any federal department or agency that provides federal funding. The WILL letter explains how USED has misinterpreted both this law and the accompanying regulations:

The Dear Colleague letter relied on 34 C.F.R. § 100.3(b)(2)13 which prohibits federal funding recipients under certain circumstances from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.”

The Department of Education apparently believes that, by using this regulation to prohibit schools from “evenhandedly implement[ing] facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race,” it is merely “effectuat[ing] the provisions of” § 601.16 It is not. As the Sandoval Court recognized “disparate-impact regulations . . . forbid conduct that § 601 permits.” The Supreme Court of the United States has unequivocally declared that “Title VI itself directly reach[es] only instances of intentional discrimination,” as opposed to discrimination based on the disparate impact of a particular policy. Federal regulation cannot create authority that does not exist in the authorizing federal law.

So while it is true that the Supreme Court has not yet held that disparate-impact regulations promulgated under § 602 are unlawful, Sandoval makes clear that, if challenged, the Court would not hesitate to strike down such regulations as unauthorized by Congress. For example, the Court […] quoted language from a prior case observing that if “the purpose of Title VI is to proscribe only purposeful discrimination . . . , regulations that would proscribe conduct by the recipient having only a discriminatory effect . . . do not simply ‘further’ the purpose of Title VI; they go well beyond that purpose.” The rights and duties the Department of Education purported to establish in the Dear Colleague letter are built on sand. [Emphasis added]

WILL goes on to describe the devastating effects this guidance has had on school districts across the country, using the Milwaukee Public School (MPS) district as an example. The coerced resolution agreement reached between MPS and USED requires MPS to collect all sorts of data such as:

  • “…data regarding referrals for student discipline and the imposition of disciplinary sanctions at all District schools”
  • “whether black students are receiving more removals, referrals or discipline than students of other races”
  • “whether black students are receiving more expulsions than students of other races”
  • “whether certain teachers and administrators refer disproportionately high numbers of students of a particular race for discipline”
  • “whether black students are disproportionately referred for offenses in which subjective judgment is exercised.”

As we have discussed before, this guidance is not only imposing an enormous financial and paperwork burden on already cash-strapped public school districts (as documented); it is also creating an almost impossibly dangerous environment in the schools. Misbehaving students are realizing that even if they commit serious, possibly felonious, infractions, if they are in minority groups or disabled, their deeds receive minimal to no punishment. And as reported in Politico — hardly a conservative publication — teachers are saying “that such policies keep dangerous children in schools, posing a physical threat to students and staff and creating a disruptive learning environment.”

On the other hand, Linda Darling Hammond insists that expanding social emotional learning and mental health supports, continuing the Obama discipline policy, expanding behavior modification via the Positive Behavioral Intervention and Supports (PBIS), and instituting gun control are the ways to achieve violence-free schools.

Every one of these ideas is problematic, some in multiple ways. In addition to my writing, many others have written and reported on the problems with the school discipline guidance, including Jane Robbins and Erin Tuttle of the American Principles Project, Breitbart’s Dr. Susan Berry, and Ann Coulter. We have written extensively on the problems with SEL programs: how they are unlikely to improve school safety and the research showing these programs’ failure. And not only have we written about the behavior modification, data collection, and parental autonomy concerns of PBIS, but WILL has also researched the program in Wisconsin schools and detailed several concerning findings:

  • While suspension rates have fallen in schools with large number of African-American students, those rates have increased in schools with small numbers of African-American students implementing PBIS.
  • Math and reading proficiency rates are lower in schools that implement PBIS — more so in rural and suburban schools, but also in Milwaukee.

Hammond and her colleagues as well as the Obama administration believe that the “disparate impact” of greater numbers of minority suspensions is due to overt discrimination. They never seem to discuss the voluminous and well-established research showing increased behavior problems and delinquent/criminal activity in children living in single-parent households. According to research based on Census Bureau statistics, only 17 percent of black teenagers live in households with two married birth parents. This tragedy is government-created, and the Obama discipline policy is only making things worse for everyone.

In order to provide safety for teachers, staff, and students and to restore a good learning environment in our public schools, rescinding the Obama school discipline policy is not just a good idea — it is a necessity. Make your opinions known at safety@ed.gov.


Dr. Karen Effrem is trained as a pediatrician and serves as president of Education Liberty Watch and the executive director of the Florida Stop Common Core Coalition.

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