In America, policies constantly change, depending on who sits in the Oval Office. In many settings, democratic change can be a good thing. But in other cases, politically-driven changes can make Americans less safe, including American students. This is currently happening in America’s school system, courtesy of the U.S. Department of Education’s Office for Civil Rights.
In one stark example of “regulatory whiplash,” the Biden Administration recently issued guidance to schools that mirrors Obama-era guidance that was originally published in 2014, and then withdrawn by the Trump Administration in 2018. Confused at all? That’s because the question is a hot topic: school discipline, and whether students must be viewed as merely one member of their racial group, or as individuals. Specifically, does a school that “disproportionately” disciplines students of a specific race violate federal civil rights law?
Background
Suppose that a school’s demographics include 10% African American students. But that 20% of the students who are suspended or expelled are African Americans. Whether that numbers differential is, without more, a legal problem, might depend on who you ask. In 2014, the Department of Education warned schools about disproportionately disciplining students on the basis of race in a guidance package published by then-Secretary Arne Duncan. The guidance labeled disparities like these concerning datapoints that might violate Title VI—the statute that OCR enforces related to race discrimination.
While perhaps well-intentioned, the guidance was short-sighted. Schools responded to incentives, including negative ones. If a student who deserved to be suspended or expelled was a member of a racial group that was already disproportionately represented in the discipline numbers, they might escape punishment altogether. Understandably, schools were under the intense pressure to avoid federal investigations—and a potential loss of their federal funds—related to whether they had appropriately meted out discipline.
After hearing hours of testimony from stakeholders, and in the wake of the Parkland shooting in Florida, in December 2018, the Department of Education issued a comprehensive school safety report. And OCR subsequently withdrew the 2014 guidance package. In the rescission letter, OCR noted that a student’s race should never be a consideration within any school disciplinary decision.
Racial guidance returns
Unfortunately, the Biden’s Department of Education has recently released new guidance that once again puts schools on the hook merely for their numbers. The guidance essentially makes a full circle back to when schools had to consider a student’s race as a factor when deciding their punishment. The guidance is in serious tension with Title VI—which bans, not encourages race discrimination—as well as the U.S. Supreme Court decisions in the Harvard and University of North Carolina decisions, which prohibit the government use of race in college admissions. Those decisions reject the idea that the government—including public schools and others that receive federal funds—should be given deference in their consideration of race.
As Justice Harlan famously wrote in dissent in the 1896 case of Plessy v. Ferguson, “Our [C]onstitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” The new Biden Administration guidance may purport to share the goal of racial equality under the law, but it is a woefully misguided step backwards.
True racial equality
Our top priority for the school system is to have safe environments that cause no distractions for students. When the standards for a student’s punishments are based on race—not to mention consistently changing depending on who is in Washington D.C.—the Administration does a disservice to American students, whose learning requires that distractions be mitigated. While failing to suspend or expel a student may benefit that one individual, it can have a negative effect on the entire student body. Ultimately, tragedies like Parkland can result.
We need true racial equality in our school systems, consistent with Chief Justice Roberts’ admonition in one decision that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Students are individuals. Their successes and failures must be judged based on the specific facts involved, and not based on their skin color. and we will never achieve that by labeling students by their race. To continue to achieve racial equality, we need to end these distracting and concerning polices, and lean on our “color-blind” Constitution.