The 2014 School Discipline Guidance and the Commission That Withdrew It

Here is a rule of thumb for any school policy: if it cannot tell the child who threw the punch from the child who did not, it is not a discipline policy. It is a spreadsheet with a hall monitor.

That, in one sentence, is the objection to the 2014 federal school discipline guidance. This post tells the story in order, with the dates and the documents, states the guidance's best case fairly, and then makes the argument I believe the record supports: that order in a classroom is a civil right of the students who want to learn, and that a policy aimed at numbers rather than conduct fails them.

The document

On January 8, 2014, the Department of Education's Office for Civil Rights and the Department of Justice's Civil Rights Division issued a joint "Dear Colleague" letter, with a set of guidance materials, titled "Nondiscriminatory Administration of School Discipline." It was addressed to every public school and district in the country that receives federal money, which is nearly all of them.

The letter did not create a statute. It was guidance, a statement of how the two agencies read the law and how they would enforce it. Its central message was that a school's discipline policy could violate federal civil rights law even if nobody intended to discriminate, if the policy fell harder on students of one race than another and the school could not justify it. In plain terms: if your suspension numbers were lopsided by race, you could expect a federal inquiry.

The law underneath: Title VI and the disparate-impact theory

The legal basis was Title VI of the Civil Rights Act of 1964. Its core sentence is short: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Notice the words on the ground of race. That is a prohibition on treating people differently because of race, which is disparate treatment, and nobody disputes it. A school that suspends a Black student and excuses a white student for the same act violates the statute, and it should.

The 2014 letter relied on a second idea, disparate impact: that a neutral policy can be unlawful if it produces a racial imbalance, even with no discriminatory intent. Federal agencies had written regulations under Title VI that reached disparate impact. The Supreme Court held in Alexander v. Sandoval (2001) that private citizens cannot sue to enforce those regulations, which left the federal agencies themselves as the enforcers. The 2014 guidance was the Obama administration's statement of how it would use that power on school discipline.

The difference between the two theories is the whole argument. Disparate treatment asks, "What did the school do to this student?" Disparate impact asks, "What do the totals look like?" A school can fix the first by fairness. It can fix the second only by changing the totals, and the quickest way to change totals is to stop imposing consequences.

The steelman

Fairness demands a strong statement of the other side. Here is what the guidance's defenders would say, and some of it is serious.

One. The disparities are real. National data collected by the Education Department's Civil Rights Data Collection showed that Black students were suspended at higher rates than white students, starting in preschool. Nobody invented those numbers.

Two. Suspension is not harmless. A student out of school misses instruction, falls behind, and is more likely to drop out. Research associates heavy suspension with later trouble, though researchers dispute how much is cause and how much is correlation.

Three. Zero-tolerance policies had become absurd. Critics told stories of rigid rules applied to children with no regard for what they had actually done. Rigid rules that ignore context are bad rules, and they deserve the criticism they received.

Four. Bias exists. A teacher's subjective call, "defiance," "disrespect," can be applied unevenly. Subjective categories invite unequal treatment, and civil rights law exists to police unequal treatment.

Five. Some students need help, not exile. Alternatives to suspension, such as counselling, restorative practices and behaviour programmes, can help a child who is struggling.

I accept points three, four and five in part, and all of them can be answered without the guidance. Mindless zero tolerance is a policy mistake a school board can correct. A teacher who applies "defiance" unfairly is violating Title VI's actual text, and the guidance was not needed to say so. Support for struggling students is a good idea. The question is whether the 2014 approach advanced those goals or distorted them.

The answer in numbered points

1. A threat of investigation changes behaviour in the direction of the threat. When a district knows that a racial imbalance in suspensions will draw federal attention, the cheapest way to avoid the attention is to suspend fewer students in the imbalanced group, whatever they did. A school administrator is not a statistician. An administrator reads a letter and asks what will keep the office from calling. That is the predictable reaction, and it is not a matter of bad faith.

1. Conduct is the variable that matters, and the guidance made it secondary. A discipline system should ask what a student did, how serious it was and whether this is a pattern. If the answers differ across groups, the system should follow the answers. A policy aimed at equalising rates puts the cart before the horse and rewards the school that avoids consequences.

1. The other students are the ones who pay. In any classroom, a few disruptive students can take most of the teacher's attention. The students who want to learn, many of them poor, many of them minority, lose the time. They are the ones whose parents cannot move them to a private school. A policy that keeps order is a policy for them.

1. Teachers lost tools. When consequences are discouraged, a teacher's authority shrinks. A teacher who knows that sending a student to the office will lead nowhere learns not to send. Order frays quietly, one tolerated incident at a time.

1. The Supreme Court has already said what process a suspension needs. In Goss v. Lopez (1975), the Court held that students facing suspension, there for ten days, are entitled to notice of the charge and an opportunity to tell their side. That is a fairness rule, and it is about the individual child. It does not say that the totals must look a certain way.

1. The rule of law prefers rules to quotas. A school that disciplines according to a published code, applied evenly, is meeting its legal duty. A school that adjusts its decisions to avoid a ratio is treating children as members of groups, which is just what civil rights law was written to stop.

How a letter becomes a quota without anyone saying the word

I want to spend a moment on the mechanism, because it is the part the coverage skipped. Nobody in Washington wrote the word quota. Nobody had to. Consider the world as a district superintendent sees it. She has a letter that says her numbers may draw an inquiry. She has a federal funding stream that depends on being in good standing. She has a legal budget that is smaller than the Justice Department's. And she has a spreadsheet, produced every year, that sorts suspensions by race.

Now follow that bad idea one step further than its defenders do. If the spreadsheet is the thing that gets you into trouble, then the rational move is to manage the spreadsheet. A principal who is told that her suspension count is too high will find a way to lower it, and the cheapest way is to stop recording incidents, reclassify them or tell teachers not to refer. The count falls. The fighting in the cafeteria does not. This is not cynicism, it is how every organisation answers a metric, and it is why the old maxim holds that a measure that becomes a target ceases to be a good measure. Washington, having discovered a number, was surprised to find that schools would respond to the number. The kids in the hallway, meanwhile, responded to the lack of consequences.

Broward County and the Parkland question

The guidance had local cousins, and the best known came from Broward County, Florida. In 2013, the school district, the sheriff's office, the State Attorney's Office and other partners put in place a programme called PROMISE. The idea was to refer students to an alternative programme instead of to law enforcement for a list of nonviolent offences, to lower student arrests.

After the Marjory Stoneman Douglas shooting in February 2018, the programme became a lightning rod. Critics argued that a culture that discouraged consequences had let warning signs slide. The state's Public Safety Commission looked into the matter, and its conclusions were more careful than the rhetoric on either side. Its chair, Sheriff Bob Gualtieri, called the PROMISE question irrelevant to the shooting, and the commission concluded the programme had not enabled the attacker to buy his guns. It did criticise the district for secrecy about the programme, and its records of the attacker's referral were incomplete. I think fairness requires both halves of that: PROMISE was a defensible effort to reduce needless arrests of children, and a district that keeps poor records is a district where warning signs can vanish. See School Safety That Works, Lessons From the Parkland and Uvalde Reviews for what the commission recommended.

The commission and the withdrawal

After Parkland, President Trump announced the Federal Commission on School Safety in March 2018. Education Secretary Betsy DeVos chaired it, and its members included the Attorney General, the Secretary of Health and Human Services and the Secretary of Homeland Security. In December 2018 it issued its final report. One of its recommendations was that the 2014 guidance be rescinded.

It happened within days. On December 21, 2018, the Education and Justice Departments withdrew the 2014 Dear Colleague letter and its accompanying materials. Critics of the guidance had argued that it pressured schools, and supporters of the withdrawal said discipline decisions belong with the educators who know the students. Critics of the withdrawal said it would let discrimination go unchecked. The statute, they were right to point out, was unchanged: Title VI still bans disparate treatment, and the agencies still had every authority to investigate a school that suspended a student because of race.

I want to be precise about what the withdrawal did and did not do. It did not repeal Title VI. It did not tell schools they could discriminate. It removed an instruction to look at the totals, and it returned the legal question to the one that matters most: did a school treat a child worse because of his race?

The case that order is a civil right

There is a moral claim underneath all of this, and I would state it directly. A child has a right to learn in a classroom where learning can happen. The Declaration speaks of the pursuit of happiness, and the Preamble of the Constitution lists "domestic Tranquility" as a goal. Order in the classroom is a small version of the same idea. A disruptive minority can deny a studious majority its education, and the school that allows it has made a choice about whom to protect.

Conservatives are sometimes caricatured as lovers of punishment. The reality is that a good disciplinary system is gentle most of the time, because it is clear. Children thrive on predictable rules, applied fairly, with a path back after a mistake. The best-run schools, including many of the high-performing charter schools in poor neighbourhoods, are famous for orderly hallways and warm teachers. They do not trade order for kindness. They have found that the two reinforce each other. See The Charter School Lottery Studies and What They Show About Cities for what some of those schools have achieved.

None of that requires harshness for its own sake. A school can offer counselling, mentoring and second chances, and should. It can review its own data for signs that a teacher or an office is treating students unevenly, and it should. What it should not do is set a target for how many students of a given group may face consequences, and then let the target do the thinking.

What a parent can ask

1. May I see the district's published discipline code, and the data on suspensions by offence?
2. How does the district make sure that similar conduct receives similar consequences?
3. What alternatives to suspension exist, and who decides when to use them?
4. Does the district have a process for reviewing discipline for evidence of bias in individual decisions, rather than just totals?
5. What does the school do to protect students who are being disrupted or bullied?

For the process of getting those records, see How to Request Records From Your School District and Actually Get Them. The first four sit comfortably alongside the practical safety checklist and the debate over classroom authority in Bell to Bell Phone Bans Are the Easiest School Reform in America.

The case in brief

1. On January 8, 2014 the Education and Justice Departments told schools that discipline with a racially disparate impact could violate Title VI, a theory that asks about totals rather than about what a student did.
2. The steelman is serious, since disparities exist, suspension has costs and zero-tolerance policies were sometimes absurd, but each of those problems can be fixed by fairness and common sense without targeting ratios.
3. A threat of federal scrutiny over totals pushes cautious administrators to avoid consequences whatever the conduct, and the students who pay are the ones who came to learn.
4. The Federal Commission on School Safety reported in December 2018, and the departments withdrew the guidance on December 21, 2018, leaving Title VI's ban on treating students differently because of race fully in force.
5. Order in a classroom is a precondition of learning and a right of the students who want it, and a fair, published code applied evenly serves every child better than a target.

What you can do: request your district's discipline code and suspension data by offence, and read them before the next board meeting.