Experts recommend further action to confront racial discrimination in school discipline.
Black students are referred for disciplinary action at a higher rate than white students.
Disciplinary actions are mainly for “subjective infractions, such as disruption or defiance,” versus “objective infractions, such as tardiness or truancy,” and they result in out-of-school suspensions or referrals to law enforcement agencies. According to a report by the Center for Civil Rights Remedies at the UCLA Civil Rights Project, “Black students lost 103 days per 100 students enrolled, which is 82 more days than the 21 days their white peers lost due to out-of-school suspensions.”
As schools today are increasing the use of security resource officers and referring more student disciplinary actions to law enforcement agencies, some experts are asking whether federal legislative changes are needed to respond to disproportionate levels of school discipline.
In 2015, Congress passed the bipartisan Every Student Succeeds Act (ESSA), which sought to advance equity in student education by upholding critical protections for disadvantaged and high-need students. ESSA was intended to fix the No Child Left Behind Act, which sought to increase accountability in school districts. Furthermore, ESSA aimed to assist public elementary and secondary schools in meeting their obligations under federal law “to administer student discipline without discriminating on the basis of race, color, or national origin.”
In 2017, the Trump Administration rescinded regulations that the Obama Administration had issued to implement ESSA. Critics of these regulations had argued that rescinding them would “restore states’ rights to determine how best to meet the needs of their students.”
In 2021, the Department of Education asked members of the public to submit written comments on “the administration of school discipline in schools serving students in pre-K through grade 12.”
According to the Education Department’s Office of Civil Rights, data reveal persistent disparities in the use of exclusionary discipline. In 2017 and 2018, for example, “Black students represented 15 percent of student enrollment but 38 percent of students who received one or more out-of-school suspensions.” In addition, “students with disabilities represented 13 percent of student enrollment but 25 percent of students who received one or more out-of-school suspensions.”
In May, the Education Department and the U.S. Department of Justice released a policy statement outlining “14 investigations of school discipline practices completed by the Education Department between 2012 and 2022.” The resource document, the agencies contend, demonstrates “ways school districts can take steps to proactively improve their administration of student discipline.” Someadvocates for reform, however, argue that the document does not create any new rights or obligations and is not enforceable.
In this week’s Saturday Seminar, scholars and advocates discuss the ESSA and whether further changes to the law would help reduce racial disparities in school disciplines.
- Data shortcomings raise serious concerns about whether Black students and students with disabilities are receiving protections from discrimination in schools, Harold Jordan and Ghadah Makoshi of the ACLU of Pennsylvania argue in a report. Under the federal ESSA, state and local education agencies are required to provide an annual report to the public on both student referrals to law enforcement and arrests, Jordan and Makoshi explain. In comparing school-related disciplinary records submitted by school districts to records in juvenile court systems, however, Jordan and Makoshi find discrepancies in the reporting. According to Jordan and Makoshi, student arrest data in the juvenile court system tends to be higher, which indicates to them that some school districts are failing to meet their legal obligations. Jordan and Makoshi argue for “maintaining up-to-date data on student arrests and referrals to law enforcement” in the annual ESSA report card, and for “school districts to be held accountable for the accuracy of the information they release.”
- In an article in the Journal of Criminal Law and Criminology, Michael Heise of Cornell Law School and Jason P. Nance of Southern Methodist University’s Dedman School of Law find that an increasingly “legalized” approach toward student discipline increases the likelihood that schools report students to law enforcement agencies. According to Heise and Nance, these legalized environments result in students being “thrust into the criminal justice system” and, as such, they “warrant careful attention.” After analyzing the Education Department’s school survey on crime and safety, Heise and Nance find no direct empirical support that school disciplinary actions “disproportionately involve students of color, boys, students from low-income households, and other vulnerable student sub-groups.” They contend, however, that direct evidence is not possible due to the absence of any individual-level demographic data in the data set. Heise and Nance express the need for further research to address these data deficiencies.
- In a study for Build Initiative and the National Center for Children in Poverty, Carey McCann, Sheila Smith, Uyen (Sophie) Nguyen, and Maribel Granja advocate the development of state policies aimed at limiting exclusionary practices in early childcare education (ECE) programs. McCann and coauthors reviewed surveys from 43 states, in which respondents were asked to discuss the extent to which each state had developed exclusionary practice policies for ECE programs. The McCann team found that only 15 states reported having policies that included language on racial equity, despite evidence that Black children are expelled from preschool at higher rates than other children. The survey results revealed barriers to policy development, including difficulty reaching consensus on definitions, a lack of resources for professional development, and limited data collection systems. To address these barriers, McCann and her coauthors recommend successful policies should include access to evidence-based professional development, consistent expectations across programs, centralized support for students who are at risk of suspension or expulsion, supports for teacher well-being, and the development of reliable data collection methods.
- In a working paper issued by the U.S. Census Bureau’s Center for Economic Studies, Vitaly Radsky and Thurston Domina of University of North Carolina -Chapel Hill and Leah R. Clark and Renuka Bhaskar of the Census Bureau examine the effects of the Community Eligibility Provision (CEP) of the National School Lunch Program on school suspension rates in Oregon schools. Radsky and coauthors explain that through the CEP schools are able to offer free meals to all students regardless of their family’s household income. By examining suspension data from Oregon schools, Radsky and coauthors found that CEP implementation had a measurable protective effect on suspension rates in participating schools, with an approximately 13 percent reduction in suspensions by the third year of CEP implementation. Furthermore, while Radsky and coauthors note that they could not measure the effects of the CEP on Black students with precision, they found the CEP had a more pronounced reduction in suspensions for Hispanic students than white students.
- A disproportionate punishment of Black students both results in their ostracization from the classroom and denies Black students their constitutional right to an equal education, argues Alicia R. Jackson of Stetson Law in an article in the Brooklyn Law Review. Jackson acknowledges that while schools have the right to discipline children, policies must be applied equally and not have a disparate impact on Black students. Even though Brown v. Board of Education declared that racial segregation in schools violated the Fourteenth Amendment, discriminatory treatment of Black students and educational inequality have increased, explains Teachers have discretion in disciplining students, which allows for biases and a lack of cultural awareness to lead to misinterpreting student behaviors, Jackson argues. Immediate federal intervention and defense of the promises of the Fourteenth Amendment are needed to remedy disciplinary inequalities in public schools, recommends Jackson.
- Currently, federal anti-discrimination laws only address the elimination of the direct effects of racial bias on unequal disciplinary outcomes, but laws should target more than just overt discrimination, argues Erik Girvan of the University of Oregon School of Law in an article in the University of Memphis Law Review. Girvan suggests that federal legislators could use as a framework the Individuals with Disabilities Education Act (IDEA), which uses problem solving to rectify disparities in disciplining students with disabilities on the basis of race. States receiving federal funds should help collect the information necessary to identify local school districts with significant disparities based on race, specifically “the incidence, duration, and type of disciplinary action,” Girvan explains. He cautions that it could be methodologically challenging to assess racial disparities, specifically in determining how to measure disproportionality in discipline and how much disparity warrants intervention.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.