Education Secretary Betsy DeVos is debating whether to rescind Obama-era instructions to discipline fewer minority students. Would she be right to do so?
It's complicated. Thanks to zero tolerance policies, many schools are too quick to suspend, expel, or arrest kids for less-than-perfect behavior. But the previous administration's efforts to combat overzealous punishment were clumsy, and some critics argue that they undermined order in classrooms where harsher disciplinary measures might have been warranted.
Advocates for rescinding the guidance made this argument during a closed-to-the-press meeting with the secretary on Wednesday. Among them was Eileen Sofa, whose son was sexually assaulted in school. Sofa's story, reported by The Weekly Standard, is compelling:
Schools like San Diego's Lincoln High, which earned its reputation for institutional laxity long before [Obama-era Education Secretary Arne] Duncan's guidance, only found fresh incentive to avoid documenting and responding to student-on-student abuses when the federal rule took effect four years ago.
Lincoln had been under investigation already last summer when a teenaged boy with special needs followed a more severely impaired, non-verbal classmate into the restroom and raped him. An aide who found the boys together in a bathroom stall drew up a detailed report—but the school classified the assault as a lesser offense, an "obscene act," which the victim's mother, Eileen Sofa, believed for more than a year was a far milder indignity than what had really been done to her boy.
It took a devoted teacher of her son's, Nate Page, to expose the truth. When he learned what had happened, that the rapist was not expelled and the police failed to follow through, "Nate was livid," says Nicole Stewart, a former Lincoln High vice principal who resigned in protest. "He is the entire reason that [Channel 7 reporter] Wendy Fry and Eileen Sofa know, or knew that anything had happened."
But past the point of exposing the school district's inaction and publicizing the case, Page found he couldn't ignite the outcry Sofa's son deserved. "He put together teams of people willing to talk about bad practices at Lincoln, specifically talk about the rape case. He had professors, he had doctors, he had lawyers," Stewart recalls. But with a non-verbal victim and an unwilling school administration, justice eluded them. "Nate was so defeated, he committed suicide in September."
Other advocates of rescinding the guidance tell dramatic stories of teachers helpless to confront violence in the classroom. Students are hitting teachers and suffering no consequences because schools are afraid the feds will open an investigation, according to The New York Post. The Obama-era policies have been blamed for the mass shooting in Parkland: Sen. Marco Rubio (R-Florida) claimed that the guidance "arguably made it easier for schools to not report students to law enforcement than deal with the potential consequences," the implication being that school authorities did not properly deal with Nikolas Cruz because they were operating under federal constraints. The Broward County school board and the sheriff's department—run by the blame-dodging Sheriff Scott Israel—had made an agreement to suspend and arrest fewer students.
These examples make the guidance seem incredibly counterproductive. And yet schools probably aren't any more violence-prone than they were before its implementation. "If you take a step back, what you will find is that the overall rate of violence in schools is declining," Stephen Brock, a professor at California State University, tells The Atlantic.
The fact that schools are actually very safe is something many conservatives seem to grasp better than many liberals—when the subject is shootings. But when the designated scapegoat is "Obama" rather than "guns," it's the right that suddenly frets about an epidemic of violence in schools and it's the left that's worried the right's solution will threaten individual rights, undermine due process, and cause disparate harm.
Speaking of which, it's well-documented that racial minorities are disciplined at disproportionate rates. A Government Accountability Office study released last month found that "Black students accounted for 15.5 percent of all public school students, but represented about 39 percent of students suspended from school." That's a serious problem, since suspended students are more likely to suffer other problems down the road: commit crimes, not attend college, etc.
Gail Heriot, a member of the U.S. Commission on Civil Rights, makes the best case for rescinding the guidance anyway. (Disclaimer: I am a member of the D.C. Advisory Committee to the U.S. Commission on Civil Rights, which makes recommendations about what issues the committee should investigate.) In a USA Today op-ed, Heriot writes:
If there was ever an issue best handled locally, it's school discipline. Teachers and principals know far better than federal bureaucrats whether their students have been misbehaving and what to do about it. No, they're not perfect. That's why we elect school boards to keep tabs on them. But they'll make far fewer mistakes if they're allowed to use their common sense than if they're forced to dance to the federal government's tune.
Even when the edicts of distant bureaucracies are superficially reasonable, by the time they reach the foot soldiers on the ground, they get garbled. If the federal government instructs school districts, "Don't discipline a student unless it's appropriate," they will naturally understand it as "Don't discipline a student unless you are confident that you can persuade a future federal investigator, whose judgment you have no reason to trust, that it was appropriate." Administrators therefore require teachers to document in excruciating detail the circumstances of a student's misbehavior before disciplinary action can be taken. By the time the directive reaches teachers, they hear it as: "Just don't discipline so many students; it only creates giant hassles."
Heriot is right: There is no way the federal government can instinctually know what the right number of suspensions is. And while local decision-makers are far from omniscient on these matters, they are more likely to understand what kind of disciplinary regime a certain school needs. Many of the most onerous zero tolerance policies originated at the federal level before trickling down to school districts. The Gun-Free Schools Act, signed by President Bill Clinton in 1994, prompted most states to swiftly establish mandatory expulsion policies for students who brought weapons to school. Within a few years, large majorities of schools had zero tolerance policies—not just for weapons, but for alcohol and tobacco possession as well.
The federal government is also largely responsible for the massive increase in the number of discipline enforcers in schools: The feds have spent billions of dollars subsidizing the hiring of school resource officers. Such cops can now be found in two-thirds of the country's public middle schools and high schools. (For a more detailed look at how federal policy shaped the zero tolerance movement, read my article from the March 2017 issue of Reason, co-authored with Tyler Koteskey.)
It's possible that schools would have marched lockstep in this direction on their own, but no one can deny that the feds played an important role in the overdiscipline problem. At best, the Obama-era guidance could be seen as an off-target attempt to fix earlier mistakes. A better corrective would have been to cancel the relevant grant programs and repeal laws that precipitated this crisis, though this approach would have required congressional cooperation, and the Obama administration often preferred to govern by executive fiat.
Given the reality of the current situation, it's possible that repealing the guidance and letting schools address disciplinary issues as they see fit is the correct course of action. It's also possible that this will unleash a wave of absurd and unnecessary suspensions, and that minority students will be the principal victims.
Since every school is different—and every child has different needs—it should be doubtful that any federally designed policy would strike the right balance. Probably the best thing DeVos could do would be to promote local school choice initiatives, which provide more education options while increasing the likelihood that each family finds the right program for their kid. And of course she can push to rescind the federal programs that fueled the zero-tolerance era in the first place.