DeVos Diminishes Civil Rights Enforcement, Violates Education Department’s Mission

There continue to be warning signs that Betsy DeVos’s Department of Education is backing away from its responsibility to protect students’ civil rights:

• The NY Times‘ Erica Green reported this week on a new protocol by which the Department’s Office of Civil Rights (OCR) will “disregard cases that are part of serial filings or that they consider burdensome to the office.”  Department officials plan to stop investigating claims from frequent filers—people calling attention to widespread problems by filing numerous complaints against a number of institutions like schools, colleges, libraries and other educational institutions.  The stated goal of DeVos’s department is efficiency, despite that Catherine Lhamon, who led the OCR during the Obama administration explains: “the Education Department cannot pick and choose the cases it pursues. If the office has evidence that the law has been violated, it must open a case.”
• Then there is the February publication of a notice in the Federal Register seeking public comment on a proposal to delay for two years the implementation of an Obama-era rule requiring schools to address huge disparities by race in the “placement, classification, and/or discipline of students with disabilities.”  The Washington Post‘s Valerie Strauss published a commentary by Touro College professor of special education Catherine Kramarczuk Voulgarides, who worries: “It is not a coincidence that racial disparities in special education mirror broader educational opportunity gaps… Relying upon a racially neutral policy approach that preserves state rights will not sufficiently counter these inequities.” Voulgarides makes the obvious point that when a disproportionate number of black or brown children are placed in special education or once-placed, disproportionately disciplined, the OCR ought to be investigating the disparities.
• Then this week Congress confirmed Carlos G. Muniz as the Department of Education’s General Counsel. The Grand Rapids Institute for Information Democracy’s Jeff Smith reports that Muniz represented a Florida college football player accused of raping a young woman, a case later investigated by the Education Department’s OCR, “after it was discovered that the university barely investigated the rape case.”  Muniz also “helped to defend the Florida Attorney General’s decision to sit out legal action against Trump University.”  Smith adds that Muniz is part of the libertarian Federalist Society for Law and Public Policy Studies, which is a member of the State Policy Network and a supporter of the American Legislative Exchange Council.

However, the most recent serious concerns are raised in a report published in March by the United States Government Accountability Office. The GAO documents the presence of disproportionate severe discipline and police referrals out of school for African American students, a concern emphasized by the Obama Administration and an injustice many believe Betsy DeVos’s Department of Education is failing to address. The NY Times‘ Erica Green summarizes the GAO’s findings: “Black students continue to be disciplined at school more often and more harshly than their white peers, often for similar infractions, according to a new report by Congress’s nonpartisan watchdog agency, which counters claims fueling the Trump administration’s efforts to re-examine discipline policies of the Obama administration.  The report… is the first national governmental analysis of discipline policies since the Obama administration issued guidance in 2014 that urged schools to examine the disproportionate rates at which black students were being punished. Critics of the Obama-era guidance have questioned whether students of color suffer from unfair treatment under school discipline policies. But the G.A.O. found that not only have black students across the nation continued to bear the brunt of such policies, but the impact was felt more widely than previously reported—including by  black students in affluent schools.”

Annie Waldman’s report this week from ProPublica describes in very personal terms how harsh and disproportionate discipline fuels the school to prison pipeline in Bryan, Texas. Recounting the story of a mother, Yvola Polk, and her daughter, Trah’Vaeziah—a seventh grader who is arrested by a school-based police officer, taken to juvenile detention over a whole weekend before she gets a hearing, and later assigned to her school district’s disciplinary alternative school, Waldman tells the story of of a child put on the path to school failure.  Although a relatively simple in-school disciplinary action could easily have handled the problem without the involvement of the police, the school district’s policy of locating a police officer at the school elevated the child’s original misbehavior into a crime, which launched a series of automatic escalations despite that the family of the other child—in an incident that likely represented teasing gone awry—chose not to press charges.

Here is how the consequences of the disciplinary process sucked the seventh grader into the juvenile justice system: “Trah’Vaeziah faced further consequences. Days after her release, at a due process hearing at the school, she was sentenced to five weeks in the district’s disciplinary alternative school. When the mother appealed, the stint was reduced to about two weeks. The disciplinary school epitomizes the district’s racial disparities. About 44 percent of students referred to the school are black, more than twice the district-wide proportion…. As research has shown, juvenile arrests can increase student misconduct, perpetuating a disciplinary cycle as children begin to internalize a ‘criminal’ label.  Trah’Vaeziah was no exception. In January 2018, after a classmate pulled Trah’Vaeziah’s hair, provoking a scuffle, she was sent back to the disciplinary school which she currently attends. The school emphasizes computer-based instruction, so Trah’Veziah and the other students receive minimal personal instruction from teachers.  They mainly watch video lectures and complete lessons online.”

Waldman contrasts the Obama era approach—protecting students’ rights and pressing for restorative rather than punitive discipline—to often harsh and apparently too often disparate discipline policies that Betsy DeVos’s Office of Civil Rights seems willing not to investigate: “Flooded with about 1,500 complaints related to racial discrimination in school discipline between 2011 and 2017, the Obama administration made the issue a priority.  Relying on the doctrine of ‘disparate impact’ which emerged in the 1970s and holds that differential treatment by race amounts to discrimination whether or not there is overt or intentional bias, the Department of Education opened sweeping investigations into disciplinary disparities, from large school districts such as Minneapolis and Oakland to smaller ones like Bryan, Texas, where Trah’Vaeziah goes to school. It pushed investigators in its regional offices to broaden probes of individual incidents to look for systemic discrimination.  But under Education Secretary Betsy DeVos, the Trump administration is taking a more hands-off approach.  DeVos has indicated that she may soon reverse Obama-era guidelines on disparate impact and school discipline.” And in Texas, in September of 2017, the Education Department Office for Civil Rights’ Texas office ended its investigation of the school district in Bryan, “notifying the complainants that there was ‘insufficient evidence to support a conclusion of noncompliance.'”

Here is what the GAO reported last month—a finding that corroborates the results of studies over the past two decades: “Black students, boys, and students with disabilities experienced disproportionate levels of discipline. Black students were particularly overrepresented among students who were suspended from school, received corporal punishment, or had a school-related arrest…  For example, Black students represented 15.5 percent of all public school students and accounted for 39 percent of students suspended from school, an overrepresentation of about 23 percentage points. Differences in discipline were particularly large between Black and White students. Although there were approximately 17.4 million more White students than Black students attending K-12 public schools in 2013-14, nearly 176,000 more Black students than White students were suspended from school that year…  Further, boys as a group were overrepresented, while girls were underrepresented among students disciplined…. Students with disabilities represented approximately 12 percent of all public school students, and accounted for nearly 25 percent or more of students referred to law enforcement, arrested for a school-related incident, or suspended from school (an overrepresentation of roughly 15.5 percentage points for referrals to law enforcement and school related arrests, and 13 percentage points for out-of-school suspensions).”

Both the GAO report and Annie Waldman’s profile of the seventh grader in Bryan, Texas are evidence of needed strong federal civil rights enforcement of equitable school discipline. The U.S. Department of Education’s Office for Civil Rights was established because a number of states were not protecting the rights of black and brown children. Betsy DeVos’s reduction of the Department of Education’s civil rights enforcement violates the department’s mission.

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