The Serious Implications of the New Report of the Federal Commission on School Safety

On December 18, buried in the pre-holiday news was the release of a report from Betsy DeVos’s Federal Commission on School Safety.  This blog reported last week on its most troubling recommendation—the one that was immediately enacted when DeVos’s department rescinded Obama-era guidance designed to reduce racial disparities in school discipline.  It is worth exploring more broadly the implications of what was in the Commission’s report.

For the Washington Post, Laura Meckler reported: “President Trump’s Federal Commission on School Safety, formed after a mass shooting at a Florida high school, recommended… that school systems consider arming personnel and advised against increasing the minimum age requirement for gun purchases.”

For Politico, Kimberly Hefling wrote: “A Trump administration school safety panel hardly touched on the role of guns in deadly school shootings in its wrap-up…. But the panel instead encouraged more coordination between schools and law enforcement that could include programs that arm highly trained school personnel.  It said local communities should consider incentives that encourage military veterans and those with a law enforcement background to work in schools.  It also endorsed the adoption by states of ‘extreme risk protection orders’ designed to temporarily restrict access to firearms by individuals found to be a danger to themselves or others and encouraged Congress to modernize privacy laws.”

For the NY Times, Erica Green and Katie Benner explained: “Almost immediately, the commission turned away from guns and instead scrutinized the Obama administration’s school discipline policies, though none of the most high-profile school shootings were perpetrated by black students.”

The National Association of School Psychologists responded: “Certainly NASP is pleased that the Commission’s report acknowledges some of the recommendations for improving school safety that were shared in writing and at the Commission hearings…. These include the importance of: providing comprehensive school mental health services… creating a positive school climate and fostering trusting relationships among students and staff, and using multidisciplinary teams (and the important role of the school psychologist) to develop systems that promote trauma-informed practices and… help identify and intervene with students who need support…. However, the Commission has largely ignored equally important and almost universal recommendations related to helping schools meet current challenges associated with improving school safety and the clear request for additional policies and resources… Schools and districts, who already struggle with how to meet competing priorities with limited resources, will be hard pressed to make any significant improvement without additional supports. Yet the Commission did not call for any increased Federal resources or offer specific directives necessary to help states, districts, and schools expand their efforts.”

Not only will increasing the number of armed School Resource Officers likely undermine schools’ capacity to employ additional counselors and school psychologists, but also increasing police in schools has been shown to move additional students into the juvenile justice system.  Harold Jordan of the Pennsylvania American Civil Liberties Union describes, “a contradiction: on one hand, an emphasis on ‘hardening’ schools with police, building security, and new protocols, and on the other hand, acknowledgment that more school-based student support services are necessary and that schools need staff who can work with young people, get to know them, and help them manage emotional and behavioral issues.  Why are these contradictory?  Because the hardening measures consume a disproportionate amount of resources in already understaffed schools, while exposing more young people—who neither threaten nor attempt to carry out a shooting—to the justice system.  In many schools, having more police in schools means more arrests or summary citations against students for noncompliant behavior.  In other words, some of the measures taken to secure schools may end up damaging the lives of many students, without preventing shootings.”

The greatest concern about the Commission’s report is its recommendation, already enacted in late December by the Secretary of Education, to rescind Obama-era guidance aimed at reducing out of school suspensions and expulsions and eliminating long-running racial disparities in the number of students suspended and expelled.  In making this recommendation in its report, the Commission on School Safety rejected a long-accepted civil rights legal concept—disparate impact.  The Commission’s failure to recognize the importance of “disparate impact” is so serious that the NY Times editorial board addressed it last Friday.

The editorial board explains the history of the principle of “disparate impact”:  “Reaffirming that ‘much progress remains to be made… in moving the nation toward a more integrated society,’ Justice Anthony Kennedy wrote in a 5-4 Supreme Court decision in 2015 that it was appropriate for the Fair Housing Act of 1968 to let discrimination be measured by its ‘disparate impact’ on minorities even if there was not proof of intentional discrimination.  The reason, as he noted, is that discrimination doesn’t just happen overtly, that governments and private actors sometimes take actions that fall hardest—or have a disparate impact—on people of color or other groups.”

The Times editorial board continues: “Federal voting rights and employment statutes, as well as the Fair Housing Act, recognize the use of disparate impact to find discrimination in those areas, and Donald Trump would need Congress to rewrite such laws if he wants to do anything about that.  But regulations and what the administration likes to call ‘sub-regulatory guidance’ that accept the use of disparate impact may be changed or scrapped by administrative action—as Betsy DeVos, the secretary of education, did last month when she did away with school discipline guidelines the Obama administration issued to curb the disproportionate punishment of black and brown children.”

The Times editorial board concludes: “What the Trump administration is doing is nothing new. Republicans and conservative legal theorists have long set their sights on the disparate impact principle, claiming that the only true evil that needs to be rooted out under law is intentional discrimination… In reality, discrimination is often subtle and systemic, and Congress and the courts over time have recognized that by bolstering, not weakening, the use of disparate impact in a broad spectrum of civil rights protections…  As the nation continues its long march toward equality, it would be outrageous to destroy such an important means of advancement—one the civil rights bar still depends on to make its case in court.”