Education Week - April 11, 2018 - 18
Betsy DeVos Weighing Action on School Discipline Policy
GAO: Black students
By Evie Blad & Alyson Klein
As the Trump administration
weighs whether it will revise or revoke
Obama-era rules on school discipline,
U.S. Education Secretary Betsy DeVos
for the first time heard directly from
both sides of the hotly debated issue.
The 2014 civil rights guidance-
jointly issued by the U.S. Departments
of Education and Justice-put schools
on notice that they may be found in
violation of federal civil rights laws if
they enforce intentionally discriminatory rules or if their policies lead
to disproportionately higher rates of
discipline for students in one racial
group, even if those policies were written without discriminatory intent.
DeVos' closed-door meetings last
week came as the Government Accountability Office released a report
that found that black students are
consistently disciplined at higher rates
than their peers. While black students
represented 15.5 percent of public
school students in 2013-14, they made
up 39 percent of students suspended,
the report said.
"These disparities were widespread
and persisted regardless of the type of
disciplinary action, level of school poverty, or type of public school attended,"
GAO investigators found.
At the heart of the debate over the
guidance is why those differing discipline rates occur and the role of the
federal government in addressing
them. Also at issue: whether schools'
efforts to limit expulsions and suspensions have helped students feel more
supported or have too severely limited
teacher discretion in discipline.
DeVos has not committed to a time
frame for making a final decision on
the guidance. That decision is also on
the agenda of a school safety task force
DeVos chairs that was assembled by
the White House after a Feb. 14 school
shooting in Parkland, Fla.
The department has held 12 roundtables on school discipline, but this
was the first one that DeVos personally participated in, said Nate Bailey,
a spokesman for the secretary.
DeVos has also met with lawmakers, including Rep. Bobby Scott, D-Va.,
the top Democrat on the House education committee, who supports the
Obama policy, and Sen. Marco Rubio,
R-Fla., who urged DeVos to re-examine it after the Parkland shooting.
The April 4 summit, which was also
attended by Assistant Attorney General for Civil Rights John Gore, was
split into two roundtables: one for supporters of the guidance, the other for
critics and those with concerns.
cause them to misbehave more.
Schools afraid of sparking federal
investigations have limited teachers'
ability to discipline students without
providing useful alternatives, those
critics have said. Others, aiming to
drive down suspension rates, have set
goals that some see as "quotas."
Nicole Stewart, a former vice principal at Lincoln High School in San
Diego, said she told DeVos about the
district's practice of "blue slipping"
students, sending them home with an
unexcused absence so their punishment isn't counted as a suspension.
Criticism and Support
A student at Stewart's former
school recently brought a knife to
school, but because he didn't brandish it in a threatening manner, he
was not referred for an automatic
expulsion under the school's new
discipline code, she said. Administrators could have recommended
him for an expulsion hearing, but
they determined his behavior was
related to a disability (under separate federal laws, students can't be
disciplined for manifestations of
diagnosed disabilities). Two weeks
Critics, who included teachers and
representatives from the National
School Boards Association and AASA,
the School Superintendents Association, say the document has had a chilling effect on local decisionmaking.
Racial differences in discipline rates
can't entirely be explained by different
treatment in schools, those critics contend. They argue black students are
more likely to be exposed to out-ofschool factors, like poverty, which can
We are not modeling
as a system what
consequences look like
in the real world."
Former vice principal
later, the student slashed a peer's
throat, Stewart said.
"We are not modeling as a system
what consequences look like in the
real world," she said.
In a statement, the AASA said a
survey of school leaders shows the
guidance has not been "transformative" in changing schools' discipline
practices and that the claim that it
alone has made unsafe school environments is "hard to justify."
Supporters of the guidance say it
has been instrumental in protecting
the civil rights of students who are
often overlooked. And the directive
has motivated states and districts to
re-examine their disciplinary practices, making changes that have benefited all students, they said.
Many problems that have been attributed to the guidance are actually
problems with how districts have
implemented their own policies, they
said. Teachers need training and resources to support their students, and
schools shouldn't remove the ability
to suspend students for some offenses
without helping teachers with alternative discipline practices, they said.
Marisa Crabtree, who met with
DeVos and has taught at Lincoln High
School in Los Angeles for 14 years, remembered a time when, as a rookie
teacher, she asked an older peer what
to do when her students come to class
without pencils and notebooks. "Oh,
you can always suspend them," she
remembers that teacher saying.
"I remember thinking that's
just ridiculous," Crabtree said.
Students might come to class unprepared because they can't afford
notebooks or because they have a
chaotic home life, she said.
Los Angeles began changing its disciplinary policies in 2012, before the
federal guidance was adopted. And,
in the years since, California has also
adopted laws that restrict schools'
ability to suspend younger students
for infractions like "defiance."
Crabtree says the new policies have
made her a better teacher and have
given her strategies for addressing
problems before they spiral into severe
The GAO report found disproportionately high rates of discipline for
black students, students with disabilities, and boys. Rep. Scott, who
requested the investigation, said it
"underscores the need to combat these
gross disparities by strengthening, not
rescinding" the guidance.
The report says the differences in
discipline rates cannot be entirely attributed to differential treatment by
schools. Behavioral differences "may
be affected by health and social challenges outside the classroom," it says.
But it also notes that some teachers
perceive students' behavior differently
by race. The report cited a study that
used eye-tracking technology to show
that "teachers gazed longer at black
boys than other children when asked
to look for challenging behavior based
on video clips."
The report also found that national
rates of suspensions started dropping
in the years before the guidance was
released, which means the changes
cannot be entirely credited to-or
blamed on-the federal guidance.
Guidelines Spur Dismissal of Special Education Complaints
By Christina A. Samuels
The U.S. Department of Education's
office for civil rights has dismissed
hundreds of disability-related complaints, following new guidelines that
say such cases will be dismissed when
they represent a pattern of complaints
against multiple recipients.
The office enforces laws such as
the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act of 1973, both of which prohibit public entities from discriminating against individuals based
on disability. It also enforces Title
IX, which prohibits discrimination
based on sex, and other laws that
prohibit discrimination based on
age, race, color, or national origin.
Marcie Lipsitt, a special education
advocate in Franklin, Mich., estimates
during the past two years she has filed
more than 2,400 complaints to the Education Department over educational
entities that have websites that are
inaccessible to those who are blind or
visually impaired, or who cannot use
a mouse to navigate a website. Her
targets have included school systems,
universities, library systems, and state
departments of education.
Last month, Lipsitt began receiving
notices that the cases were being dismissed, including complaints that had
been filed months ago and were in the
process of being investigated. The dismissals were not made on the merits
of the cases; she was told that the civil
rights office was following a new process established March 5 in a revision
of its "case processing manual."
Streamlined Case Processing
The manual states that complaints
will be dismissed when they are a
"continuation of a pattern of complaints previously filed with OCR
by an individual or a group against
multiple recipients, or a complaint is
filed for the first time against multiple recipients that, viewed as a whole,
places an unreasonable burden on
In such cases, OCR says, it may
issue technical assistance or conduct
a compliance review, but Lipsitt hasn't
seen any sign of that.
"Nothing in the law says anything
about not investigating any complaint
when there's a burden on resources.
This flies in the face of Section 504
and the ADA," Lipsitt said. "They
could apply this to anything, it's so
18 | EDUCATION WEEK | April 11, 2018 | www.edweek.org
As of early April, Lipsitt said 559
open cases were dismissed, as well as
100 cases that were in the evaluation
phase. Among the dismissed cases was
a complaint Lipsitt filed against West
Michigan Aviation Academy in Grand
Rapids, a charter school founded in
2017 by Education Secretary Betsy
DeVos's husband, Richard.
In addition to the requirement to
dismiss complaints if they reflect a
burdensome pattern, the new case
processing manual also gives complainants 14 days to provide additional information for a case instead
of 20 days as had been allowed previously. It also eliminates a process that
complainants could use to appeal a
decision, among other changes.
Rules Product of 'Collaboration'
The office for civil rights' new case
processing manual "is the product of
many months of collaboration among
OCR career investigators and career
managers reflecting OCR employees'
commitment to robustly investigating
and correcting civil rights issues," said
Elizabeth Hill, the spokeswoman for
the Education Department. "Case processing procedures in the new CPM
allow OCR to better accomplish this
critical mission by improving OCR's
management of its docket, investigations, and case resolutions."
A senior department official said
changes allowing complaints to be dismissed if they represent a pattern of
similar complaints will give the office
the discretion to use technical assistance, rather than process thousands
of the same type of concerns.
The elimination of the administrative appeals process comes because
appeals rarely resulted in a different
outcome, but they still required substantial staff time that could be spent
on resolving cases, the official said.
The reduction from 20 to 14 days for
additional information from complainants reflects staff feedback that most
information is provided in 14 days, or
not at all, in the department's view.
Patrick T. Andriano, a lawyer
with a law firm that represents
about 80 school districts in Virginia, doesn't see the changes as
big procedural adjustments.
"I think it does give OCR more flexibility in how it's going to conduct its
investigations, and more flexibility
into how it's going to resolve complaints within school districts," Andriano said.
"It also appears to me that OCR is
going to do more screening of the complaints up front, before they actually
open a complaint," Andriano said.
Andriano said his clients have seen
an uptick in the number of cases that
have been resolved, some of which
had been open for years.
"That is a good thing for the school
district as well as the complainant,"
But Paul Castillo, a senior attorney and students' rights strategist
for Lambda Legal, says that taken
as a whole, the civil rights office
has made several changes that will
make it harder for parents to file
cases, and will make it easier for
the federal agency to dismiss them.
Lambda Legal, based in Dallas, advocates for the civil rights of lesbian,
gay, bisexual, and transgender people and those with HIV.
Castillo, a field investigator for
the office for civil rights between
2010 and 2013, said, "It is an acrossthe-board change that impacts new
complaints, existing complaints, investigations that are already open,
resolution agreements that have
already been signed."