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Biden administration issues civil rights guidance on school discipline

US President Biden speaks to members of the media before boarding Marine One on the South Lawn of the White House in Washington, DC on May 26.Samuel Corum/Bloomberg

The Biden administration on Friday directed the nation’s public schools to comply with civil rights laws in their use of out-of-school suspensions, expulsions and school-based arrests, highlighting persistent concerns that Black, Latino, and Native students face harsher punishments than their white and Asian classmates.

The guidance letter, issued by the Justice and Education departments, marks the Biden administration’s most forceful message on school discipline at a time when some states and school boards are pushing tougher punishments for troubling student misbehavior that has risen since the start of the pandemic. These developments have worried student advocates, who fear new policies will unfairly target students of color and students with disabilities.


The letter says concerns over racial discrimination in school discipline persist, despite decades of efforts fighting it.

‘’Discrimination in student discipline forecloses opportunities for students, pushing them out of the classroom and diverting them from a path to success in school and beyond,’’ the departments advised in the letter, which was first reported by The Washington Post. ‘’Significant disparities by race — beginning as early as preschool — have persisted in the application of student discipline in schools.’’

In 2014, amid growing awareness of racial disparities in suspensions, the Obama Administration issued guidance and urged schools to move away from punishments that pushed students out of schools and classrooms. And it warned schools that they could be running afoul of civil rights law if they suspended or expelled student of color at higher rates than white students.

Four years later, the Trump administration rescinded that guidance to the satisfaction of Republicans, who saw it as federal overreach that hamstrung administrators seeking to secure their schools. Then-Education Secretary Betsy DeVos pulled the guidance in the aftermath of the 2018 school shooting in Parkland, Fla., that left 17 dead, with some conservatives seeking to blame that school system’s progressive discipline policies for allowing the shooter, a troubled student who had been expelled, to slip through the cracks.


Daniel J. Losen, director of the Center for Civil Rights Remedies at UCLA and senior director of education at the nonprofit National Center for Youth Law, said federal law has not changed from one administration to another but that guidance sends a message to school districts about enforcement. When then-President Donald Trump rescinded the guidance, the message was that districts did not need to worry about the issue anymore, he said. Losen had not seen the updated guidance.

‘’The benefit of guidance is that every state and local superintendent is made aware of it,’’ he said. When there is robust guidance, he said, ‘’they’re all given a message that, ‘Here’s what the law says, here’s what you should do.’’'

Researchers, including those with the federal government, have for decades documented how schools treat students of color differently than their white classmates when they misbehave or break the rules — disparities that can often not be chalked up just to differences in behavior. Students with disabilities are also treated differently than those without them. In the 2017-2018 school year, Black students accounted for 15 percent of enrollment nationally in K-12 public schools, but 38 percent of students who had been suspended out of school, according to an Education Department report. That same year, students with disabilities made up about 13 percent of the student body, but constituted a quarter of the students who received out-of-school suspensions.


‘’Discrimination in school discipline can have devastating long-term consequences on students and their future opportunities,’’ said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.

The guidance document includes several summaries of situations in which officials from the Justice and Education departments cracked down on school officials, pushing them to remedy discriminatory treatment of students of color. In several instances, districts were disciplining Black, Latino and Native students more harshly than white students — often for the same offenses.

‘’Both as the chief civil rights enforcer in the nation’s schools and also as a mom of kids, I am sick about the kinds of facts that we find in our investigations and the experiences that we ask our kids to hold in school,’’ said Catherine E. Lhamon, the Education Department’s assistant secretary for civil rights. She said she hoped it gave people ‘’a window into that heartbreak and to see how unacceptable it is for our students to be experiencing these kinds of conditions in the range of experiences that we see.’’

In one incident in Utah, Justice Department investigators found that a white and Black student committed the same offense but received radically different treatment: the white student was required to meet with administrators, while the Black student was reported to police, they wrote in a 2021 report. Another investigation found that Black students were suspended at more than six times the rate of white students in Durham, N.C., according to a 2018 report. To resolve the complaint, the Education Department, then headed by Secretary Betsy DeVos, recommended staff get implicit bias training.


The guidance comes as schools deal with worsening violence and disruption on and off campus. In an Education Department survey of 2,400 K-12 schools, about third reported that student fights and threats of violence had increased in the 2021-2022 school year and linked the rise to the pandemic. More than half reported more classroom disruptions and eight in 10 said the pandemic had stunted students’ social-emotional growth.