Where the well-intended Dear Colleague letter went wrong

Where the well-intended Dear Colleague letter went wrong

Since I last wrote about the Obama administration’s Dear Colleague letter, attorney Hans Bader has published an interesting op-ed over at the Competitive Enterprise Institute.

Two legal foundations are calling for an end to federal pressure on school districts to adopt racial quotas in suspensions. And rightly so: It is wrong for an agency to pressure regulated entities to adopt racial quotas, or make race-based decisions, even if the pressure does not inexorably lead to a quota.  (See Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)). I earlier discussed at length how Obama-era rules, issued without notice and comment in 2014, pressured school districts to adopt racial quotas in suspensions, which violated the Constitution; misinterpreted Title VI of the Civil Rights Act; and ignored judicially-recognized limits on disparate-impact liability.

On March 29, Roger Clegg, president and general counsel of the Center for Equal Opportunity, sent an email to the Justice Department asking the Trump administration to withdraw these rules, which are contained in the Obama administration’s January 8, 2014 letter to America’s schools, known as the “Dear Colleague letter: Racial Disparities In The Administration Of School Discipline.” Clegg urged “the withdrawal of the January 8, 2014 ‘Dear Colleague’ letter,” which was issued by the Obama Justice Department’s Civil Rights Division and the Education Department’s Office for Civil Rights. He called this letter “unsound as a matter of both law and policy,” citing “a variety of sources that have criticized the letter, again from both policy and legal perspectives.” Clegg is a former Deputy Assistant Attorney General in the Civil Rights Division, where he served from 1987-1991.

Like Kirsanow, Bader argues that even if the DOE does not explicitly call for a racial quota, it still may not pressure regulated entities to create what would essentially become racial quotas. I think that the Obama administration’s heart was in the right place, so to speak, when they issued the Dear Colleague letter. I think the letter seeks to address an undeniably real issue; I also think they would be derelict if they did not do something to address the issue.

But the more I turn it over, I simply don’t think path they chose was the right (or Constitutionally sound) one. The Department must envision for itself a higher role than simply demanding that schools bring disciplinary statistics in line with a school’s demographics. If you were overseeing a school in which black students comprised 50% of the population but accounted for 75% of suspensions in 2016, and in the following year suspensions for black students had fallen to 50%, would you be satisfied with that result? I wouldn’t. In fact, I’d be extremely concerned about what had to have been done to achieve that stat. I’d have questions about the legitimacy of the number, and if the number was “legitimate,” I’d have questions about why the solution, if it was truly as easy as the numbers suggest, hadn’t been applied earlier.

Fundamentally, I think this comes back to the general worldview of the Department of Education under Duncan and King regarding why schools aren’t improving. Duncan’s record suggests he believed schools didn’t do better because school leaders were not sufficiently afraid of the consequences of not doing so. Therefore, in order to fix the disparate impact of disciplinary policies, the Department could simply threaten regulatory action if the problem doesn’t get better. But those who work on the ground know that schools would solve their problems if they could solve their problems. If schools had the tools to remedy the disparate impact of their disciplinary policies, wouldn’t they have done it already? The solution then, rather than to threaten, is to seek a better understanding of the problem and better equip schools to solve it.


What does school discipline look like in the DeVos era?

Gina Womack, writing in The Hill, expresses strong concern that Betsy Devos will abandon the Obama-era initiative to require schools and states to report on how they discipline students and to disaggregate that data by race.

Womack is concerned that a move away from this requirement would enable schools to return to policies that are disproportionately punitive toward students of color.

The DOE’s current Civil Rights Data Collection national survey, derived from school discipline reports, is a critical resource that alerts us to institutional racism pervading every level of our education system. We need that hard data to force administrators and policymakers in our education system to acknowledge the role they play in school-to-prison pipeline. How can we be sure this reporting and research will continue under DeVos?

Anyone who cares about the fate of black kids in our schools should be concerned when DeVos sidesteps a question about the obligation of schools to report how and who they discipline. Our education system needs a leader who is unafraid to tackle systemic racial prejudice and injustice. Our black kids deserve a secretary of Education who cares about them.

Devos’s clear sidestepping of the question, combined with other verbal evasions on federal vs. state issues, indicate the Department of Education may be stepping away from the more active role it took under Obama.

Whether or not you agree with the policies of the Obama/Duncan/King Department of Education (most educators I know believe those results are mixed at best), this should be a cause for concern among those interested in equitable school discipline policies. The Obama administration’s work was far from done; the administration was effective in bringing the problem of racially disproportionate policies to the foreground. They were only on the edge of the cusp of solving those problems; then again, it’s probably not the role of the feds to prescribe exactly what should happen in schools. In a perfect world, the federal government can use their platform to highlight a problem while still allowing schools flexibility to determine how to solve that problem.

But if the feds don’t see it as a problem, is it likely that schools will take steps to solve it?

One person who’s honest about what’s not working with restorative discipline

Chalkbeat posted a surprisingly candid interview with an assistant principal of a school that is implementing restorative discipline practices with uneven results. The honesty is a much-needed corrective to the usual silver-bullet style success stories we hear about a school’s new approach.

The AP, Nick Lawrence, highlights a few major issues hampering the implementation:

  1. Lack of agreement on an exact definition of restorative justice. Asked to identify exactly what restorative justice means, Lawrence says, “We’re still trying to figure out what that means for our school community and that’s where the problem starts in trying to figure out how to implement it. A lot of it is taking a step back and stopping yourself and examining how you’re feeling and why you’re feeling that.” I can see why a school leader might think it necessary to establish a shared definition of a nebulous term like restorative discipline; if it were me, I might even spend some time working on that as a staff. I wonder, though, if it’s realistic to expect that the definition you establish at the outset of the initiative will even be accurate as implementation goes along. As the details of any initiative are context-dependent, it’s fair to expect that each school will eventually establish its own new definition. Leaders will emerge who put their own “spin” on things, influencing others; effective practices may bubble up to the surface and become dominant because they are uniquely effective in that particular context. Perhaps what’s important, then, is building a shared understanding that the definition you establish at the beginning of the initiative will continue to grow and change–and that’s okay. It’s also critical to empower teachers to experiment (within the general framework, of course) with new techniques; when a practice is visibly effective, you can bet it will spread pretty fast.
  2. Lack of authentic student belief in the process. When asked “How do you know when it’s not working?” Lawrence responds, “When students didn’t believe in it–when they were just like, ‘We’re going to have a conversation so that you stop talking to me and then we’re going to fight it out on the block anyway.” I could critique this by offering suggestions to build student buy-in, but the truth is in a large school you will probably never get 100% student buy-in; the question to ask when trying to gauge the effectiveness of restorative practices, then, is not “Do all of our students believe in this?” but “Does a significantly greater number of students believe in this than believed in retributive practices?” Since few students believe in the value of retributive practices (beyond teaching them to try harder not to get caught), the answer will likely be yes.
  3. Finding and funding high-quality training. Lawrence states that about 30-35 staff members out of 90 have received training in restorative practices. I don’t know enough to say whether this number is high or low; it seems on the low side but then again we don’t know the extent to which those 35 have trained or shared with other staff. I imagine one of the hardest aspects is that you can’t just drop everything else and focus on restorative discipline; I’m sure this is one of many initiatives going on at the school. Throw in a handful of mandates coming from different directions and it’s easy to let any initiative become back-burnered. While it’s not realistic to say you should only focus on one initiative at a time, I do think it’s best to clear the deck of other non-urgent initiatives when attempting something as big as a full-scale shift in discipline practices.

Lawrence’s interview is a must-read for anyone interested in restorative practices; I wish more school leaders would be willing to talk about the difficulties in shifting disciplinary practices. I think it would help a lot of school leaders out there who might be suffering in silence.

Getting caught in an ahistorical trap on school discipline

Getting caught in an ahistorical trap on school discipline

One of the biggest problems I see in education reform and education policy in general is ahistoricity: policies are often enacted with little attention to the historical context of what’s been tried before. Additionally (and more relevant to this post), when new policies are enacted, previous policies are dismissed with a level of vitriol that makes it seem as if they were cooked up by evil masterminds bent on ruining kids’ lives.

Take what’s happening in the national conversation on school discipline right now: we are seeing a mass convergence of federal, state, and local governing bodies moving away from zero-tolerance, heavy-suspension policies and toward restorative practices. While I certainly support this movement and am thankful to be working in an environment wherein current policies align with my personal beliefs and experiences, I also have to chuckle a bit at the way in which we are now discussing the zero-tolerance movement.

The Improving America’s Schools Act of 1994 (from which zero-tolerance policies sprung) was passed by an overwhelming bipartisan majority and had broad public support. People thought we were finally getting on the right track! Yes, we have now witnessed two decades of the deleterious effects of this legislation, but at the time, these policies were favored by those who claimed the moral high ground much in the way that supporters of restorative practices are doing now. (Joe Louis Clark expelled half his school and was a hero who got a movie made about him!)

Copious research now shows us why suspension-heavy policies are bad for kids. But it’s unfortunately also possible that in 20 years we’ll have an equal amount of research that shows the negative effects of restorative practices on schools. I certainly hope this is not the case, and I don’t think it will be, but it would be foolish to not at least acknowledge the possibility. You won’t hear many supporters saying this, of course, and I don’t blame them for that. They are trying to lead a movement that they genuinely believe will help kids.

But it’s also important to understand that every educational movement of all time was meant to help kids. Acting as though your movement is the first to have a true ideological purity is dangerous, and not just because it makes you seem arrogant: it sets you up to believe that your movement will succeed because it is “truly” what’s in the best interest of kids. If you believe that your side is the only one who “really cares,” you’re likely to pay less attention to the details that can sink your initiative, believing the righteousness of your intentions will win the day.

I’m sure this post reads as either cynical, nihilistic, or both, but I express these concerns because I have a nagging fear that if advocates are not careful and thoughtful, restorative discipline practices–which I believe in wholeheartedly–may wind up on the ash heap of once-promising initiatives.

Students respond to changes to NYC discipline policies

Students respond to changes to NYC discipline policies

Chalkbeat is doing a great job of tracking responses to the city’s recently announced changes to the discipline code (which I wrote about here and here). Today they published an account of responses from students and teachers’ union officials who showed up at an education department hearing.

Before I start, let me point out that the article identifies them as “proposed” changes, and I’m not really sure what this means. I’m also still not clear on whether the new changes are drawing a distinction between in-school and out-of-school suspensions.

The students, many of whom were part of the Urban Youth Collaborative or other youth advocacy groups, filed into long auditorium rows, wearing matching t-shirts with slogans like “Our Bronx. Our Lives. Our Solutions.” They brought posters with messages such as “Stop cuffing us,” and took turns sharing personal stories during a boisterous public comment period.

“Our dreams and our goals…do not stop in third grade,” said one student at the hearing, referring to the fact that the proposed suspension ban ends after second grade.

I agree. At the same time, I don’t fault the department for starting “small” and re-evaluating before going to K-12. A decision to ban suspensions K-12 all at once would be extremely disruptive and might end up undermining the larger effort to move toward restorative practices altogether. That being said, if the K-2 ban is successful, there should be pressure on the department to expand it.

At the top of students’ wish list of reforms is banning suspensions for ambiguous infractions, such as defying authority. While the city already made it more difficult to hand out these suspensions by requiring written approval to do so, some student advocates want the penalty removed altogether.

They say the policy leaves wiggle room that is disproportionately used to penalize black and Hispanic students for minor offenses.

This is a really tough one, because the same “wiggle room” that can be disproportionately used to penalize some can also be used on behalf of troubled students who are hurt by ironclad, set-in-stone policies. That sort of discretion makes some people uncomfortable because it seems to vest too much power in administrators. I understand that critique; but how sad it is that things have gotten to the point where we now have to idiot-proof (or racist-proof?) our school discipline guidelines?

I support the ban on suspensions, but I wouldn’t advocate for also removing exemptions. I can’t push for policies that restrict an educator’s ability to use their judgment to handle unique situations; legislation is important, but ultimately I’m skeptical whether issues of racial bias can be “legislated” away. These issues need to be tackled head-on by disaggregating the data to find out where black and Hispanic students are being disproportionately penalized and providing training and support with restorative practices.

Other speakers voiced the opposite concern — that the city’s suspension ban went too far.

“Banning suspensions doesn’t eliminate the problem. Rather, an ill-conceived ban, combined with a lack of oversight of the current system and no real plan to move forward, will perpetuate an environment of chaos and instability that can undermine the success of the classroom teacher and the achievement of every student in his or her class,” said Richard Mantell, vice president of the United Federation of Teachers, echoing concerns raised by UFT President Michael Mulgrew.

Mantell is right that banning suspensions doesn’t eliminate the problem (I’ve written about this here); but this is a losing issue for the union. A move toward restorative practices is happening across the country and the union needs to decide if it wants to be a partner or an obstruction. The union has every right to demand a “real plan to move forward” that goes beyond simply banning suspensions, but this is also an opportunity to be a co-author of a plan that works for both teachers and central administration.

A teacher’s response to the city’s ban on suspensions in K-2

A teacher’s response to the city’s ban on suspensions in K-2

Chalkbeat published a teacher’s response to the city’s changes to its discipline guidelines. Emmy Bouvier, an elementary school teacher in Brooklyn, wrote a First Person lauding the DOE’s decision to ban suspensions for K-2.

Critically, Bouvier tackles head-on the most common defense of suspensions:

In several schools where I have worked, I’ve often heard the following rationalization for suspending students who present challenging behavior: “Should the needs of one or two students take precedence over the needs of the whole group?” Why instead aren’t we asking ourselves, “Whose needs are constantly being compromised for the needs of the majority?”

That’s an interesting proposed alternative question. I’m not sure that’s the angle I would take; after all, in any group dynamic the needs of the individual are always in some ways compromised for the needs of the majority. The better question is, Since we know that there are other ways to reduce maladaptive behaviors that don’t involve exclusion, why aren’t we using them?

Ross Greene in Lost and Found says we should always use the “least toxic response” to a challenging behavior (a corollary to the “least restrictive environment”). Out of school suspensions rarely fit this criteria.

In a second grade class I once taught, five of my students were black boys. The only suspensions given to students in their grade that year were for three of these boys, two of whom were suspended multiple times by the administration for behavior like having a tantrum. Did suspensions change the behavior of these students? No. Did suspensions further alienate these students and their families from the school? Yes. Even in second grade, students realize when they aren’t wanted in a space, and it can become difficult for them to distinguish the adults’ responses to unwanted behavior from a feeling of exclusion, that they aren’t wanted in general.

This is textbook restorative discipline, and one can only hope Ms. Bouvier’s view becomes more common. This is also a brave article to write considering that the author’s school–Achievement First–has boasted suspension rates of up to 22 percent in years past. Despite urging from many corners, it doesn’t appear that the large charter networks have done much if anything to move toward restorative practices.

One thing I’m still confused about with the city’s new guidelines is whether in-school suspensions will also be banned. In Meyer and Evans’s School Leader’s Guide to Restorative Discipline, in-school suspension is laid out as an important part of a schoolwide restorative system (as long as it is accompanied by opportunities to teach reflect). Yet, one could make the case that even an in-school suspension does exclude and send the message that students are not wanted (or at least it can if not framed correctly).



City bans suspensions K-2 . . . is it enough?

City bans suspensions K-2 . . . is it enough?

This was a big week for school discipline nerds in NYC. The city released the second part of its recommendations for changes to city schools’ disciplinary practices.

I will probably write about each of the task force’s recommendations, but the main takeaway is that DOE schools will no longer suspend students in grades K-2. Suspensions in these grades were down from 1,454 to 801, but they’ll apparently go down to 0 now.

Any move away from a policy that excludes and isolates very young children for maladaptive behaviors is a good one. Here are some questions I still have though:

What will school leaders do in lieu of out-of-school suspensions? 

You can just imagine the conversations happening right now in elementary schools with high populations of students with challenging behaviors:

What are we going to do now? The kids will know we can’t punish them no matter what they do. 

How am I supposed to provide a safe environment when kids can’t be removed for any reason?

How are we going to teach kids a lesson when their behavior is unacceptable? 

I don’t blame anyone for these sentiments; if you’ve only worked in an environment in which retributory consequences are the primary means for “correcting” maladaptive behaviors, of course you’re going to be upset when your biggest tool is taken out of your toolbox (even if, when you step back, you probably realize that tool–suspensions–isn’t actually working).

If central administration doesn’t support school leaders in teaching staff members in challenging schools how to engage in proactive, collaborative problem-solving, the promise of this initiative will dry up and trust between schools and central will be further undermined.

Why stop at 2nd grade? 

What possible reason is there to end suspensions only for grades K-2, especially when almost all NYC elementary schools are K-5. Seems to me you are creating a two-tier discipline system within schools, wherein half the teachers understand suspension is not an option and look for other solutions (ideally) and half don’t. How do you lead a school in professional development around discipline issues with a system like that?

How will we know if it’s working?

What system is the city going to use to measure the effectiveness of this change?