Where the good-intentioned Dear Colleague letter went wrong

Where the good-intentioned 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.

What are six-year-olds really getting suspended for?

What are six-year-olds really getting suspended for?

Chalkbeat recently posted a breakdown of the behaviors most frequently resulting in suspensions for students in grades K-2, and the results are … interesting.

Nearly a third of the 801 suspensions handed out to students in kindergarten through second grade this past school year were reportedly for incidents of violence or serious physical disruption. Those infractions included: reckless behavior with substantial risk of serious injury (115 suspensions); using force or inflicting serious injury to school safety agents or other school personnel (104 suspensions); and Category I weapons possession (22 suspensions), which includes everything from slingshots to guns.

The most common suspension is for an offense that used to be categorized as horseplay. “Altercation and/or physically aggressive behavior” is the technical name of the category, and 373 suspensions were issued for it last year, 47 percent of the 2015-16 total. Until the 2012-13 school year, the education department categorized this offense as “horseplay,” though the broadness of the label makes it hard to know how it is applied in practice.

So about 3% of the suspensions resulted from weapons possession; out of about 350,000 students in grades K-2 in NYC, I suppose 22 is a relatively low number, even if it is somewhat mind-boggling that students under the age of 7 are bringing in dangerous weapons (but perhaps this reveals my ignorance of elementary schools). I’m more curious about the relationship between a 6-year-old bringing a weapon to school and the suspension. Is the idea that the punishment is so aversive that the student will never bring the weapon again? Is it not more likely that the student perhaps was not aware of the seriousness of bringing a weapon to the school environment? When you’re planning your back-to-school routines and procedures day, I’m not sure if “don’t bring knives to school” is something that most 1st-grade teachers think to review.

Maybe the real problem is that “Altercation and/or physically aggressive behavior” is a very subjective label, as the author indicates. This seems to allow a lot of “wiggle room” for teachers or administrators looking to suspend a student to twist things. But these broad labels are created for a reason–they empower teachers and school leaders to use judgment in dealing with unique situations. That gives a power to administrators that surely troubles those who worry about the potential for racial bias; I’m sure that advocates would prefer a much more specific protocol or more clearly enumerated set of behaviors that result in suspension. I’m sympathetic to that argument, but such a policy would cut both ways–it would also hamstring the more enlightened administrators out there who are seeking to mitigate the racial disparities in the effects of school discipline by using their judgment to deal with situations individually. As I’ve written before, I’m just not sure that we’re going to legislate our way out of racial bias in school-discipline by attempting to “racist-proof” our policies.

Most suspensions come from a small number of schools. Just 263 out of the 839 district schools that serve students in kindergarten through second grade issued suspensions last year. And of those 263 schools, 40 percent (or about 105 schools) only suspended one student. That means roughly 19 percent of schools are responsible for 87 percent of all K-2 suspensions, reflecting a trend that also exists among schools that serve older students.

Sounds bad, but in a way it makes re-training efforts easier if the DOE knows which schools need the most support.

The percentage of young students who get suspended is tiny, and the number of suspensions is falling rapidly. Just 587 of the city’s youngest students were suspended this past year, or less than one-quarter of one percent of all students in those grades. The total number of suspensions issued to K-2 students is down 60 percent over the past four years, a decline that began during the Bloomberg administration. (Last year, the city required that principals get approval before suspending students in grades K-3.)

My “expert” analysis: that’s good.

Some students are suspended repeatedly. Among students who got suspended last year, 26 percent received more than one suspension. The city did not provide demographic breakdowns for the data, such as race or disability status.

The writer frames this negatively, but doesn’t this actually give the lie to one of the most common claims about suspensions–that they don’t work because they don’t change behaviors and students end up getting suspended again?

74 percent of students who were suspended once were not suspended again. On the surface, this actually makes me wonder if suspensions aren’t effective after all. But there are some missing data here–does this mean only that they weren’t suspended again in the same year? That doesn’t necessarily convince me. If I’m suspending a kid in April of 2016 and he’s getting suspended again in January of 2017, I’m not convinced the punishment “worked” just because he made it through the end of the year. Additionally, we don’t know if students’ behavior changed or if administrators who had already suspended the student realized suspension might not have worked and tried another avenue. (As i feel compelled to point out constantly [and probably annoyingly], counting suspensions tracks how schools respond to maladaptive behaviors, not the existence of the behaviors themselves. Reducing suspensions may or may not mean that student behavior changed for the better.)

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.

More blowback on the ban on suspensions

More blowback on the ban on suspensions

The news cycle sure moves fast. After being lauded for changes to the city’s discipline code that would ban suspensions in grades K-2, the DeBlasio administration is now getting slammed for what appears to be a “loophole” (a loaded word, in my opinion; better to call it an “exemption”) that would allow certain students to be suspended  if “a student has already been removed from the classroom three times during a semester or twice during a trimester.”

This Atlantic/CityLab article sums up the kerfuffle nicely. It seems that the administration has achieved the rare feat of making nobody happy with the changes. Charter school and union leaders are upset that the the DOE is removing what they feel is a necessary tool; restorative justice advocates are claiming that the loophole nullifies any good done by the original change.

I disagree. I think the exemption should remain for extreme cases and should require central approval. Use of the exemption should be tracked to make sure it isn’t abused. But in the end, whether or not there is a possible exemption that would allow schools to suspend students won’t matter until you genuinely get teachers and administrators to see that there are other ways to work productively with students to eliminate maladaptive behaviors. That will only happen with a real and sustained investment in restorative practices.

Do we agree on why suspensions are bad–and does it matter?

Do we agree on why suspensions are bad–and does it matter?

Suspension is without a doubt the most pressing issue of 2016 for administrators, teachers, and legislators.

Change in education seems to follow the punctuated equilibrium rather than the gradualist model of evolution. Certain policies seem immovable, intractable–until all of a sudden they aren’t, and a cascade of changes happen quickly. Many educators and researchers have known for two decades that zero-tolerance, high-suspension policies do more harm than good; but now that the idea has “tipped,” it seems almost every week we hear of new policy changes in states and jurisdictions.

Though most seem to now agree that suspensions are harmful, we don’t necessarily agree on why. All of the following have been posited as reasons why we should seek to reduce the number of suspensions issued:

  1. suspension policies disproportionately target black and Hispanic students
  2. suspensions cause low-performing students to fall even further behind academically
  3. suspensions (counterintuitively) have actually been shown to hurt students who are not suspended (this is still a little-understood phenomenon)
  4. suspensions do not teach students the skills they need to handle the situation in which they transgressed when they encounter that situation again
  5. suspensions do not give the opportunity to make amends for harm caused to the community
  6. suspensions send the message that students’ membership in the community is contingent, that they are not wanted or welcome
  7. suspensions are not an effective deterrent to misbehavior

When you think about it, the anti-suspension coalition is actually a motley crew, an unlikely “team.” For someone who’s primary concern is #3, #5 and #6 may be irrelevant; in fact, many may still believe that #6 is one of the reasons suspensions are actually good. An administrator with a strictly utilitarian approach to school discipline may only care about #7.

So does it matter that not everyone who opposes suspensions does so for the same reasons? Or is it enough that the net effect of their actions will move us toward more just and viable practices?