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Law professor: Expect big rollback of civil rights enforcement in education under Trump and DeVos

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Education Secretary Betsy DeVos’s first official policy act was to support the Trump administration’s decision to rescind the Obama administration’s federal guidance protecting the right of transgender students to use the bathroom of their choice. News organizations reported that DeVos was personally opposed to the action but went along with it. If she was discomforted by it, she gave no hint when she spoke late last week about it at a conference of conservative Republicans.

“This issue was a very huge example of the Obama administration’s overreach to suggest a one-size-fits-all, federal-government approach, top-down approach to issues best dealt with at a personal level, at a local level,” DeVos said in response to a question from CNN contributor and Trump supporter Kayleigh McEnany.

So far, Education Secretary Betsy DeVos is just what her critics feared

Civil rights advocates fear that that was just the first in what will be a series of actions by the administration and the Education Department to roll back federal protections for students. One of them is Derek Black, a law professor at the University of South Carolina School of Law and author of the 2016 book “Ending Zero Tolerance: The Crisis of Absolute School Discipline.” He also writes the Education Law Prof Blog.

Here is an interview that Black did with Jennifer Berkshire, author of the Have You Heard blog and podcast. Berkshire is a  freelance journalist and public education advocate who worked for six years editing a newspaper for the American Federation of Teachers in Massachusetts. This first appeared on her blog (formerly known as EduShyster), and she gave me permission to republish it:

Jennifer Berkshire: The Trump administration has just rescinded guidelines to schools banning discrimination against transgender students. There’s a lot of speculation about just how “joint” the joint letter from Secretary of Education Betsy DeVos and Attorney General Jeff Sessions actually was. But you seem unconvinced by the portrayals of DeVos as a fierce protector of civil rights.

Derek Black: The stream of bad news over the past few months has been steady. The Trump transition team said the administration would scale back the civil rights work in education. At her confirmation hearing, Betsy DeVos was reluctant to take an affirmative stance on enforcing students’ disability rights. Since taking the post, she has remarked that she could not “think of any” current pressing civil rights issues where the federal government has a role to play; things like racial segregation and exclusion of females were things of the past in her opinion.

DeVos defiant at CPAC: ‘My job isn’t to win a popularity contest’

Now reports are coming out that Gail Heriot is likely to be the next head of the Department’s Office for Civil Rights. Heriot has been critical of the office’s aggressive civil rights stance in recent years. With these individuals in place, it is hard to imagine much good happening at the federal level. Even if they do not rescind other department positions on integration, school discipline, English language learners, and school resources, they are very unlikely to enforce existing regulations and policy guidance. Disparate impact enforcement, for instance, will be nonexistent. Rather than take on traditional civil rights concerns, I would expect they will identify fringe issues to pursue.

Berkshire: Okay — forget about “much good happening at the federal level.” Is there anything we can feel hopeful about?

Black: We have been here before. Disparate impact was not enforced during the Bush era either. And it focused on more marginal issues like Boy Scouts of America Equal Access Act. I think we are actually in a better place to weather the storm today than we were last time. The school-to-prison pipeline is a household word now. More districts are voluntarily pursuing integration. California is bringing back bilingual education. And parents are fed up with standardized testing. On a host of issues, there are local advocates and local politicians that are going to do the right thing regardless of what the Department of Education does. No doubt about it, there is a storm coming, but there are a lot of hard-working and committed people on the ground.

Berkshire: You’re the author of a book called “Ending Zero Tolerance: The Crisis of Absolute School Discipline” that is turning out to be alarmingly prescient.

Black: One of the central premises of the book is that when nobody else will stand up for kids, it has to be the courts. There are numerous systemic instances over the past few decades where schools and states have gone too far. And when they do it is only the courts that are the saving grace, because we have good political times and bad political times, as we are seeing.

Berkshire: With all the talk of rolling back the federal role in education, there’s been very little mention of what this means for student discipline. But as you point out, the progress that’s been made in recent years in terms of moving away from zero tolerance has been as a result of federal action.

Black: Most everything we talk about in terms of school discipline has to do with federal law. I do think that there are a lot of responsible school districts out there that are going to continue to move in the right way because this is what makes a better educational system. But for those school districts that are only doing this because Uncle Sam was forcing them, and there are a substantial number of districts and maybe even entire states that fall in that category, Uncle Sam is not going to be twisting their arms going forward. You can sense that from how difficult the negotiations were between the Office of Civil Rights with certain school districts. Some were quick to turn a corner while others really had protracted conversations, and even after they began to implement the changes that the Office of Civil Rights called for there was local pushback on those new policies. You can also see how school districts may want to do what’s right but they fold because of local pushback and because they don’t have the federal government behind them anymore.

New federal civil rights data show persistent racial gaps in discipline, access to advanced coursework

Berkshire: But ESSA [the Every Student Succeeds Act, the federal successor law to No Child Left Behind] specifically mentions student discipline and the importance of a positive school climate. Isn’t that a sign of progress?

Black: I think it’s actually a big step forward. It’s the first time, to my knowledge, that’s the first time there was what I might call general discipline policy from the federal government. They’ve gone after disparate impact, they went after unsafe schools in the period following Columbine. So that was at least an encouraging step. But there’s this other dirty side to ESSA that I wrote about in an article called “Abandoning the Federal Role in Education in the ESSA.” The overall structure of the act cedes a lot of leadership — almost all of it — back to the states. There’s this very complicated set of options and flexibilities regarding how school quality is defined. One of the skepticisms I raised in that article is: How many states are going to use this in a way that makes themselves look bad? Is there really any incentive here for them to pick tough measures of school quality? The skeptic could say that all the ESSA does is allow everyone to look wonderful. I agree that it’s good that we’re moving beyond test scores, but there’s so much room for manipulation of the school ratings system. That worries me, and that there’s not a federal role to place a check on that.

Berkshire: And yet, if policymakers in all 50 states were required to read your book, they would realize just how strong the link is between zero tolerance discipline and school performance — overly harsh discipline hurts the whole school. I was really struck by how clear the research is on this.

Black: I was surprised by a lot of that research myself to be quite honest. We have data, and it’s been around for quite a while, showing that average student achievement is lower in schools with high numbers of suspensions and expulsions. Part of that lower achievement comes from the kids who’ve been excluded. They’re almost necessarily going to score lower because they’re not in school and they’re falling behind. But does it really affect the other kids? The assumption is that if you get the troublemakers out of there the other kids will do better. But when you suspend Johnny for what his peers perceive to be petty or unjustified, that has a negative effect on the good kids too. It’s not as though high suspension rates turn A students into F students. But does it undermine their perception of the school environment? The data would suggest so. Moreover if the environment is punitive rather than nurturing, it has a tendency to become chaotic and that chaos is going to undermine the academic achievement of the good students too. So what we really have to do is reduce chaos and misbehavior, and we can’t do that simply by excluding students.

I’ve been using the story of the African American girl in Spring Valley last year and the video that went viral. She wouldn’t get up, and the school resource officer pulled her up by a headlock. There was a debate and you heard people saying, “Well, what are you going to do with her? She wouldn’t get up.” But are there any of us who would want our children to be in that room and see that happen to another child? Do we really think that there is a single student in that classroom who benefited from seeing that officer act in that way toward a student? I think that the answer intuitively is no. That was someone’s friend or sister, and because of that, I’d bet money on the fact that the kids in the classroom looked at that officer differently than they ever had before. They looked at their teacher, who called the officer, differently than they ever had before. And that affects all of the students in that room. I think the data sort of matches up with that story and it kind of explains why we can’t suspend and expel and arrest and search lockers our way out of the discipline problem we have.

Berkshire: And yet if you look at the high-performing charter networks that rely on strict, no excuses-style discipline, they seem to be making exactly the opposite case — that their schools and students are somehow exempt from the negative effects you just described.

Black: I think some of the charter schools you’re referencing actually take it to one more level. They say, “You don’t think we can? Just watch us. We’re going to have suspension and expulsion rates higher than anything you’ve ever seen before.” I think the difference between the charter system and the public system, which is really what my book is about, is that the public system doesn’t really get rid of its students; they come back. The charter school doesn’t have the responsibility of serving the community and all of its children, so that what it’s trying to do is sort of slash and burn. I suppose that one can slash and burn all of the low achievers and the troublemakers until there is no one left. It’s not that they’ve made the students who are left perform better, but that they’ve lopped off their low performers. I wouldn’t suggest that any public school take a slash and burn approach to its student body. You may even have other charter schools with such strict discipline that they end up not having to suspend or expel that many students, or the rigidity of the system itself is so tough that students who can’t hack it quit or go somewhere else.

Berkshire: I’m curious about whether you see a connection between the “get tough on crime” rhetoric that’s suddenly back with a vengeance and student discipline. When you look at history, do you see students, particularly minority students, being treated differently during “law and order” periods?

Black: Definitely. That same sort of law-and-order language was front and center during the initial years of desegregation. Douglas Reed has a wonderful book called “Building the Federal Schoolhouse” about Alexandria, Va. It was on the leading edge of school desegregation. Finally the Department of Education broke the backs of the school desegregation resisters in Alexandria, and Alexandria realized that, “Hey, we’ve got to do this. We’re going to do it. But when we do this, there better be order in those schools.” So there was this fear of the other and the insistence that the white communities would negotiate order. Where you find schools that are still relatively integrated, there is still this undercurrent that we need to maintain order for the white kids to maintain their privilege. I think that’s still there.

Berkshire: You end your book by imploring civil rights advocates to “seize the moment and bring a full and final end to zero tolerance, harsh discipline, and basic irrationality in dealing with students.” And yet I get the sense that perhaps you’re less hopeful right now than when you penned those words.

Black: The one thing that scares me is that I’m not sure that we’ve entirely got the conversation about discipline framed in the right way. There is still this gut instinct that there are bad kids and good kids and that the bad kids are messing things up for the good kids. And until we change that conversation it’s always going to be a contested issue. We have positive stuff going on, but it’s not like the other side ever went away. One of the things I try to argue in the book is that better discipline policy is about better education for everyone. But I’m not sure that conversation has spread as broadly as it needs to, because I’m not sure people completely understand how discipline connects to school quality and better education outcomes for everyone.