Wednesday, March 21, 2018

Before the Trump Administration Starts Undermining School Discipline Reform, It Might Just Read the Law

Last night, I was reading the actual text of the Every Student Succeeds Act to prepare for today's class.  While I was not immediately excited about the prospect, my mind began to light up as I remembered a few remarkable lines about school discipline that I had since paid relatively little attention.  When the law was written, the Administration was already making progress on school discipline and the lines could have been read as nothing more than a nod toward what had already been done.  Two and a half years later and in a different administration, the lines are powerful.

I won't try to summarize the entire 443 page bill here, but a little context is helpful for the non-policy wonks.  The most important and lengthy part of the bill is its requirement that states submit a plan for how they will achieve certain goals.  Once a state sets its goals and implementation strategy and the Secretary approves it, the state is locked into that program.  This is the basic standards, testing, and accountability framework of the law. While the Act is very deferential to states, it does require that states take certain steps and speak to particular issues like testing, English language proficiency and graduation rates. 

For what I believe was the first time in history, the federal government also took a global stance on school discipline.  Nestled into the final subsections of the details on state plans was the requirement that states explain how they "will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—(i) incidences of bullying and harassment; (ii) the overuse of discipline practices that remove students from the classroom; and (iii) the use of aversive behavioral interventions that compromise student health and safety."

And there it is ladies and gentleman, a federal law passed by both houses of Congress and signed by the President that says states should undertake the exact type of reforms that the Obama Administration had urged a few years earlier through policy guidance.  This section of the statute, however, is even stronger than the prior policy guidance.  The prior policy guidance only applied when districts' suspension and expulsion practices resulted in racial disparities.  The Every Student Succeeds Act takes the position that "aversive behavioral interventions"--otherwise know as punitive suspensions and expulsions--"compromise student health and safety" and requires that all states do something about it for all students. 

While the Senate passed the Act by a vote of 81-17, Senator Marco Rubio wasn't there to vote.  Had he been, maybe he would have had the foresight to not write a letter to the Department's of Education and Justice after the Parkland shooting, suggesting there was something wrong with their approach to school discipline and urging them to change it.

My constitutional law professor always emphasized that before we start arguing about some abstract issue of law or policy we should read the constitution first.  It is amazing how the precise language of the constitution or a statute can entirely change how we look at an issue. Rather than arguing about what we think the law requires or should require, we might just acknowledge what the law actually says.  While I disagreed with him on a litany of issues, I always appreciated Justice Scalia's willingness to think about the actual words of the constitution and law.

I and others have been caught up in the policy implications of the Trump Administration's attempt to connect the Parkland school shooting with the Obama-era discipline reforms.  And even before that, I and others have been pushing back against those who claim the Obama administration's policy guidance on school discipline is flawed and a federal overreach.  Last week, I wrote this essay explaining that a return to zero tolerance discipline policies won't fix school shootings.

The most powerful response to the Trump Administration and its supporters, however, is the law itself.

 

https://lawprofessors.typepad.com/education_law/2018/03/before-the-trump-administration-starts-undermining-school-discipline-reform-it-might-just-read-the-l.html

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