U.S. Senator Tammy Baldwin Demands Answers After DeVos, Whitaker End Civil Rights Guidance for School Discipline

WASHINGTON, D.C. – U.S. Senator Tammy Baldwin signed a letter to U.S. Secretary of Education Betsy DeVos and Acting Attorney General Matthew Whitaker on the Trump administration’s decision to rescind Obama-era guidance on school discipline.

The guidance was issued to assist schools with administering school discipline policies without discrimination on the basis of race, color and national origin. The Trump administration rescinded the guidance in December. In their letter, the 65 members demand a written response from the two administration officials on steps they are taking to fully enforce civil rights laws, and how they are informing schools about their obligations under federal civil rights laws with respect to school discipline.

“This guidance was issued in 2014 to assist school districts, law enforcement agencies, and other recipients of federal financial assistance in understanding their obligations under Title VI and its implementing regulations and, in doing so, ensure students receive a safe, equitable, and high-quality education,” the members wrote.

“Prompted by mounting evidence and research consensus that students of color face harsher discipline penalties for similarly-situated offenses than their white peers, the guidance you rescinded addressed the application of both regulatory provisions to these practices while maintaining school safety and improving school climate,” the members added.

“We are concerned that rescission of the guidance reflects a lack of commitment on the part of the Departments to fully enforce federal civil rights law that is intended to ensure that students are not discriminated against because of their race, color, or national origin,” the members continued. “Regardless of the Departments’ recent rescission or future plans to reregulate, the current regulations obligate the Departments to enforce against both intentionally discriminatory policies and practices and those that have a discriminatory effect.”

The letter was signed by U.S. Senators Michael Bennet (D-CO), Richard Blumenthal (D-CT), Sherrod Brown (D-OH), Cory Booker (D-NJ), Ben Cardin (D-MD), Bob Casey (D-PA), Tammy Duckworth (D-IL), Dick Durbin (D-IL), Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), Maggie Hassan (D-NH), Mazie Hirono (D-HI), Tim Kaine (D-VA), Amy Klobuchar (D-MN), Patrick Leahy (D-VT), Edward Markey (D-MA), Bob Menendez (D-NJ), Jeff Merkley (D-OR), Chris Murphy (D-CT), Patty Murray (D-WA), Bernie Sanders (I-VT), Chuck Schumer (D-NY), Tina Smith (D-MN), Mark Warner (D-VA), Elizabeth Warren (D-MA) and Chris Van Hollen (D-MD).

The letter was also signed by U.S. Representatives Alma Adams (D-NC), Nanette Barragan (D-CA), Karen Bass (D-CA), Don Beyer (D-VA), Earl Blumenauer (D-OR), Suzanne Bonamici (D-OR), Anthony Brown (D-MD), Julia Brownley (D-CA), Tony Cardenas (D-CA), Andre Carson (D-IN), David Cicilline (D-RI), Steve Cohen (D-TN), Mark DeSaulnier (D-CA), Debbie Dingell (D-MI), Anna Eshoo (D-CA), Adriano Espaillat (D-NY), John Garamendi (D-CA), Raul Grijalva (D-AZ), Jahana Hayes (D-CT), Jim Himes (D-CT), Pramila Jayapal (D-WA), Hank Johnson (D-GA), Barbara Lee (D-CA), Sheila Jackson Lee (D-TX), Sean Patrick Maloney (D-NY), A. Donald McEachin (D-VA), Jerry Nadler (D-NY), Eleanor Holmes Norton (D-DC),. Ilhan Omar (D-MN), Mark Pocan (D-WI), Ayanna Pressley (D-MA), Bobby Rush (D-IL), Tim Ryan (D-OH), Jan Schakowsky (D-IL), Bobby Scott (D-VA), Darren Soto (D-FL), Peter Welch (D-VT), Frederica Wilson (D-FL) and Jennifer Wexton (D-VA).

The full letter is available below.

Dear Secretary DeVos and Acting Attorney General Whitaker:

We write to express grave concern over the action of the U.S. Departments of Education and Justice (“the Departments”) to rescind the Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline and other related documents (“guidance”), and to request information concerning the Administration’s efforts to fully enforce Title VI of the Civil Rights Act of 1964 (Title VI) following this misguided rescission.  This guidance was issued in 2014 to assist school districts, law enforcement agencies, and other recipients of federal financial assistance in understanding their obligations under Title VI and its implementing regulations and, in doing so, ensure students receive a safe, equitable, and high-quality education.  Because rescission of the guidance does not change a school district’s legal obligation under the law, your action has frustrated the ability of districts to fully understand their federal civil rights obligations.

As applied to schools, Title VI requires discipline policies to be developed and administered in a manner that does not discriminate against students on the basis of race, color, or national origin and that does not “have the effect of subjecting individuals to discrimination” or “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.”^[1]  Prompted by mounting evidence and research consensus that students of color face harsher discipline penalties for similarly-situated offenses than their white peers, the guidance you rescinded addressed the application of both regulatory provisions to these practices while maintaining school safety and improving school climate. ^{[2], [3]}

We are concerned that rescission of the guidance reflects a lack of commitment on the part of the Departments to fully enforce federal civil rights law that is intended to ensure that students are not discriminated against because of their race, color, or national origin.  Our concern was heightened when we saw that the Question and Answer document issued by the Department of Education concurrently with rescission of the guidance addressed the obligation of schools not to intentionally discriminate, but made no mention of their obligations to not have the effect of unlawful discrimination on the basis of race, color, or national origin.  Moreover, news reports suggest the Department’s intent to rescind key regulatory requirements that prohibit federally funded programs from using methods of administration that have the effect of discriminating or denying equal benefit on the basis of race, color, or national origin.^[4]

Regardless of the Departments’ recent rescission or future plans to reregulate, the current regulations obligate the Departments to enforce against both intentionally discriminatory policies and practices and those that have a discriminatory effect. As such, we expect the Departments to fully enforce Title VI of the Civil Rights Act of 1964 and the implementing regulations as directed by Congress.  To assure Congress of the Administration’s intent to fulfill its enforcement obligation under federal civil rights law in this area, we request written responses to the questions below no later than February 13, 2019:

1. How are your Departments enforcing federal civil rights laws, including 34 C.F.R. § 100.3(b)(2) and the effects test contained therein, in the administration of school discipline? 
2. How are your Departments informing schools of their obligations under federal civil rights law, including 34 C.F.R. § 100.3(b)(2) and the effects test contained therein, regarding the administration of school discipline?

Thank you for your prompt attention to this matter.