During the 2011–2012 school year, 3.45 million students in the United States were suspended out of school.1 Taken together, these students could fill every major league baseball and football stadium combined. Of the students suspended, 1.55 million were suspended at least twice. If the average suspension is conservatively put at 3.5 days, U.S. public school children lost nearly 18 million days of instruction in one school year as a result of exclusionary discipline. During this same school year, approximately 3.5 million were suspended in school, and 130,000 students were expelled from school.2
According to the Civil Rights Data Collection (CRDC) conducted by the Office for Civil Rights (OCR), the 2013–2014 school year saw a 20% decrease in the number of students suspended out of school. The 2.8 million students suspended out of school represented approximately 6% of all students enrolled in elementary and secondary schools. CRDC data illustrates that students of certain ethnic or racial groups and students with disabilities tend to be disciplined more often than their peers.3 For 2013–2014,
in preschool, black children are 3.6 times more likely to be suspended than white children. In K-12, black students are 3.8 times more likely to receive one or more out-of-school suspensions compared to white students. Other boys of color (American Indian or Alaska Native, Native Hawaiian or other Pacific Islander, Latino and two or more races[)] are also disproportionately suspended from school, representing 15 percent of the K-12 students but 19 percent of K-12 students receiving one or more out-of-school suspensions.4
This disproportionality also exists by sex, and students with disabilities are more than twice as likely to receive one or more out-of-school suspensions as students without disabilities.5 Students of color with disabilities are especially likely to be disproportionately suspended. One out of five boys of color with disabilities received one or more out-of-school suspensions compared to the lesser rate of one out of 10 white boys with disabilities.6 Similarly, one out of five girls with disabilities who are two or more races received one or more out-of-school suspensions, compared to one out of 20 white girls with disabilities. These disparities begin early and persist across most discipline practices (out-of-school suspension, in-school suspension, referral to law enforcement, and school-related arrest and restraint and seclusion practices).
The current (over)reliance on exclusionary discipline practices in schools has significant consequences for student learning and academic success. Most notably, exclusionary discipline has contributed to the development of the school-to-prison pipeline. Data has shown that students who are suspended from school have an increased likelihood to have contact with the juvenile or criminal justice system and face incarceration in their lifetime.7
School Initiation into Mass Incarceration
The trend toward increased use of exclusionary discipline follows a marked change in the operation and management of the modern school. The Gun-Free Schools Act of 1994 conditioned federal funding on the inclusion of a mandatory one-year expulsion for any student who was determined to have brought a weapon on campus. This ushered in the pandemic of zero tolerance policies nationwide that many schools extended to other undesirable offenses. Codes of conduct began to mirror the criminal code. States and localities began reallocating funds away from positive behavior supports and toward law enforcement. “While 21 percent of high schools nationwide do not provide access to the social-emotional support provided by a school counselor, 1.6 million students attend a school that has a sworn law enforcement officer but not a counselor.”8 With increased frequency, law enforcement is called upon to manage student misbehavior, often nonviolent, sometimes resulting in arrests within schools and referrals to the juvenile or criminal justice system. This “prisonization” of schools and the disparate impact it has on students of color and students with special needs raises concerns about the civil rights of and access to quality education for historically disadvantaged students.
Hidden in Plain Sight
The phenomenon of the discipline gap and who it affects is not particularly new. Just like the existence of the achievement gap9 and the opportunity gap,10 the discipline gap has been hidden in plain sight. The increase in disaggregated data has legitimated what many within disadvantaged communities have expressed for years. At last, recent federal guidelines from the Department of Education (DOE) and the Department of Justice (DOJ) have concentrated unprecedented legal and political attention to the discipline equity cause.11 In a joint “Dear Colleague” letter, the DOE and DOJ noted that “the substantial racial disparities of the kind reflected in the [2011–2012] CRDC data are not explained by more frequent or more serious misbehavior by students of color” and acknowledged that racial discrimination in school discipline was a “real problem,” one that the DOE and DOJ were actively investigating.12
The Every Student Succeeds Act of 2015 (ESSA)13 reflects this policy shift toward more equitable discipline reform. ESSA is the most recent authorization of the Elementary and Secondary Education Act of 1965 (ESEA).14 ESEA is the overarching law defining the federal government’s involvement in K–12 education. Enacted in 1965 as part of the War on Poverty, ESEA’s goal was to improve educational equity for students from lower-income families most notably through Title I funding. ESEA was last authorized in 2002 along with the No Child Left Behind Act (NCLB). The NCLB was the federal government’s more significant foray into K–12 education requiring increased accountability from its schools, teachers, and students. Despite its emphasis on accountability and achievement, the NCLB did not address discipline disparity or the connection between high rates of exclusionary discipline and low academic achievement. Additionally, states were not required to collect discipline data15 and school discipline was discussed almost exclusively in the context of safety and crime.16 Through ESSA, discipline has an entryway into the national conversation about academic achievement.
The Beginning of a New National Conversation
Title I of ESSA states: “The purpose of this title is to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.”17 Like its predecessors, ESSA operates by conditioning federal funds on the submission and approval of state plans fulfilling this purpose. Distinct from the NCLB, under ESSA a state or local government has greater flexibility to determine the “challenging academic standards and academic assessments,” “statewide accountability system,” and “school support and improvement” interventions it will implement.18 States must submit their ESSA plans to the federal government to ensure compliance with the law. Beyond that, states maintain broad latitude to ensure educational success.
Recognizing the correlation between discipline, academic achievement, and incarceration,19 ESSA also requires states to submit discipline data as part of the state plan. On the state report card, states must include “measures of school quality, climate, and safety, including rates of in-school suspensions, out-of-school suspensions, expulsions, school-related arrests, referrals to law enforcement, chronic absenteeism (including both excused and unexcused absences), [and] incidences of violence, including bullying and harassment.”20 This data is to be disaggregated by subgroups providing key stakeholders, including parents, with a means to identify and end disparities in discipline. ESSA also requires states and localities to focus on the overuse of exclusionary discipline practices. State plans must detail how the state will support local education agencies (LEAs) to improve school conditions, including 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.”21 State plans must also describe how LEAs will “support efforts to reduce the overuse of discipline practices that remove students from the classroom, which may include identifying and supporting schools with high rates of discipline, disaggregated by each of the [statutorily defined] subgroups of students.”22
Perhaps most importantly, ESSA provides funding for states and localities to implement effective discipline practices and engage parents and families. Under section 4108, LEAs can use federal funding to develop programs and activities focused on reducing the school discipline gap, including school-wide positive behavioral interventions and supports (PBIS); trauma-informed and evidence-based school-based mental health services; bullying and harassment programs; school dropout and reentry programs; trauma-informed school personnel training; and designing and implementing a locally tailored evidence-based plan to reduce exclusionary discipline practices in elementary and secondary schools. If utilized by states and localities, this could accelerate efforts to close the discipline gap.
Time Alone Will Tell
Unfortunately, it is too early to tell if ESSA will assist in closing the discipline gap. Beyond the inclusion of discipline in the state plans, ESSA as enacted does little to secure the legal or civil rights of disciplined students. It calls for data collection but does not state how state and local discipline outcomes will be integrated into the federal accountability structure. It does not provide a mechanism for the assessment or mitigation of disparities. There is little guidance regarding what constitutes “discipline disproportionality,” the overuse of suspension and expulsion, or what triggers a need for state or local intervention. The statute simply requires states to include discipline data in their ESSA plans and state report cards. What happens from there, time will only tell.
As of September 2017 all states have submitted their ESSA plans for review. The U.S. Secretary of Education already has approved 33 of the plans, noting a statewide trend toward compliance over innovation. In a speech to the Council of Chief State School Officers, Secretary DeVos stated that the plans lacked ambition, lacked innovation, and did not take full advantage of ESSA’s flexibilities.23 She also noted that a few governors refused to sign their own state’s plan, lamenting that the plans did “little to help low-performing schools” or “stymi[ed] any attempt to hold schools accountable for student performance and include[d] provisions aimed at preserving the status quo in failing schools.”24 If Secretary DeVos’s assessment of the current ESSA state plans is any indication, it does not appear states will be doing much to level the playing field in the area of discipline—at least not yet. If the plans related to student achievement are lackluster, it is unlikely that the provisions related to disproportionate discipline will be much better. Closing the discipline gap will require far more than legally compliant data collection and dissemination. To quote Secretary DeVos, “[j]ust because a plan complies with the law doesn’t mean it does what’s best for students.”25
1. Daniel Losen et al., Ctr. for Civil Rights Remedies, Are We Closing the School Discipline Gap? 4 (2015), https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/are-we-closing-the-school-discipline-gap/AreWeClosingTheSchoolDisciplineGap_FINAL221.pdf.
2. School Climate and Discipline: Know the Data, U.S. Dep’t Educ., https://www2.ed.gov/policy/gen/guid/school-discipline/data.html (last visited July 9, 2018).
3. Exec. Office of the President, Report: The Continuing Need to Rethink Discipline (2016) [hereinafter Discipline Report]; Letter from Catherine E. Lhamon, Assistant Sec’y, U.S. Dep’t of Educ. & Jocelyn Samuels, Acting Assistant Attorney Gen., U.S. Dep’t of Justice, to Colleagues 3 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.
4. Discipline Report, supra note 3, at 2.
6. Id. at 3.
7. Id. at 7.
8. Id. Notably, the Discipline Report also shows that “[i]n the top ten largest districts in the nation, where more children of color attend school, there are, on average, more police and school-based resource officers in place than school counselors.” Id.
9. Achievement Gap, Glossary Educ. Reform, https://www.edglossary.org/achievement-gap/ (last updated Dec. 19, 2013) (referring to “any significant and persistent disparity in academic performance or educational attainment between different groups of students, such as white students and minorities, for example, or students from higher-income and lower-income households”).
10. Opportunity Gap, Glossary Educ. Reform, https://www.edglossary.org/opportunity-gap/ (last updated Sept. 3, 2013) (referring to the ways in which “race, ethnicity, socioeconomic status, English proficiency, community wealth, familial situations, or other factors contribute to or perpetuate lower educational aspirations, achievement, and attainment for certain groups of students”).
11. U.S. Dep’t of Educ., Guiding Principles: A Resource Guide for Improving School Climate and Discipline (2014), https://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf; Letter from Lhamon & Samuels, supra note 3.
12. Letter from Lhamon & Samuels, supra note 3, at 4.
13. Pub. L. No. 114-95, 129 Stat. 1802 (2015).
14. Pub. L. No. 89-10, 79 Stat. 27 (1965); see NCLB, Pub. L. No. 107-110, 115 Stat. 1425 (2002).
15. ESEA § 1111(h)(1)(D)(iv).
16. NCLB § 5431(h)(3)(A).
17. ESSA § 1001 (emphasis added).
18. ESSA § 1005 (amending ESEA § 1111).
19. ESSA § 4108(5)(F)(iii) (requiring the implementation of “a locally-tailored plan to reduce exclusionary discipline practices . . . with the long-term goal of prison reduction through opportunities, mentoring, intervention, support, and other education services”).
20. ESSA § 1005 (amending ESEA § 1111(h)(1)(C)(viii)(I)).
21. ESSA § 1005 (amending ESEA § 1111(g)(1)(C)).
22. ESSA § 1005 (amending ESEA § 1112(b)(11)).
23. Press Release, U.S. Dep’t of Educ., DeVos to State Chiefs: We Can, We Must Do Better for Students (Mar. 5, 2018), https://content.govdelivery.com/accounts/USED/bulletins/1dfb9aa; Daarel Burnette II, Betsy DeVos Rips State ESSA Plans in “Tough Love” Speech to Chiefs, Educ. Wk. Blog (Mar. 5, 2018), http://blogs.edweek.org/edweek/state_edwatch/2018/03/_so_as_ive_pointed.html.
24. Press Release, supra note 23.