By: Evie Blad of Education Week

An Obama administration directive with the aim of driving down disproportionately high school discipline rates for black and Latino students took center stage at a congressional hearing on school safety Tuesday. 

That guidance, issued by the U.S. Departments of Justice and Education in 2014, includes a call for schools to ensure that they are not involving law enforcement in routine disciplinary issues. It also put schools on notice that they may be in violation of civil rights laws if their disciplinary policies lead to disparately high discipline rates for students of color, even if those policies were written without discriminatory intent.

The Broward County, Fla., district—where the Feb. 14 shooting at Marjory Stoneman Douglas High School killed 17—created a 2013 agreement with law enforcement agencies whose officers work in its schools to clarify when to involve officers in student discipline and to set up a diversionary program, called PROMISE, as an alternative to student arrests. That program was held up as a model by the Obama administration as it encouraged schools to rewrite their discipline policies.

Some Republicans on the House Judiciary Committee's subcommittee on crime asked Wednesday whether the accused shooter, 19-year-old Nikolas Cruz, should have been arrested at Stoneman Douglas when he was a student there. If he had been arrested, the infraction may have shown up on a criminal background check before he bought a gun or confirmed to the FBI that he was a possible threat, the lawmakers said. They cited news reports that said the suspect was frequently disciplined at school and was known for disturbing behavior, like killing small animals, but they did not name a specific offense he should have been arrested for.

"The question needs to be asked why Cruz was never placed under arrest, either at school or at home," said Rep. Jim Sensenbrenner, R-Wisconsin, the chairman of the subcommittee. "He clearly had a violent past, a past that is properly handled by law enforcement."

He spoke a few hours after the most recent school shooting at a high school in Great Mills, Md.

Sensenbrenner also listed concerns about Cruz that did not relate to school discipline. He noted that the Broward County sheriff's office had been called to the suspect's home dozens of times and a tip passed on to a deputy who worked at the school that Cruz may be planning a school shooting. He also called out the failure of the FBI to investigate a tip from a caller who feared Cruz may one day be a school shooter, and noted that the school had once recommended he be involuntarily committed for a mental evaluation.

Democrats on the committee said critics of Obama-era discipline guidance were trying to use it as a scapegoat and a distraction from the need for new gun laws. They said the guidance had helped make critical progress for black and Latino students, who are often disciplined at higher rates than their white peers in school. And they criticized loopholes in the background check system that may have allowed the suspect to buy a gun, whether or not he had an arrest on his record.

"The issue of school discipline is a worthy topic of discussion, so long as it is constructive and not intended to undermine progress in reforming disciplinary policies that have been racially biased and counterproductive for a long time," said Rep. Jerry Nadler, D-N.Y., the ranking member of the subcommittee. "Unfortunately, some individuals are advancing the charge that reforms to these policies contributed to the Parkland shooter not having been stopped. To use a horrible mass shooting as a pretext to halt progress in these much-needed reforms is offensive."

Criticism of the discipline guidance predates the Parkland school shooting

Critics of the Obama-era discipline guidance have pushed for U.S. Secretary of Education Betsy DeVos to revoke or revise it since she took office. DeVos has said she is reviewing the document. After Florida Sen. Marco Rubio, a Republican, questioned the guidance, the White House listed it as one of the items DeVos will review as leader of a  task force on school safety. In a recent 60 Minutes interview, DeVos would not say if racial disparities in school discipline rates are caused by systemic racism. 

The guidance calls on schools to explore the underlying causes for discipline disparities, like implicit bias that causes teachers to perceive behavior differently depending on a student's race, inconsistently applied policies, and vaguely worded school rules against infractions like "defiance" that may be interpreted subjectively and applied differently by different teachers.

But critics, like Manhattan Institute Senior Fellow Max Eden, say schools have rushed to comply with the guidance by limiting the use of suspensions, creating unsafe and disruptive learning environments. School officials fear federal investigations if their suspension rates are uneven, Eden told the subcommittee Wednesday. In some districts that have made such changes, teachers have complained that they are unprepared for new discipline policies or that they don't know how to deal with disruptive students, he said.

"When teachers have their hands tied in handling classroom disruption, student learning suffers," Eden told the subcommittee.

Civil rights groups and organizations like the Congressional Black Caucus have spoken out in support of the guidance in recent weeks, fearing that it may be revoked. Black and Latino students are too often disciplined and arrested at school for minor, non-violent infractions, they say. They cite incidents like a  2015 viral video of a South Carolina girl who was violently dragged from her desk by a school police officer and arrested in math class after she refused to surrender her cell phone. A classmate who recorded the interaction was also arrested for "disturbing a school."

"To put it simply, neither the purpose nor the letter of the federal school discipline guidance restricts the authority of school personnel to remove a child who is threatening student safety," Kristen Harper, a former Education Department official and policy director for Child Trends, told the committee.

The guidance does not prohibit schools from referring students to police, she said. Rather, it recommends that schools "establish procedures and train school personnel...how to contact law enforcement when warranted." And calls in the guidance to address disparate discipline rates echo previous court decisions, which have flagged schools for policies that affect one student group more heavily than the other.

"There is no conflict between our obligation to prevent discrimination based on race and our obligation to keep children safe in school," Harper said. "We can and must do both."

Harper called on Congress to provide resources for schools to help create positive learning environments and to help support students with emotional and behavioral concerns.

Broward County's school discipline plan

Broward County Superintendent Robert Runcie has been pushubg back against criticisms of his district's discipline plan. He's emphasized that it focuses on non-violent behaviors.

That plan includes a matrix that recommends or mandates certain responses for various student behaviors. For some behaviors, schools could opt to enroll students in the PROMISE diversionary program as an alternative to a law enforcement referral.

The district has no record of Cruz committing an infraction that might have placed him in the PROMISE discipline program while he was in school, Runcie said in a statement submitted to the committee. The matrix allows staff to consult with law enforcement on the first offense for a variety of behaviors, including a major fight, hazing, sexual misconduct, an assault that causes injury, the threat of such an assault, and battery.

"The District's position with the PROMISE program and school discipline reform efforts, in partnership with local law enforcement, has always been explicitly clear— that there is no intent to limit or tie the hands of law enforcement in doing their jobs in addressing school safety," Runcie's statement said.

Eden acknowledged that the Broward County program was created by the district's own volition before the Obama directive was put into place, but he said many districts have adopted similar approaches to student discipline since the 2014 guidance. 

He also acknowledged that the guidance doesn't explicitly prohibit or limit student arrests.

"My issue is that this policy of explicitly trying to push these numbers down can inhibit the good and fair judgment of school resource officers to issue arrests where they may be warranted, and those arrests then feed into the system in a way that could have been constructive in this case," Eden said.

Questions about Cruz's disciplinary, mental health, and emotional history will likely be answered in coming months. A school safety bill recently signed by Florida Gov. Rick Scott, a Republican, established a state commission with subpoena power to investigate the Stoneman Douglas High School shooting. And, at Runcie's recommendation, the school district has hired an outside consulting agency to conduct a review of Cruz's history with the district and the policies that were in place while he was a student.