Attorney General Mark Brnovich Urges Biden Administration to Stay Out of Public Schools’ Discipline Policies

WASHINGTON, D.C. – Attorney General Mark Brnovich is leading a coalition of 15 states in urging the Biden Administration to reject a plan to reinstate a 2014 discipline policy that brings race-based decision-making into schools’ discipline policies.

“The Biden Administration is attempting to tie the hands of local schools and prohibit teachers from keeping classrooms safe,” said Attorney General Mark Brnovich. “Whether it’s pushing the disingenuous Critical Race Theory or implementing illegal discipline policies, Washington D.C. needs to stay out of our local classrooms.”

The attorneys general submitted an official comment to U.S. Secretary of Education Miguel Cardona opposing the reinstatement of the 2014 “Dear Colleague Letter” or any similar policy that requires schools to include disparate impact requirements in disciplinary guidelines.
In 2014, the Department of Education (ED) under President Barack Obama, issued a controversial “Dear Colleague Letter” that threatened to cut off federal funding to schools with racial disparities in how often students were disciplined. Under this type of “disparate impact” theory, schools were presumed guilty until proven innocent, even if there was no evidence of actual discrimination. ED rescinded the “Dear Colleague Letter” in 2018 under President Donald Trump but is now considering reinstating the misguided policy.
The 2014 “Dear Colleague Letter” was a disastrous policy for all students, including students of color. When New York City implemented two rounds of discipline reform to comply with the ED letter, a survey administered citywide to teachers and students showed an increase in physical fights in school, drug and alcohol abuse, and gang activity, particularly at schools with greater numbers of minority and low-income students. Additionally, New York City schools reported more than a 300 percent increase in incidents of harassment, discrimination, and bullying after the discipline reform was implemented. Studies in Philadelphia and Pittsburgh showed similar results: discipline “reforms” focused on disparate impact led to decreased student achievement and increased arrest rates, particularly at disadvantaged schools.
Stories from teachers around the country illustrate the destructive effects of the 2014 “Dear Colleague Letter”:

  • Oklahoma City teachers “were told that referrals would not require suspension unless there was blood.”
  • In Louisiana: “At the beginning of the year, a student assaulted a teacher in broad daylight in a hallway of our school….  He was back the next day.”
  • “I had a student threaten me physically in my classroom, to put his hands on me and, he would have been back in the classroom the very next morning had I not said, ‘I will get an attorney and I will get a restraining order against this student.’ Otherwise, the administration would have done nothing.”

Moreover, policies that require school districts to include a disparate impact standard violate the Fourteenth Amendment and the Civil Rights Act. They also compel administrators to create unlawful quotas based on a student’s race. Judge Posner of the Seventh Circuit Court of Appeals wrote: “Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements.” People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 111 F.3d 528, 538 (7th Cir. 1997)
The attorneys general are asking Secretary Cardona not to repeat the mistakes of the 2014 “Dear Colleague Letter” and to continue allowing local school districts and governing boards to set their own discipline policies.

Joining Attorney General Brnovich are the attorneys general from the states of  Alabama, Alaska, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, South Carolina, Texas and Utah. 

Copy of letter here.