The Supreme Court on Friday denied the Biden administration’s request to allow its new Title IX rule to be partially implemented in 10 states.

In a聽, the聽justices agreed with the appellate courts that the parts related to LGBTQ students “are not readily severable from the remaining provisions” and that it would be difficult for schools “to apply the rule for a temporary period with some provisions in effect and some enjoined.”

For now, that means 26 states and hundreds of schools in other states can’t enforce the rule.聽 Meanwhile, the U.S. Court of Appeals for the Sixth Circuit has scheduled oral arguments in one of the lawsuits challenging the new rule for October. The court will hear聽聽from Kentucky, Michigan, Ohio and Tennessee.聽

New protections against sexual harassment and discrimination, including for LGBTQ students, went into effect in less than half the country on Thursday as legal challenges to the Biden administration鈥檚 Title IX rewrite pile up.

Nonetheless, in a webinar with district and college officials, Education Secretary Miguel Cardona called the new rule a major 鈥渕ilestone鈥� and the 鈥渃ulmination of a lengthy and thorough process that included unprecedented public input.鈥� He also noted resistance from Republicans in a legal battle that changes almost daily.

鈥淚 want to loudly and unapologetically reject any efforts to politicize Title IX or efforts to sow more division in our country,鈥� he said. 鈥淭hese rules are about living up to America’s highest ideals.鈥�

On Wednesday, federal courts blocked the regulation in Alabama, Florida, Georgia, South Carolina and Oklahoma, bringing to 26 the total number of GOP-led states where schools are still operating under the 2020 Trump-era rule. Further demonstrating the uncharted territory in which the long-awaited rule takes effect, hundreds of schools and colleges in blue states are also prohibited from implementing it under a court order that applies to children of members of the conservative Moms for Liberty organization  and students involved in two other advocacy groups.

Solicitor General Elizabeth Prelogar the U.S. Supreme Court to allow the department to move ahead with most of the rule in 10 states except for provisions related to trans students that have caused the most controversy. By Thursday morning, the court still had not acted on those appeals. 

One of President Joe Biden鈥檚 earliest priorities, the new rule extends protections to LGBTQ students and requires schools to promptly investigate accusations of sexual misconduct and discrimination. But every Republican attorney general who sued to stop implementation until the courts weigh the legal merits of the rule got their wish. 
The overhaul replaced the rule issued under former Education Secretary Betsy DeVos, which required live hearings so male students could face their accusers and narrowed the types of complaints that schools had to investigate. Republicans argue that the administration had no authority to apply a about protections for LGBTQ employees in the workplace to a law intended to provide equal educational opportunities for women.

Conservatives have directed much of their opposition to a draft rule for trans students鈥� participation in sports, but the Education Department has not finalized it yet.

鈥淭his Title IX rule is a slap in the face to the women and girls who prepare for competition and will now have to compete on an uneven playing field,鈥� North Carolina Republican Rep. Virginia Foxx, chair of the House education committee, said Wednesday on a call with the Independent Women鈥檚 Forum. The advocacy organization joined over the rule filed by Alabama, Georgia, Florida and South Carolina. 鈥淭his rule is unjust and directly in conflict with athletics鈥� core principles of integrity and fairness.鈥�

The rapidly changing legal landscape has created a chaotic rollout, especially in districts where the rule can be implemented in some schools, but not others, like serving children of Moms for Liberty members.

鈥淭he mixed messages coming from state officials have been detrimental to not just implementation of the rule, but also to broader efforts to create safer school environments,鈥� said Brian Dittmeier, the director of public policy for GLSEN, which advocates for LGBTQ students in K-12 schools. 鈥淔amilies have been long awaiting clarity about the protections available to them. From the administrative side, folks really want to move forward and implement the rule.鈥�

LGBTQ students are less likely than straight students to report bullying and sexual harassment, he said. But they are more likely to file complaints when school policies expressly say they are protected. Among the resources the department issued last week are nondiscrimination statements. 

In schools where the new rule is implemented, 鈥測ou’ll likely see higher rates of reporting,鈥� among LGBTQ students, Dittmeier said, 鈥渁nd then school staff are accountable for that.鈥� 

Compared to the 2020 rule, the rewritten regulations 鈥渇ill troubling gaps,鈥� said Catherine Lhamon, assistant education secretary for civil rights. The previous rule focused more on sexual harassment, while the 2024 provisions address sex discrimination more broadly, including protections for pregnant and parenting students and employees. 

As for the provisions regarding LGBTQ students, she said, 鈥淲e anticipated this moment when we were finalizing the 2024 regulations and we know they are legally sound.鈥�

The DeVos rule defined a hostile environment as being 鈥渟evere, pervasive and objectively offensive.鈥� The new rule lowers the bar a bit, stating that such harassment can be  subjective and either severe or pervasive enough to prevent a student from participating in learning or other school-related programs and activities.

Opponents of the rule object the most to three specific sections 鈥� one that says sex discrimination includes LGBTQ students, another that states trans students can use locker rooms and restrooms that match their gender identity and a third discussing 鈥渉ostile-environment harassment.鈥� 

Some states, , already have laws allowing trans students to use the bathrooms or locker rooms where they are most comfortable. In those cases, that practice can continue even in schools with children of Moms for Liberty members. San Diego Unified, for example, has 23 schools on the list. 

The injunction 鈥渄oes not create a new law that would supersede state law,鈥� explained W. Scott Lewis, managing partner with TNG Consulting, which trains districts across the country on Title IX. 

But under the injunction, a student would not be able to file a Title IX claim if a teacher doesn鈥檛 use their new name or pronoun. 

For now, the courts are only deciding whether states can delay implementation, and experts say if arguments over the rule itself eventually reach the Supreme Court, it likely won鈥檛 happen until 2025. But Dittmeier said none of the injunctions keep LGBTQ students from filing complaints or lawsuits under the old rule or other legal provisions.

The U.S. Court of Appeals for the Fourth Circuit, for example, that a trans girl in West Virginia, who sued under the 2020 rule and brought an equal protection claim, can continue to compete on a girls cross-country track team. The state has the case to the Supreme Court. 

States suing over the rule are 鈥渆xposing themselves to greater litigation risk because students can still sue them for failure to ensure their civil rights,鈥� he said. 鈥淲hile the new rule is significant, it is not the only remedy available to LGBTQ students.鈥�

Amid reports of heightened antisemitism and Islamophobia in schools and colleges since the start of the Israel-Hamas war, a senior Education Department official said the agency has received a 鈥渉uge, huge influx鈥� of civil rights complaints that have led to a surge in federal investigations. 

Since the Oct. 7 attack by Hamas terrorists on Israel and the subsequent bombing and invasion of Gaza by the Israeli military, the into schools鈥� and colleges鈥� responses to complaints of discrimination based on shared ancestry, which includes antisemitism and Islamophobia. 

Of the new investigations, the senior official told 社区黑料, 19 are in response to conduct that unfolded in schools in the last two months alone. Of the incidents since Oct. 7 that are now under investigation, 17 took place on college campuses. 

Last fiscal year, by contrast, the office opened 28 shared ancestry investigations over the entire 12-month period. The year before, there were just 15. Such inquiries seek to determine whether schools adequately respond to incidents that create hostile learning environments in violation of Title VI of the Civil Rights Act, which prohibits discrimination based on race, ethnicity or national origin. 

鈥淲e are deeply concerned about the incidents that we’ve seen reported in schools all over the country, and about the safety of students, and the protection of non-discrimination rights for students in P-12 schools as well as in institutions of higher education,鈥� Catherine Lhamon, the department鈥檚 assistant secretary for civil rights, said in an interview Wednesday with 社区黑料. 鈥淲e’re very, very concerned about what we’re seeing in schools.鈥�

Though officials declined to comment on the specifics of active federal investigations, a spike in reported antisemitic and Islamophobic incidents in and outside of schools have convulsed the nation and elevated student safety concerns. 

Near Louisiana鈥檚 Tulane University, a clash between pro-Palestinian and pro-Israel and police are investigating a as a potential hate crime targeting an Arab Muslim student. At Rutgers University, officials chapter following claims the group disrupted classes and vandalized campus. At Harvard University, a rabbi to hide the campus menorah each night of Hanukkah due to vandalism fears. In California, a with involuntary manslaughter and battery after an alleged physical altercation broke out at a demonstration that led to the death of a Jewish protester. 

Outside of schools, police said a 6-year-old Chicago boy was in an alleged anti-Muslim attack, and in Burlington, Vermont, three college while walking down a sidewalk over Thanksgiving weekend. 

The escalating confrontations have embroiled school leaders, who have been criticized for failing to clamp down on hate speech and discrimination. Just days after in Washington about rising antisemitism on college campuses, Elizabeth Magill resigned as University of Pennsylvania president. She and the presidents of Harvard University and the Massachusetts Institute of Technology were accused of being equivocating and evasive after giving carefully worded replies to repeated questions about whether calling for the “genocide of Jews” violated their schools’ code of conduct. Magill responded that it鈥檚 鈥渁 context-dependent decision,鈥� underscoring school leaders鈥� obligations to ensure safe learning environments while protecting people鈥檚 free speech rights. 

Harvard University President Tuesday after facing similar scrutiny for her testimony at the congressional hearing and unrelated plagiarism allegations.

Of the 29 active federal Title VI investigations opened since Oct. 7, just eight are focused on incidents in K-12 schools 鈥� including at three of the nation鈥檚 10 largest districts. Among them are the New York City Department of Education, the Clark County School District in Las Vegas, Hillsborough County Schools in Tampa, Florida, and the Cobb County School District in suburban Atlanta.

Though the circumstances prompting the investigations remain unknown, many of the institutions included on the Education Department鈥檚 list of active investigations have experienced high-profile incidents involving discrimination. 

In New York City, a raucous, and prompted a lockdown after a teacher posted a picture of herself at a pro-Israel rally on social media. Also turning to social media, one student said the teacher 鈥渋s going to be executed in the town square,鈥� and another promoted 鈥渁 riot鈥� against her. 

In suburban Atlanta, the Cobb County School District sparked controversy following the Hamas attack to the school community that warned of an 鈥渋nternational threat,鈥� noting that 鈥渨hile there is no reason to believe this threat has anything to do with our schools, parents can expect both law enforcement and school staff to take every step to keep your children safe.鈥� Because of the message, several Muslim parents said their children had become the targets of Islamophobic bullying. 

In , the civil rights office highlighted hypothetical instances that put school districts at odds with their Title VI obligations. Among them: A Jewish student is targeted by his peers with swastikas and Nazi salutes but his teacher tells him to 鈥渏ust ignore it鈥� without taking steps to address the harassment. Another example involves school officials failing to remedy a Muslim student鈥檚 complaints that she was called a 鈥渢errorist鈥� and told 鈥測ou started 9/11.鈥�

Even before the most recent conflict between Hamas and Israel, law enforcement agencies across the U.S. have reported an uptick in hate crimes over the last several years, including on campuses. 

Reported hate crimes surged 7% between 2021 and 2022, released by the Federal Bureau of Investigation in October, including a 36% increase in anti-Jewish incidents 鈥� which accounted for more than half of incidents based on religion. Among all reported hate crimes, 10% occurred at K-12 schools and colleges.

The Education Department last month released its most recent Civil Rights Data Collection, the first since the pandemic. Students reported 42,500 harassment allegations during the 2020-21 school year, including bullying on the basis of sex, race, sexual orientation, disability and religion. Of those, 29% involved harassment or bullying on the basis of race while only a sliver 鈥� 3% 鈥� involved students saying they were targeted because of their religion. 

The current climate has put Jewish college students on edge, according to , a nonprofit focused on eradicating antisemitism. Since the beginning of the academic year, 73% of Jewish college students said they鈥檝e been witness to antisemitism. Prior to this school year, 70% reported experiencing antisemitism throughout their entire college experience. Yet just 30% of Jewish college students said their college administration has taken sufficient steps to address anti-Jewish prejudice. 

During a televised interview on MSNBC Friday, Jonathan Greenblatt, the national director and CEO of the Anti-Defamation League, said he thought conditions would improve on college campuses for Jewish students because the Title VI investigations now being launched by the Education Department would force college administrators to take action. 

Muslim Americans of all ages have similarly . In a two-week period between Oct. 7 and Oct. 24, reports of bias incidents and requests for help at the Council on American-Islamic Relations surged 182% from the average 16-day period in 2022. 

As lawmakers call on school leaders to take a stronger stance against hate speech, they鈥檝e faced pushback from free speech advocates. Earlier this month, New York of 鈥渁ggressive enforcement action鈥� if they failed to discipline students 鈥渃alling for the genocide of any group of people.鈥� In a statement, the Foundation for Individual Rights in Education, a right-leaning nonprofit focused on students鈥� free speech rights, said Hochul鈥檚 admonition 鈥渃annot be squared with the First Amendment.鈥�  

鈥淐olleges and universities can and should punish 鈥榗alls for genocide鈥� when such speech falls into one of the narrowly defined categories of unprotected speech, including true threats, incitement and discriminatory harassment,鈥� the group said in the statement. 鈥淏ut broad, vague bans on 鈥榗alls for genocide,鈥� absent more, would result in the censorship of protected expression.鈥�

The senior Education Department official said that schools must 鈥渘avigate carefully鈥� their obligations under Title VI and the First Amendment. Even if a student鈥檚 speech is protected, the official said, school leaders still have an obligation to uphold all students鈥� nondiscrimination rights.

鈥淲hat concerns me is when a school community throws up its hands and says, 鈥楾his speech is protected and so there鈥檚 nothing more for us here,鈥欌�� said Lhamon, the assistant secretary for civil rights. 鈥淭hat may be true, but that鈥檚 only true where a hostile environment isn鈥檛 created that the school needs to respond to.鈥�

She鈥檇 done it before, to fanfare and criticism. As the head of the Education Department鈥檚 civil rights division during the Obama administration, Lhamon wrote in 2014 that put districts nationwide on notice: stark racial gaps in suspension rates could indicate discrimination, and the federal Office for Civil Rights planned to hold them accountable to civil rights laws. The guidance led education leaders nationwide to reform their school discipline policies while conservative pundits and politicians accused the department of using the threat of investigations to force districts into creating 鈥渞acial quotas鈥� and coercing them to adopt school discipline reforms in place of suspensions and expulsions. 

At the hearing to consider her return to her post as the Education Department鈥檚 assistant secretary for civil rights and six months after President Joe Biden signed across the federal government, Lhamon said it was critical for the Biden administration to reinstate the discipline guidance, which the of mass school shootings. 

鈥淚 think it鈥檚 crucial to reinstate guidance on the topic and I think it鈥檚 crucial to be clear with school communities about what the civil rights obligations are and how best to do the work in their classrooms,鈥� Lhamon said during the confirmation hearing, where she was grilled by Republican lawmakers on a range of contentious issues, including efforts to combat campus sexual assault and the inclusion of transgender students in school athletics. Republicans leveraged the issues in a failed bid to block Lhamon鈥檚 nomination, and Vice President Kamala Harris cast a tie-breaking vote to confirm Lhamon for a second stint in the department.

Yet more than two years into Biden鈥檚 presidency, updated guidance on racial disparities in school discipline are nowhere to be found 鈥� and civil rights advocates have begun to wonder whether the department ever plans to release them. Rather than taking heat from Republicans, the inaction has generated outrage from the left. 

In , advocates with the Federal School Discipline and Climate Coalition demanded the department 鈥渋mmediately release a revised and updated version鈥� of the guidance and accused officials of failing 鈥渢o provide adequate accountability, oversight and enforcement of civil rights laws.鈥�

鈥淭he persistence of egregious exclusionary and disproportionate discipline throughout the nation must be laid directly at the feet of this administration鈥檚 unwillingness to lead in the area of school discipline and civil rights,鈥� according to the coalition, a group of racial justice activists and researchers who鈥檝e been advocating for police-free schools and non-punitive discipline policies since 2011. 鈥淚n many districts, the lack of leadership and guidance from [the Education Department] has weakened communities鈥� abilities to advocate for policies that reduce and eliminate exclusionary discipline.鈥�

In an interview with 社区黑料, a senior Education Department official declined to say whether updated guidance is in the works or to provide a timeline. But the department鈥檚 Office for Civil Rights, the official said, is currently investigating 343 cases related to racial discrimination in student discipline. The 2014 guidance outlined the department鈥檚 interpretation of federal civil rights rules and urged districts to adopt restorative justice and other discipline reforms, but the senior department official said the civil rights office has no difficulty enforcing federal discrimination rules aside from the challenges that come with taking on an 鈥渆normous caseload.鈥� 

In one case from last year, the Education Department came to a resolution agreement with the Victor Valley Union High School District in California after a federal investigation found the school system disciplined Black students more frequently and harshly than their white classmates. Along with 鈥渟tatistical evidence鈥� of racial disparities in student discipline, investigators observed a pattern where Black and white students were disciplined differently for committing similar infractions. Under the agreement, the district was required to revise its student discipline policies and implement a plan to eliminate disparities.

鈥淲e are as always grateful to school communities that effectively instruct all students without discrimination and we look forward to working with those school communities that need further assistance to comply with the law,鈥� Lhamon said in a written statement when asked by 社区黑料 about criticism that the department had failed to act. 

Faced with a record number of civil rights complaints, which are set to be outlined in an annual report later this month, the to allow a greater use of mediation to resolve cases more quickly. 

Even critics of the 2014 鈥淒ear Colleague鈥� letter are left wondering why the department hasn鈥檛 released an update to the student discipline guidance 鈥� particularly after officials suggested they were forthcoming. In June 2021, the Office for Civil Rights on strategies to implement school discipline in a nondiscriminatory manner. That callout led to more than 3,600 comments from people across the political spectrum. 

A year later, in July 2022, the Education Department released guidance that sought to address school discipline disparities between children with disabilities and those who are not enrolled in special education. Reporting at the time suggested that similar guidance, related to racial disparities in discipline, would be released later that summer. 

A political liability

That the guidance was never released, observers said, likely comes down to one factor: politics.

鈥淚t shouldn鈥檛 take this much time, especially if they were going to largely dust off what was published in 2014,鈥� said Michael Petrilli, president of The Thomas B. Fordham Institute, who worked at the Education Department during the George W. Bush administration and has been an outspoken critic of school discipline reform. He said the Biden administration would be rightly concerned over the issue becoming a campaign platform for Republicans, who have already rallied supporters to condemn schools that teach about racism in American history or that allow transgender students to participate in school sports. 

鈥淭he only thing that makes sense to me is that somebody relatively senior, either at the Department of Education or in the White House, has decided that this is not a good time,鈥� Petrilli said. 鈥淓ither they decided not to do it, or they鈥檙e waiting until the time seems right 鈥� and it never seems like a good time with the news in the real world.鈥�

Biden entered office at a moment of heightened attention to persistent racial inequities. After a Minneapolis police officer murdered George Floyd in 2020 and Black Lives Matter protests swept the country, dozens of districts removed school-based police officers from their campuses. But the issue was reminiscent of 鈥渄efund the police鈥� movement, and several school systems that banished cops from classrooms reversed course just months later. 

As pandemic-era remote learning came to an end and students returned to school buildings, educators sounded the alarm about an uptick in student misbehavior and disruptions. In a , more than 8 in 10 school leaders said the pandemic had a negative effect on students鈥� behavioral development. More than a third reported an uptick in physical attacks or fights between students, and more than half reported increased classroom disruptions due to student misconduct. 

A recent teachers union poll reached similar findings. Nearly 90% of teachers said that 鈥減oor student discipline and a lack of support for dealing with disruptive students鈥� is a serious problem, the American Federation of Teachers found. 

Lawmakers with state legislation that would make it easier for schools to punish students, including with bipartisan support that allows schools to 鈥減ermanently remove鈥� disruptive students. After a 6-year-old boy with a history of disturbing behavior shot his teacher in January at a Virginia elementary school, that school leaders had become too lenient with students. In response to the drumbeat of school shootings, districts have bolstered school security, including with armed police officers. 

鈥淵ou鈥檙e seeing states across the country passing these return-to-zero-tolerance and mass exclusion laws in several states, and I think that could have been avoided had the Biden administration been taking a strong stand throughout and reissuing the guidance,鈥� said Russ Skiba, professor emeritus at Indiana University whose research focuses on school discipline.

Yet it鈥檚 this exact movement toward harsher student punishment rules that make discipline reform efforts a politically fraught undertaking, Petrilli said. 

鈥淵ou can imagine somebody with a political perspective saying, 鈥榊ou know, is this really a good issue to run on when we鈥檙e getting clobbered on the defund the police stuff, on the crime issue?鈥欌�� Petrilli said. 鈥淚 would certainly think this would be dangerous for Democrats to be associated with a soft on discipline kind of approach in the same way it is dangerous for them to be associated with a soft on crime approach.鈥� 

Meanwhile, racial justice advocate Breon Wells called the administration鈥檚 failure to address the issue a political miscalculation and accused Biden of failing to act on the promises of his campaign, which .

鈥淭o us what it feels like is that they are choosing the politically comfortable way over the delivering of these promises to people and, more specifically, Black and brown students,鈥� said Wells, a member of the Federal School Discipline and Climate Coalition and the CEO and founder of The Daniel Initiative, a strategic communications firm. 鈥淭here is no convenient path to rectify the wrongs and the injustices that have prevailed and been baked into a system.鈥�

Persistent disparities

Nationally, stark racial disparities have persisted for years. For about as long, the factors that drive those disparities have been the subject of heated partisan debate. 

Black youth represented 15% of students nationwide during the 2017-18 school year but were the subject of 29% of law enforcement referrals, according to the most recent . Black youth also accounted for 38% of students who received one or more out of school suspensions and 33% of those who were expelled.

The 2014 guidance sought to close the gap. In a move that led to controversy, the department warned schools that discipline policies could constitute 鈥渦nlawful discrimination鈥� under federal civil rights law if they didn鈥檛 explicitly mention race but had a 鈥渄isproportionate and unjustified effect on students of a particular race,鈥� known as disparate impact. Such statistical evidence is a key indicator of potential violations, the letter noted, but civil rights investigators would review 鈥渁ll relevant circumstances鈥� before imposing sanctions. 

While the document acknowledged that racial disparities in student discipline rates may be 鈥渃aused by a range of factors,鈥� it said that the 鈥渟ubstantial racial disparities鈥� couldn鈥檛 be attributed entirely to 鈥渕ore frequent or more serious misbehavior by students of color.鈥�

A growing body of academic research has dug into the root causes of racial disparities in school discipline, including evidence that educators discipline Black students differently than their white classmates. in the peer-reviewed journal Social Forces, found that nearly half of the racial disparities in school discipline could be attributed to teachers treating Black and white students differently, suggesting that the 鈥渄ifference in punishment may be due to racial bias鈥� among educators. In fact, just 9% of the variations could be attributed to different behaviors between Black and white children, researchers found. , by the Education Research Alliance for New Orleans, found that Black and low-income students received longer suspensions than their white and better-off classmates for the same types of infractions. 

Meanwhile, a significant body of research suggests that suspensions, expulsions and school-based arrests , including lowered academic performance and an increased likelihood of dropping out. Yet research on alternatives promoted in the 2014 discipline guidance, including restorative justice, has found that even as suspensions have decreased, they鈥檝e generally . 

Petrilli has acknowledged that racial discrimination exists in school discipline but maintains that the harmful effects of suspensions and the influence of discriminatory bias in racial disparities is overblown, arguing that other factors, like poverty and the effects of growing up in a single-parent home, are key contributors. The 2014 guidance, he said, overstated the degree to which bias influenced the disparities. Any updated guidance from the Biden administration, Petrelli said, should remove threats of investigations based on a district鈥檚 racially disparate discipline data.

鈥淚f, after controlling for differences in socioeconomic status, for example, there鈥檚 still large disparities, that is a time that we would dig in and do an investigation,鈥� he said. 鈥淭hat would be a middle ground.鈥�

Yet for members of the Federal School Discipline and Climate Coalition, guidance on racial disparities in school discipline is the lowest denominator in a larger need to overhaul the country鈥檚 approach to school safety and student discipline. But the administration has failed to take a strong position, the group argued, on several critical civil rights issues. 

In last month, Education Secretary Miguel Cardona urged local policymakers to 鈥渕ove swiftly toward condemning and eliminating鈥� corporal punishment in schools, which remains legal in 19 states. On the same day, it released that districts review their student discipline policies and ensure they 鈥渄o not unfairly disadvantage a group of students,鈥� including 鈥渦nclear language that results in disproportionate discipline of certain students.鈥�

But the corporal punishment guidance, the advocates argued, amounted to 鈥渃herry picking politically safe issues,鈥� and called Cardona鈥檚 letter 鈥渉alfhearted.鈥� The guiding principles document, the group said, was 鈥渨oefully inadequate鈥� and appeared to be thrown together last minute. 

Coalition convener Christopher Scott said it鈥檚 time for the administration and Education Department leaders to stop shying away from tough conversations about race.

鈥淭hey are failing to protect the civil rights of Black and brown students, youth and children because they don鈥檛 want to tackle the issue of race because it is taboo for them and is seen as not being politically efficient or leading to political wins,鈥� said Scott, a senior program manager at the Open Society Policy Center. 鈥淚t is not about what is going to keep you in office, it is about doing your job and protecting the civil rights of Black and brown students, youth and children. That鈥檚 why you exist.鈥� 

And while the controversy surrounding the issue hasn鈥檛 changed, the pandemic offers up a troubling new context: Districts are reporting spikes in , violent attacks on school employees and blatant disregard for school rules.

鈥淭here is certainly a much higher level of dysregulation in our kids,鈥� said Rico Munn, superintendent of the Aurora Public Schools in Colorado. He added that educators usually expect students to fall into a routine and follow rules by September. 鈥淲e weren鈥檛 hitting that until spring break.鈥�

The education department is expected to update its policy in two parts. One will focus on students with disabilities, who are significantly to be suspended and expelled than non-disabled students. The other will address racial gaps in discipline 鈥� a reality that persists in many districts despite over the past decade to keep students from being removed from school and often referred to police.

Advocates for students鈥� educational rights are eager for the department to make a strong statement against discipline that keeps students out of the classroom.

鈥淒iscipline is inherently an authoritative tool used to punish students for being what an adult has decided is disobedient,鈥� said Denise Stile Marshall, president of the Council of Parent Attorneys and Advocates, which focuses on the rights of students with disabilities. 鈥淭here is a lot of research on this, but simply put, punitive school discipline does not improve student behavior or academic achievement.鈥�

If that sounds familiar, it鈥檚 not accidental. The person leading the department鈥檚 effort is Catherine Lhamon, assistant secretary at the Office for Civil Rights, the same position she held under President Barack Obama. Seth Galanter, who worked with Lhamon during the Obama years, has also returned to the civil rights office after four years at the National Center for Youth Law.

In 2014, the Obama administration issued a saying that schools where Black and Hispanic students were disproportionately removed for disciplinary reasons could be in violation of federal civil rights laws 鈥� even if those students misbehaved at higher rates. 

Former Education Secretary Betsy DeVos rescinded that guidance in 2018, siding with those who called the move and said it misinterpreted meant to prevent discrimination.

The Biden administration comes to the issue not only more sympathetic to the idea of restorative justice, but in the midst of a pandemic that has seen an increase in student misbehavior. One said student behavior was so 鈥渁bysmal鈥� that educators were afraid for their safety.

鈥楢 year of disrupted schooling鈥� 

That鈥檚 one reason why Michael Petrilli, president of the conservative Thomas B. Fordham Institute, that the department should hold off on new guidance, arguing that districts shouldn鈥檛 have to fear a federal investigation for removing disruptive students from the classroom. 

The pandemic, he noted, was worse for low-income Black and Hispanic students, who were more likely to attend schools that had been closed longer. 

鈥淭he very same students that have more catching up to do after a year of disrupted schooling are also facing the prospect of a more challenging learning environment if schools are hesitant to remove problem students,鈥� he wrote. 

Others say the pandemic shouldn鈥檛 interrupt the administration鈥檚 efforts to revisit the issue of bias in school discipline.

鈥淚t is always a good time to say that racial discrimination is wrong [and] that children with disabilities have the right to be alongside their non-disabled peers,鈥� said Liz King, the senior program director for education at the Leadership Conference on Civil and Human Rights. 

She thinks the guidance should reflect showing police in schools don鈥檛 reduce gun violence but do increase suspensions, expulsion and arrests of students 鈥� especially for Black students. She wants the department to take a stand against seclusion and restraint of students and 鈥渓ean in” to the rights of Black and Hispanic girls and LGBTQ students.

Black girls are five times more likely than white girls to be suspended from school at least once and four times more likely to be arrested at school. A 2016 from advocacy group GLSEN found that LGBTQ students are suspended at higher rates than non-LGBTQ students. 

鈥楢bsolutely a dance鈥�

The Obama-era guidance embraced so-called restorative justice practices that aim to give students a chance to build stronger relationships, work out their grievances and make amends for their actions in lieu of suspension. Twenty-one states and the District of Columbia have passed laws supporting the model, according to the at Georgetown Law School. 

on such programs was mixed, but a more from California showed restorative practices can shrink Black-white discipline disparities and are associated with higher grade point averages in high school.

But 鈥済ood discipline is very expensive鈥� and hard to implement with the 鈥渞egular teacher allocation in the school,鈥� said Elliott Duchon, former superintendent of the Jurupa Unified School District, near Los Angeles. 

His district launched a multi-year effort to reduce suspensions and expulsions after federal officials found that Hispanic students were more likely to be suspended than white students.

Los Angeles Unified鈥檚 restorative justice program costs $13 million a year, according to the district, and funding for the Oakland district鈥檚 program 鈥� considered 鈥� was almost cut until the city and private funders stepped in to pick up the cost. 

Critics of alternative discipline practices argue the Obama-era guidance created tension between teachers who make discipline referrals and administrators who send students back to class without any consequences.

鈥淚t鈥檚 absolutely a dance,鈥� said Jacqueline Shirey, at-risk coordinator for the Beaumont Independent School District in Texas. 鈥淚f we are going to say that students can鈥檛 leave, what are we doing to help the teachers?鈥�

With that in mind, Shirey began training teachers last fall to set up 鈥渄e-escalation鈥� spaces in their classrooms 鈥� a desk with a box that includes stress balls, 500-piece puzzles and writing materials. 

鈥淚 saw a way for students to learn how to manage their own emotions before it became disruptive, and I didn鈥檛 want students to leave my classroom to do that,鈥� she said, but added that ground rules are necessary. 鈥淚f you don鈥檛 implement it with a purpose, then it really does become supplies in a corner that students can play with.鈥�

When students returned last fall, some administrators decided it was important to take a business-as-usual approach to discipline. 

In Nashville, Hunters Lane High School Principal Susan Kessler said her teachers 鈥渆nforce dress code this year and every year鈥� and that it helps in 鈥渕aintaining school culture, enforcing building security and reducing distractions in the classroom.鈥�

Other school leaders factored in the impact of school closures on students鈥� behavior.

Aaron Eyler, principal at Matawan Regional High School in Aberdeen, New Jersey, brought his staff together in September for a frank conversation about what to expect when students returned. 

He told them not to worry about trying to 鈥渨in the battle鈥� against students wearing hoodies and hats. And he wasn鈥檛 surprised to see more of what he referred to as insubordination, like students wearing Airpods and being late to class. The point, he said, was to keep students from missing even more instruction.

鈥淲ith 鈥� what happened last year and the lack of consistent structure,鈥� he said, 鈥渢here was no way we weren鈥檛 going to have greater instances of discipline than what we鈥檙e accustomed to in school.鈥�

Ronn Nozoe, executive director of the National Association of Secondary School Principals, said any guidance from the department is likely to 鈥渞uffle feathers,鈥� but he added, 鈥淵ou never want to tie the hands of folks who are actually doing the work.鈥�

Lhamon, who faced steep opposition from Republicans, will lead the Education Department office in charge of enforcing federal civil rights laws in schools, including rules that prohibit discrimination based on race and sex. She secured the post after a combative confirmation hearing in July, followed by a partisan 11-11 vote a month later in which members of the Senate Health, Education, Labor and Pensions Committee deadlocked on her nomination. Lawmakers voted earlier this month to discharge her nomination from committee and bring it before the full Senate.聽

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Harris鈥檚 vote, which broke a 50-50 tie, followed an effort by Republican lawmakers to block her return to a position she held from 2013 to 2017. She was unanimously confirmed in 2013, but became a lightning rod in several key education debates, including one that looked to hold K-12 schools and universities more accountable for sexual misconduct on campus.聽

Education Secretary Miguel Cardona said that Lhamon鈥檚 confirmation will help ensure that schools are 鈥渇airer and more just.鈥�

鈥淪he will lead the Department鈥檚 vital efforts to ensure our schools and college campuses are free from discrimination on the basis of race, sex and disability and to protect all students鈥� rights in education,鈥� Cardona said in a media release. 鈥淐atherine is one of the strongest civil rights leaders in America and has a robust record of fighting for communities that are historically and presently underserved.鈥澛�

In 2011, before Lhamon became assistant secretary, the Obama administration released a that instructed educators to investigate sexual misconduct allegations 鈥渞egardless of where the conduct occurred,鈥� and to use a less-strict 鈥減reponderance of the evidence鈥� standard when determining guilt. Eight months into her tenure under former President Trump, Education Secretary Betsy DeVos, whose confirmation was secured by a tie-breaking vote by Vice President Mike Pence, rescinded the guidance and replaced it with new Title IX regulations in 2020. The Biden administration the Obama-era guidance.

Civil rights groups have praised Lhamon as a champion for student equity, but her conservative critics have accused her of being an overzealous bureaucrat who went beyond her legal authority during her previous stint on the job.聽

In 2014, the civil rights office to warn school districts that discipline policies could constitute 鈥渦nlawful discrimination鈥� if they didn鈥檛 mention race but had a 鈥渄isproportionate and unjustified effect on students of a particular race.鈥� In June, the to revisit how the Education Department can ensure racial equity in school discipline.聽

While Democrats control the White House and both houses of Congress, Lhamon will be taking up her job at a time when battles over race and gender in schools have become even more divisive, as seen in several states recently moving to bar transgender students from playing sports.聽

Catherine Lhamon is one step closer to being confirmed for the second time as the Education Department鈥檚 assistant secretary for civil rights. In a 50-49 vote along party lines, the Senate voted Oct. 7 to discharge her nomination from the Health, Education, Labor and Pensions Committee. The move gives the full Senate an opportunity to weigh her nomination after the HELP committee deadlocked with an 11-11 vote along party lines in August. A date for the full Senate vote on Lhamon’s nomination has not been set.聽

From racial discrimination to transgender students in sports, some of the country鈥檚 most politically fraught education debates coalesced in a single Senate hearing Tuesday as lawmakers weighed Catherine Lhamon鈥檚 nomination to become the Education Department鈥檚 top civil rights boss.

Democratic lawmakers portrayed Lhamon, who previously served as the Education Department鈥檚 assistant secretary for civil rights during the Obama administration, as a staunch champion of students. Republicans, meanwhile, grilled her with tough questions and accused her of being an overzealous bureaucrat with a habit of exceeding her legal authority. An ongoing debate over how schools should respond to campus sexual misconduct complaints became the leading point of conflict during Lhamon鈥檚 hearing.

The Senate education committee hearing, held to consider Lhamon鈥檚 likely return to her old job, was divisive from the onset. In his opening remarks, North Carolina Sen. Richard Burr, the committee鈥檚 ranking Republican, said he鈥檚 not convinced that Lhamon 鈥渦nderstands, or at least appreciates, the limits of her authority鈥� and lamented that she would unravel a Trump-era regulation that bolstered the due-process rights of students accused of sexual misconduct.

Though Lhamon maintained a measured posture that leaned heavily on existing law, Burr pressed her on the due process question, including whether students should have the right to see the evidence used against them in misconduct allegations and whether she believes in the 鈥減resumption of innocence.鈥� Ultimately, Barr argued that Lhamon鈥檚 record on holding schools accountable for students鈥� sexual misconduct 鈥渋s deeply troubling if not outright disqualifying.鈥�

In response to question from Sen. Burr, Lhamon again won’t say that she endorses the presumption of innocence; will only say that in “civil rights investigations,” TIX adjudicators “should be open to the possibility” that acc’d students aren’t guilty.

鈥� KC Johnson (@kcjohnson9)

After accusing former Education Secretary Betsy DeVos of rolling back civil rights enforcement for years, Lhamon said on Tuesday that it鈥檚 critical for the Office for Civil Rights to return 鈥渢o even-handed enforcement that is consistent with the law.鈥� In 2011, before Lhamon became assistant secretary, the Obama administration released a that instructed educators to investigate sexual misconduct allegations 鈥渞egardless of where the conduct occurred,鈥� and to use a 鈥減reponderance of the evidence鈥� standard when determining guilt. Eight months into her tenure, DeVos rescinded the guidance and replaced it with new Title IX regulations in 2020. The Biden administration the Obama-era guidance.

Lhamon avoided a direct response to Burr鈥檚 questioning, arguing instead that she ultimately 鈥渨on’t be in control of what change does or does not happen with respect to the Title IX regulation,鈥� as the Biden administration鈥檚 work on that issue has already begun. But she did hold that Title IX has long failed to protect students from campus sexual misconduct, and that the Trump-era regulations weakened enforcement.

That acknowledgement came after Sen. Bill Cassidy, a Republican from Louisiana, in which she argued the Trump-era regulations would move the country 鈥渂ack to the bad old days,鈥� when it was 鈥減ermissible to rape and sexually harass students with impunity.鈥� In defending the tweet, Lhamon noted that the Trump-era regulations narrowed which school officials are required to respond to sexual misconduct allegations. That group includes Title IX coordinators, school officials with 鈥渁uthority to institute corrective measures,鈥� and K-12 teachers in cases of student-on-student misconduct.

鈥淎mong the resolutions that I oversaw when I led the Office for Civil Rights included resolutions where, for example, at Michigan State, a student reported that she鈥檇 been sexually harassed by a counselor in the counseling office when she went for counseling about sexual harassment,鈥� Lhamon said. 鈥淪he reported it to the counseling office. Under the current regulation, there would be no responsibility for the school to investigate.鈥�

Lhamon鈥檚 nomination hearing also highlighted another Title IX issue that鈥檚 been central to recent partisan feuds: The rights of transgender students to participate in school athletics. Under Lhamon鈥檚 lead in 2016, the Education Department released a 鈥淒ear Colleague鈥� letter notifying schools that transgender students must be permitted to use restroom facilities that align with their gender identities. The Trump administration in 2017.

In a series of questions, Sen. Tommy Tuberville, a Republican from Alabama, asked Lhamon whether transgender girls should be permitted to compete in women鈥檚 athletics or if such a policy discriminates against cisgender females. Tuberville, who was the head football coach at Auburn University before joining the Senate, suggested that transgender students could instead be relegated to their own athletic teams.

In response, Lhamon said that Title IX aims to ensure that nobody faces sex-based discrimination in public schools, including any student who wishes to participate in school athletics.

As Republicans probed Lhamon on her policy record, Democrats consistently rallied to support her. In defending the Obama-era guidance on transgender student rights, Sen. Chris Murphy, a Democrat from Connecticut, accused Republicans of waging a 鈥減ublic relations campaign鈥� that isn’t about protecting female athletes but is rather 鈥渦nfortunately about trying to marginalize these kids and make people fear them and make people see them as a threat.鈥�

鈥淣othing could be, frankly, further from the truth,鈥� he said. 鈥淭hese are kids who, just like all of our kids, want to participate in athletics, an experience that is central to coming of age for millions of kids all across this country. An idea that we would deny that to anyone in this nation simply because of their [gender identity], I think, is deeply unAmerican.鈥�

Along with the guidance on transgender students鈥� rights, Lhamon鈥檚 tenure with the Obama administration included a 鈥淒ear Colleague鈥� letter from 2014 which warned schools that racial disparities in school discipline could violate federal civil rights laws. The Trump administration did away with that guidance, too, but Lhamon said on Tuesday that it鈥檚 鈥渃rucial鈥� for the Biden administration to reinstate it. In fact, she noted that when the civil rights office was created in 1979 partly to enforce federal school desegregation orders, racially disparate school discipline rates were among the first issues that investigators confronted.

That racial disparities in school discipline persist to this day 鈥渕eans that we have not gotten our arms around it as a country and we are not doing enough right by our kids,鈥� she said, adding that racial disparities are not always a form of discrimination. 鈥淚 think it鈥檚 crucial to reinstate guidance on the topic and I think it鈥檚 crucial to be clear with school communities about what the civil rights obligations are and how best to do the work in their classrooms.鈥�

Though Tuesday鈥檚 hearing centered primarily on Lhamon, lawmakers also considered the nominations of Lisa Brown as the Education Department鈥檚 general counsel and Roberto Rodriguez as its assistant secretary for planning, evaluation and policy development. Brown is currently the general counsel of Georgetown University and Rodriguez is the president and CEO of the nonprofit Teach Plus. On average, takes 68 days between their nomination and a final Senate vote, according to the nonpartisan Congressional Research Service.