Education Department probes two districts over race in discipline

New guidance: weighing race in school discipline is itself racial discrimination

The U.S. Education Department’s Office for Civil Rights this month opened federal civil rights investigations into two public school districts and issued new guidance declaring that considering a student’s race in discipline decisions is itself racial discrimination — a position the agency says puts an end to what it calls “racial balancing” in classrooms.

The department said it was investigating Fayetteville Public Schools in Arkansas and Milwaukee Public Schools in Wisconsin. According to the department’s press release, Fayetteville teachers “were directed to take students’ racial identities into account when issuing discipline as part of an effort to bring about ‘restorative justice’ to address ‘the disproportionality of discipline on students of color.’”

In Fayetteville, Superintendent John Mulford said the district learned of the investigation about two hours before the department publicly named it as a target. “We’re a little shocked at this point and completely in the dark as to what this is even about,” Mulford said.

Mulford, now in his fourth year leading the district, said his team reviews discipline data but does not direct staff to treat students differently by race. “We preach consistency, the standard is the standard, everybody’s held to the standard,” Mulford said. He said he welcomed the investigation but expressed doubt that it would find what it was looking for.

In Milwaukee, a district spokesperson said the notice received from the Education Department did not explain the reason for the probe and that the district would respond “once we receive more detail.” The department’s release quoted internal Milwaukee materials describing “facially neutral school policies as reflecting systemic ‘whiteness,’” which the department said showed district officials encouraging school staff to consider race in disciplinary decisions.

The new guidance, signed by OCR’s current head Kimberly Richey, declares that “the consideration of race in student discipline is race discrimination” and warns that schools weighing a student’s race when making discipline decisions risk being investigated. Richey said in an interview that the prior approach had pushed schools toward what she called “racial balance” — equalizing discipline numbers across racial groups — and that any difference in discipline rates is not automatically a sign of discrimination. “You cannot take race into account when you’re disciplining students. It can’t play a factor, and the racial balancing must end,” Richey said.

The department’s new guidance argues that under the previous policy, “schools ignored or covered up — rather than disciplined — student misconduct to avoid any purported racial disparity in discipline numbers that might catch the eye of the federal government. As a result, students who should have been suspended, expelled, or otherwise held accountable for dangerous or disruptive behavior remained in the classroom.”

The guidance is the latest turn in a decade-long back-and-forth over what discipline data means under federal civil rights law. In 2014, the Obama administration’s Office for Civil Rights warned schools that large racial gaps in who was being suspended or expelled “give rise to concerns that schools may be engaging in racial discrimination that violates the Federal civil rights laws.” Federal data at the time showed African-American students made up about 15 percent of the overall student population but 35 percent of students suspended once and 44 percent of students suspended more than once.

An American Psychological Association task force found the disparities were not explained by differences in student behavior, and instead “may be due to lack of teacher preparation in classroom management, lack of training in culturally competent practices, or racial stereotypes.” Catherine Lhamon, who led OCR under Presidents Obama and Biden, told NPR the decision to scrutinize discipline data through the lens of race was a direct response to the nation’s history with school segregation. “The very first desegregation agreements that [OCR] was created by Congress to enforce included requirements that discriminatory discipline practices end,” Lhamon said.

In the years after the 2014 guidance, many districts shifted away from suspension and expulsion and toward practices that kept students in class, including restorative justice, which emphasizes dialogue and mediation over punishment. By 2018, the share of students suspended at least once had dropped from 5.6 percent to 4.7 percent, with Hispanic students seeing a 30 percent drop, according to NPR’s reporting at the time. That year the office also reached an agreement with Wake County Public Schools in North Carolina after finding that Black students disciplined for their first offense were more likely to be suspended than similarly situated white students.

The first Trump administration formally rescinded the 2014 guidance in December 2018, drawing on arguments from conservative critics that schools had relaxed discipline out of fear that disparate discipline rates would be treated as discrimination. Conservative commentator Max Eden, who went on to work in the second Trump administration, wrote that year that “school districts must never again be presumed guilty and unable to prove their innocence, and kids should never again be put in danger because of statistics.” Eden argued that these relaxed discipline policies may also have made classrooms more disruptive.

Biden’s Education Department, with Lhamon again heading the office, returned to a similar posture in 2023. The 2024 Republican Party platform pledged to “support overhauling standards on school discipline” and “advocate for immediate suspension of violent students,” and President Trump signed an executive order titled “Reinstating Common Sense School Discipline Policies” in April 2025.

Civil rights groups have rejected the August guidance. EdTrust’s Eric Duncan said in a statement that schools “must be able to examine who is being suspended, expelled, or referred to law enforcement, why those decisions are being made, and whether students are being treated differently for similar behavior,” and called such review “basic accountability to ensure all students are valued.”

Lhamon argued that prohibiting districts from considering race in discipline would not eliminate disparities but make them invisible. She characterized the new guidance as “a scare tactic… designed to ensure that some of our kids in school will experience extraordinary harm.”