Fremont High School students in Oakland Unified use restorative justice circles to welcome newcomers, get to know each other and build bridges between different cliques and ethnic groups.
Credit: Tatiana Chaterji / Oakland Unified
Top Takeaways
- Trump executive order challenges the concept that race-neutral policies can be discriminatory.
- Administration said focus on equity in discipline has harmed student safety, while advocates say it’s an excuse to roll back civil rights protections.
- Experts say executive order threatening to withhold funding from schools doesn’t have much bearing on California schools — for now.
The Trump administration has taken aim at a key assumption of federal civil rights enforcers and California’s school discipline strategy: that large racial disparities are a red flag for discrimination.
Trump’s executive order, released Wednesday, attacks the concept of disparate impact — the idea that a policy that may seem neutral actually harms a racial or ethnic group. The order calls this approach to discipline, championed by both the Biden and Obama administrations, a “risk to children’s safety and well-being in the classroom.”
“Their policies placed racial equity quotas over student safety — encouraging schools to turn a blind eye to poor or violent behavior in the name of inclusion,” U.S. Department of Education Secretary Linda McMahon said in a statement.
The previous Trump administration rescinded Obama-era guidance from the Department of Education, which warned it would initiate investigations based on reports of racial disparities in discipline.
The executive order takes this a step further by threatening state agencies and districts that fail to comply with the Trump administration’s “colorblind” interpretation of Title VI of the Civil Rights Act, which protects against racial discrimination.
The introduction of the California School Dashboard, the state’s school accountability website, raised public awareness of suspension rates and other indicators of school performance. The dashboard designates the performance of every district and every school as well as their student groups — including racial groups — in one of five colors. No statewide student group’s suspension rate was red, designating the worst performance, but 674 schools — 7% of 9,671 schools — had that designation. They may have been designated for state assistance to determine the cause of high suspension rates. They would also have to commit to lowering suspensions as part of their district’s annual accountability plan.
Suspensions in California have dropped dramatically over the last decade, but disparities remain: 8.6% of Black students were suspended in 2023-24, compared with 2.7% of white students.
California has also taken action and banned schools from suspending students solely for “defiance.” Many advocates claimed it was a “catch-all” justification to punish students, particularly students of color, for smaller infractions, like refusing to take their hat off. The state banned the practice for K-3 students in 2013, expanded it to K-8 in 2019 and, this school year, expanded it to high school students.
Los Angeles Unified School District pioneered this policy to reduce suspensions. In 2013, its school board passed the School Climate Bill of Rights. A district spokesperson said in a statement to EdSource that the district follows state law and district policy regarding student discipline.
“Race is not a consideration in the application of student discipline policies at the district,” the statement said.
Carolyn Gorman, an analyst with the Manhattan Institute, a conservative think tank, says California is at risk of losing funding for schools with its policies on willful defiance that reference disparate impact.
But other experts disagree.
Michael Petrilli, president of the Thomas B. Fordham Institute, said the executive order is no surprise. “I expected them to write about it, but it’s so vague, it’s important to wait for the guidance to see, really, what they are trying to say.”
“It’s one of those threats that I would advise districts to ignore,” said John Affeldt, managing attorney at Public Advocates.
Affeldt points to recent court rulings that blocked Trump from enforcing an executive order he signed in January that promised to withhold funds from schools that have diversity, equity and inclusion (DEI) policies.
It is not illegal to simply have a racial disparity in discipline statistics, Affeldt notes. Instead, disparities serve as a red flag that triggers an investigation to examine whether certain policies or practices are discriminatory and violate civil rights.
Daniel Losen, a civil rights attorney, education researcher and former director of the Center for Civil Rights Remedies at UCLA’s Civil Rights Project, called the executive order “fear-mongering — making up unproven harms to discourage folks from considering the possibility that maybe their school policies are inequitable.”
“They are hoping that people think that looking at racial differences is unlawful, even though the law requires that we address disparate impacts” of education policies, he said. “And those regulations, which have been in effect since the ’60s, have not been rescinded.”
Losen explored nationwide data on suspensions in his 2020 report “Lost Opportunities: How Disparate School Discipline Continues to Drive Differences in the Opportunity to Learn.” He concluded that the lack of instruction time from suspensions, combined with lost access to mental health services and the stigma of punishment “for breaking a rule, no matter how minor their misconduct,” causes racially disparate harm.
Those sharp disparities, he wrote, “also raise the question of how we can close the achievement gap if we do not close the discipline gap.”
Sixth grade teacher Thomas Courtney said he is concerned about the message that an order from the country’s highest office sends to teachers about addressing racism. He worries that it may reinforce a perception among a largely white workforce of teachers that students of color are to blame for the rise of misbehavior in classrooms.
“The scapegoat is brown and Black children and the fact that they’ve been getting away with murder in your classroom — that’s how this is going to be interpreted,” said Courtney, who teaches humanities and English at Millennial Tech Middle School in San Diego.
He worries some teachers will read the order and say, “I can finally write suspensions on all those Black kids causing all these problems in my class.”
Looking at discipline through the lens of disparate impact tends to highlight one glaring fact: Black students — boys in particular — are far more likely to be disciplined.
“It’s historically egregious that it is Black males in particular who get referred much more often, suspended much more often, expelled much more often,” Affeldt said.
Order is an ‘opening salvo’
This executive order may have little immediate legal effect, but experts expect to see much more from the administration on the topic of discipline.
“If they say, do not treat kids differently based on race, that should be fine. But they could go further to say that the Office of Civil Rights can investigate only individual circumstances, and cannot assume a disparate impact based on suspension data,” said Petrilli, of the Thomas B. Fordham Institute.
“They could go looking for principals who would say they did not discipline students because of mandates to reduce the number of suspensions,” he said.
Or they could find teachers who say that restorative justice in lieu of suspensions, without staff training and administrative support, doesn’t work. As Brian Foster, a retired California teacher, wrote in a comment to EdSource, “When there are no real consequences to bad behavior, it spreads. Behavior is excused and pushed right back into the classroom unresolved, degrading the real learning of all other students.”
Courtney, who wrote a commentary for EdSource on the topic, worries that this executive order could represent an “opening salvo” in an effort to turn the practice of restorative justice into a politically toxic concept, as critical race theory was. Restorative justice focuses less on punishment and more on strengthening a school’s culture through righting wrongs, solving disputes and building relationships.
Trump’s executive order doesn’t mention restorative justice practices, but it does refer to a joint letter in 2014 by the U.S. Department of Education and U.S. Department of Justice. That letter notes that strategies such as conflict resolution, restorative practices, counseling and positive interventions may be used.
Affeldt also expects to see more from the administration on the topic of disparate impact — both inside and outside of schools. He says conservatives have been pushing for a case that would outlaw disparate impact theory. He calls it a “moonshot” for the movement to get a case that would invalidate California’s take on racial discrimination.
“That’s a real stretch,” Affeldt said, “but that’s their game plan, and they’re trying to tee it up.”
EdSource reporter Mallika Seshadri contributed to this story.