When is suspending students discrimination? Education Dept. renews an old fight

The U.S. Department of Education recently announced it was investigating Fayetteville Public Schools in Arkansas, much to the district's surprise.

The reason, according to a department press release : Teachers there "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.'"

Superintendent John Mulford says the district received notice of the investigation roughly two hours before the department publicly named Fayetteville as a target in its national release.

"We're a little shocked at this point and completely in the dark as to what this is even about," Mulford says.

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In the same announcement, the department's Office for Civil Rights (OCR) issued new federal guidance warning school leaders that they should not consider a student's race in discipline matters or they would risk being investigated.

"The hardest part to swallow," Mulford says, is that "ever since I've been here, we've done extensive work around the consistency of our discipline policy … so that it takes away any ambiguity at all." And that, Mulford says, "aligns very well with [federal civil rights law]."

That's why, he says, he's "a little taken aback." For now, he's left to wait for clarity from the department.

The new guidance and the Fayetteville investigation reopen an old and bitter civil rights fight over discipline in the nation's K-12 schools — and what qualifies as discrimination.

The potential for discrimination in school discipline

Multiple federal investigations have found that discrimination still plagues America's schools, even as it's been illegal for decades, thanks to federal civil rights law.

But what if a school policy seems neutral — until you dig into its impact on students? What if data shows that the policy is disproportionately hurting one group? Is that also discrimination?

In 2014, the Obama administration issued guidance to the nation's schools arguing that discipline data — showing who was being suspended or expelled, for how long and how frequently — often revealed large, potentially discriminatory impacts on students of color.

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According to federal data at the time, the guidance said, African American students represented just 15% of students overall but 35% of students suspended once and 44% of students suspended more than once. (NPR has reported that this trend actually begins in preschool .)

An American Psychological Association task force found no evidence that these disparities reflected differences in student behavior; instead, the APA said they "may be due to lack of teacher preparation in classroom management, lack of training in culturally competent practices, or racial stereotypes."

Reflecting on why she sent that 2014 memo, Catherine Lhamon, who ran OCR under Presidents Obama and Biden, tells NPR that given our nation's history, not looking carefully at school discipline rates through the lens of race would have been an abdication.

"The very first desegregation agreements that [OCR] was created by Congress to enforce included requirements that discriminatory discipline practices end," Lhamon says. These practices, she says, are "a feature of discrimination. And it's something that we have seen persist in schools over decades."

And so, as head of the department's civil rights enforcement unit, Lhamon warned school leaders that these disparities were not acceptable and "give rise to concerns that schools may be engaging in racial discrimination that violates the Federal civil rights laws."

In other words, they needed to look hard at their data to see if the numbers revealed meaningful racial disparities. If so, they could be investigated by the U.S. government.

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In the years after that 2014 guidance, NPR reported that many school districts mounted a dramatic shift away from suspension and expulsion and toward the use of policies that kept students in school, including restorative justice , which emphasizes dialogue and mediation over punishment.

By 2018, NPR reported that the share of students suspended at least once had dropped from 5.6% to 4.7%, with Hispanic students seeing a 30% drop. Black students and students with disabilities also saw big drops, though suspension rates for both groups remained high.

Enforcement of this policy continued even into the first Trump administration.

In late 2018, OCR reached an agreement with Wake County Public School System in North Carolina after finding that, among other things, Black students being disciplined for their first offense were more likely to be suspended than similarly situated white students.

The backlash

After the 2014 guidance, conservative critics accused Lhamon of heavy-handedness, arguing that districts began going easy on disruptive, perhaps dangerous students out of a fear that any difference in their discipline rates between student groups would be considered discrimination.

In 2018, conservative commentator Max Eden, who would go on to work in the second Trump administration, wrote 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 .

In December 2018, a game of ping-pong began: The first Trump administration issued new guidance formally rescinding Lhamon's.

In 2023, after returning to lead the Biden-era OCR, Lhamon again advised schools that they could be held accountable if their discipline data revealed concerning disparities.

But the backlash also continued, fueled by a COVID-driven spike in student misbehavior , which led to more classroom disruptions and stories of teachers feeling victimized by students.

Classroom discipline even became a talking point in the 2024 presidential campaign . The Republican platform pledged that candidates "will support overhauling standards on school discipline [and] advocate for immediate suspension of violent students."

In April 2025, after Trump's return to the White House, he made good on that pledge and signed an executive order titled "Reinstating Common Sense School Discipline Policies."

And finally, there's this month's guidance, signed by Kimberly Richey, the current head of OCR. In an interview with NPR, Richey says that, today, "classrooms are less safe, they are more disruptive, and that is all a fruit of this policy. And that's why we're ending it."

The new guidance

The latest guidance from the Trump administration 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."

Richey argues that the goal of OCR's previous approach was what she calls "racial balance": "To make sure that the number of African-American students [being disciplined], the number of Hispanic students, the number of white students, the number of Asian students — that it was equal across the board."

But, Richey says, this idea that any difference in discipline rates is a sign of discrimination — "that everything has to be equal and, if it's not, it's inherently discriminatory… That's false. "

In the new guidance, Richey doesn't just warn schools against this kind of balancing. She advises schools that weighing discipline policies with any consideration of race, even if it's in the name of identifying and addressing disparities, is itself discriminatory and illegal.

As the new guidance puts it: "The consideration of race in student discipline is race discrimination."

Civil rights groups, including EdTrust, which focuses on education equity, reject this view.

"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," EdTrust's Eric Duncan said in a statement . "That is not preferential treatment. It is basic accountability to ensure all students are valued."

And Lhamon argues that by telling schools they cannot consider race, disparities won't go away. They'll simply become invisible to everyone except the students who are being hurt.

She says this new guidance "is a scare tactic… designed to ensure that some of our kids in school will experience extraordinary harm."

Richey argues the opposite: This consideration of race isn't a tool of the law — it breaks the law.