By Paul Sperry, RealClearInvestigations

For fear of being labeled racist, Education Secretary Betsy DeVos stopped short of linking the Parkland, Fla., school massacre to lenient Obama-era discipline policies aimed at reducing suspensions and arrests of minority students, say staffers and others involved in an investigation of school safety led by her.

Education Department officials, as well as investigation witnesses, said DeVos and co-commissioner Jeff Sessions, then the U.S. attorney general, thought it would be politically radioactive to single out the race-based policies for blame in the tragedy, despite the evidence, so they excluded it entirely from the final report.

The Federal Commission on School Safety did recommend rescinding the Obama-era discipline guidelines in its report issued late last month – and has suffered an angry backlash from civil rights groups, Democrats and others who accused the administration of being insensitive to black children.

But its failure to make the connection to Parkland has also upset some parents of the shooting victims, who partly blame lenient discipline policies for the bloodbath that killed 17 students and school staff almost one year ago, Feb. 14.

“It's appalling,” said one parent, who spoke on condition of anonymity. “The depth of their cowardice and incompetence is astonishing,” said a source who worked with Parkland parents and the commission and also requested anonymity.

Nikolas Cruz in court this month. Top, school-safety commissioners Betsy DeVos and Jeff Sessions, center, flanked by Secretary of Health and Human Services Alex Azar, left, and Secretary of Homeland Security Kirstjen Nielsen, also commission members.

Such critics believe the shooting might not have occurred but for a controversial arrest-diversion program that allowed repeat offender and confessed gunman Nikolas Cruz to avoid a criminal record, which authorities say would have stopped him from purchasing the murder weapon.

Pioneered by the Broward County school system, the leniency program was part of a nationwide push by the Obama administration to end what it called “racial disparities” in suspensions and arrests between minority and white students at public schools. Though Cruz is white, he still benefited from the program, which swaps cops for counseling for law-breaking students of all races.

The Federal Commission on School Safety was established by President Trump last March with DeVos as its helm. After some 10 months of hearings and investigation, the final report's chapter on school discipline does not mention the Parkland shooting at all. Nor does it cite Cruz or the alternative discipline program he was assigned to by Broward administrators, despite committing multiple offenses every year throughout middle and high school, generating more than 70 incident reports. Critics say this omission is as puzzling as it was deliberate.

Not in Safety Panel Report: Accounts of U.S. School Thuggery

Not in Safety Panel Report: Parkland Parents' Anguish



Aided by expert witnesses, parents provided the panel with testimony and documentary evidence detailing how the shooting sprang from Broward’s so-called PROMISE program, which cut delinquents like Cruz slack for a host of crimes committed on campus. Administrators never referred Cruz to law enforcement or expelled him, even after he made threats against the school and brought live ammunition to class.

Parkland parents note that the federal panel did not recommend prohibiting the use of such programs. Not linking the policy to the indelible shooting makes it easier for school authorities to continue the PROMISE program, which the parents consider dangerous.

Anthony Borges, right, and his father, Roger, left, with grandfather Alfredo at a news conference in Plantation, Fla., Anthony Borges sustained five bullet wounds after he used his body to block a classroom door during the Parkland massacre.

Lawyers of families suing the school district and county sheriff’s office for negligence say they had hoped for an acknowledgement of government culpability. "It would strengthen the case” against the government agencies, said Alex Arreaza, attorney for survivor Anthony Borges, a Marjory Stoneman Douglas High School student who was shot five times during the massacre.

"As a lawyer, I don’t find it difficult to make the causal connection” -- between the shooting and the policy – “but I can see that there was politics involved” in not making the connection, Arreaza said.

Referring to the federal commission, he added, "They didn’t want to rock the boat more than it has already been rocked.”

PROMISE (for Preventing Recidivism through Opportunities, Mentoring, Interventions, Supports & Education) was held up by the Obama administration as a model for its “Supportive School Discipline Initiative,” first launched in 2011. In 2014, the departments of education and justice issued to the nation’s 13,600 public school districts national standards discouraging suspensions and school-related arrests, except as a "last resort." Districts that did not adopt the new guidelines were threatened with bias investigations and reduced funding if their discipline standards, even if neutrally written and applied, produced significant racial disparities. Over the next few years, the government investigated dozens of districts across the country.

Supporters of the Obama directive say it has been instrumental in protecting the civil rights of minority students disproportionately suspended or arrested and removed from school. In issuing the rule, the Obama administration cited Education Department data showing that black students were suspended at three times the rate of their white peers. It argued that such punishments were denying black kids valuable classroom time and contributing to the academic “achievement gap” and, they claimed, a “school-to-prison pipeline.” Obama hoped reducing suspensions and arrests would give such disadvantaged youth a better shot at success by increasing attendance and test scores.

Even as evidence grew that the new policies were eroding classroom safety across the country, fears of being labeled racist led to a year-long delay in scrapping the Obama directive, Education Department officials told RCI. In fact, the White House had to step in and nudge the agencies to finally make the move.

At one meeting last year, according to two Education Department staffers, DeVos and her top aides fretted that they couldn’t tie Parkland to the policy, or even rescind the policy, without being "labeled racists in the media.” Sessions, who served on the commission with DeVos, also grew fearful of being tarred by the media and developed “cold feet” as the commission neared its decision, according to people who spoke with him at meetings, adding that he did not want the scrapping of the minority-friendly policy to be part of his “legacy.”

However, a former senior Justice Department official said that Sessions wanted to rescind the policy all along. “We wanted that guidance rescinded long ago, a year ago -- more than a year -- but we kept getting pushback from DOE.” The official said DeVos’s office kept breaking deadlines for rescinding the guidance and making “excuses” for it. Sessions had to wait on the Education Department and could not act to rescind the policy unilaterally, because the Obama guidance letter had been issued jointly by Education and Justice.

"The problem was 100 percent the Department of Education,” insisted the Justice official, who spoke on condition of anonymity. Also, the source asserted that Sessions’s office had made the connection between the Obama policy and the Parkland shooting "right away,” and presented evidence to the commission that the policy was partly to blame for the tragedy. The source said that Sessions had not seen the chapter of the report on discipline policy, which failed to make the connection between the Obama guidance and Parkland, before he resigned.

Trump’s domestic policy advisers were sympathetic to their fears, but advised that the alternative was continuing to promulgate policies that endangered students.

A compromise was struck to wait to rescind the Obama-era policy until after the midterm elections, when political temperatures had dropped, and after Sessions’ planned Nov. 7 resignation. The agencies finally revoked the policy on Dec. 21, when Congress was in recess and much of the country was observing the holidays.

Candice Jackson: Briefed DeVos on Obama discipline directive.

Like Sessions, DeVos had been dogged by accusations of racism since first taking office, and staffers say she didn’t want to attract any more fire from racial activists than she had to in withdrawing the Obama-era directive.

A DeVos spokeswoman did not respond to requests for comment.

Staffers say the education chief was always open to repealing the Obama discipline directive, though she wasn’t versed in the issues until she was briefed via a long memo by DOE civil rights lawyers led by Candice Jackson, then-acting head of the department’s Office for Civil Rights. DeVos was especially concerned that racial quotas were being used to pressure schools to "get their numbers right" on suspensions, expulsions and arrests.

Then she encountered backlash from civil rights activists along with a raft of bad press. Critics first hammered her for remarks she made in February 2017 about historically black colleges being “pioneers of school choice,” and staffers say she became sensitive to charges of racism from that point forward.

In August 2017, in a contrite interview with the Associated Press in her office, she acknowledged racial insensitivity in some of her comments. She also said she hadn’t decried racism enough.

In January 2018, after intense internal debate and several rounds of staff-level discussions, her office agreed to move ahead with rescinding the Obama rule, the department sources said. An agreement was reached among Jackson, Steve Menashi, then-acting DOE general counsel, and John Gore, then-acting head of the Justice Department’s Civil Rights Division. (Justice had to sign off because the guidance had been issued jointly by that department and education in January 2014.)

After Cruz opened fire on the Parkland campus the next month, Trump assigned DeVos to lead a school safety commission to consider, among other things, “the repeal of the Obama administration’s ‘Rethink School Discipline’ policies.” Plans were made to announce the final decision to scrap the policies later that summer, after a DeVos “summit” on school discipline, which took place in April.

Protest of confirmation of Betsy DeVos as Secretary of Education in 2017.

But the announcement was postponed because, as DeVos’ chief of staff told department lawyers, who recounted the delay for RCI, she was not ready to rescind it. Politically, the timing was terrible. DeVos was reeling from a tough interview she did in March with "60 Minutes," during which, aides said, she did not answer effectively correspondent Lesley Stahl’s suggestion that “disproportion in discipline” was due to “institutional racism.”

Shortly after her interview, 145 civil rights and liberal organizations signed a letter to DeVos demanding she back off efforts to repeal the rule, arguing it was “a critical tool” for protecting African-American students from discrimination, and implying that any attempts to scrap it were racist.

At that point, department sources said, it also became a major struggle for lawyers and other advocates within the department to shepherd through what they say was the obvious conclusion that the Parkland shooting grew out of the permissive discipline policies that were still in effect. Suddenly, they said, “timidity” set in among commissioners about even recommending rescinding the policy.

Some department attorneys also argued for issuing a separate guidance discontinuing the former administration’s use of a disputed racial theory known as “disparate impact" – which holds that seemingly race-neutral policies are forms of discrimination if they disproportionately impact minorities.

Sources say the department was sensitive to arguments from civil rights groups, who see disparate impact as a critical tool for identifying implicit bias. In the end, the education and justice departments decided to leave disparate impact in place, where it remains a potential cudgel over schools.

This concession did not protect DeVos and other commissioners from criticism.

“The irony is, by doing it in the way they did, they invited the worst-case [scenario] in terms of media reaction, because all the stories have been ‘Trump distracts from gun control by rescinding protections for black kids without even trying to pretend like it was connected to the shooting,’ ” said a policy expert who worked with the commission.

The policy expert said that the commission “knowingly and willfully refused to pursue key facts” linking discipline policies to the shooting.

Sen. Patty Murray: Charges the commission used “the guise of school safety to rescind guidance aimed at stopping racism.”

Indeed, supporters of the Obama-era policies have pointed to the school safety commission’s refusal to link them to Parkland as proof that those who had done so – including the parents of victims – were simply trying to change the subject from the need for more gun control.

“On how the Obama-era discipline guidelines might have led to the Parkland shooting, the draft report was silent,” the New York Times noted. The paper quoted a civil rights lawyer concluding, “Safety is a red herring intended to raise fears about our own children.”

Others have suggested the administration just wants to let racist schools get away with targeting black kids for punishment. The Washington Post asserted “the guidance … had absolutely no connection to school shootings,” and suggested that by removing it, the Trump administration was merely “punishing black schoolchildren."

Sen. Patty Murray, the top Democrat on the Senate committee overseeing education, claimed that DeVos was using “the guise of school safety to rescind guidance aimed at stopping racism.”

The four-member commission held a series of meetings, field visits and listening sessions around the country that began in March and ran through August of last year.

In panel discussions and written testimony, witnesses offered countless examples of unsuspended students bullying and assaulting other classmates and teachers. They explained in private briefings that the Obama guidance left schools afraid to punish violent students like Cruz.



Sen. Marco Rubio (R-Fla.) also provided testimony to the commission blaming the Obama policies for allowing bad behavior to fester and creating an environment for violent acts by students like Cruz. In a letter to DeVos and Sessions, Rubio last year stated, “[F]ailure to report troubled students like Cruz to law enforcement can have dangerous repercussions. The 2014 directive lacked such common sense."