The Trump Admin. Is Reviving This School Choice Option You’ve Never Heard Of

When the Trump administration urged states to use a little-known provision in federal education law to boost school choice, the congressman who helped author the language 24 years ago had an immediate reaction.

“It’s about time,” said former Congressman Bob Schaffer.

In a May 7 letter, Acting Assistant Education Secretary Hayley B. Sanon urged states to ease their criteria for labeling schools as “persistently dangerous”— a designation that legally comes with an obligation to offer families an option to transfer to another public school.

“The number of persistently dangerous schools reported nationwide appears low particularly given the number of violent offenses in schools reported” in federal data, she wrote.

It’s a message that Schaffer, a Republican from Colorado, has been trying to get across since he championed including the provision in a bill that eventually became known as No Child Left Behind 24 years ago, he told Education Week.

Congress retained the measure, formally called the “unsafe school choice option,” when it replaced NCLB with the Every Student Succeeds Act in 2015. But the provision has rarely been used.

The issue: The law left it up to states to determine what counted as “persistently dangerous,” and the criteria states chose meant only a handful of schools ever qualifed.

That became clear shortly after No Child Left Behind first took effect. In 2003, 44 states plus the District of Columbia did not designate any schools as “persistently dangerous,” Education Week reported at the time. Among the remaining states, just 54 schools received the label.

Few schools are identified as ‘persistently dangerous’

That hasn’t changed much in the decades since, Sanon wrote in her recent memo to the states. In the 2023-24 school year, the Education Department counted just 25 persistently dangerous schools in five states, she wrote. Four schools got the label in 2022-23, and no schools were reported as persistently dangerous in 2021-22.

States, Sanon said, should revisit their criteria, looking beyond violent incidents on campus to include factors like whether or not schools have on-site law enforcement, whether students perceive “an intimidating or threatening environment,” or even whether they have “persistently poor academic performance.”

Sanon also urged states to consider a single year of data, rather than two or three, as is the case now in many states’ definitions and to inform families in affected schools of their transfer options.

“It appears to me the Education Department is pushing states to tighten those definitions so that ‘persistently dangerous’ actually approximates what a normal person would think is ‘persistently dangerous,’” said Schaffer, who now leads a charter school in Fort Collins, Colo.

The Trump administration’s push of one of the few school choice vehicles currently in federal law is part of a broader effort to promote policies that allow students to transfer more easily between public schools, or to use public funds to attend private alternatives.

Schaffer told Education Week that when he first advocated for the unsafe schools option, school choice was a more immediate goal than student safety.

It was 2001 and, after months of negotiating how to convert President George W. Bush’s campaign promises about education into federal policy, Schaffer had grown frustrated that provisions related to school choice—including a plan to let students use public funds to attend private schools—had been repeatedly discarded in the name of compromise.

Between the election and Bush’s inauguration, Schaffer assembled with a bicameral, bipartisan gang of education-focused legislators to hash out the details of the law, an effort that may seem unthinkable in today’s political climate. Participants included Rep. John Boehner, a Republican, and former Sen. Ted Kennedy, a Democrat, both of whom went on to chair education committee in their respective chambers. As the group hashed out the details and later pitched them to congressional colleagues, provisions related to testing and accountability were clearly more popular than mandates related to vouchers or public school choice.

“I threw up my hands and said, ‘What would it take for you to give families some choice in this bill?’” Schaffer said, recalling a tense moment in a Republican caucus meeting. “I remember saying, ‘Would they have to live in a war zone before you would say they should be able to move to a better school?!’ And then I thought, Well, OK, let’s go with that then.”

Definitions of danger vary widely among states

Those 2001 negotiations took place two years after the deadly attack at Columbine High School in Littleton, Colo., and parents’ concerns about gang violence were also notably high. Lawmakers may have not agreed on the hot-button issue of choice, but they could coalesce around safety, Schaffer said.

So they agreed on language about unsafe schools, echoing an idea Bush had introduced in an earlier stump speech. Schools must allow students to transfer if their campus is deemed persistently dangerous or if they are the victim of a violent offense at school.

The catch: There would be no federal definition of “persistently dangerous.” States would set their own criteria. But assigning such a stigmatizing label proved politically and practically difficult.

A 2007 Education Department inspector general’s report detected wide discrepancies in how the law was applied, Education Week reported at the time.

“In Ohio, for example, at least 2 percent of the student enrollment at a school would have to be victims of a violent crime in each year for two consecutive years before the school would be labeled unsafe, according to the federal report,” the story said. “Under the state’s policy, the inspector general’s office concludes, a school with 1,000 students ‘could experience four homicides and seize a weapon from students on 10 occasions each year without qualifying as persistently dangerous.’”

The resulting inconsistencies meant the handful of schools identified in a given year were often clustered in large cities in states with less stringent criteria.

“I told my principals, there’s only two ways to get off the persistently dangerous schools list,” Paul G. Vallas, who headed the Philadelphia district, told Education Week in 2003. “One is to continue to crack down on bad behavior and continue to be aggressive [in combating school violence]. The only other solution is to move the school district to New York state or California.”

That year, 27 Philadelphia schools were deemed persistently dangerous, half of the nationwide total.

That trend contributed to harmful stereotypes about urban schools, said some critics, who also argued that states did not make adequate efforts to help affected schools improve their safety records.

Some school safety experts said the unsafe schools measure was counterproductive. Administrators may be less likely to report violent incidents if they fear sanctions, they argued. And, if states included data on suspensions and expulsions in their definition, it could have a chilling effect on school discipline.

Today, safety experts also stress that the nation’s schools as a whole are relatively safe—and a safer place for many students than the world outside of them.

The amount of in-school criminal incidents targeting students ages 12-18 decreased from 52 per 1,000 students in 2012 to 22 per 1,000 students in 2022, according to the most recent federal data. Student reports of bullying and physical fights on school property also decreased in that time.

Dusting off a little-known label

Despite those concerns, the Trump administration is trying to reinvigorate the persistently dangerous label and urge leaders to use it more expansively. States should even consider setting a percentile threshold to designate 5, 10, or 15% of their schools as persistently dangerous every year after reviewing data like 911 calls and discipline reports, Sanon’s letter said.

She highlighted Arkansas, which had 15 of the 25 persistently dangerous schools identified nationwide during the 2023-24 school year. The state developed new criteria in 2019 that require schools to document reports of violent criminal offenses during school hours or at school-related events, even if no one is charged with a crime as a result.

The option to transfer out of a persistently dangerous school may be somewhat moot in Arkansas and a growing number of states that have adopted permissive policies allowing families to more easily transfer to schools outside of their residential district or to use tax-credit scholarships to attend private schools. And a transfer may not be practical for students in more isolated rural schools.

Still, Schaffer is glad to see the newfound attention to the language he championed decades ago.

In a twist, Schaffer ultimately voted against the NCLB bill, even though he had a hand in writing it. After months of political sausage making, the final text created too much red tape for states, he said.

After Schaffer left Congress in 2003, he worked as a school choice advocate in Colorado and later joined the state’s board of education. But how states—including his own—applied the unsafe schools option remained stuck in his craw.

Months after he left Congress, he testified at a Denver field hearing for a U.S. House subcommittee that his daughters’ own Fort Collins high school would only be labeled persistently dangerous if it documented 540 incidents of violent felonies or possession of drugs or alcohol over a two-year span.

Refusing to deem schools unsafe and give parents options was the “moral equivalent of locking innocent children in a burning building,” he said then.

Today, he echoes those sentiments.

“On a practical basis, this [policy] is not providing relief to anybody,” Schaffer said.