Special Education

Catching Up on a Federal Rule Involving Bias in Special Education

By Christina A. Samuels — March 20, 2019 6 min read
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A federal district judge in Washington ruled this month that the U.S. Department of Education cannot delay implementation of a policy intended to draw closer attention to minority over-representation in special education under the Individuals with Disabilities Education Act.

This rule, known as Equity in IDEA, was slated to go into effect for 2018-19, before Secretary of Education Betsy DeVos put a two-year hold in place so that the regulation could be studied further. The judge’s March 6 decision to eliminate that hold now has states, districts, and schools wondering what comes next as federal education officials weigh their options. Here’s some background on policies in play.

Just what is “Equity in IDEA?”

The Equity in IDEA rule, finalized in December 2016, is meant to address what the Obama administration saw as widespread disparities in the treatment of minority students in special education. Under the rule, states must use a standardized approach to monitoring how their districts identify and serve minority students with disabilities. The administration’s rationale was that all states should use a similar yardstick when it comes to investigating if districts are identifying and punishing minority students at markedly higher rates than their peers—what the law calls “significant disproportionality.”

If a district is found to have significant disparities in how it identifies minority students for special education, disciplines minority special education students, or places them in classrooms separate from their general education peers, it must use 15 percent of its federal special education money to address those problems.

Were states already monitoring districts for this issue?

Yes. The IDEA has required such monitoring since 1997. But prior to the rule, the law left it up to each state to determine if a district had disparities that were broad enough to merit intervention. Only a small fraction of the nation’s school districts have ever been identified as having significant disproportionality. For the 2016-17 school year, the Education Week Research Center found that 457 districts were required to spend nearly $200 million to address disparities. That’s about 3 percent of the nation’s districts.

Is that small fraction of identified districts a problem?

The Obama administration thought so. Its argument was that more districts need to be thinking carefully about how minority students in special education are treated. The Government Accountability Office, a federal watchdog agency, had the same opinion. In 2013, it issued a report saying that because states were using so many different methodologies, significant disproportionality was likely going unaddressed.

Why did the Trump administration want to set the rule aside?

When President Trump took office in 2017, he directed all of his cabinet officials to look at sweeping away “unnecessary, outdated, and duplicative” regulations. This particular rule would have stood out because of its financial impact—if more districts end up being tagged as having significant disparities, then more districts would be required to use their federal special education funds to fix those problems. No one knows how many districts would be affected, but it’s almost certain that it would be more than 3 percent.

The argument DeVos put forward is that the rule might prompt districts to create quotas to avoid penalties. “The secretary is concerned that the regulations will create an environment where children in need of special education and related services do not receive those services because of the color of their skin,” the Education Department said when it announced the delay.

The Council of Parent Advocates and Attorneys, which supported the rule, promised to sue over the delay. The judge’s decision was a win for that group.

What was the basis of the judge’s decision?

U.S. District Court Judge Tanya Chutkan, in the District of Columbia, said that the Education Department violated the Administrative Procedure Act, which governs how federal agencies propose and implement regulations. The department failed to show a reasoned explanation for the delay and to consider the costs of the delay, the ruling said. For example, Chutkan said, the concerns about quotas had already been addressed when the rule was debated back in 2016, and DeVos was not able to show how the decisions made then were insufficient. Notably, the judge said, the department was prepared to let states go ahead and use the new rule if they wanted to; it was only delaying the rule’s mandatory use. That undercuts the department’s stated concern that the rule would prompt illegal quotas, she said.

What’s been the response from state and district special education leaders?

The National Association of State Directors of Special Education says “states have spent significant time and resources thus far in addressing disproportionality, and are committed to continuing this critical work. We believe equity should be a central tenet in all facets of IDEA, and will work closely with the U.S. Department of Education to assist in determining next steps or implementing any new initiatives on this matter.”

The Council of Administrators of Special Education, which represents district special education leaders, said that it stands ready to work with the Education Department. But it also took exception to the department’s argument about quotas.

“Nobody ever believed school-based teams acting in the best interests of children would be denying children special education services simply because too many children of color were already receiving these services. It goes against everything our organization believes to be true about how to support students with disabilities,” said the organization’s executive director, Luann Purcell.

What should school leaders be watching for next?

When the ruling came out earlier this month, Education Department spokeswoman Elizabeth Hill said it was being reviewed, and no additional information has been forthcoming.

But this is a position the department has been in before. The Education Department tried to delay another Obama-era rule intended to protect student loan borrowers who were defrauded by their colleges or universities. DeVos argued that the rule made it too easy for student borrowers to cancel their loans. But when a judge found that delaying that rule was also “arbitrary and capricious,” the department said it would defer to the court’s judgment. If the department were to take the same position in this case, the Equity in IDEA rule would go back into effect.

If the department were to challenge the judge’s decision, it would have to ask for a stay of that ruling. That would still leave the rule and its timelines in effect while a court studies the issue, said Selene Almazan, the legal director for the Council of Parent Advocates and Attorneys.

School leaders also will need to keep an eye on any new implementation guidelines; the rule envisioned a two-year, stakeholder-driven process before it went into effect in 2018-19. That school year is almost over, so would the new rule be expected to go into effect for the 2019-20 school year, just a handful of months away? The answer is not clear.

Also not clear is whether the Education Department might create rules of its own around this issue. It signaled that a new proposed rule might be coming in February, but its proposal hasn’t been seen yet.

A version of this article appeared in the March 20, 2019 edition of Education Week as What’s Next on a Rule Involving Bias in Special Education?

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