Special Education

Education Department Can’t Delay Special Education Bias Rule, Judge Says

By Christina A. Samuels — March 07, 2019 3 min read
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The U.S. Department of Education made an “arbitrary and capricious” decision when it decided last year to delay an Obama-era rule that would closely examine how minority students are identified and served in special education, a federal judge in Washington ruled Thursday.

U.S. District Court Judge Tanya Chutkan’s decision vacates the Education Department’s delaying action because it violates the Administrative Procedure Act, which governs how federal agencies propose and implement regulations.

The decision is a win for the the Council for Parent Advocates and Attorneys, which sued the Education Department after it announced the delay. COPAA said that putting the rules on hold would cut down on the number of districts that would be required to review their policies, practices, and procedures around special education identification and services for minority students.

“Today is a victory for children, especially children of color and others who are at risk for being inappropriately identified for special education,” said COPAA’s executive director, Denise Marshall, in a statement.

Education Department spokeswoman Elizabeth Hill said the department is reviewing the ruling.

The Individuals with Disabilities in Education Act requires states to monitor how districts identify minority students for special education, discipline them, or place them in restrictive settings. Districts found to have “significant disproportionality” in one or more of these areas must set aside 15 percent of their federal special education funding to spend on remedies.

The law said that states are in charge of determining how significant a problem must be before it merits the set-aside. And, just a fraction of the nation’s school districts have ever been identified as having problems severe enough to require a federal set-aside.

The Obama administration aimed to change that. Implemented in the last weeks of Obama’s second term, it would have created a more consistent, standardized evaluation process. As a result, more school districts around the country were expected to have to use part of their federal funds on remedying “significant disproportionality.”

But Education Secretary Betsy DeVos argued that the rules would create quotas. When her department announced the delay last June, it said that “we are concerned the 2016 significant disproportionality regulations could result in de facto quotas, which in turn could result in a denial of services based on a child’s ethnic or racial status/group. 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.”

In her ruling, Chutkan said the regulation was written with safeguards against quotas in mind, and that the Education Department did not show how those safeguards were insufficient.

This is a second reversal for the Education Department on a policy connected to students with disabilities. In 2018, the Education Department’s office for civil rights started closing hundreds of disability-related complaints, following new guidelines that said such cases will be dismissed when they represent a pattern of complaints against multiple recipients.The office enforces laws such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit public entities from discriminating against individuals based on disability. It also enforces Title IX, which prohibits discrimination based on sex, and other laws that prohibit discrimination based on age, race, color, or national origin.

But in November, the department changed that policy to get rid of the “pattern of complaints” guidelines. It also committed to conducting investigations of complaints that were previously dismissed under the policy change.

A version of this news article first appeared in the On Special Education blog.