Special Education

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

By Christina A. Samuels — March 12, 2019 4 min read

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 change the way states monitor how minority students are identified and served in special education, a federal judge in Washington has ruled.

U.S. District Court Judge Tanya Chutkan’s decision March 7 vacated the Education Department’s delaying action because, she ruled, it is in violation of the Administrative Procedure Act. That statute governs how federal agencies propose and implement regulations.

The decision is a win for the Council for Parent Advocates and Attorneys, which sued the Education Department after it announced the delay last June. 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 “Equity in IDEA” rules that are at the center of this decision are complex. The political moves around them are complicated, as well.

Federal Requirements

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 says 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 December 2016, in the last weeks of President Barack Obama’s second term, the rule 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.

When the department, under Secretary of Education Betsy DeVos, announced the delay, 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.”

Another Reversal

In her ruling last week, however, the judge said that the Education Department already thoroughly examined the concerns around quotas back in 2016, when it put the rule in place. The department can’t just decide to reject those conclusions two years later, she indicated in her decision.

“The government did not explain why it had changed its position that the 2016 safeguards would be effective. Instead, it concluded that the 2016 regulations could incentivize the use of quotas—a conclusion that was contrary to and inconsistent with its prior determination,” the ruling stated.

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 would 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.

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

Clashes With Advocates

Many special education advocates have been highly critical of DeVos, starting from her confirmation hearing when she faced pointed questioning about the IDEA and seemed at first to suggest that states could follow the federal law at their discretion. (The IDEA is not discretionary law.)

In 2017, as a part of an administration-wide effort to sweep away “outdated, unnecessary or ineffective regulations,” the Education Department identified dozens of pieces of guidance that should be eliminated. Most of the documents were simply old and had expired, but the reaction in some corners was furious.

The Education Department responded to that by releasing an explanation of just why those particular documents were targeted for elimination.

A version of this article appeared in the March 13, 2019 edition of Education Week as Feds Can’t Delay Special Education Bias Rule, Judge Says

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