This week, the U.S. Department of Education released a proposal that it believes will provide a clearer picture of whether school districts are overenrolling minority students in special education.
Equity in education has been a top priority for the Obama administration, and acting U.S. Secretary of Education John B. King Jr. helped unveil the proposal a week ago.
“The data we’ve seen makes it very clear that we, as a country, are not living up to the intent of the law,” said King. The Obama Administration’s My Brother’s Keeper initiative has identified equity for students with disabilities as a key priority.
The proposal involves tightening up policies on how states can calculate what’s known as “disproportionality,” while loosening up some current restrictions on just how to address the problem. But it’ll come to no surprise to anyone who follows special education that the topic is complicated, so I’ll help you cut through the fog.
OK, so just what is ‘disproportionality’?
Are minorities or English-language learners being inappropriately identified for special education services, suspended or expelled more than other students with disabilities, or shifted inappropriately into settings other than general education classrooms, such as alternative schools or “resource rooms?” If so, those are examples of disproportionality.
When did disproportionality become a part of special education law?
The 1997 reauthorization of the Individuals with Disabilities Education Act first touched on the subject, giving states the authority to look into the problem and ask districts to adjust policies if necessary. But it was the 2004 reauthorization of the law—which is still in place—that gave this provision more teeth.
What did the 2004 IDEA reauthorization do to address disproportionality?
Congress was clearly concerned about what it still saw as too many minorities in special education. So, it changed the law to say that if states found that some of their districts had “significant disproportionality,” those districts would be required to spend 15 percent of their federal special education money on “coordinated, early intervening services.”
Under current regulations, that money is not to be used for students already identified as having disabilities, which seems illogical. But current guidance to the states says that the money is for students “who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.” The money can be spent at any grade, but the Education Department wants states to focus on kindergarten through 3rd grades.
Districts found to have overrepresentation that does not rise to the level of “significant” are also allowed to use part of their federal special education money for early-intervention services. They don’t have to, though.
Who determines what significant disproportionality is, and how?
States make that determination. To understand how they figure it out is, well, “math-y.”
Wait, no one told me there would be math!
I’m sorry. I’ll try to keep this simple, and I’ll borrow heavily from the Education Department’s own examples to help.
Okay, let’s go.
Currently, about half of all states use what’s called a “standard” risk ratio to figure out if minority students or English-language learners are overrepresented in certain areas.
The department offers this example: If a district serves 100 black children, and 15 of them are in special education, a black student’s likelihood, or “risk,” of being identified as a student with a disability is 15 percent. (This same type of calculation could be used for discipline, or for placement in restrictive settings.)
To come up with a risk ratio, you divide the risk to the black students by the risk that a nonblack student in a district has of being identified as a student with a disability.
A risk ratio of 1.0, for example, means that there’s no overidentification in this district. A risk factor of 2.0 would show that black students are twice as likely as nonblack students to be enrolled in special education.
So how might this work in a school district?
This example also comes from the Education Department. Let’s imagine the Appletree district, which serves 5,000 children, 1,000 of whom are African-American. In Appletree, 450 students are in special education, and 150 of those students are black.
Under this example, the risk of any black student in Appletree being enrolled in special education is 15 percent. That’s 150 black children with disabilities divided by 1,000 black children in the district.
By contrast, the risk of any nonblack student in Appletree being enrolled in special education is 7.5 percent. That figure comes from dividing 300 nonblack students with disabilities by 4,000 nonblack students in the district.
So, in this case, the risk ratio to black students for special education identification in Appletree is 2.0. That ratio comes from dividing the 15 percent risk to black students by the 7.5 percent risk for nonblack students.
I know. And that’s just a start. It gets more complex in districts that have more than just black and white students, of course. And then there are “weighted” risk ratios. About 25 states use that method, which is intended to adjust for differences in district-level demographics by incorporating some state demographics to help standardize the calculation.
But rather than going too deep into the weeds on that one, I’ll direct you back to the Education Department’s recent proposed rule. That document offers several examples of exactly how states are currently developing risk ratios. Many states, for example, require a district to have some minimum number of minorities before it is even evaluated for overrepresentation. States may also look at multiple years of data in making their evaluations.
So how many districts have been found to have significant disproportionality?
Not many. And that’s a problem, at least from the perspective of the Education Department. Back in 2013, a report from the Government Accountability Office found that only about 2 percent of the nation’s school districts were flagged for having an overrepresentation of minorities in special education. In the 2010-11 school year, the report said, 356 of about 13,000 school districts nationwide were required to provide extra services to students because of overidentification. Half of those districts were clustered in five states; 73 districts were in Louisiana alone.
The Education Department provided slightly more up-to-date numbers in the background information that accompanied the proposed rule. During the 2012-13 school year, about 3 percent of the nation’s school districts were flagged for overrepresentation, it says. About three-quarters of those districts were in just seven states (with Louisiana still in the lead).
Right. No matter how states were choosing to calculate risk ratios, it just so happened that very few districts met the “significant disproportionality” threshold. The GAO report concluded that if the Education Department really wants more districts to use federal money for early intervention, it needs to come up with some standard calculation that all states would have to use—and that would pull in more districts.
So is that what’s this new rule about?
Yes. The department says that it has collected information from other sources, such as the data collection overseen by its office for civil rights, and that data shows widespread racial disparities in identification, placement and discipline. The proposed rule sets out some standard methods that would exclude fewer districts from evaluation. But the states would still be allowed some flexibility. Again, the proposed rule goes into the excruciating detail.
The new rule would also allow the 15 percent set-aside to be used for special education students as well as general education students. And, it could be used for children as young as age 3.
Even though the calculation would be standardized states, still retain the authority to determine just what risk ratio is significant. That threshold has to be “reasonable,” however, and the department says states will be subject to monitoring and potentially enforcement actions.
The Education Department has released an analysis that offers a big hint about what it thinks would be reasonable risk ratios. For example, identifying minority students with emotional disturbance at three times the rate of nonminority students over three years would the disproportionality threshold. States don’t have to use the Education Department’s examples, but if all of them chose to do so, about 8,100 school districts—close to half of the nation’s districts—would have significant disproportionality in at least one monitored area.
How much will all this cost?
It’s not free. The department estimates that the total cost of the new regulations over 10 years would be between $48 million and $87 million. Over that time period, the department also estimates that between $300 million and $553 million in federal dollars would be transferred to early-intervention programs that would be used for students both with and without disabilities.
What’s been the response?
Quiet so far. Back in 2014, the Education Department asked for comments about creating a standard rule. Largely, advocacy organizations thought it was a great idea, and states weren’t thrilled by the prospect, saying that they’re all so different from one another that a standard approach can’t work. However, there have been no public comments from the states yet on the new proposal from the Education Department.
Advocacy groups, such as the Council for Parent Attorneys and Advocates, wasted no time in applauding the move. All too often, COPAA said, “special education designation has been used to reduce expectations, place students in separate classrooms, and suspend and expel minority students freely.” The proposal would help fix those problems, the group believes.
Could minority underrepresentation be a problem in special education, too?
That’s a very interesting question. You’ll note that all of this assumes that everyone agrees that largely, there are too many minority children in special education. There’s a large body of research that demonstrates that black children, in particular, have twice or sometimes three times the risk of being enrolled in special education compared to their nonblack peers. In 2002, the National Research Council delved deeply into this issue, eventually producing a book called Minority Students in Special and Gifted Education. I am linking to the executive summary, but the entire 484-page report can be accessed through that link.
However, in 2015 new research suggested that when it comes to identifying children for special education, the real problem for minority students is underrepresentation. In other words, this research shows that it’s less likely for minority students to be identified for special education services compared to their white peers, after controlling for factors that might be related to academics or behavior, such as low birthweight and household income. Just looking at numbers and calculating ratios without controlling for other factors leads to the wrong conclusion, the paper asserted.
The study challenged decades of work in special education, and drew fire from others who have studied minority overrepresentation. They say that the researchers overstated their conclusions—while underrepresentation could be a problem in some situations, overrepresentation is more prevalent, particularly in areas relating to suspensions, expulsions, and removal from the general education classroom. In its proposed rule, the Education Department says it wants to hear from the public on strategies to prevent underidentification.
So what’s next?
Commenters have until May 16. The department will incorporate those responses into a final rule, to be published at a later date.
A version of this news article first appeared in the On Special Education blog.