Are too many minority students being placed into special education who don’t need to be there? And, once enrolled, are they kept in isolated classrooms or punished more severely than their peers?
For 423 school districts in the 2015-16 school year—the most recent year for which complete federal statistics are available—the answer was yes.
That’s about 3 percent of the nation’s 14,500 or so school systems. More than 20 states documented no disproportionality in their districts that year, according to an analysis by the Education Week Research Center.
So are states underestimating the problem? Are they even using the best methods to measure the status of these students?
Those questions are at the heart of a policy debate that is pitting the actions of a formerly hands-on U.S. Department of Education under the Obama administration against new leadership, under President Donald Trump, that says it wants to get out of states’ business.
Which view prevails has real financial implications for many of the nation’s school districts, though the complexity of the issue has kept it under the radar except for those steeped in special education rules and finance.
How We Got Here
The background: In its waning days,that would require states to take 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.”
That marked a change in practice that had been in use since 1997. When the Individuals with Disabilities Education Act was reauthorized that year, it said states should monitor these issues, but left it up to them to figure out how.
There’s money involved, too. When the IDEA was last revisited by Congress, lawmakers said that districts with problems must also set aside 15 percent of their federal special education money on remedies. For the 423 districts identified in 2015-16, that amounted to more than $211 million.
Minorities in Special Education: Which Districts Are Out of Line?
States have been required to monitor their districts for racial and ethnic disparities in special education since 1997, but few districts nationwide have been identified as having a problem. Here’s a look at which districts identified themselves in the 2015-16 school year, which offers the most recent federal data.
No one knows yet how many of the nation’s districts might be identified for disproportionality under the standardized monitoring process. Though the rule was finalized in December 2016, it doesn’t go into effect until the 2018-19 school year. But it’s almost certain that the number of districts flagged would be more than 3 percent. (Anbased on a draft of the rule estimated that around half of U.S. school systems could be identified as having significant disproportionality. When the final rule was published, the department said that analysis was no longer valid.)
The Trump administration, on the other hand, has declared that it doesn’t want the federal government dictating policy to states. In December, the Education Department published a notice saying that one of its regulatory priorities would be rolling back implementation of the new rule for at least two years.
It’s not just the Trump administration that may not like this rule. Back when it was still under debate, Senate Republicans were casting it as an example of departmental overreach. “Congress was clear that such decisions are best left to the states, whose differences in population size and composition did not support a one-size-fits-all approach,” lawmakers said a 2016 letter signed by the Republican members of the Senate education committee.
If the rule is put on hold or retracted entirely, states would be left generally to their own devices when it comes to monitoring their districts, as has been the case since the late 1990s. That would likely mean a continuation of a trend where some districts have to divert a portion of their federal dollars to address an identified issue, while similar districts in other states would escape that fate because they are being evaluated under different rules.
Different States, Different Results
Sometimes those differences across state lines can be stark, the Education Week analysis found.
States are supposed to look at a handful of concerns: whether minority students are wrongly placed in special education, if they end up in certain disability categories out of proportion to their peers; and if they are placed in restrictive settings, suspended, or expelled out of proportion to their peers. Districts can be identified in more than one area.
Of the 423 districts identified with disproportionality in 2015-16, 78 were in just one state: New York. However, that represents only about 11 percent of the Empire State’s school systems. Rhode Island had the highest concentration of identified districts—32 out of 61, or nearly 53 percent.
Discipline was flagged in more than half of districts across the country that were identified as having disproportionality—233 of the 423 school systems identified had problems in that area.
Sixty-eight districts were identified as having disproportionality in whether students were placed in special education. Separately, 186 districts were identified as having significant disproportionality in placing students in certain categories, such as emotional/behavioral disturbance.
Only 33 districts were found to have placed minority students in restrictive settings out of proportion to their peers.
The small percentage of districts identified for disproportionality in 2015-16 is not unusual. Thefive years ago. Using 2011 data, it found that about 2 percent of school districts were identified as having disproportionality in one or more areas, and five states accounted for half the districts identified. In 2015-16, five states—California, Georgia, Louisiana, New York, and Rhode Island—had 60 percent of the identified districts. Then, as now, school districts in the Midwest and Mountain West were generally not identified by their states as having issues.
New Set-Aside Allowances
The new rule put out by the Obama administration came with other changes. Before the rule was finalized, the 15 percent set-aside could not be used for programs aimed directly at special education students. The point was to address problems in the general education system before they resulted in a misidentification or harsh punishment.
However, the new rule will allow a portion of the set-aside to be spent on programs that benefit students with disabilities.
That was great news for the 147,000-student Charlotte-Mecklenburg district in North Carolina, said Ann Stalnaker, the district’s special education director. The school system has been identified as having disproportionality in the way it disciplines minority students with disabilities, as well as its placement in restrictive settings of African-American students with emotional disturbances. But it could not spend any of its 15 percent set-aside directly on those identified problems. Instead, the money went to behavioral support programs, graduation coaches, and other initiatives intended to help the entire student body.
In a district so large, the money can only fund a portion of those districtwide initiatives. However, the set-aside—about $4 million—is enough to be a noticeable chunk out of the district’s funds for special education, Stalnaker said.
“It’s not a bad thing that we’re looking at issues of equity, we need to be mindful of this,” Stalnaker said. But “it sure would be nice for us to spend some of that money on children with disabilities.”
States Figuring Out Next Steps
In the meantime, states and districts are moving forward with their planning.
Rhode Island has convened public hearings, experimented with different formulas allowed under the new process, and is ready to move forward, said J. David Sienko, the state director of special education. Unlike many other states, it anticipates that it will have fewer districts identified moving forward.
His state has seen the monitoring process as an “exciting opportunity.”
“We’re having conversations across the aisle with our general ed. partners in ways that we never had before. It forced people to look at their practices—are we providing enough intervention; is special ed. the only intervention this child needs?” Sienko said. “I don’t think it was time poorly spent.”
In contrast, Nebraska is a state that would see a major increase in the number of districts flagged for disproportionality the new rule. In the 2015-16 school year, one district was identified. Currently, the state is projecting that around 80 of its 245 districts might be found to have significant areas of concern, generally in discipline, said Steven Milliken, the state’s director of special education.
Nevertheless, the rule “has given us some information about districts that need good quality staff development,” Milliken said, and he thinks that it is worth keeping.
“The department has been flexible in letting states develop their interpretation of their new guidelines. They were saying we’ll look at each state individually, and I think that’s what made it good.”
A version of this article appeared in the February 07, 2018 edition of Education Week as How to Measure Bias in Spec. Ed. Crux of Fight Over Federal Rule