Special Education

Special Education Bias Rule Put on Hold for Two Years by DeVos Team

By Christina A. Samuels — June 29, 2018 3 min read
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The U.S. Department of Education is delaying, by two years, implementation of a rule that would require states to take a closer look at how school districts identify and serve minority students with disabilities.

The “Equity in IDEA” rule, issued by the Obama administration in December 2016, would have gone into effect for the 2018-19 school year. It created a new process for states to follow when they monitor how districts identify minority students for special education, discipline them, or place them in restrictive classroom settings.

The Individuals with Disabilities in Education Act requires this monitoring. 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.

States have always been 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 federal dollars to remedy. (About 3 percent of districts were identified in the 2015-16 school year.)

The rule, now postponed under a June 29 announcement, aimed to create a consistent evaluation process. As a result, more school districts around the country were expected to have to use part of their federal funds on remedying issues of what the law calls “significant disproportionality.” Under the new announcement, states will continue to use their own methods of evaluating these issues.

DeVos Signals Worry Over Quotas

The publication of the final rule delaying the compliance date is just one of several education initiatives or policies that were enacted under the Obama administration but rolled back by his successor. The Education Department has signaled for months that it was considering this action, and also sought public comment on a proposed delay.

Nearly 400 comments came in, many of which wanted to keep the rule in place. Many said that the problem of minority overrepresentation in special education has been ignored for too long, and the new rule was a way to address it. Others said that states had readied themselves for changes. Tony Evers, the Wisconsin state schools chief, said the state had already prepared for the rule and was ready to move forward. A delay " is sending the wrong message about the value of identifying and addressing the problems we find,” he wrote.

But many who supported the delay said that if special education classes have a lot of minority students, that in itself is not evidence of discrimination. And the new rules might create a system where districts keep students out of special education just to avoid financial penalties—an argument that appeared to have sway with Education Secretary Betsy DeVos. In its notice, the department said:

It would be wrong and inconsistent with IDEA to require a system that potentially denies services based on a child's ethnic or racial status/group. 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.

If states choose to go forward with the methodology spelled out in the Obama-era rule, they can if they wish, the notice states.

And, part of the rule will stay in place—a change in how districts can spend their 15 percent set-aside. Under an previous interpretation of IDEA, the 15 percent set-aside could only be used for programs targeted at students who were not enrolled in special education, with a particular emphasis on students in kindergarten through 3rd grade. The thinking was that targeted early-intervention programs for these children might keep them from needing special education in the first place.

The new rule, however, said that the districts may use the set-aside both for students in special and in general education, from age 3 to 12th grade. That part of the rule will remain even though the compliance date has been delayed, the department notice said.

Some special education advocate groups said they plan to fight the department’s action. Denise Marshall, the executive director of the Council of Parent Advocates and Attorneys, said “states should not assume this delay will remain on the books long. The department’s actions are both bad policy and legally flawed, and COPAA is considering all its legal options to overturn the delay.”

Photo: President Donald Trump listens as Education Secretary Betsy DeVos speaks during a White House meeting.—Evan Vucci/AP

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