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Rule for Identifying Racial Bias in Special Education Proposed by Ed. Department

UPDATED

Cross-posted from the On Special Education blog. By Christina A. Samuels.

The U.S. Department of Education wants all states to start using a standard approach in measuring whether they are identifying minority students for special education services at higher rates than their peers.

In a proposed rule released Tuesday, officials said that the change would likely prompt many more districts to be classified as having "significant disproportionality," which, under the Individuals with Disabilities Act, means they would have to set aside a portion of their federal funds to fix the problem. Significant disproportionality also applies to student discipline, and to student placement—for example, whether a student is moved outside of a regular classroom. 

The work is imperative, said Michael K. Yudin, the assistant secretary for special education and rehabilitiative services, during a call with reporters.

"It's not about identifying bad actors. It's an opportunity to check practices and supports," Yudin said Monday. "We can't begin this hard work unless we're honest and forthright about the disparities that we see." 

Currently, states are allowed to develop their own formulas to measure what the law calls "significant disproportionality" in special education. Districts with significant disproportionality are required to set aside 15 percent of their federal special education money for early-intervention services.

But a 2013 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 2009-10 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 those districts were clustered in five states; 73 districts were in Louisiana alone. The GAO recommended using a standard calculation. 

"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 acting Education Secretary John B. King Jr. on Monday.

Education Department Finds Significant Disproportionality in Many Districts

For example, the department said, its own data showed that 876 school districts gave African-American students with disabilities short-term, out-of-school suspensions at least twice as often as all other students with disabilities for three years in a row.

Disparities are also prevalent in the discipline of students of color with disabilities, the department says. With the exception of Latino and Asian-American students, more than 1 out of 4 boys of color with disabilities and nearly 1 in 5 girls of color with disabilities receive an out-of-school suspension.

The proposed rule would expand how the 15 percent set-aside can be used by districts flagged for minority overrepresentation. Currently, the money can only be used for programs to benefit K-12 students who do not have disabilities, the logic being that appropriate early intervention could keep those students from needing special education services at all.

But some state education officials have argued that the current set-aside rule provides an incentive for districts to keep overidentification rates low, so that they can use all of their federal special education money on students who are actually covered under the IDEA. 

The new rule loosens that restriction, allowing districts to use set-aside funds for students both with and without disabilities. The set-aside funds could also be used for children as young as 3.

The department's move is sure to spark some disagreement. In 2014, when it sought comments on whether a standard definition of disproportionality would be needed, many state education officials warned of the dangers of an approach that ignores the unique issues of individual school districts.

Several states signed on to comments from the Alexandria, Va.-based National Association of State Directors of Special Education.

"NASDSE recognizes that the overidentification of minority students in special education is a concern that should be addressed," the group said. "The temptation to address this concern by developing a standard approach is great. ... But, if our nation has learned just one thing since the No Child Left Behind Act was signed into law, it would be that 'one size does not fit all.' "


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