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Final Rule Released on Identifying Racial Bias in Special Education

With just a handful of weeks left in this presidential administration, the U.S. Department of Education released a final rule Monday that could have a major impact on how districts spend their federal special education money.

The department's regulation creates a standard approach that states must use in determining if their districts are overenrolling minority students in special education compared to their peers of other races. If the disparities are large enough, districts are required to use 15 percent of their federal allotment under the Individuals with Disabilities Education Act on "coordinated, early intervening services" aimed at addressing the issue. 

The new rule also requires states to use a standard approach to determine whether minority special education students are in segregated settings more than peers of other races, or if they face more suspensions and expulsions than their peers. Disparities in those areas would also trigger the requirement to use federal money to fix the problem. Though the 15 percent set-aside is for what the law calls "early intervening" services, districts could use that money for students from age 3 through 12th grade, the regulations state.

The requirement will go into effect no later than the 2018-19 school year.

"Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers," said U.S. Secretary of Education John B. King Jr. in a statement. "Children of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker."

Because states still have some discretion on how to implement the final regulations, the Education Department said that it could not precisely give the cost of these new regulations. However, the department estimates the total cost of these regulations over ten years would be between $50.1 and $91.4 million, plus transfers between $298.4 and $552.9 million to early intervention services that could be used by students who have been identified as having a disability, as well as students who have not. (Under previous regulations, early intervention services could only be used to support students who were not in special education.) About $12.9 billion in federal money was spent on special education in fiscal 2016.

Minority Enrollment in Special Education a Longtime Concern

Since 2004, the IDEA has included a requirement to spend federal money on early intervention to prevent what the law calls "disproportionality." However, the requirement is triggered only when the overrepresentation is "significant," and up until now, what counted as "significant" was up for states to decide.

In  the 2012-13 school year, only about 3 percent of school districts nationwide were flagged for disproportionality, for example, and the majority of those districts were in just seven states. The Government Accountability Office flagged this variability in state approaches as an area of concern in a 2013 report.  

The new policy is a complex formula, and allows opportunities for states to exclude certain districts for various reasons, such as making progress in lowering overidentification rates over the prior two years.

But overall, more districts are expected to be flagged for having minority overrepresentation in identification, placement, or discipline.

The department's regulations have been released at the same time that Texas is facing close scrutiny after a newspaper investigation said the state was intentionally keeping its special education enrollment low. Recent research has also stated that there's evidence minority students are underenrolled in special education, not overenrolled

The new rule attempts to address both of those issues, by forbidding states to create quotas or to artificially reduce their special education identification rates. States are also required to look at whether underidentification could be the cause of disproportionality. "Nothing in these regulations prevents States from working with their [districts] to ensure appropriate identification of children with disabilities and address any potential under-identification that may exist," the regulations state.

Though the regulations are final, Congress could get the last say. Lawmakers are not able to amend the regulations themselves, but they could vote them down within 60 legislative days under the Congressional Review Act. Such disapproval would require the president's signature, or a two-thirds majority in the House and the Senate to overturn a presidential veto. 


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