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Civil Rights Commission Takes on Issue of Minorities in Special Education

Washington

The U.S. Commission on Civil Rights—an agency with no policymaking power but with a potent megaphone—took on the complex issue of minority students and special education at a day-long session Friday. 

The name of the session, "The School-to-Prison Pipeline: The Intersections of Students of Color with Disabilities," offered a clue to the stance of some panelists who spoke before the bipartisan commission: That too many students with disabilities are being placed in special education, and once there, they face punitive discipline that puts many of them on a rocky path to incarceration.

"We can't afford to ignore this problem," said Eve Hill, a former deputy assistant attorney general in the Justice Department's civil rights division. "We're wasting the talents and skills of tens of thousands of children every year." 

But that wasn't a view shared by every panelist, nor by every commissioner. Peter Kirsanow, the only Republican on the commission, said that efforts by the federal government to reduce suspensions and expulsions have led to "unlawful quotas." He also asked if keeping disruptive students in school had a negative impact on the students who remained. 

"The most vulnerable cohort would be students with disabilities," Kirsanow said, referring to other research on the high rates of bullying toward students in special education. 

The commission's decision to take up this thorny issue comes at the same time that the U.S. Department of Education is considering doing the same thing. The Individuals with Disabilities Education Act requires states to determine whether their districts are disproportionately enrolling minorities in special education, placing them in restrictive settings, or harshly disciplining them. If such disproportionality is found, districts are supposed to use a portion of their federal special education money to address the problem. 

Well under 10 percent of the nation's school districts have been found to have disproportionality issues. So the Education Department, under the Obama administration, created a rule that would have the effect of requiring states to take a standardized approach in looking at the problem. The effect would be that more districts would be identified with disproportionality. The rule is set to go into effect for the 2018-19 school year. 

The Education Department under the leadership of Education Secretary Betsy DeVos is hinting that it would like to put that policy on hold for a few years, and possibly rescind it altogether. 

That would be a mistake, said Kristen Harper, a former senior policy adviser in the office of special education and rehabilitative services under the Obama administration. States already have time and opportunities under the rule to come up with a well-considered policy, she said. 

"Children of color already experiencing massive inequities already have to wait two years for relief. They should not be made to wait longer," Harper said. 

The disproportionality guidance is not the only such policy that the Trump administration is reviewing. In 2014, the Education and Justice departments told schools they could be found in violation of federal civil rights laws if they have discipline rates that are disproportionately high for students in one racial group, even if the school's policies weren't written with discriminatory intent. Last month, the Education Department hosted a meeting with people who have concerns with that guidance.

Kenneth Marcus, the Trump administration's nominee to lead the Education Department's office for civil rights, fielded questions about the 2014 "disparate impact" guidance during his nomination hearing Dec. 5. 

The Civil Rights Commission has used the power of the bully pulpit to lay the foundation for landmark civil rights legislation, including the Civil Rights Act of 1965 and the Fair Housing Act of 1968. 

At least one commissioner said that she has questions about the role that the government should play in this topic, "Isn't it time for a little bit more modesty in federal presence in this issue?" said Commissioner Gail Heriot, an independent. 

Anurima Bhargava, a former chief of the educational opportunities section for the Justice Department's civil right division, said that research already gives a clear picture of what works. During her testimony, she said that practices such as restorative justice and positive behavioral interventions and supports are more effective than punitive practices.   

"We're speaking about decades of research and experience," Bhargava said.

The video of the meeting is embedded below. 

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