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Special Education Chiefs to DeVos: Don't Roll Back Minority Disparity Rule

As part of an administration-wide effort to cut back federal regulations, the Education Department says it wants to postpone a rule that requires states to take a closer look at whether school districts are identifying and punishing minority students at higher rates than their peers. 

But state special education directors are saying that they want the rule kept in place. 

"Postponing implementation not only stops work already in motion, but it suggests that the identification and redress of significant disproportionality can be put on hold," says a letter from the National Association of State Directors of Special Education. It was sent to Education Secretary Betsy DeVos on Feb. 6. "NASDSE does not believe that addressing equity should ever be put on hold. Postponing implementation leaves the states in limbo—should they move forward or stop what they doing?" 

The department has announced that one of its regulatory priorities for this year will be to postpone the rule—slated to go into effect in the 2018-19 school year—for at least two years.

Liz Hill, a spokeswoman for the Education Department, said in October that the action was at the behest of different education groups. "We've heard from states, [school districts] and others on a wide range of issues, including the significant disproportionality rule. Because of the concerns raised, the department is looking closely at this rule." Reached Thursday, Hill said the department had no additional response to the NASDSE letter. 

Standardized Rule on 'Significant Disproportionality'

The rule, which was finalized December 2016, addresses the issue of what federal special education law calls "significant disproportionality." 

The Individuals with Disabilities Education Act requires states to monitor the identification, placement, and discipline of minorities in special education. Districts found to have wide disparities in these areas must spend 15 percent of their federal special education dollars on remedies.

The law, however, has left it up to individual states to determine just what counts as a significant problem. The result has been that some states have identified many of their districts with disparities that require addressing, while other states have not flagged any districts. Around 2 to 3 percent of the nation's school districts are flagged for significant disproportionality each year. I explored this phenomenon in a recent article, "Racial Disparities in Special Education—How Widespread is the Problem?" ain 2015-16, the most recent year for which data is available, about 60 percent of identified districts were in five states.

Under the Obama administration, the Education Department created a uniform standard that states must use when evaluating their districts. No one knows yet how many districts would be flagged for significant disproportionality under the new rule, since it hasn't been implemented. But many state leaders are anticipating more districts will be identified with disparities.

State leaders have been preparing for this rule for months. Many states are facing having districts identified where they never were before. Frank Podobnik, the director of special education in Montana, said in a September interview that a few districts in his state have been identified in the past but none in recent years. He anticipates that will change, but not by a huge amount. Yet in a state where more than 10 percent of districts are one-room schoolhouses, "it is going to present some challenges," he said, for example in bolstering teachers' ability to work with children with widely varying needs.

Steve Milliken, the state director of special education in Nebraska, projects that about 80 of its 245 districts might be found to have significant areas of concern. In the 2015-16 school year, one district was identified. 

Milliken said in an interview that he would like to see the rule stay in place. "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." 


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