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Education Department Officially Proposes Delay of Special Education Bias Rule

As expected, the U.S. Department of Education is seeking to delay by two years a rule that would require states to use a standard method in monitoring how school districts identify and serve minority students with disabilities. 

The department first indicated in October that it was contemplating putting on hold the rule, which was finalized in December 2016, in the waning days of the Obama administration.

On Friday, the department released a draft notice making that delay proposal official. The notice is scheduled to be published in the Federal Register Feb. 27. 

Because the rule is already final, the department has to seek public comment before making changes to it. Commenters will have 75 days to respond to the notice once it is published.

Measuring 'Significant Disproportionality'

Some background: The Individuals with Disabilities Education Act has for several years required that states monitor whether districts are identifying minority students for special education out of proportion to their peers. States must also monitor to see if minority students are disproportionately subjected to expulsion or suspension, or placed in restrictive classroom settings. 

Districts found to have problems must set aside 15 percent of their federal special education dollars to spend on remedies. 

Only a tiny fraction of districts—3 percent in the 2015-16 school year—have been identified as having problems severe enough to merit use of the 15 percent set-aside. The new rule, set to go into effect for the 2018-19 school year, requires states to use a standardized approach in measuring disproportionality, with the result that more districts would be identified with problems requiring remedies. (Before the rule was in place, it was up to each state to determine what met the threshold of what the law calls "significant disproportionality. )

Reasons Given for Delaying Rule

The Federal Register notice offered several reasons why the department wants to delay the rule, based on comments that were received when the rule was still under debate. 

  • The Education Department might not have the statutory authority to make states adopt a standardized policy; 
  • The rule might prompt districts to create "quotas" in special education instead of meeting each child's needs;
  • The rule still allows flexibility for states to create "reasonable" calculations of significant disproportionality, but it failed to offer any standards it would use to evaluate "reasonableness." 

Civil rights organizations have supported the rule as drafted during the Obama administration, saying they fear that a delay is just the first step to rescinding it entirely. The National Association of State Directors of Special Education also told the department that it wanted the rule to keep to its current timeline.

But in light of the concerns expressed, the Education Department states in its notice, the delay is needed "so that we may review all of the issues raised and determine how to better serve children with disabilities."


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