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Deadline Nears for Comments on Delaying Special Education Bias Rule

The public has until just before midnight ET May 14 to submit comments on whether the U.S. Department of Education should delay, by at least two years, a rule that states would have to apply when evaluating their school districts for racial bias in special education and enrollment. 

Without Education Department action, the rule, which was approved in 2016 during the last months of the Obama administration, will go into effect for the 2018-19 school year. 

Some background: The Individuals with Disabilities Education Act requires states to 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. 

Until creation of this new rule, it was up to states to determine what met the threshold of what the law calls "significant disproportionality." And only a tiny fraction of districts have ever been identified as having problems severe enough to merit use of the 15 percent set-aside. (About 3 percent of districts were identified in the 2015-16 school year.)

The new rule requires states to use a standardized approach in measuring significant disproportionality. The result will likely be that more districts would be identified with problems requiring remedies. 

Under the leadership of U.S. Secretary of Education Betsy DeVos, the Education Department says it wants to put the rule on hold. But the department must seek public comment before making a decision.  

More than 200 comments have been submitted. My very rough count suggests that the majority of commenters (more than 80 percent) are against any delay of the rule. They want it to move forward as planned.

Opponents of a Delay Cite Fairness and Potential 'Confusion'

Here's a few examples of those commenters opposing a delay: 

From Tony Evers, the Wisconsin state schools chief:

 After reviewing the current status of our implementation efforts, we do not feel a delay is necessary or in the best interest of students with special needs. We have held numerous meetings with stakeholders over the last year to address implementation and are prepared to move forward with the rules currently in effect. By proposing this delay, the USDE is causing confusion in the field over how disproportionality will be identified. It is sending the wrong message about the value of identifying and addressing the problems we find. It is taking us backwards instead of forwards on an important civil rights issue ingrained in IDEA. 

From the Council of State Adminstrators of Special Education:

With its members' unique responsibility for carrying out federal special education regulations, CASE has weighed carefully the arguments for and against delayed implementation. We strongly support addressing the issue of significant disproportionality, with special education eligibility as one factor. However, we also recognize this is a much larger systemic education issue that cannot be resolved solely through these regulations.

That said, we are aware several states have made significant progress toward implementing these rules, with the original deadline close at hand. We do not want states that have followed the timetable to be penalized, while those that did not plan for the deadline are allowed greater flexibility than those that did. In addition, we believe delay may cause greater confusion in the field and continued wide variability in practice, exactly what these regulations are designed to avoid.

Supporters of Delay Concerned About Unintended Consequences

Some comments in support of a delay: 

From Gloria Roach, the director of special education for the 9,500-student Channelview district in suburban Houston: 

Please consider delay of implementation of regulations regarding significant disproportionality. As a special education director, I am concerned that any regulation that addresses over-representation of historically under-served ethnic groups will result in a nationwide reduction in the number of minority students who are identified and served under special education. In Texas the [U.S. Department of Education] found that the efforts of local school districts to comply with the 8.5 percent identification target led to issues regarding the evaluation and level of service to students with disabilities. While the intent of the regulation regarding disproportionality is different, the results may be similar and unfortunate. 

From the Council of the Great City Schools:

The Council reemphasizes our concern with the critical and longstanding national problem of overidentification of students from various racial and ethnic backgrounds for special education services and for disciplinary action. The Council has undertaken a variety of initiatives among member districts to address these ongoing issues. But, the depth and breadth of this nationwide problem does not justify an inadequate and ambiguous regulatory response from the U.S. Department of Education as promulgated in late December 2016.

Weighing concerns 

Several commenters who supported a delay also referred to research that states that underidentification of minorities in special education is the real problem, not overidentification. Others said that the department's actions amounted to an illegal quota on how many students of a certain race could be disciplined.

Whether the rule is put on hold or not, however, states will still be required to monitor their districts for significant disproportionality. Districts found to have problems will still have to set aside a portion of their special education dollars to address them. That's written into the law; the new rule changes the process of monitoring, but not the requirement that it be done.  

The decision will not likely come down to whether one side or another is in the majority. The department has said in its request for comment that it is responding to concerns that states are the entities best able to evaluate issues of racial bias. And it has concerns that a standard rule may run counter to the foundation of special education, which is that each child should receive the services he or she needs. 

A two-year delay, the department says, will give it a chance to weigh all of these issues and come up with a better plan. 


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