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Ed. Dept. Signals New Attempt to Address Racial Bias in Special Education

Four months after deciding to put on hold Obama-era rules relating to racial disparities in special education, the U.S. Department of Education has signaled it plans to take a crack at creating its own set of policies on the topic.

The department said it plans to release a "notice of proposed rulemaking" this fall. No other information is available; publishing its intent in a government document called the Unified Agenda is just the first step in what could be a lengthy process. (The Obama administration worked on its version of these rules for two years before they were finalized.)

The Individuals with Disabilities Education Act, last reauthorized 14 years ago, requires states to monitor school districts in how they identify minority students for disabilties, discipline them, or place them in restrictive classroom settings. Districts found to have "significant disproportionality" in one or more of those areas must set aside 15 percent of their federal special education dollars to address those disparities. Well under 5 percent of the nation's districts have ever been identified by their states as having significant problems. 

The Obama-era rules that were put on hold would have required states to use a standardized methodology for evaluating district practices, starting this school year. That methodology would likely have led to many more districts being identified as having such disparities. But the Trump administration had real problems with that approach, saying it could lead to special education quotas.

"The secretary is concerned that the regulations will create an environment where children in need of special education and related services do not receive those services because of the color of their skin," the department said, in its explanation of why it was putting the rules on hold for two years in order to study their impact further. 

The question now is, what does the Education Department have in mind? 

Officials may be trying to carve out some part of the Obama-era rules that it finds less objectionable and that states were more in favor of—for example, the part of the rules that allowed the 15 percent set-aside to be used for students with disabilities, and the portion that allowed the money to be used for children as young as age 3.

Some background: The significant disproportionality regulations, as originally drafted from the 2004 law, required school districts with significant disproportionality to spend their 15 percent set-aside only on general education interventions. The thinking was that districts would focus on early intervention, and thus some students could be steered away from needing special education services at all.

In practice, at least in some cases, it led to an awkward situation where districts might be identified as having disproportionality in one area—for example, black male suspensions and expulsions—but couldn't use their set-aside to address that specific issue. 

The original regulations also limited set-aside funds to students as young as kindergarten age; the Obama-era changes would have allowed preschool-age children to potentially benefit from programs funded through the set-aside funds.

Until Congress decides to reauthorize the federal special education law—a process now nearly a decade overdue—expect more tinkering.

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