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Spec. Ed. Ruling 'Moving Toward Implementation' a Month After Judge's Decision

Nearly a year ago, the U.S. Department of Education said it was putting on hold for two years the implementation of an Obama-era rule that had the potential to affect how millions of dollars in federal special education dollars could be spent. 

Nearly a month ago, a judge reversed the Education Department's delay, saying it was an "arbitrary and capricious" decision. 

On Wednesday, Education Secretary Betsy DeVos was pressed by Rep. Donna Shalala, a Democrat from Florida, on the department's plans in the wake of the court decision.

"We are currently reviewing the district court order and deciding on next steps. We are moving toward implementation," DeVos told Shalala—similar to the response she gave when she was asked the same question by Sen. Chris Murphy of Connecticut in late March.

"You've had a month to review the order. The order isn't very complicated," Shalala told DeVos. 

The underlying issue, though, is complex. The Individuals with Disabilities in Education Act requires states to monitor how districts identify minority students for special education, discipline them, or place them in restrictive settings. Districts found to have "significant disproportionality" in one or more of these areas must set aside 15 percent of their federal special education funding to spend on remedies. The rule would require states to take a standard approach in determining the significance of the problem, rather than each state creating its own threshold. 

The upshot is that many more school districts are expected to be identified as having problems in one or more of these areas—and thus will have to divert some of their federal money to addressing it. 

"It was a little alarming to hear they're 'moving toward implementation'," said Selene Almazan, the legal director for the Council for Parent Attorneys and Advocates. The council successfully sued the department to overturn the delay. "I don't even know what that means."

Less alarmed, however, are state special education directors, who would be in charge of overseeing this process, said Valerie Williams, director of governmental relations for the National Association of State Directors of Special Education.

Had there been no delay, the new policy would have been in place for the 2018-19 school year.  And despite the Education Department's actions, many states were already moving forward with complying with the rule because they had invested so much time and effort in compliance, Williams said.

The department has also released a brief statment saying it is reaching out to each state to find out its timeline toward compliance and how it can assist with any issues that arise due to the delay and reinstatement of the rule. 

In her back and forth with Shalala, DeVos said she's "also concerned about overidentification or underidentification of students in need of special education services. I think we share the same goal in ensuring that student needs are met."

The IDEA currently requires that states monitor districts for student overidentification, but recent research has stated that minority students are actually less likely than white peers to be enrolled in special education

By the end of her conversation with Shalala, the education secretary promised to share a timeline for implementation in a week. 

"But it's got to be reasonable," Shalala said. "As you well know, equity delayed is equity denied." 

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