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Ed. Dept. Reverts to Original Timeline for Rules on Racial Bias in Special Education

An Obama-era Education Department policy relating to racial bias in special education was on, then off, and now is back on again.

The rule was supposed to have gone into effect for the 2018-19 school year but was delayed for two years by the department until a court blocked that move.

The implementation whipsaw is expected to cause problems for states that had relied on the delay of the policy, which relates to disproportional representation of minorities in special education. And these new rules could affect how millions of dollars in federal special education funds are spent at the district level. 

The National Association of State Directors of Special Education said that it was "deeply disappointed" in the Education Department's "abrupt" actions, which were announced in a short notice dated May 20 on the department's website. The announcement offers no timetable or additional resources for states. 

"A new requirement of this magnitude deserves communication directly from the Department of Education with those responsible for implementation. Moreover, conflicting and untimely direction from the Department is not helpful, nor does it create an effective or efficient means to serve the nation's students with disabilities," said John Eisenberg, the executive director of the special education administrators group, in a statement.

The rules under question create a framework that states must use to determine if their districts have disproportionately high numbers of minority students identified for special education services, segregated in restrictive classroom settings or disciplined at higher rates than their peers.  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.

Just a fraction of the nation's school districts have ever been identified as having problems severe enough to require a federal set-aside, but the new policy was expected to affect many more than had been in the past..

The rules themselves envisioned a slow ramp-up to implementation. They were finalized in December 2016 and were expected to go into effect for the 2018-19 school year. That would have given states a year to prepare. 

But then the Education Department, under the leadership of Education Secretary Betsy DeVos, stepped in. In June 2018, it halted implementation of the racial bias policy, saying it needed to be studied more closely. 

The Council for Parent Advocates and Attorneys sued the department over the delay, and in March, the advocacy organization won. A judge ruled that the policy should not be delayed. But the Education Department offered little further public guidance, other than filing a notice earlier in May with the courts that it planned to appeal.

The appeal is still ongoing, said department spokeswoman Elizabeth Hill. 

Many states decided to move forward as if the 2016 rule was still in effect. But "those who instead opted to slow the process, revisit plans or further engage stakeholders are now being penalized," Eisenberg said. 

The Council for Parent Advocates and Attorneys said the notice finally confirmed what the judge's order had made clear. "Given what's at stake, the Department should do all they can to assist states to come into compliance with the law," said Selene Almazan, the organization's legal director, in a statement. 

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