Department of Education to Comply with Court Order Mandating Implementation of Regulations on Reporting Disparity in Special Education

In a notice published on May 20, 2019, the Department of Education announced that it would comply with a federal court’s March 7, 2019, ruling that the DOE immediately implement its own 2016 regulations regarding the calculation of disparities among schools’ identification, placement, and discipline of students with disabilities based on race or ethnicity.

In December 2016, the DOE issued the “Equity in IDEA” regulations intended to address findings that “[c]hildren of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker.” A Government Accountability Office report found that, because states use a wide variety of methodologies to examine such disparities, only two to three percent of all school districts nationwide were identified as having significant disproportionality, and some states’ methodologies were constructed in a way that made them unlikely to ever identify disproportionality. The Equity in IDEA regulations were drafted to create a standard approach.

Under Equity in IDEA regulations, states must comply with new guidelines and methodology when tabulating and reporting data about the demographics and treatment of special education students. The regulation’s methodology is extensive and technical, establishing precise parameters for weighted risk ratios, enrollment and comparison groups, defined outcomes, and certain timelines, among many other considerations. Implementing the new calculations may tip some districts over a threshold that requires them to create DOE-compliant plans to ensure students of color are not disproportionately targeted.

Originally, the DOE set January 18, 2017, as the effective date of the new regulations, and mandated nation-wide compliance by July 1, 2018. In February 2018, under the new Secretary of Education, Betsy DeVos, the DOE announced that it would delay implementation of the Equity in IDEA regulations, citing concerns that it would lead to unfair demographic quotas. However, the Council of Parent Attorneys and Advocates (COPAA) sued DeVos to enjoin the DOE from proceeding with the delay. The federal district court for the District of Columbia held in COPAA’s favor, finding that the DOE had engaged in an “illegal delay” of the regulations. The court held that the DOE had violated the Administrative Procedure Act when it announced the delay without a “reasoned explanation,” and its failure to consider concerns like the costs of delay rendered it arbitrary and capricious.

The Department of Justice announced on May 6, 2019, that it would appeal the federal court’s decision. The appeal will not stay or further delay implementation of the regulations, though, and the 2016 Equity in IDEA regulations are now in effect.

The DOE’s new reporting guidelines and methodology must now be applied to calculations for the 2018-2019 school year. The DOE has created a central resource to provide school districts assistance as they work to comply with the new regulations, available at: https://osepideasthatwork.org/federal-resources-stakeholders/disproportionality-and-equity.

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