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Education Department proposes delaying Obama-era rule on racial disparities in special education

Education Secretary Betsy DeVos is proposing to delay an Obama-era rule on special education and racial bias. (Jacquelyn Martin/AP)

The U.S. Education Department is proposing to delay by two years, to 2020, an Obama-era rule that would push states to ensure that students of color are not over-represented in special education and put in programs because of racial bias.

The department, headed by billionaire Betsy DeVos, expressed its intention to seek public comment on the plan to delay the rule. A notice published in the Trump administration’s Unified Agenda, which includes planned actions, says:

The Department seeks comment on whether to extend by two years the compliance date of these regulations from July 1, 2018, to July 1, 2020, and, if so, whether to extend the date for including children ages 3 through 5 in the analysis of significant disproportionality with respect both to the identification of children as children with disabilities and to the identification of children as children with a particular impairment from July 1, 2020, to July 1, 2022.

The Obama administration set the rule in February 2016, saying it was aimed at improving equity in the Individuals with Disabilities Education Act, which aims to ensure fairness in the identification, placement and discipline of students with disabilities. The 2016 announcement of the rule by Obama’s Education Department cited an analysis of state-submitted data showing that large racial and ethnic disparities in special education programs were going unidentified in many districts around the country. The rule was described this way by the Obama administration:

The proposed Equity in IDEA rule would, for the first time, require states to implement a standard approach to compare racial and ethnic groups, with reasonable thresholds for determining when disparities have become significant. That determination is critical to ensuring students get the supports they need and deserve. Once identified as having a significant disproportionality, the district must set aside 15 percent of its IDEA, Part B funds to provide comprehensive coordinated early intervening services. Further, the policies, practices, and procedures of the district must be reviewed, and, if necessary, revised to ensure compliance with IDEA.
The proposed rule would also provide identified districts with new flexibility to support the needs of students. The department has proposed to broaden the allowable uses of the 15 percent set aside, currently used to fund early intervening services, to include services to students with and without disabilities, from ages 3 through grade 12. Up until now, identified districts could only use these funds to support students without disabilities, and only in grades K through 12, severely limiting the use of interventions that might address early needs and reduce disparities in the placement and discipline of students with disabilities.

DeVos’s department has been considering for months whether to delay the rule or even scrap it. Supporters of a delay say school districts need more time to implement the rule because it is costly, and that the Obama administration’s rule amounted to micro-managing districts and imposing requirements that should be left to Congress.

Others support it. Curt Decker, the executive director of the advocacy group National Disability Rights Network, an advocacy group, said in a statement:

Protections are needed now to ensure that every child has the same chance to receive a quality education. We strongly oppose any effort to delay implementation. We know there is a problem that needs to be fixed — delaying implementation will only hurt children who are already in school and send a message to them that they are not important as other children are.”

In October, the Education Department rescinded 72 policy documents that outline the rights of students with disabilities as part of the Trump administration’s effort to eliminate regulations it deems superfluous. A Washington Post story at the time said:

The special education guidance documents rescinded this month clarified the rights of disabled students in a number of areas, including making clear how schools could spend federal money set aside for special education. Some, such as one titled “Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools,” translated the legal jargon into plain English for parents advocating for their children. Some of the guidance documents that were cut had been on the books since 1980s.

DeVos rescinds 72 guidance documents outlining rights for disabled students