Update on Significant Disproportionality - Court Rules Against Department of ED

CASE has been hard at work on behalf of its members on the issue of disproportionality.  After gathering feedback at the Board of Directors meeting in November, CASE submitted comments regarding the issue to Johnny Collett, the Assistant Secretary for the Office of Special Education and Rehabilitative Services (OSERS).  Many of you completed the survey we sent out and our Significantly Disproportionality Ad Hoc committee is taking all of that into consideration. 

Meanwhile, on Thursday, March 7, the US District Court for the District of Columbia announced its decision ruling the US Department of Education engaged in "illegal delay." CASE did immediately released a statement concerning this development.   

We are committed to continue working together on this very important issue through our AD HOC committee to figure out next steps for our members across the country. 

Here is an article from our legislative consultant that may help to clarify! 

Court Rules Regulation Delay Violates Federal Law

Myrna Mandlawitz, CASE legislative Consultant

Implementation of a 2016 regulation related to significant disproportionality in special education, promulgated by the U.S. Department of Education at the end of the Obama Administration, was put on hold by the current Administration in early 2017. The regulations would require states and local school districts to examine, report on, and address disproportionate identification and placement into more restrictive settings of students of color, as well as examining disciplinary actions for students with disabilities, including higher rates of suspension and expulsion.

After delaying the original regulation, the Department initially said it would issue a new proposed regulation in February 2019. That date came and went. While waiting for Department action, in July 2018 the Council of Parent Attorneys and Advocates (COPAA), represented by the National Center for Youth Law, filed suit against the Department of Education alleging the Department's delay violated the Administrative Procedure Act (APA). Specifically, the suit alleged the Department had taken actions that interfere with its obligation under the Individuals with Disabilities Education Act (IDEA) to ensure students with disabilities receive needed education services in the most appropriate setting without regard to students' race.

The U.S. District Court for the District of Columbia announced its decision on March 7, ruling the U.S. Department of Education engaged in "illegal delay of a legal regulation." The court's ruling requires immediate implementation of the original regulations. Interestingly, a number of states continued to move toward implementation of the 2016 regulation, even though the Department suspended the regulation, so many states will not to have change their current activities.

In a letter to Assistant Secretary of the Office of Special Education and Rehabilitative Services (OSERS) on April 15, 2018, CASE stated "we strongly support addressing the issue of significant disproportionality, with special education eligibility as one factor. However, we also recognize this is a much larger systemic education issue that cannot be resolved solely through these regulations. That said, we are aware several states have made significant progress toward implementing these rules, with the original deadline close at hand. We do not want states that have followed the timetable to be penalized, while those that did not plan for the deadline are allowed greater flexibility than those that did. In addition, we believe delay may cause greater confusion in the field and continued wide variability in practice, exactly what these regulations are designed to avoid."

We are now waiting to see if the Department of Education will appeal the decision, or what their next move will be regarding this important regulation. In fact, this decision could have farther reaching consequences, since the Department has been moving to roll back other regulations across the various education programs they administer. It will be interesting to see if other organizations or stakeholders challenge other regulatory actions.

You can read the full decision in Council of Parent Attorneys and Advocates, Inc. v. DeVos, Collett, U.S. Department of Education at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv1636-31.