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Sunday, December 18, 2016

Feds Announce New IDEA Regulations Concerning Disproportionality

From Jim Gerl's Special Education Law Blog

By Jim Gerl, Esq.
December 14, 2016

The U.S. Department of Education yesterday announced new final regulations under Part B of the Individuals with Disabilities Education Act (IDEA), aimed at promoting equity by targeting widespread disparities in the treatment of students of color with disabilities.

The regulations address a number of issues related to significant disproportionality in the identification, placement, and discipline of students with disabilities based on race or ethnicity. The Department is also releasing a new Dear Colleague Letter addressing racial discrimination.

"Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers," said U.S. Secretary of Education John B. King Jr.

"Children of color with disabilities are over-represented within the special education population, and the contrast in how frequently they are disciplined is even starker."

King added, "Today's new regulations and supporting documents provide the necessary guidance and support to school districts and build upon the work from public education advocates and local leaders who believe, like we do, that we need to address racial and ethnic disparities in special education. This important step forward is about ensuring the right services get to the right students in the right way."

Some of the highlights of the new regulations include:

A Standard Approach

The final regulations establish a standard approach that States must use in determining whether significant disproportionality based on race or ethnicity is occurring in the state and in its districts.

In 2013, the Government Accountability Office (GAO) issued a report finding that, because states currently use a wide variety of methodologies for examining their districts, few states take action to address significant disproportionality; in fact, as the GAO found, only two to three percent of all districts nationwide are identified as having significant disproportionality, and some states' methodologies for identifying districts for disproportionality were constructed in such a way that the GAO found districts would likely never be identified.

Accordingly, GAO recommended that the Department require that all states adopt a standard approach to identify racial and ethnic disparities. With these final regulations, all states will use the same methodology, which will allow for more accurate comparisons within and across states.

Focusing on Discipline

In addition to requiring a standard methodology, the regulations shine a spotlight on disparities in the discipline of students with disabilities on the basis of race or ethnicity by requiring states to examine districts for significant disproportionality in their disciplinary practices.

Specifically, the regulations clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.

Addressing the Root Causes of Disproportionality

In order to eliminate the racial and ethnic disparities that are the focus of these regulations, districts must identify and address the root causes of significant disproportionality. Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.

Districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services (CEIS). In addition, new flexibilities in the use of CEIS will further help districts identified with large disparities in addressing the underlying causes of the disparity.

Read an unofficial copy of the 521 pages of new regs here.

The corresponding Dear Colleague Letter is available here.

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