By Christina Samuels
September 5, 2017
The Trump administration and congressional Republicans have spent time and energy dismantling some of the education regulations championed by President Barack Obama.
But an educational equity policy born from the bipartisan re-authorization of the Individuals with Disabilities Education Act and given prominence by Obama's My Brother's Keeper initiative lives on. And it means that many more school districts may have to make changes to how they spend their federal special education allotment.
Starting in 2018-19, states must start using a standardized method to determine if their districts have wide disparities in how they identify, place in segregated settings, or discipline minority students with disabilities.
School systems found to have "significant disproportionality" in one or more of those areas must use 15 percent of their federal special education dollars on remedies, called "coordinated early-intervening services."
That particular policy has been around since 2004, when the IDEA was reauthorized with overwhelming approval by a Republican-led Congress and signed into effect by then-President George W. Bush. But only a tiny percentage of the nation's districts—well under 5 percent—have ever been identified as having bias that was significant enough to trigger the set-aside.
The Obama administration crafted a rule that makes it more likely that districts will show bias and thus have to use IDEA funds on remedies. Before this rule was in place, states could use their own way of measuring disproportionality.
Ensuring that all states are using the same process helps to close "opportunity gaps" for minority students, the U.S. Department of Education said when the new rule was made final this past December. Educational equity was a major part of My Brother's Keeper, launched in 2014 to improve educational and career opportunities for boys and young men of color. Though federal lawmakers used the Congressional Review Act to rescind other education rules passed late in Obama's presidency, this one remained.
The Education Department has estimated the cost to states to implement the special education regulations over 10 years at between $50 million and $91 million. Additionally, between $300 million and $553 million in federal special education funds would be reserved for remedies. The wide range in the estimates is because the Education Department is not sure how many districts will ultimately be affected.
'Better Than Before'
The Obama-era rule also ensures that the funds set aside for remedying bias can be used by students currently enrolled in special education. Under an older interpretation of the special education law, the 15 percent set-aside for coordinated, early-intervention services could only be aimed at students who were not enrolled in special education. The thinking was that early intervention might divert some students from needing special education in the first place.
The new rule, however, makes it clear that the money can be used both for students in special and in general education.
"What they have is better than before," said Daniel Losen, the director of the Center for Civil Rights Remedies, an initiative at the Civil Rights Project/Proyecto Derechos Civiles based at the University of California, Los Angeles.
In particular, Losen said it was "absurd" that the old interpretation meant that special education students could not be the direct beneficiaries of early-intervention funds. So, if a district was cited for suspending a disproportionate number of black special education students, it could not use its early-intervention set-aside to directly address that particular problem.
"The most important change is that now the kids that can flag a problem can benefit from the 15 percent of redirected funds," he said. "It's not surprising that a state would be reluctant to identify a lot of districts [under the old policy] because that money couldn't be used to solve the problem."
Lauren Katzman, the executive director of the Urban Collaborative, also sees these rules as providing a necessary structure for states to build policy around. "They're one piece of a large puzzle that we need," said Katzman, whose organization includes more than 100 school districts working on improving outcomes for students with disabilities. "I'm not going to say this is a whole thing—it is a piece."
Significant disproportionality—and how to tackle it—has been a part of special education policy for decades.
In 1997, Congress required states to start monitoring districts for significant disproportionality in how minority students were identified as having disabilities and where they were more likely than peers to spend time in self-contained classrooms or separate schools. In 2004, that policy was given more teeth, through the set-aside requirement.
But a 2013 report from the Government Accountability Office, a government watchdog agency, found that only a small fraction of districts were actually flagged for disproportionality problems. Those districts also were clustered in a handful of states. The GAO recommended that the Education Department step in and adopt a standard approach for all states to use.
State Leaders Predict Changes
Within this process are some important areas of leeway for states. For example, it's left up to states to determine the threshold at which significant disproportionality exists. They can also make some adjustments to smooth out wide fluctuations and can use three years worth of data when making a determination for a district.
States have to report to the Education Department why their proposed methodologies are "reasonable."
The new rule also encourages states to address under-identification of students for special education, though it does not provide a framework for how to do that. Recent studies of national data have found that among children demonstrating the same educational needs, white children are more likely than minority children to be enrolled in special education.
Critics of those finding say the national data sets do not reflect the practice of individual districts, and that the research focuses only on identification, not disparities in placement or discipline.
State special education leaders are predicting that the new rule will have its intended effect: More districts will be identified as having significant disproportionality.
Frank Podobnik, the director of special education in Montana, said that a few districts have been identified in the past but none in recent years. He anticipates that will change, but not by a huge amount. Yet in a state where more than 10 percent of districts are one-room schoolhouses, "it is going to present some challenges," he said, for example in bolstering teachers' ability to work with children with widely varying needs.
William J. Hussey, the state director of special education in North Carolina, said that a panel is in the midst of writing new policies to support the federal rule, but that he also anticipates more districts will be identified, particularly in the area of suspensions and expulsions.
Disproportionality is an issue "you can't walk away from," Hussey said. But he also said that "disproportionality exists across school districts and not just in the realm of special education."
Edward Fergus-Arcia, an assistant professor of urban education at Temple University, has worked with several districts and states on disproportionality issues. He said it's important for districts to understand, before they embark on this work, just what the underlying issues may be that cause disproportionate identification, discipline, or placement in segregated settings. Addressing all those issues takes time, he said.
But at the same time, districts can often take immediate action. Fergus-Arcia offered one example of a district where individual schools were using different forms, and consequently creating different requirements, for referring students for discipline. Standardizing that process gave the district a concrete plan to work on.
"As we identify these problems, we need to strive to do these things at a pace of zero-to-15, not a pace of zero-to-60, without paying attention to all the levers and drivers to get an organization to buy in," Fergus-Arcia said.