A District of Columbia trial court issued a ruling today requiring the U.S. Department of Education (ED) to implement a 2016 Obama-era regulation addressing “significant disproportionality” based on race and national origin in special education. What does this mean for schools? The regulation may bring changes to the data that school districts must report to state boards of education for purposes of the significant disproportionality analysis. There will also be changes to the remedial actions schools must take if a significant disproportionality is found. More on this interesting and important decision is after the jump.

Background of the Equity in IDEA Rule and the Delay

First, some background. In 2016, the ED Department, under the Obama Administration, issued an IDEA implementing regulation addressing significant disproportionality in the identification, placement, and discipline of students with disabilities based on race or ethnicity. Although the IDEA regulations in effect since 2004 already require a similar “significant disproportionality” analysis, the old rule gives states substantial leeway in defining over-representation. According to a 2013 Government Accountability Office (GAO) report, some states (such as Colorado and Nebraska) used definitions that made it highly unlikely that a significant disproportionality would ever be found in any school district. The report showed Illinois found a significant disproportionality in less than one percent of schools.

The key element of the 2016 Equity in IDEA rule is the mandate that states use a standard methodology to determine whether a significant disproportionality based on race and ethnicity is occurring. This includes a requirement to use a “risk ratio threshold” to find that disproportionality based on race or ethnicity is significant.

As the court explained:

A risk ratio is a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA by the risk for children in all other racial and ethnic groups within the LEA.

A risk ratio of 1.0 indicates that children from a given racial or ethnic group are no more or less likely than children from all other racial or ethnic groups to experience a particular outcome, whereas a risk ratio of 2.0 means one group is twice as likely to experience that outcome. The Equity in IDEA rule gives states flexibility to set their own “reasonable risk ratio thresholds,” however, so that they could balance the need to address large racial and ethnic disparities with “appropriate implementation of child-find and evaluation procedures” and “the need to avoid perverse incentives that would inhibit a child with a disability from being identified or placed in the most appropriate setting based on the determination of the IEP Team.”

The regulation also clarifies that states must address significant disproportionality in discipline, and set forth certain steps that must be taken, such as review of policies, procedures, and practices, when a significant disproportionality is found. The rule changes what occurs if a 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 flexibility in the use of CEIS will further help districts identified with large disparities in addressing the underlying causes of the disparity.

The Equity in IDEA rule was set to take effect on July 1, 2018. On the eve of the rule’s implementation, the Trump administration’s ED Department postponed implementation to July 1, 2020. The Department cited concerns that the rule would encourage school districts to use improper quotas for minority students, thus refusing to identify even the most qualified minority students for special education if doing so would push them over the threshold to be identified as having a significant disproportionality.

The court’s decision

A few days later, the Council of Parent Attorneys and Advocates, a “national not-for profit organization of parents of children with disabilities, their attorneys, and their advocates,” filed suit in the District of Columbia Circuit Court. The Council argued that ED had no reasonable reason to delay implementation of the rule. Specifically, the Council took aim at the Department’s claim that the rule would lead schools to use quotas for minority students, possibly excluding students who need special services based on their race. ED had already considered that when addressing comments to the proposed Equity in IDEA rule in 2016, the Council claimed, and it included exceptions in the final regulation that would address and prevent that concern. For example, states could determine when there were sufficient children in a particular racial or ethnic group to permit application of the regulation’s methodology. States also had discretion not to find significant disproportionality if the risk ratio for a racial or ethnic group in the relevant category had not exceeded the risk ratio threshold for three prior consecutive years, or if the district had demonstrated reasonable progress in lowering its risk ratio for the group in each of the two prior years. The court agreed, finding that there was no valid legal reason to delay implementation of the rule.

What the ruling means for schools

Although the court’s ruling means that Equity in IDEA regulation technically is in effect now, appeals likely will delay in the implementation for some additional time. If there is no appeal or an appellate court agrees with the trial court, there will be some changes for schools, depending on the state they are in.

  • Standard Approach/Risk Ratio Threshold. States that are not already using a risk ratio threshold must begin doing so. The risk ratio threshold must also be “reasonable.” Illinois already uses a risk ratio threshold when assessing significant disproportionality, but it is unclear whether the standard used will be changed. An Illinois State Board of Education newsletter issued in 2016 stated that ISBE would “reexamine [its] methodology,” suggesting that ISBE would at least review its standards.
  • Discipline Data. The rule also clarified that discipline data must be collected and analyzed by states. 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. Illinois already considers discipline data, so this would not likely bring a major change for Illinois schools. For schools in other states where such analysis was not occurring, new data submission requirements may result.
  • Root Causes of Disproportionality. 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). ED Department guidance on CEIS from before the 2016 regulation can be found here and remains useful.
  • CEIS Flexibility. The final regulation provides some additional flexibly in the use of CEIS. Districts identified as having significant disproportionality were required to set aside 15 percent of its IDEA part B funds for CEIS, to identify an address the factors contributing to the significant disproportionality. But the district could not use any of that 15 percent set aside for CEIS to serve students with disabilities, even if the district had identified racial disparities in the discipline and placement of children with disabilities. CEIS funds also could not be used to serve preschool children. Now, with these final regulations, districts identified as having significant disproportionality will have the flexibility to use their CEIS set aside to assist students with disabilities and preschool children with and without disabilities.