Dive Brief:

• More than two months after a court decision rebuking U.S. Secretary of Education Betsy DeVos’s decision to delay by two years the implementation of an Obama-era policy addressing racial disparities in school discipline practices and special education placement, the U.S. Department of Education announced this week that states should now comply with the original regulations issued in 2016, the Washington Post reports.
• Under the regulations imposed in the final days of the Obama administration, states must follow stricter guidelines regarding the reporting of the demographic makeup of special education populations to make sure students of color are not included disproportionately. These guidelines must now be applied to calculations for the 2018-2019 school year, according to a notice posted on May 20, 2019.
• The Council of Parent Attorneys and Advocates, an advocacy group for children with disabilities, had filed a lawsuit opposing DeVos’ original plan to delay implementation of the regulation by two years because of concerns over the possibility of creating quotas. However, the court ruled on March 7 that the decision to delay did not provide a “reasoned explanation” for the delay and failed to account for the cost involved.

Dive Insight:

When the Equity in IDEA policy was released in December 2016, its stated purpose was to address the “significant disproportionality in the identification, placement and discipline of students with disabilities based on race or ethnicity.” The concern was the need for a standard method for the reporting data because the wide range of methods used could, in some cases, hide the “significant disproportionality” of students of color placed in special education settings apart from their peers. The regulations were also intended to shine a clearer light on discipline practices that may unfairly target students of color, an action that could reinforce a school-to-prison pipeline.

In the summary of the regulations, then U.S. Secretary of Education John B. King Jr. stated, "Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers. Children of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker."

The DeVos Education Department felt that the implementation of these regulations should be delayed by two years till more research could be done on the effects of the policy, on the grounds that the situation could create a quota system preventing students of color from receiving special education services they needed. However, their reasoning was shot down by the courts, and after more than two months of “discussing our options,” the department has now agreed to let the original regulations stand. For some school districts with methodology that does not align with the new regulations, this means they will be scrambling to comply.

The new regulations apply to charter schools, as well. 

"The clarification provided by ED is meaningful and supports what we have advocated for," Lauren Morando Rhim, executive director for the National Center for Special Education in Charter Schools, said in a statement issued in response to this week's announcement. "States must work with Local Education Authorities (LEAs), including charter schools who are their own LEAs, to ensure that any disproportionality in the identification, placement and discipline decisions made by districts and schools is accurately reported and appropriately addressed as required by the 2016 regulations. We encourage ED to work with states and provide proper technical assistance to ensure the data for the 2018-2019 school year accurately reflects the status of children with disabilities so they can receive the intervention the law provides."

It remains to be seen how other attempts to derail Obama-era education policies and regulations may go. The Federal Commission on School Safety established under DeVos has recommended rescinding Obama-era guidance designed to eliminate racial discrimination in school discipline. In the face of data indicating growing disparities in discipline for students of color and concerns over how exclusionary discipline practices affect these students, as well as those with disabilities, these attempts to overturn guidance from the previous administration may fail as well.