Judge Tells DeVos She Can’t Delay “Significant Disproportionality Rule” in Special Education

The goal at school ought to be providing appropriate curricula and support to enable each child to realize her or his promise. Under the Individuals with Disabilities Education Act, special education programs address the needs of children with disabilities. Over the years, however, it has become apparent that children of color have too often been assigned to special education. President Obama’s administration created a rule to address this situation, but Betsy DeVos delayed the rule’s implementation.  Now a federal judge says DeVos’s department must enforce the rule and investigate whether children of color are being disproportionately misdiagnosed.

The “significant disproportionality rule” was supposed to go into effect last summer, but Betsy DeVos delayed implementation of the law for two years—until 2020.  Last week, however,  a federal court ruled that Betsy DeVos cannot elect to delay the rule’s implementation. The NY Times’ Erica Green reports: “In a decision on Thursday, Judge Tanya S. Chutkan of the United States District Court for the District of Columbia called the Education Department’s delay of the special education rule, ‘arbitrary and capricious.’… The rule, passed in the final weeks of the Obama administration, required districts to examine policies and practices that contributed to the disparities and fund remedies. The judge’s ruling vacates Ms. DeVos’s decision to put off the regulation by two years.  Instead it will take effect immediately.”

Green explains how the rule will now be implemented: “Under the Obama-era rule, states must apply a standardized methodology, and establish a formula called a ‘risk ratio,’ to identify districts with high levels of disparities. Those found to have wide disparities would be required to set aside 15 percent of their federal funding to examine their policies and take corrective measures.”

Education law expert, Derek Black disdains Betsy DeVos’s arrogant attitude about enforcing rules to protect students’ rights: “For the second time this school year, Betsy DeVos got a judicial smack down for attempting to eliminate regulations from the prior administration.  In September, it was over protections for student loan borrowers. (Last week)… it was over racial disparities in special education.  In both cases, DeVos’s justifications for reversing Obama-era regulations amounted to little more than, ‘I’m in power now and I don’t like Obama’s regulations.’  The dressed up justification has been that the Department needs to pause the regulations so that it can ‘study’ the issues more. The problem, the federal courts have told the Department, is that it cannot just scrap regulations because it doesn’t like them, particularly when those regulations have already gone through a rigorous process of notice, comment, study, and justification.”

In a follow-up article, Black explains that with her attempt to delay the “significant disproportionality rule” in special education, DeVos is cavalierly undermining the concept of disparate impact, a basic and essential principle of civil rights law: “Congress went beyond just prohibiting ‘discrimination.’ It recognized that prohibiting policies with obvious or explicit intent to discriminate was not enough to ensure equality. Following Congress’s lead, the Department of Justice concluded in a 1966 report that policies that impact one racial group more than another should also be prohibited… The fact that some policy or practice disproportionately affects a racial group does not alone violate the regulations. The disparity, if serious enough, simply triggers further investigation by a federal agency.”

Black concludes: “Critics, including the Trump administration, claim that disparate impact regulations impose an undue burden on federally funded programs. They say the regulations force programs to focus too much on analyzing data and avoiding statistical anomalies.  Implicit in this claim is that racial discrimination and inequality are no longer widespread problems… To the contrary, data shows discrimination has not declined in the past 25 years.”

Black’s analysis demonstrates why it matters that a judge last week told Betsy DeVos that her department must implement the “significant disproportionality rule” in special education and must investigate why so many children of color continue to be assigned to special classes. Enforcement of civil rights laws helps ensure that public schools can fulfill their promise to serve the needs and protect the rights of every child.

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