Earlier this month, in response to a lawsuit from the Council of Parent Attorneys and Advocates, a national disability rights group, a federal district court ruled that the Trump administration violated federal law when it delayed a Department of Education rule designed to protect students of color and students with disabilities.

Children of color are significantly more likely to be identified as needing special education than their peers. According to the department and decades of research and data, there is a “strong concern” that many of these children have been improperly identified to their detriment.

Congress addressed the problem of significant disproportionality in both the 1997 and 2004 reauthorizations of the Individuals with Disabilities Education Act (IDEA). Under the law, states are required to identify school districts with significant disproportionality in identification, placement, and discipline and take actions to address the disproportionality.

But states had broad discretion in how to define significant disproportionality, and as a result, relatively few districts were identified as disproportionate by states, despite overwhelming data showing a disproportionality problem. Accordingly, the department issued regulations in 2016 to better understand the extent of and address racial and ethnic overrepresentation in special education.

The 2016 regulations were designed to ensure states work with school districts so that children with disabilities are properly identified for services, receive necessary services in the least restrictive environment, and are not disproportionately removed from their educational placements by disciplinary removals. The primary goal of the regulations was to ensure the appropriate review of data and examination for significant disproportionality and, accordingly, help states and districts address and reduce the disproportionate segregation and discipline of students of color.

Under the law, if a district is identified with significant disproportionality, it must set aside 15 percent of its special education funds to provide comprehensive coordinated early intervening services to address the disparities. The regulations took effect January 2017, and states were required to begin using the new regulations to identify significant disproportionality in school districts beginning July 1, 2018.

Regrettably, right before states were to begin implementing the new rules, the Trump administration decided it needed to review the regulations and delayed implementation of the significant disproportionality rule for two years. More than 100 civil rights organizations, including disability rights organizations, opposed the delay. States have had since 2004 to implement these provisions of law and were prepared to move forward with the new rules and begin to meaningfully address these inequities. The delay created confusion and sent the clear message that inequities in special education for children of color simply don’t matter under this administration. More importantly, disparities continue to flourish, with no meaningful opportunity in place to address the disparities. 

When children of color are disproportionately identified as needing special education, there are particular risks involved. Children of color with disabilities are more likely to be educated in segregated settings, leaving them with fewer opportunities to interact with nondisabled peers, access rigorous academic content, engage with effective educators, and participate in enrichment activities.

There are also disturbing disparities when it comes to discipline and children of color and children with disabilities. On average, schools suspend Black children at double the rate of white or Hispanic children, and they suspend children with disabilities at more than double the rate of children without disabilities.

When children are removed from the classroom for disciplinary reasons, or educated in segregated settings, academic performance is impacted. The overwhelming majority of children in special education do not have significant cognitive impairments that inhibit their ability to access grade-level work. Yet, in 2015, only 3 percent of fourth grade Black children with disabilities were reading at or above proficiency, along with 5 percent of Hispanic children with disabilities, and 6 percent of American Indian/Alaska Native children.

Fortunately, the court found that the Department of Education failed to provide a reasoned explanation for delaying the 2016 rule. The court also found that the department’s delay was arbitrary and capricious, failing to take into account the efforts states made to implement the 2016 rule and the costs to children, their parents, and society. The recent court ruling means the original rule will take effect as the department originally intended.

States must begin implementing the rules immediately, identifying school districts with significant disproportionality. If significant disproportionality is found, states must provide for the review and revision, as appropriate, of the district’s policies, practices, and procedures that contribute to the disproportionality. Districts must also provide comprehensive coordinated early intervening services to address the factors contributing to the disproportionality.

It is imperative that we address the systemic inequities in special education for children of color. Special education services should offer assistance to students with disabilities who need it, preferably in the general education classroom. They should not be used to segregate students of color into separate special education classrooms at dramatically disproportionate rates. Both students of color and students with disabilities deserve better  and this restored regulation is an important first step.

Michael Yudin, Former Assistant Secretary for Special Education and Rehabilitative Services

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