Kevin Golembiewski, Berney & Sang Kevin Golembiewski, Berney & Sang

The U.S. Department of Education did not do its homework. In 2018, it halted Obama-era regulations that address racial disparities in special education, but according to the U.S. District Court for the District of Columbia, the department did not perform the necessary analysis before doing so. That failure violated not only mom’s cardinal rule (do your homework!) but also the Administrative Procedure Act. So the court vacated the department’s decision to halt the regulations, handing a major victory to children with disabilities and their families.

Background

Racial disparities in special education are a big problem, but for years, a seemingly small detail has undermined efforts to address them: how states define “significant disproportionality,” a term found in the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education. The case here, Council of Parent Attorneys and Advocates v. DeVos, No. 18-1636 (D.D.C. Mar. 7, 2019), arose from the department delaying Obama-era regulations which imposed guidelines for defining “significant disproportionality.”

  • Racial disparities pervade special education.

Students of color are disproportionately disciplined, classified as disabled, and placed in segregated educational settings (i.e., classes and schools with only students with disabilities).

First, schools more often discipline students of color with disabilities than other special education students. In 2018, for example, the Government Accountability Office (a nonpartisan arm of Congress) found that African-American students with disabilities represent about 19 percent of students with disabilities, yet they account for 36 percent of all students with disabilities who are suspended from school.

Second, students of color are overrepresented in special education. According to the National Education Association, American Indian children, for instance, are classified as disabled at twice the rate of their peers, and African-American children with challenging behaviors are more frequently identified as emotionally disabled than their similarly situated peers.

Third, schools more often place students of color with disabilities in segregated educational settings rather than integrating them with nondisabled students. In 2016, the department found that schools segregate African-American, Asian and Native Hawaiian and other Pacific Islander children with disabilities more often than their white peers.

  • State definitions stifle Congress’ efforts to address racial disparities, so the department steps in. 

Congress has amended the IDEA multiple times in response to racial disparities in special education. In 1997, it added to the IDEA a series of requirements designed to address disparities, and in 2004, it expanded the requirements. Currently, the IDEA requires states to collect data on special education students from school districts, identify whether any significant racial disproportionalities exist in the districts, and if so, address the disproportionalities.

The IDEA does not define “significant disproportionality,” so states for years defined it themselves. But in 2014, the Government Accountability Office determined that some states’ definitions were counterproductive because under them, even school districts with extreme racial disparities did not qualify as having significant disproportionalities. The office therefore recommended that the department issue guidelines for defining “significant disproportionality.”

The department then did its homework. It investigated the office’s findings, developed proposed regulations on “significant disproportionality,” and conducted notice-and-comment. The proposed regulations required states to use “risk ratios” to determine disproportionality in special education discipline, identification and placement. A risk ratio divides the risk of a particular outcome for students in one racial group by the risk for students in all other racial groups. If, for example, an African-American student with disabilities has a 50 percent chance of being expelled but the risk of expulsion among all students with disabilities in his school district is only 5 percent, the risk ratio is 10.

During notice-and-comment, some commenters asserted that risk ratios would incentivize school districts to use racial quotas when identifying children for special education services. In response, the department implemented three safeguards against quotas:

  • It allowed states to set their own risk-ratio thresholds (the ratio number which triggers a finding of disproportionality). This flexibility allows states to work collaboratively with school districts to identify thresholds that achieve the IDEA’s goals without imposing undue pressure on districts.
  • It specified in the regulations that quotas are prohibited and that using them would likely violate federal law.
  • It committed to monitoring states and school districts for quotas.

After finding that these safeguards adequately protect against racial quotas, the department finalized the regulations. The regulations took effect in January 2017, but the department gave states until July 2018, to comply with them.

  • President Donald Trump assumes office, and the department changes course.

After the regulations took effect, President Trump assumed office and appointed Betsy DeVos as Secretary of Education. Thereafter, in February 2018, the department proposed a regulation that would delay the July 2018, compliance deadline, citing concerns that the risk ratios might incentivize racial quotas. And just a few months later, the department issued a final regulation delaying the deadline.

The Lawsuit

  • The Council of Parent Attorneys and Advocates sues the department.

Days after the department issued the delay regulation, the Council of Parent Attorneys and Advocates (COPAA) sued the department in the U.S. District Court for the District of Columbia. COPAA is a nonprofit comprised of parents of children with disabilities, special education attorneys and special education advocates. (Full disclosure: I’m a COPAA member.) COPAA argued that the delay regulation violates the Administrative Procedure Act because it is arbitrary and capricious. COPAA requested that the court vacate the regulation.

This month, the court did so.

  • The court strikes down the delay regulation as arbitrary and capricious.

In prohibiting arbitrary and capricious regulations, the Administrative Procedure Act requires federal agencies to do their homework before issuing a regulation. Agencies must consider all the relevant factors, including the costs that the regulation would impose, and set forth a satisfactory explanation for the regulation. Here, the court concluded that the department did neither.

First, the department failed to consider the costs of delaying the Obama-era regulations. Specifically, the department did not consider states’ reliance costs or the costs of delay on children and parents. After the Obama-era regulations went into effect in 2016, states and school districts incurred costs trying to comply with the regulations, but the department did not consider the costs. Nor did the department consider how delaying the regulations would affect children and parents who are impacted by the significant racial disparities in special education.

Second, the department lacked a satisfactory explanation for delaying the Obama-era regulations. It claimed that it needs more time to study the risk ratios because they might incentivize racial quotas. But the department had no new data that justified departing from its 2016 finding that the regulations’ three safeguards adequately address concerns about quotas. Indeed, the department did not even consider and reverse that finding. Given the dearth of support for the department’s quota concerns, the court concluded that the concerns are speculative.

Consequently, the court ruled for COPAA and vacated the delay regulation.

Conclusion

Absent an appeal, states will soon have to use risk ratios to assess racial disparities in special education, and the department will have access to reliable data about which school districts are struggling with disparities. Hopefully, it will learn from this debacle, do its homework and use the data to combat the disparities.

Kevin Golembiewski is an associate with Berney & Sang. He focuses his practice on appeals, education law and employment law. Contact him at kagolembiewski@berneylaw.com.