Special-Education Rule Issued by Obama Administration Is Delayed

Proponents of the policy, which was issued in the final weeks of the Obama administration, view it as a check on schools that knowingly or unknowingly move minority students down paths that can lead to lower educational attainment.

Black students are more than twice as likely to be identified as having an intellectual disability or emotional disturbance as their peers, according to Education Department data. Hispanic students are 40% more likely to be identified as having a learning disability, while Native American students are 90% more likely.

The delay, published in the Federal Register on Tuesday, is one step in a larger Education Department review as officials weigh whether to scrap the Obama-era rule entirely.

If it remains on the books, the rule, which set up a multipart formula for determining when a situation demanded more scrutiny, will now take effect in 2020. Meanwhile, 10 states plan to move ahead and implement the regulation in July despite the delay, the department noted in its federal notice.

Trump education officials have argued the rule would place an undue burden on states to define “significant disproportionality” and go after it. They also worry that directing schools to achieve certain ratios might mean schools wouldn’t offer special education to certain students despite a real need.

“Because of the concerns raised, the Department is looking closely at this rule and has determined that…it is prudent to delay implementation for two years,” said Liz Hill, an Education Department spokeswoman, in a statement.

Educators and policy experts have been fiercely at odds over the need for the rule. Some argue that too few minority students, rather than too many, have access to adequate special-education services. Others believe that the proportions of minority students being identified is so much higher than their white peers that root causes of racism must be addressed.

In a letter to Mrs. DeVos, the National Association of State Directors of Special Education argued that any delay would send the message that the federal government discounts the importance of equity in education. “NASDSE does not believe that addressing equity should ever be put on hold,” the group wrote.

The School Superintendents Association has long argued the rule would create an undue burden on certain schools. “This heavy-handed and aggressive regulation by the Obama administration should be pulled back given the enormous financial consequences for districts,” the group’s executive director, Daniel Domenech, said in a statement.

The Education Department in one analysis estimated that nearly half of all school districts would be identified for having disproportionate numbers of minority students in special-education programs under the Obama standard. It also estimated the cost of implementing changes at between $50 million and $90 million.

The special-education policy is one in a series of Obama-era social policies that Education Secretary Betsy DeVos has described as federal overreach and has targeted for review.

The department’s civil-rights division is considering reversing an Obama policy directing schools to ensure they don’t discipline black and Hispanic children at disproportionately high rates. It is also drafting a new regulation governing Title IX, the federal law ensuring gender equity at schools and campuses that is used to dictate how college sexual assaults are adjudicated.

In its 2004 reauthorization of the Individuals with Disabilities Education Act, Congress required states to identify school districts that placed large numbers of black, Hispanic and Native American students in special-education programs. But the law didn’t set any threshold at which racial disparities would be considered “disproportionate.” A 2013 Government Accountability Office report found just 2% of school districts followed the law.

“Clearly, leaving [the law] unregulated has done a disservice to millions of students of color with disabilities and exacerbated the ‘school to prison’ pipeline,” said Rep. Bobby Scott (D., Va.), the top Democrat on the House Education committee.

Those findings led Obama administration education officials to draft a policy that would set a “canary-in-the-coal-mine trigger,” said Catherine Lhamon, head of the department’s civil-rights division from 2013-2017. “The regulation as it now exists is designed to make sure that there’s a consistent understanding across America of what that canary should be.”

In its notice announcing the delay, the department said it has heard from “commenters” who believe the federal agency doesn’t have the authority to mandate how states determine what constitutes “significant disproportionality.”