CCRR/CRP supports newly proposed regulations by U.S. Dept of Education to correct flaws in special education law
The Center for Civil Rights Remedies at UCLA's Civil Rights Project is grateful for the new proposed rules issued by the U.S. Department of Education’s Office for Special Education Programs, as they will ensure that states more effectively address racial inequity in special education. The Civil Rights Project has been working on this issue since 1999, and the research by scholars across the nation published in our book, Racial Inequity in Special Education, (Losen & Orfield, 2002), was instrumental in encouraging Congress to make this a priority issue for monitoring and enforcement when they reauthorized the Individuals with Disabilities Education Act in 2004 (IDEA).
The new rules will cure a misinterpretation of the 2004 IDEA by the Bush administration that has lingered and has undermined the intent of Congress to make remedying racial inequity in special education a high priority. Under the current regulations, 22 states were allowed to define “significant racial disproportionality” using such extreme terms that they identified no district as having a problem. The GAO identified this as an implementation failure in a report they issued several years ago prompting the Department of Education to conduct a statistical analysis of districts in every state and formally requesting advice from stakeholders. The new statistical report from the Department of Education demonstrates that serious racial disproportionality in any of the following areas: discipline; removal from the mainstream; and over-representation in special education and in certain disability categories; does exist in some districts in every state. Therefore, the statistical findings clearly support the response from education scholars and children’s advocates across the nation who called for a more consistent and just standard, one that would prompt more districts to implement meaningful remedies.
The Center for Civil Rights Remedies applauds how the U.S. Department of Education has responded with these proposed new regulations. They will correct the widespread failure to implement the law as Congress intended. Therefore, we encourage all to support these wise and considerate proposed rule changes by responding favorably when issuing a response to the “Notice of Proposed Rule Making” (which we will also be commenting on in more detail).
Most important, the rule changes are based on a correct interpretation of the statute. If finalized the new rules will ensure that states will not only identify more districts with serious problems but that those districts identified will address the root causes of the overuse of segregated settings and of disciplinary exclusion for children of color who have disabilities. The old and incorrect interpretation had the absurd result of prohibiting the harmed students from receiving the benefit of the remedy (known as coordinated early intervening services (CEIS)). The new proposed rules require that the district invest 15% of their IDEA funds to address the problem using a more comprehensive CEIS in a manner that will benefit the disproportionately excluded students. Under the proposed regulation, for example, if Black students with disabilities are suspended at a much higher frequency than all other students with disabilities, or are much more likely to be removed from the mainstream, the triggered comprehensive CEIS remedy must address the root causes of their racially disparate exclusion.
Further, the proposed changes make it clear that there is flexibility in the use of funds to remedy the problem. This will ensure that the remedy is appropriate for the context. For example, often over-representation is not a general special education problem at all, but is found in a disability category that is defined using very subjective methods, like the category of “other health impairment,” “intellectual disability” or “emotional disturbance.” Students in the latter two categories also tend be removed from the mainstream at much higher rates than students with dyslexia or other “specific learning disabilities.” Moreover, nationally, about one third of all students with emotional disturbance are suspended out of school, and this high rate is about twice that of students in any other disability category. The proposed rule recognizes that concerns about racial disparities in the restrictiveness of placement and high disciplinary exclusion often correspond with concerns about disproportionate representation in the more stigmatizing categories of emotional disturbance and intellectual disability.
In addition, where unusually high identification rates in specific categories is an issue, the concern is that non-disabled youth of color who received inadequate behavioral supports in pre-school or kindergarten, or poor instruction in early elementary grades would not be identified, but for over-exposure to under-resourced schools with inadequately trained or poorly supported teachers. The possibility of racial bias influencing judgment regarding special education needs must be considered as well. We know from recent research that implicit and unintended racial bias informs educator’s perceptions of student behavior and intellectual capacity. These biases can influence general and special educators alike and may contribute to observed patterns of significant disproportionality. Therefore, we are thankful that the new rules makes it clear that funds for comprehensive coordinated early intervening services (CEIS) can be used to support district’s efforts to reduce the influence of implicit bias and to increase multicultural awareness and sensitivity.
The proposed rule also recognizes that inadequacy in general education can contribute to disproportionality in special education, and wisely expands the mandatory use of CEIS funds to include addressing issues in pre-school and other forms of early intervention while, as mentioned, reversing the requirement that students with disabilities and their teachers be excluded from the benefits. This comprehensive approach recognizes that students may have a disability in one category but also have the potential for developing related behavioral needs that, if ignored, can be transformative. A dyslexic student, for example, may also have burgeoning behavioral needs that could be remedied early, but if ignored, could also result in frequent disciplinary exclusion or intensify, and increase the likelihood that the student is removed from the mainstream and educated in a more restrictive setting. Therefore, if the new rules are finalized, when racial disparities require comprehensive CEIS, students with disabilities would be allowed to benefit from these remedies and special educators will no longer be excluded from the excellent training on behavioral interventions that general education teachers may receive.
Among the most important clarifications is that racially disproportionate discipline among students with disabilities, includes disparities in short-term suspensions, and that these short-term discipline disparities can trigger the comprehensive CEIS remedy. Considering that one third of Black secondary students with disabilities were suspended at least once out of school in 2011-12, there is a crisis that has been overlooked far too often. In many districts it is the quality of special education supports and services for Black youth that is at issue, and not whether they have a disability. These proposed rules make it clear that states can no longer ignore districts that suspend Black students with disabilities at sky-high rates.
Finally, the new proposed rules can help address situations like the one we are going to see in Flint Michigan, where the widespread exposure of Flint’s children of color to lead poisoning is almost certainly going to be a root cause of racial disproportionality in special education identification in the future. As Hillary Shelton, the legislative director of the NAACP who joined the DOED in their press briefing suggested, the proposed rules will make it more likely that a district identified as having such an issue will be prompted to dedicate resources to remedy the disparate risk of exposure to lead or other toxins.
Despite the praiseworthy proposed changes, CCRR also must mention the need for some additional safeguards against a potential flaw in the proposed rule. Specifically, our comments to the proposed rules will provide some constructive solutions to what may be an over-reliance on risk ratios. Namely, if only ratios are used, some districts with very high levels of identification, restrictive settings or discipline may be overlooked, and some with very low levels flagged, unintentionally. Ratios are purely relative, so some consideration of the actual risk levels along with ratios is needed. Similarly, measures of progress should always reflect a reduction in the underlying risk levels, something that changes in ratios cannot detect.
There can be no mistake that these proposed rules are extremely important improvements to the current rules and guidance on identifying and remedying significant racial disproportionality in special education. If adopted, the implementation of the relevant IDEA provisions will help remedy very egregious problems for students of color with and without disabilities. We are thankful to Assistant Secretary of Education, Michael Yudin, and the Obama administration for proposing these critically important changes.
Daniel J. Losen
Director, Center for Civil Rights Remedies
The Civil Rights Project at UCLA
February 26, 2016