On February 23, 2016 the United States Department of Education (ED) issued its proposed “Equity in IDEA” rule; regulations intended to address the overrepresentation of minorities in special education. The expressed intent of the rule is to provide additional guidance for local educational agencies (LEAs) regarding non-discrimination requirements, and to establish clear standards for enforcement. The summary of the proposed rulemaking states:

“[t]he Secretary will amend regulations under Part B of the Individuals with Disabilities Education Act (IDEA), which govern the Assistance to States for the Education of Children with Disabilities program. Section 618(d) requires States to determine if there is significant disproportionality based on race and ethnicity within the State and local educational agencies in the identification of children as children with disabilities; the placement in particular educational settings of these children; and the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, taken against these children. Currently, significant disproportionality is defined individually by each State. The new regulations will define and provide a national standard methodology for calculating significant disproportionality.” (emphasis added).

The initiative follows an analysis conducted by ED early this year that revealed that students of color are more frequently identified as having a disability, and receive more severe disciplinary consequences than other students.

Historically, states have been permitted to develop their own standards for determining significant disproportionality in connection with the identification of students eligible for special education services. The proposed Equity in IDEA rule would, for the first time, require states to implement a standard approach to compare racial and ethnic groups, with reasonable thresholds for determining when disparities have become significant. Once identified as having a significant disproportionality, the district must set aside 15% of its IDEA, Part B funds to provide comprehensive coordinated early intervening services. The ED press release regarding the new rule can be accessed at http://www.ed.gov/news/press-releases/us-department-education-takes-action-deliver-equity-students-disabilities

Key components of the proposed rulemaking include the following:

  • Establishment of a standard methodology to determine whether significant disproportionality exists. Current regulations do not define “significant disproportionality,” and states have discretion to determine what constitutes significant disproportionality based on race and ethnicity.
  • Allow states to determine a risk ratio threshold, which when exceeded would indicate disproportionality. States would have the flexibility to not identify an LEA until the threshold is exceeded for up to three consecutive years, and to not identify an LEA if it is making reasonable progress in lowering the risk ratio, even if the threshold is exceeded.
  • Clarification that statutory remedies apply to disciplinary removals as expressed in prior OSEP guidance.
  • Clarification that reviews of policies, procedures, and practices must be conducted every year in which a school district is identified with significant disproportionality rather than only when the initial finding is made. The proposed rule also provides that LEAs must comply with the confidentiality provisions of the Family Educational Rights and Privacy Act (FERPA) when reporting on any changes in policies and procedures.
  • Establishment of student populations that may receive comprehensive early intervening services (EIS) when an LEA is identified with significant disproportionality. Presently, IDEA provides that 15 percent of IDEA funds may be used for early intervening services for K-12 students not currently identified as eligible for services but needing additional academic and behavioral supports to succeed in general education. With a determination of significant disproportionality, the LEA is required to use EIS funds to address the issue. The Equity in IDEA rule would expand the use of such funds to preschoolers (ages 3-5) and to students with and without disabilities, as long as funds are not used exclusively for students with disabilities. LEAs would also be required to identify and address the factors contributing to significant disproportionality.

The Equity in IDEA rule as presently proposed will present significant issues for LEAs in Pennsylvania. For instance, the reduction of the “N” size to 10 students as proposed will result in a significant number of Pennsylvania schools being identified with disproportionality. In addition the inclusion of Early Intervention in the disproportionality determination will result in an additional burden for school districts related to services they do not provide.

Additional issues with the proposed regulations that have been raised in the public comments submitted to date. If you are interested in reviewing those comments or providing additional input regarding the proposed regulations, you can access the electronic docket here: https://www.regulations.gov/#!documentDetail;D=ED-2015-OSERS-0132-0001. All comments must be submitted by May 16 2016, at 11:59 PM ET. You can also sign-up for email alerts.