WASHINGTON — The Department of Education is proposing to delay for two years an Obama-era rule that requires states to aggressively address racial biases that may be channeling disproportionate numbers of minority children into special education.
The department published a notice in the federal register, soliciting public comment on its plan to postpone enforcement of the so-called "significant disproportionality rule," due to take effect July 1, 2018.
The rule, which was issued in the last weeks of the Obama administration, required states to look at districts that had disproportionately high numbers of minority students identified for special education services, segregated in restrictive classroom settings or disciplined at higher rates than their peers. If it is not scrapped, the rule would take affect in 2020.
The Education Department estimated that nearly half of the school districts in the country would be identified as having significant disproportions of minorities in their special education populations, and that it would cost districts between $50 million and $91 million to implement the rule.
It is one of several that Betsy DeVos, the secretary of education, is re-examining as her office continues a regulatory review ordered by President Trump across all federal agencies.
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"Through the regulatory review process, we've heard from states, school districts, superintendents and other stakeholders on a wide range of issues, including the significant disproportionality rule," said Liz Hill, a spokeswoman for the Education Department. "Because of the concerns raised, the department is looking closely at this rule and has determined that while this review takes place, it is prudent to delay implementation for two years."
The rule was designed to address concerns about the overrepresentation of minority students in special education. The Individuals with Disabilities Education Act required states to address "significant disproportionality," and in a 2004 reauthorization of the act, Congress began requiring states to allocate up to 15 percent of their federal special education money to address the disparities.
Representative Bobby Scott of Virginia, the ranking Democrat on the House Committee on Education and Workforce, said that delaying the rules undermines Congress' 2004 effort to strengthen the federal education law.
"Clearly, leaving the disproportionality provision unregulated has left states and school districts without the tools necessary to implement the law's requirements," Mr. Scott said. "Any effort to delay this rule, or remove it entirely, works against the fundamental goals of IDEA."
The act did not define "significant disproportionality" or set a threshold for how marked the racial disparities needed to be to raise red flags. A 2013 report issued by the Government Accountability Office found that only 3 percent of states ever used the law, and that some states had set such high thresholds for determining disproportionality that districts could never exceed them. The office recommended that the federal government set a standardized measure.
In 2016, the Obama administration issued rules to strengthen compliance with the law by developing a standardized methodology — a complicated formula called a "risk ratio" — for all states to identify districts with high levels of disparities.
The rule required districts to do a deep analysis of the root causes, but explicitly prohibited the use of quotas. Still it was controversial.
Some educators argued that the more pressing issue was that too few minority students could access special education services. Some said the research on which the Obama administration based its decision was too limited to draw broad conclusions.
But the Obama administration said that the disparities were wide enough to warrant action. For example, in 2012, the Education Department found that American Indian and Alaska Native students were 60 percent more likely to be labeled with an intellectual disability, while black children were more than twice as likely as other groups to be so identified.
Similarly, American Indian or Alaska Native students were 90 percent more likely, black students were 50 percent more likely, and Hispanic students were 40 percent more likely to be identified as learning disabled.
The rule took effect January 18, and states would have begun calculating their disparities next school year.
The Education Department announced in October that it had scrapped 600 outdated or obsolete guidances from its books, 72 of which were from the special education office.
Special education advocates denounced the department's most recent move.
"We know there is a problem that needs to be fixed — delaying implementation will only hurt children who are already in school and send a message to them that they are not important as other children are," the National Disability Rights Network's executive director, Curt Decker, said in a statement.
But the move was lauded by school district leaders who said the rules would impose burdensome financial and administrative requirements on school districts that already struggle with flat federal funding and stringent mandates for special education students.
The School Superintendents Association said in a statement that it supported the department's decision to delay what they described as "heavy-handed and aggressive regulation."
"Congress, not the department, should address this complicated and important policy issue that impacts students with disabilities and the diversity of school districts that serve them," said Daniel A. Domenech, executive director of the association. "We stand ready to work with congress to develop a common sense policy solution."
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