May 31, 2018
Johnny W. Collett
Assistant Secretary for Special Education and Rehabilitative Services
U.S. Department of Education
400 Maryland Avenue SW, Room 5107
Potomac Center Plaza
Washington, DC 20202-2500
Re: Proposed postponement of the Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children with Disabilities regulations (Equity in IDEA regulations)
Dear Assistant Secretary Collett:
I write on behalf of the National Council on Disability (“NCD”) – an independent, nonpartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities – to advise the Department of Education (“Department”), on its proposed postponement of the Equity in Individuals with Disabilities Education Act (“IDEA”) regulations. In furtherance of striving to fulfill the overarching promise of the IDEA – a free and appropriate public education in the least restrictive environment for children with disabilities – and for the other reasons set forth herein, we urge the Department to allow the regulations to go into effect on the established dates without delay.
In a Notice of Proposed Rulemaking (“NPRM”) issued on February 22, 2018, the Department proposed to postpone compliance of the Equity in IDEA regulations for two years, from July 1, 2018, to July 1, 2020, so that it could review the regulations to ensure they effectively addressed significant disproportionality. The Department also proposed postponing the date for including children ages three through five in the analysis of significant disproportionality with respect to the identification of children as children with disabilities and as children with a particular impairment from July 1, 2020, to July 1, 2022. NCD believes that a postponement will prolong the long-recognized disproportionality in our nation’s special education system and the resulting negative impacts on students with disabilities of color and their families.
NCD agrees with the Department that the status quo for school districts across the country properly identifying children with disabilities is troubling. Disproportionate representation of racially and culturally diverse students is a critical issue that has plagued the education field for decades. When Congress reauthorized the IDEA in 2004, it sought to correct disparate treatment of students of color with disabilities by requiring States to identify school districts with significant overrepresentation, and directing federal resources to address gross inequities. Despite having had over a decade to comply with this requirement, many States and districts continually fail to meet their responsibility to address the identification, placement, and discipline of students of color with disabilities. As the Department stated in its February 18 NPRM:
In 2012, American Indian and Alaska Native students were 60 percent more likely to be identified for an intellectual disability than children in other racial or ethnic groups, 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 having a learning disability. In addition, black children were more than twice as likely to be identified with an emotional disturbance. And yet, in SY 2012-13, only 28 States and the District of Columbia identified any LEAs with significant disproportionality, and of the 491 LEAs identified, 75 percent were located in only seven States. Of the States that identified LEAs with significant disproportionality, only the District of Columbia and four States identified significant disproportionality in all three categories of analysis—identification, placement, and in discipline.
This issue is of particular interest to NCD given our long history of examining the implementation of and advising the Department on the IDEA to ensure educational opportunity, full inclusion, and appropriate supports and services for children with disabilities. NCD’s 2015 report, Breaking the School-to-Prison Pipeline for Students with Disabilities, described the impacts of disproportionality and advised the Department of our concern that students with disabilities who receive special education services are suspended and expelled more often than their peers without disabilities and have poorer outcomes. We also expressed our concern that students of color with disabilities were faring even worse: disproportionately classified as having an emotional disturbance or an intellectual disability; disproportionately segregated from their non-disabled peers; disciplined more harshly, including referral to law enforcement for minimal misbehavior; achieving at lower levels; and many eventually dropped or were pushed out of school, often into juvenile justice facilities and prisons. We advised that these disparities suggested the presence of biases that, combined with disability discrimination, contributed to the school-to-prison pipeline crisis. NCD asked the Department to take these persistent disparities into account in promulgating the Equity in IDEA regulations which the Department issued in 2016 after an extensive process of information gathering, public comment, review of 316 public comments, and adapting the proposed regulation in response to those comments.
The Department considered the comments and, based on them, made several changes to the proposed rule to provide flexibility to states and address the root causes of significant disproportionality. Specifically, the resulting Equity in IDEA regulations:
- Establish a standard methodology for States to determine whether significant disproportionality based on race and ethnicity is occurring;
- Clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities;
- Clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found, and require school districts to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services (CEIS).
The regulations also provide new flexibilities in the use of CEIS to help districts with large disparities to address the underlying causes of the disparity. The Equity in IDEA regulations, therefore, are strongly positioned to effectively address significant disproportionality.
NCD applauds the Department’s establishment of a standard methodology for determining significant disproportionality in the Equity in IDEA regulations, as it will provide more accurate comparisons within and across States, a necessary part of addressing disproportionality. We also
remind the Department that establishment of a standard methodology was a prime recommendation made by the Government Accountability Office in its 2013 report, Individuals with Disabilities Education Act: Standards Needed to Improve Identification of Racial and Ethnic Overrepresentation in Special Education, after finding that the Department’s oversight of racial and ethnic groups’ overrepresentation in special education is hampered by the excessive flexibility States had to determine what constituted significant disproportionality.
NCD urges the Department to allow the Equity in IDEA regulations to go into effect on the established dates without delay. The Equity in IDEA regulations already provided a two and four-year lead time for States to prepare for compliance. A two-year postponement would not only encourage the status quo, but would undermine the fundamental goals of the IDEA and jeopardize educational opportunity for children of color with disabilities. Additionally, a review of the previous extensive work of the Department would discount the extensive resources expended on the rulemaking process that the Department undertook from 2014-2016. A delay would also undercut the public’s expectation that these duly promulgated regulations would be implemented as scheduled, particularly children of color with disabilities and their families, who have already waited almost a year and a half for implementation. As the individuals that are directly impacted by disproportionate placement, discipline and inequitable practices, they should not have to wait two more years for compliance.