IDEA Regs to Address Significant Disproportionality Proposed by Department
IDEA Regs to Address Significant Disproportionality Proposed by Department
Yesterday, the U.S. Department of Education released a
notice for proposed rulemaking that would make substantial changes to how significant
disproportionality is identified and remedied in states and districts.
Almost two years ago, the Department asked stakeholders to
submit information on how the Department could ensure states appropriately
identify districts with significant racial and ethnic disproportionality in the
identification, placement and discipline of special education students. Much of the feedback AASA provided appears to
be incorporated as we read through their proposed regulation. While AASA did
not suggest regulation was necessary, we would prefer a statutory approach in
the IDEA reauthorization to amending these provisions, we do think that the
Department’s proposal has some merit.
For example, AASA has stated that it is unfair to districts
and students to prohibit those identified as having significant
disproportionality to have to set-aside 15% of Part B funds for early
intervening services that can only be used for students not yet identified for
special education. We urged the Department to allow districts to spend less
than 15% if they could prove they were adequately using funds to address
significant disproportionality or to ensure the funds could be used on students
in special education as well as students not yet identified for special education.
The Department chose to propose the latter option and now CEIS funding is not
limited to non-special education students. While this does not address the
concerns we have with how maintenance of effort provisions are impacted when
districts do set-aside funds for CEIS, this is a step in the right direction.
In our comments, we also acknowledged that there needed to
be more stringent parameters to ensure states were identifying districts for
significant disproportionality. We acknowledge the current system of measuring
significant disproportionality must be reconsidered, as only 356 districts were
identified as having significant racial or ethnic disproportionality in the
2010-2011 school year. As a result of this data, we supported the conclusion drawn
by the Government Accountability Office that “the discretion that States have in
defining significant disproportionality has resulted in a wide range of
definitions that provides no assurance that the problem is being appropriately
identified across the nation.”
We asked the Department to issue guidance on states’
development of a definition of significant disproportionality that ensures they
identify districts which have significant disproportionality, but have never
been required to take action to address it. While the Department has chosen a
regulatory approach, we believe their attempt to ensure significant disproportionality
is remedied is somewhat appropriate. The Department proposes requiring states
to use a risk-ratio method to compare disproportionality among racial and
ethnic groups. Most states are already using risk-ratios, but they aren’t
required to set reasonable risk ratios, which leads to few districts being
identified for significant disproportionality. In determining a risk ratio, the
state would have to work with stakeholders and analyze the data sets helpfully
provided by the Department to analyze what an appropriate risk-ratio would be
for the state. States also have the flexibility to choose to identify an LEA as
having significant disproportionality only after an LEA exceeds a risk ratio
threshold for up to three prior consecutive years. This is another positive
change. Finally, a state need not
identify an LEA with significant disproportionality if the LEA is making
reasonable progress in lowering its risk ratios, where reasonable progress is
determined by the State. The Department’s wisdom to provide states with flexibility
to honor the progress a district is making in addressing disproportionality is
very appreciated by AASA. We do have
concerns by the requirement to use a standard national “n” size of 10 across
all racial and ethnic subgroups as this “n” size is not used for ESSA or other
federal accountability provisions, but at first glance the proposed regulations
generally appear to be a positive development in ensuring significant disproportionality
is identified and addressed with district and state flexibility and superintendent
input.
AASA will be reviewing the regs once they are formally published on the Federal Register and inviting all members to join us in commenting on the proposed regs.