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.