Client Alert: Addressing Equity in Special Education

December 19, 2016

Last week, the U.S. Department of Education released regulations under the Individuals with Disabilities Education Act (IDEA) and a Dear Colleague Letter (DCL), both of which address racial disparities in the identification, placement, and discipline of students with disabilities.

Regulations. The U.S. Department of Education believes that students of color are often treated differently when it comes to special education and discipline. The regulations speak to the “well-documented and detrimental over-identification of certain students for special education,” and suggest that overrepresentation of some racial or ethnic groups may be caused by under-identification of others. These new requirements are designed to correct that and do the following:

  1. Establish a standard methodology states must use to determine whether the identification, placement, or discipline of a student of color is significantly disproportional to his peers;
  2. Clarify requirements for the review of policies when significant disproportionality is found; and
  3. Require that local education agencies (LEAs) address the factors contributing to significant disproportionality as part of their comprehensive coordinated early intervening services (CEIS).

Each state has considerable flexibility in how it defines “significant disproportionality,” but the regulations require that states adopt reasonable definitions and adhere to a single methodology for making the significant disproportionality determination. Additionally, for those LEAs where significant disproportionality is found, they can now use their CEIS funds for children with and without disabilities and for preschool children.

DCL. In a similar effort to address racial disparities in special education, the DCL issued by the Office of Civil Rights reminds schools that either over-or under-identification of students as disabled on the basis of their race or ethnicity is improper discrimination under Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act of 1964. When it investigates a claim of racial discrimination, OCR will examine direct and indirect evidence of discriminatory intent. 

The regulations and DCL highlight the importance of focusing on the unique needs of each student in identifying, evaluating, placing, and disciplining a student with a disability. Additionally, schools should ensure that their staff does not rely on stereotypes or biased perceptions in decisions about students. Among other things, OCR suggests that schools can mitigate this risk by developing written procedures advising staff of when and how to refer students for an evaluation and by conducting diversity awareness training.

Our education law team can help you draft special education policies, train staff, or navigate an OCR investigation. Please contact us if we can be of assistance.