On Feb. 27, U.S. Secretary of Education Betsy DeVos officially proposed a two-year delay of an Obama-era rule aimed at addressing disproportionate identification of students of color for special education – and disproportionate discipline of these students. This delay has been in the works for months, and if you read the notification closely, it’s clear that DeVos doesn’t just want to delay the rule – she wants to scrap it altogether.
At her confirmation hearing last year, DeVos famously botched questions about students with disabilities and the Individuals with Disabilities Education Act. When asked about whether she would enforce the law, she said it was “best left to the states.” Later in the hearing, she said she was “confused” about the law. But her rollback of this regulation confirms her original statement: She thinks protecting the rights of children with disabilities is not in her job description.
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This particular rule finally put some teeth in a legal requirement that began in 1997 and expanded in 2004: It mandated states to identify school districts that over- or under-identify certain groups of students for special education services, and help them correct it. Unfortunately, the way states approached this longstanding requirement was wildly inconsistent across the country. A 2013 report by the Government Accountability Office found that states identified only two percent of districts as having challenges in this area, with half of the reported districts coming from just five states. The GAO also concluded that the way some states calculated over- and under-identification “made it unlikely that any district would be identified,” while one state, Louisiana, accounted for 73 of the 356 identified districts.
The original regulation simply says that all states must use a standard method for calculating over- and under-identification, by examining the likelihood that one group of students is identified for special education compared to all other students. It does not impose a national requirement for how much over- or under-identification is too much, and it does not require any specific action by states or districts when disproportionality is discovered. But it does make it more likely that states and districts will take this issue more seriously, and parents and advocates will be able to see where systemic problems might exist.
And these systemic problems are real. As the original regulation explained, black students are more than twice as likely as other students to be identified as having emotional disabilities, an identification that can lead to stigmatization and exclusion from general education classes. And Native-American students are identified as having specific learning disabilities at nearly twice the rate of other students.
There is also research suggesting that – when controlling for poverty and other risk factors – students of color might actually be under-identified for special education services, and therefore not receiving the support they might need. In either case, the consistent approach and data that the regulation provides are critical to understanding and addressing these problems.
Unfortunately, ignoring the real and clear systemic barriers to education that exist for students of color – and particularly students of color who have disabilities – is something of a Donald Trump and Betsy DeVos trademark. DeVos’ delay of this rule follows reports that she is also considering rolling back guidance that helps school districts address the overuse of suspensions and expulsions for students of color.
Equally troubling, the Department of Education’s Office for Civil Rights has completely removed any mention of systemic investigations from its instructions to investigators. DeVos is now telling investigators to ignore the broader context of a discrimination complaint, and has made it far easier to dismiss complaints.
Of course, DeVos has not yet officially delayed the special education regulation or rolled back the guidance on school discipline. But her other actions on civil rights – from limiting systemic investigations to refusing to protect transgender students from discrimination to cutting staff in the Office for Civil Rights – make her inclinations clear.
The Trump administration is on a mission to roll back federal protections for everything from the environment to health and safety to voting rights. And DeVos has fully embraced her assignment. Despite leading the agency whose mission includes “fostering educational excellence and ensuring equal access,” DeVos’ actions make clear that she has no interest in breaking down the systemic barriers to excellence and access for students of color or students with disabilities.