The gulf of distrust between disability advocates and the U.S. Department of Education has been on full display in the wake of the Trump adminstration’s regulatory rollback efforts, illustrating how anger stirred up during Education Secretary Betsy DeVos’ confirmation hearing has yet to fade.
The latest round began when the Education Department released on Oct. 20 a list of 72 guidance documents targeted for elimination. Most of the guidance documents came from the office of special education programs, and they had expired, been replaced by more up-to-date information, or rendered obsolete by newer laws or policies.
But the administration initially cast the move in general terms as relieving an “unnecessary regulatory burden"—and didn’t offer, at first, a detailed rationale for why it was targeting those specific pieces of guidance. That set off fears that children with disabilities were losing protections.
Days later, news broke that the administration is also considering hitting the pause button on a new rule that would require many school districts to use federal dollars to address minority overrepresentation in special education. That rule has been in the works for three years, and states are preparing for implementation for the 2018-19 school year.
Nish Weiseth, an author and activist in Salt Lake City who has a 7-year-old son with autism and a 4-year-old daughter, said her worries have been amplified by her negative impressions of DeVos, who stumbled over questions about children with disabilities and special education during her confirmation hearing.
“What most folks don’t understand is, families with children who have disabilities are in a perpetual state of fight mode,” Weiseth said. “Every step forward that we managed to achieve for students with disabilities didn’t come without a big fight.”
On Oct. 27, the Education Department released yet another list of old and outdated guidance and memos that it planned to purge, including from the office of elementary and secondary education and the office of postsecondary education. In contrast to its earlier announcement of rollbacks to special education guidance, the department included detailed information about each of the latest documents, and also named all the stakeholder groups it met with before making its decisions.
Lingering Suspicions
DeVos entered her position as a strong advocate of school choice programs such as private school vouchers, but with more limited policy experience in public schools, which neither she nor her children attended.
Families with children who have disabilities are in a perpetual state of fight mode.”
During her January confirmation hearing, she said that states should be the final arbiter of whether schools must follow the federal Individuals with Disabilities Education Act if they receive taxpayer money. In a followup question, she said she may have been confused about the fact that schools receiving federal dollars must follow federal law.
In subsequent speeches and in letters to Congress, DeVos has said the department will protect the rights of students with disabilities. But she has not swayed from her view that the government should support parents seeking alternatives to public schools.
And private schools, an important element in robust school choice programs, are not bound by the same federal special education laws as public schools, which the vast majority of students with disabilities attend.
The latest furor is of the department’s own making, said Curtis Decker, the executive director of the National Disability Rights Network. He said his organization has a longstanding relationship with many of the people in the Education Department whose positions touch the lives of students with disabilities.
“They didn’t have enough sense to call us and say, ‘We’re about to do this thing, don’t worry, [the guidance] is pretty old, don’t freak out,’” Decker said.
And, he said, the Trump administration has stirred up concerns among advocates that protections for people with disabilities are fair game for cuts or elimination that go well beyond special education. Proposed changes to Medicaid or to housing vouchers also affect people with disabilities, he said.
Funding concerns are also a factor. The approximately $13 billion for special education in the current federal budget is one of the biggest pots of money distributed by the Education Department.
There’s no proposal on the table to cut special education funding. But, Decker noted, “If they’re looking for savings, we’re a fat little bird sitting there waiting to be cooked. We’re all incredibly on edge.”
Advocates were freshly roiled by a Politico report that the department was also mulling a delay or elimination of the rule requiring more school districts to fix problems of minority students being overrepresented in the number identified for special education, placed in restrictive educational settings, and suspended or expelled.
Education Week obtained a draft of a Federal Register notice which asks for opinions on whether the department should delay the implementation of that rule by two years. That would give the department time to study whether the rule should be continued, modified, or dropped, the notice said.
Liz Hill, a spokeswoman for the Education Department, confirmed that the rule is under review.
“We’ve heard from states, [school districts] and others on a wide range of issues, including the significant disproportionality rule. Because of the concerns raised, the department is looking closely at this rule,” she said.
School districts have been required since 2004 to use a portion of their special education dollars to address minority overrepresentation.
New Battle Brewing?
But states have been left to develop their own formulas for identifying districts, and only about 3 percent of districts have ever been identified as having bias problems severe enough to prompt them to use federal money to address the issue. The new rule creates a standardized process and is expected to cause more school districts to be identified.
Minority overrepresentation in special education, as well as in suspensions and expulsions, “should alarm Secretary DeVos and trigger a sense of urgency to fix the problem, not kick it down the road for two years,” said Lauren Morando Rhim, the executive director of the National Center for Special Education in Charter Schools.
Kristen Harper, a senior policy specialist at the nonpartisan research group Child Trends, worked in the Obama administration to craft the rule that the administration is now considering delaying.
Under the rule, districts would only start being identified with potential bias problems in the spring of 2019. New requirements would not start until the fall of that year. Delaying the implementation for two years only puts off that process, she said.
“If the states feel concerned about jumping into this, they already have flexibility under the current regulations to take things slowly,” Harper said. “The states have flexibility to start with more lenient measures and to grow more strict over time.”
And now it appears that advocates—having clashed with DeVos from the time of her confirmation—are gearing up for yet another battle.
