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Federal Judge Vacates Betsy DeVos’ Special Education Regulation “Delay”

March 10, 2019

On July 1, 2018, states and local education agencies (LEAs) receiving federal funding were supposed to be in compliance with US Department of Education (USDOE) “2016 Regulations” in order to demonstrate consistency across states in determining special education eligibility. The USDOE motivation behind its 2016 Regulations was to have states effectively address and modify special education determination that resulted in disproportionate numbers of children of color in special education.

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Betsy DeVos

Two days after the July 1, 2018, deadline for 2016 Regulations compliance, on July 3, 2018, US ed sec, Betsy DeVos, decided to issue her own “delay regulation,” in which she and her USDOE questioned the issue of the 2016 Regulations producing quotas– an issue addressed in depth in the 2016 Regulations– even as she undercut her own professed concerns about the 2016 Regulations producing quotas by allowing states to still use the 2016 Regulations if they so chose.

On July 12, 2018, DeVos and the USDOE were sued by the Council of Parent Attorneys and Advocates (COPAA), an organization that US District Judge Tanya S. Chutkan determined to have standing in the case.

USDOE filed a motion to dismiss, and Chutkan said no. Instead, Chutkan found that DeVos’ USDOE (also referred to as “the government”) issuance of a “delay regulation” was “arbitrary and capricious,” and thereby thrown out (“vacated.)”

Below are excerpts from Chutkan’s 43-page judgment dated March 7, 2019:

The government implemented the Delay Regulation because it was concerned that the 2016 Regulations could incentivize LEAs to use racial quotas to avoid findings of significant disproportionality. This decision did not have adequate support in the rulemaking record.

The issue of the 2016 Regulations acting as an incentive for racial quotas was thoroughly discussed and dealt with years before 2018, when the government cited it as the basis for implementing the Delay Regulation. In adopting the 2016 Regulations, the government responded to comments arguing that the regulations “would create an incentive [for LEAs] to not identify children for special education and related services in order to reduce disproportionality numbers” … by acknowledging this possibility, but concluded that it was limited to States that selected “particularly low risk ratio thresholds.”… (“[T]he Department recognizes the possibility that, in cases where States select particularly low risk ratio thresholds, LEAs may have an incentive to avoid identifying children from particular racial or ethnic groups in order to avoid a determination of significant disproportionality.”).

Although the government in 2016 found this danger to be smaller than some commenters proposed, it nonetheless worked to address them in the final regulations. The preamble to the final 2016 Regulations condemned the use of racial quotas. … (“[N]othing in these regulations establishes or authorizes the use of racial or ethnic quotas limiting a child’s access to special education and related services.”). The government expressly stated that the use of quotas violates the IDEA. … (“[I]t is a violation of IDEA for LEAs to attempt to avoid determinations of significant disproportionality by failing to identify otherwise eligible children as children with disabilities.”). The preamble also warned that the use of quotas would expose an LEA to various forms of legal liability. … (“[A]n LEA’s use of quotas to artificially reduce the number of children who are identified as having a disability, in an effort to avoid a finding of significant disproportionality, would almost certainly conflict with their obligations to comply with other Federal statutes, including civil rights laws governing equal access to education.”); (“[T]he establishment of any such quotas would almost certainly result in legal liability under Federal civil rights laws, including title VI of the Civil Rights Act of 1964 and the Constitution.”). And the government stated that it had “added a new § 300.646(f) (regulation) to make clear that these regulations do not authorize a State or an LEA to develop or implement policies, practices, or procedures that result in actions that violate any IDEA
requirements.”

The government implemented additional safeguards beyond these warnings. Because the government found that States which “select particularly low risk ratio thresholds” … were most likely to be incentivized to use quotas, the 2016 Final Regulations “provide[d] States the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels.” … The government explained that “[a]s part of the process of setting risk ratio thresholds, States must work with stakeholders to identify particular risk ratio thresholds that help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of child find procedures.” …

Moreover, the government committed to “monitor States for any use of risk ratio thresholds that may be unreasonable and take steps, as needed, to ensure the States’ compliance.”… The regulations required “States to report all risk ratio thresholds, minimum cell sizes, minimum n-sizes, standards for measuring reasonable progress, and the rationales for each,” and these rationales had to “include a detailed explanation of why the numbers are reasonable and how they ensure appropriate analysis for significant disproportionality.” … The government also committed “to publish guidance to help schools to prevent racial discrimination in the identification of children as children with disabilities, including overidentification, under-identification, and delayed identification of disabilities by race.” … Finally, the regulations included monitoring of States and LEAs. … (“[T]he Department intends to conduct an evaluation of the implementation of this regulation to assess its impact, if any, on how LEAs identify children with disabilities.”). This evaluation would “include an examination of the extent to which school and LEA personnel incorrectly interpret the risk ratio thresholds and implement racial quotas in an attempt to avoid findings of significant disproportionality by States, contrary to IDEA.” …

In 2018, the government rejected its prior conclusion that the 2016 Regulations adequately protected against the risk of States using racial quotas to avoid findings of significant disproportionality. However, the government did not explicitly find that the safeguards in the 2016 Regulations were insufficient or that the 2016 Regulations would result in the use of quotas. Rather, it stated it needed more time to determine whether the regulations “may” incentivize quotas. … (“We want to evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas or lead LEAs to artificially reduce the number of children identified as children with disabilities under the IDEA.”). Such equivocation pervades the explanation for the Delay Regulation. … (“We are concerned the 2016 significant disproportionality regulations could result in de facto quotas ….”); … (Quotas are “precisely the risk[] that the Department believes the standard methodology may pose.”); … (“The Department is concerned that the 2016 significant disproportionality regulations may create an incentive for LEAs to establish de facto quotas ….”); … (“[T]he regulations themselves may, in fact, incentivize quotas.”); … (“We want to evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas ….”); … (“may result in encouraging quotas”); … (“may result in de facto quotas”); … (“concerned that the 2016 significant disproportionality regulations, potentially create[] an express or implied incentive for LEAs to set quotas”) …

The Delay Regulation either did not address the 2016 Regulations’ safeguards to deter the use of racial quotas or responded to them in an inadequate or cursory manner. … The Delay Regulation did not address the other specific safeguards in the 2016 Regulations. Moreover, the safeguards built into the 2016 Regulations were not meant to operate in isolation; they worked together to prevent LEAs from being incentivized to use quotas. In implementing the Delay Regulation, the government failed to explain why the safeguards as a whole would not prevent against the risk of quotas being used by LEAs.

The government did not explain why it had changed its position that the 2016 safeguards would be effective. Instead, it concluded that the 2016 Regulations could incentivize the use of quotas—a conclusion that was contrary to and inconsistent with its prior determination. …

The insufficiency of the government’s explanation for its policy change is highlighted by the fact that, while the government expressed “concern” about using standard methodology incentivizing quota use, the Delay Regulation did not forbid LEAs from using this methodology. Rather, it allowed states to comply voluntarily with the 2016 Regulations during the delay. … Indeed, the government acknowledged that “many States have commented that they intend to . . . implement the standard methodology in the 2016 significant disproportionality regulations even if the Department delays these regulations.” … This inconsistency between the government’s purported concern about the risk of using the standard methodology and the government’s decision to permit LEAs to use the standard methodology is amplified by the government’s decision to allow the use of the standard methodology without the 2016 Regulations safeguards designed to deter racial and ethnic quotas. …

The government in 2018 likewise failed to adequately explain why it needed to delay the implementation of the 2016 Regulations to further evaluate whether the regulations could incentivize using quotas. This failure also renders the Delay Regulation arbitrary and capricious. …

The Delay Regulation is also arbitrary and capricious because the government failed to consider all the relevant factors when considering the cost of the regulation. …

An agency must consider reliance costs when delaying a regulation. … As the government concedes, for 18 months—the time between the effective and compliance dates of the 2016 Regulations—States and LEAs incurred costs by coming into compliance with the 2016 Regulations. … The government labels these costs “sunk investments” and explains that “[r]egardless of whether the Department delayed the required compliance date, States would be unable to recover those expenses, and therefore it would not be appropriate to assign their value as either a cost or benefit of this action.” … The government, however, does not explain why this would be inappropriate. Under this logic, the requirement to consider reliance costs would become illusory, because an agency could simply rebrand “reliance costs” as “sunk costs.” Tellingly, the government cites no law in support of this proposition.

The Delay Regulation also fails to account for the costs to children, their parents, and society. In promulgating the Delay Regulation, the government identified “five sources of benefits” for children with disabilities, their parents, and society from the 2016 Regulations: “(1) Greater transparency; (2) increased role for the State Advisory Panels; (3) reduction in the use of inappropriate policies, practices, and procedures; (4) increased comparability of data across States; and (5) expansion of activities allowable under comprehensive CEIS.” … In so far as the delay in implementation undercuts these benefits, the Delay Regulation imposes costs that must be accounted for. But the government has not fully accounted for these costs. As to the potential losses of the transparency benefit and the increased stakeholder participation, the government claims that the mere preparation for the 2016 Regulations effectively achieve those benefits. See id. This argument ignores the fact that “part of the purpose of the standard methodology [was] to foster greater transparency in how States identify significant disproportionality,” and that States would adopt “simple and easily interpreted analyses” when identifying LEAs with significant disproportionality. … This is a loss for which the government does not account. Similarly, the government fails to explain how preparation for stakeholders’ expanded involvement would also have occurred if compliance with the standard methodology were required. …

…The appropriate remedy is vacatur. …

The court hereby DENIES Defendants’ Motion to Dismiss… GRANTS Plaintiff’s Motion for Summary Judgment… DENIES Defendants’ Cross-Motion for Summary Judgment… and VACATES “the Delay Regulation,” Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities… (July 3, 2018).

An appropriate Order will accompany this Memorandum Opinion.

March 7, 2019

TANYA S. CHUTKAN
United States District Judge

DeVos’ Delay Regulation VACATED.

DeVos is ideologically opposed to any federal oversight, which in this situation put her in the ridiculous position of declaring USDOE special education regulations as problematic even as she allowed states to continue to follow them if they chose.

However, the principal goal of a Betsy DeVos– one ideologically opposed to federal oversight in overseeing a federal office– is to undo as many regulations as she can. Period.

In this case, she was denied her ideological goal by another branch of the federal government.

Betsy DeVos 2

Betsy DeVos

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Schneider is a southern Louisiana native, career teacher, trained researcher, and author of two other books: A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?. You should buy these books. They’re great. No, really.

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