During the past month, the US Department of Education has issued two documents which, while they may appear rather esoteric, have a significant impact on special education policy and practice. All individuals with an interest in special education in particular, and in federal education initiatives in general, will want to familiarize themselves with them.

The first document is a series of “Questions and Answers (Q & A) on U.S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1.” The Supreme Court issued its decision in the Endrew F. case on March 22, 2017 (137 S. Ct. 988) interpreting the level of service to which a special education student is entitled by the “free appropriate public education (FAPE)” standard under the Individuals with Disabilities Education Act. The Court overturned the lower court’s ruling [798 F.3d 1329 (10 Cir., 2015)] that an individualized education plan (IEP) that was “calculated to provide educational benefit that is merely more than de minimis (i.e., more than trivial or minor educational benefit)” is sufficient. (Q & A, Page 3). The Court  reasserted its 1982 holding in Board of Education of Hendrick Hudson Central School District,  Westchester County  v. Rowley, 458 US 176 (1982) “that an IEP had to be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”(Q & A, Page 4).  It emphasized that “every child should have the chance to meet challenging objectives”.  (Q & A, Page 6).  To the Department of Education, this means that “each child’s educational program must be appropriately ambitious in light of his or her circumstances, and every child should have the chance to meet challenging objectives.” (Q & A, Page 5) It noted that “the IEP must aim to enable the child to make progress.” (Q & A, Page 6).  However, it reasserted also the Court’s observation that “any review of an IEP must consider whether the IEP is reasonably calculated to ensure such progress, not whether it would be considered ideal.” (Q & A, Page 5).

To the Department of Education, this is very much an ongoing process. “Each child with a disability must be offered an IEP that is designed to provide access to instructional strategies and curricula aligned to both challenging State academic content standards and ambitious goals, based on the unique circumstances of that child. The IEP must be developed in a way that ensures that children with disabilities have the chance to meet challenging objectives, as reflected in the child’s IEP goals. Each child’s IEP must include, among other information, an accurate statement of the child’s present levels of academic achievement and functional performance and measurable annual goals, including academic and functional goals. This information must include how the child’s disability affects the child’s involvement and progress in the general education curriculum”. (Q & A, Page 6). Thus, “the child’s IEP must be designed to enable the child to be involved in, and make progress in, the general education curriculum.” (Q & A, Page 7). This is “the curriculum that is based on a State’s academic content standards.” (Q & A, Page 7). It is “the same curriculum as for nondisabled children.” (Q & A, Page 7). Even “for children with the most significant cognitive disabilities”, the IEP must be “appropriately ambitious.” (Q & A, Page 7).

The IEP must thus be a dynamic and evolving document, adjusted as needed to offer the student the opportunity to meet “challenging objectives.” On this account, at least annually, “IEP Teams must review the child’s IEP to determine whether the annual goals for the child are being achieved … The IEP Team also may meet periodically throughout the course of the school year, if circumstances warrant it. For example, if a child is not making expected progress toward his or her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of progress.”  (Q & A, Pages 7-8).  IEP Teams must thus focus on “identifying present levels of academic achievement and functional performance”, on setting “measurable annual goals”, and on monitoring closely the progress made by the student toward those goals during the year. (Q & A, Page 9).  “IEP Teams and other school personnel should be able to demonstrate that, consistent with the provisions of the child’s IEP, they are providing special education and related services and supplementary aids and services; making program modifications; providing supports for school personnel;  and allowing for appropriate accommodations that are reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives.” (Q & A, Page 9)

This new “Questions and Answers” document is significant, in that it applies the Supreme Court ruling in Endrew F. in a clear, straightforward manner. It provides objective guidance to school districts, and IEP Teams, in setting “challenging objectives” for students, and in modifying IEPs as necessary to help students to meet those objectives. It offers encouragement to students, parents, and advocates, engaged in the IEP process, that they will be offered ambitious goals, and a truly individualized educational plan focused on meeting them.

The second document issued by the Department will provoke more concern. It relates to a “significant disproportionality rule”, issued on December 19, 2016 by the Department in the closing weeks of the Obama administration. It “seeks comment on whether to extend by two years the compliance date of these regulations from July 1, 2018, to July 1, 2020, and, if so, whether to extend the date for including children ages three through five in the analysis of significant disproportionality with respect both to the identification of children as children with disabilities and to the identification of children as children with a particular impairment from July 1, 2020, to July 1, 2022.” The Department promulgated the rule  “[w]ith the goal of promoting equity under IDEA”; “ the regulations will establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its local educational agencies (LEAs); clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities; clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found; and require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services (comprehensive CEIS) and allow these services for children from age 3 through grade 12, with and without disabilities.” (81 FR 92376; Document Number 2016-30190).

The goal of the rule then was to “help to ensure that States meaningfully identify LEAs with significant disproportionality and that States assist LEAs [local education agencies] in ensuring that children with disabilities are properly identified for services, receive necessary services in the least restrictive environment, and are not disproportionately removed from their educational placements by disciplinary removals. These final regulations also address the well-documented and detrimental over-identification of certain students for special education services, with particular concern that over-identification results in children being placed in more restrictive environments and not taught to challenging academic standards.”  (81 FR 92376; Document Number 2016-30190).The IDEA requires states to address “significant disproportionality” in special education populations, and in 2004 Congress required states to apply up to fifteen percent of their federal special education grants to resolving this disparity. However, Congress did not define “disproportionality”. The 2016 regulation would have adopted a standardized method of calculating disproportionality – a “risk ratio” analysis – which would have had a significant impact on states using very low thresholds for determining disproportionality.

This issue has become more controversial since August, when a study by the Pennsylvania State University Center for Educational Disparities Research  concluded that, in the words of Paul Morgan, Director of the Center,  ““[o]ur results repeatedly showed that when we accounted for student-level academic achievement, as well as other factors, white and/or English-speaking students were identified as disabled more often than similar peers who were racial, ethnic or language minorities … These findings suggest that students with disabilities who are minorities may not be receiving the help to which they have a civil right.” (Penn State News, November 15, 2017). On December 14, the American Association of School Administrators: The School Superintendents Association (“AASA”) issued a statement that “[w]e share advocates’ concern with over-identification of some students in special education and disproportionate discipline rates for some students in special education. However, we firmly disagree that the specific regulation issued by the Department was within the agency’s scope and voiced deep concerns with the process, the initially proposed and final regulations. This heavy-handed and aggressive regulation by the Obama Administration should be pulled back given the enormous financial consequences for districts, particularly in light of current IDEA funding levels which is less than what districts received in 2008. Congress, not the Department, should address this complicated and important policy issue that impacts students with disabilities and the diversity of school districts that serve them.”  A two-year delay in implementation of the regulation addresses the concerns of the AASA, but it will trouble some of those who believe – consistent with the Pennsylvania State University study – that a disproportionately large segment of “students with disabilities who are minorities” are not receiving the services to which they are entitled by law. It will worry others who believe that minority students are disproportionately removed from their classrooms and are placed in restrictive settings for disciplinary reasons. Thus, the services which the Department seeks to define and safeguard through its “Questions and Answers” document of December 7 may be delayed as to some students by the Department’s proposed two-year “moratorium” on its “significant disproportionality” rule.

The Department has thus issued two pivotal documents in the past month– one protective of students who need special education services, the other with a more controversial and debatable impact on them. Special education advocates, parents, students, and school systems will need to watch developments in this area closely for the next several months.