Judge rules DeVos held up Obama-era de­ci­sion on spe­cial ed­u­ca­tion

The Buffalo News - - WASHINGTON NEWS - By Erica L. Green NEW YORK TIMES

WASH­ING­TON – A fed­eral judge has ruled that Ed­u­ca­tion Sec­re­tary Betsy DeVos il­le­gally de­layed an Obama-era rule that re­quired states to ad­dress racial dis­par­i­ties in spe­cial ed­u­ca­tion pro­grams.

In a de­ci­sion Thurs­day, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia called the Ed­u­ca­tion Depart­ment’s de­lay of the spe­cial ed­u­ca­tion rule “ar­bi­trary and capri­cious.” The rule, drafted un­der the In­di­vid­u­als With Dis­abil­i­ties Ed­u­ca­tion Act, would re­quire states to iden­tify dis­tricts with “sig­nif­i­cant dis­pro­por­tion­al­ity” in the num­ber of mi­nor­ity stu­dents chan­neled into spe­cial ed­u­ca­tion ser­vices, seg­re­gated in re­stric­tive class­room set­tings or dis­ci­plined.

The rule, passed in the fi­nal weeks of the Obama ad­min­is­tra­tion, re­quired dis­tricts to ex­am­ine poli­cies and prac­tices that con­trib­uted to the dis­par­i­ties and fund reme­dies.

The judge’s rul­ing va­cates DeVos’ de­ci­sion to put off the reg­u­la­tion by two years. In­stead it will take ef­fect im­me­di­ately. Lead­ers in the Ed­u­ca­tion Depart­ment said last sum­mer that they needed time to study the rule’s po­ten­tial con­se­quences be­cause they were con­cerned that it could pro­mote un­con­sti­tu­tional “racial quo­tas.”

Civil rights groups hailed the rul­ing as a vic­tory over one of the most sig­nif­i­cant pol­icy moves DeVos has made to date. While the depart­ment has re­scinded non­bind­ing guid­ance doc­u­ments, which cham­pi­oned Obama-era prac­tices for ad­dress­ing racial bias, the spe­cial ed­u­ca­tion rule is bind­ing, and states had been pre­par­ing to en­force it for more than a year.

Denise Mar­shall, ex­ec­u­tive di­rec­tor for the Coun­cil of Par­ent At­tor­neys and Ad­vo­cates, an ad­vo­cacy or­ga­ni­za­tion that sued the depart­ment over the de­lay last year, said the de­ci­sion “as­sures states will be re­quired to help their dis­tricts who have his­tor­i­cally dis­crim­i­nated against chil­dren” by of­fer­ing them ser­vices rather than sus­pen­sions.

“The court has sided with the chil­dren whom the depart­ment had deemed unim­por­tant through its ac­tions,” Mar­shall said.

Liz Hill, a spokes­woman for the Ed­u­ca­tion Depart­ment, said the agency was re­view­ing the rul­ing and ex­plor­ing its op­tions.

DeVos de­layed the rule after a pub­lic com­ment pe­riod in which the over­whelm­ing ma­jor­ity of more than 300 com­menters ex­pressed con­cern that dis­crim­i­na­tory prac­tices were deny­ing black and His­panic stu­dents a proper ed­u­ca­tion in a tra­di­tional class­room set­ting and push­ing them out of school to lives on the mar­gins of so­ci­ety or in prison.

The depart­ment largely sided with the rule’s op­po­nents who be­lieved that large dis­par­i­ties were not ev­i­dence enough of dis­crim­i­na­tion in class­rooms and could be a re­sult of other fac­tors such as dis­tricts’ ca­pac­ity to train teach­ers in prop­erly iden­ti­fy­ing and dis­ci­plin­ing stu­dents with dis­abil­i­ties.

It also ar­gued that the rule could have un­in­tended con­se­quences for those same chil­dren if dis­tricts felt pres­sure to meet “racial quo­tas” to avoid be­ing found in vi­o­la­tion of the rule.

“The sec­re­tary is con­cerned that the reg­u­la­tions will cre­ate an en­vi­ron­ment where chil­dren in need of spe­cial ed­u­ca­tion and re­lated ser­vices do not re­ceive those ser­vices be­cause of the color of their skin,” the depart­ment wrote.

But Chutkan wrote in her rul­ing that the depart­ment’s con­cern over racial quo­tas “did not have ad­e­quate sup­port in the rule-mak­ing record.”

She wrote that the depart­ment failed to show how the safe­guards in the Obama-era rule, which ex­pressly pro­hib­ited racial quo­tas, were in­suf­fi­cient.

She also found that the depart­ment vi­o­lated the law that gov­erns the pro­mul­ga­tion of reg­u­la­tions by fail­ing to pro­vide a “rea­soned ex­pla­na­tion” for de­lay­ing the rule and failed to “ac­count for the costs to chil­dren, their par­ents and so­ci­ety.”

Rep. Robert Scott, D-Va., chair­man of the House Ed­u­ca­tion and La­bor Com­mit­tee and a vo­cal critic of de­lay­ing the rule, said it was “trou­bling that the depart­ment de­layed this crit­i­cal rule with­out ful­fill­ing its le­gal re­spon­si­bil­ity to pro­vide a ra­tio­nal jus­ti­fi­ca­tion.”

“By forc­ing the Trump ad­min­is­tra­tion to im­ple­ment the rule, the court’s rul­ing will put us back on a track to­ward re­vers­ing sys­temic racial dis­crim­i­na­tion in ed­u­ca­tion,” Scott said in a state­ment.

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