One Year Ago at NCYL: COPAA v. DeVos
In March 2019, a U.S. District Court agreed with the National Center for Youth Law that the U.S. Department of Education had engaged in an “illegal delay” of the 2016 Equity in Individuals with Disabilities Education Act (IDEA) regulations. The federal court’s ruling required those 2016 regulations to immediately go into effect.
The decision was a result of a lawsuit filed against the Department by the Council of Parent Attorneys and Advocates (COPAA), who were represented by the National Center for Youth Law and Sidley Austin LLP.
To understand this case, we have to first go back more than 15 years, when Congress last amended the IDEA. Congress at that time found that students of color, particularly black students, were more likely to be identified than white students as students with disabilities, were more likely to be placed outside the general education classroom, and experienced higher levels of discipline.
In response, Congress required that every State identify school districts that were significantly racially disproportionate. Those schools were required to divert 15 percent of federal IDEA funds towards services aimed at helping younger students address issues before they manifested into disabilities.
The problem was that most States and school districts didn’t want to have to find ways to make up a potential diversion of IDEA funds from their overall budget. So they adopted formulas that defined “significant” disproportionality so high that very few, if any, school districts were ever identified. In fact, more than 20 States never identified any school districts as significantly disproportionate.
After prompting from civil rights advocates, the Department of Education adopted the Equity in IDEA regulations in 2016 that set some limits on state discretion for determining which school districts had significant racial disproportionality. It also imposed some additional requirements on how school districts had to spend the money.
Just two days after the regulations had gone into effect, in July 2018, DeVos delayed them for two years! She cited concerns that the new regulations might not work – and that they might lead school districts to impose racial quotas. But she didn’t offer another plan, effectively returning to a status quo where 20 States did nothing, and the remainder of the states did very little.
COPAA sued nine days later, claiming that DeVos had violated federal law –the Administrative Procedure Act – by engaging in arbitrary decision making.
The court agreed DeVos had acted arbitrarily in at least two ways. First, DeVos failed to provide an explanation for the delay, giving no reason why existing safeguards against quotas in the IDEA and under civil rights laws were not sufficient.
Second, DeVos failed to realistically consider the costs of delay to children. Without the regulation, fewer districts would be identified as significantly disproportionate, meaning that students in those school districts would not receive the additional early intervention services required and might be inappropriately identified, placed, or disciplined.
After some hesitation and confusion, DeVos accepted the decision and informed States that the new regulations were back in effect. As a result, we know that an increased number of school districts are being identified as significantly racially disproportionate.
Is this a story that ends with “they all lived happily ever after”? Unfortunately no, there’s a lot more work to be done at the federal, state, and district levels. But the decision in COPAA v. DeVos was critical in keeping the work moving forward.