Council of Parent Attorneys v. Devos
| Decision Date | 07 March 2019 |
| Docket Number | Civil Action No. 18-cv-1636 (TSC) |
| Citation | 365 F.Supp.3d 28 |
| Court | U.S. District Court — District of Columbia |
| Parties | COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., Plaintiff, v. Elizabeth (Betsy) DEVOS, Secretary of Education; Johnny W. Collet, Assistant Secretary for Special Education and Rehabilitative Services; U.S. Department of Education, Defendants. |
Jennifer J. Clark, Sidley Austin LLP, Crystal M. Adam, Seth Michael Galanter, Washington, DC, Benjamin G. Barokh, Pro Hac Vice, Jean-Claude Andre, Pro Hac Vice, Sidley Austin, LLP, Los Angeles, CA, Michael H. Harris, Pro Hac Vice, Oakland, CA, for Plaintiff.
Jason Lee, U.S. Department of Justice, Washington, DC, for Defendants.
This decision resolves three motions currently pending before the court: (1) Defendants' Motion to Dismiss, ECF No. 14 ; (2) Plaintiff's Motion for Summary Judgment, ECF No. 16 ; and (3) Defendants' Cross-Motion for Summary Judgment, ECF No. 22.
Having reviewed the parties' filings, the record, and the relevant case law, the court, for reasons set forth below, hereby DENIES Defendants' Motion to Dismiss, ECF No. 14 ; GRANTS Plaintiff's Motion for Summary Judgment, ECF No. 16 ; DENIES Defendants' Cross-Motion for Summary Judgment, ECF No. 22 ; and VACATES "the Delay Regulation," Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 83 Fed. Reg. 31306 (July 3, 2018).
The Individuals with Disabilities Education Act ("IDEA") was enacted to improve educational outcomes for students with disabilities by "ensur[ing] that [they] receive needed special education services." Fry v. Napoleon Cmty. Sch. , ––– U.S. ––––, 137 S.Ct. 743, 748, 197 L.Ed.2d 46 (2017). The statute requires States to implement various provisions or risk losing federal funding. See 20 U.S.C. §§ 1411, 1412 ; Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 10968-01, 10970 (Mar. 2, 2016).
Congress has amended IDEA numerous times because of the over-representation of minority students in various special education programs. See, e.g. , 20 U.S.C §§ 1400(c)(12)(B) (); (C) ("African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts."); (D) ("In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities."); (E) ("Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education."). See also Compl. ¶¶ 30-50.
In 1997 Congress amended the IDEA after finding that "[g]reater efforts [were] needed to prevent the intensification of problems connected with mislabeling ... among minority children with disabilities." Pub. L. No. 105-17, § 601(c)(8)(A), 111 Stat. 37, 40 (1997). This was the first time Congress "expressly identified racial over-representation in special education as a problem." Compl. ¶ 51. To address this problem, Congress required States to collect and examine data to determine if significant disproportionality based on race was occurring in the identification and placement of students with disabilities, and to provide reviews and appropriate revisions of policies, practices, and procedures utilized in identifying students with disabilities. Individuals with Disabilities Education Act Amendments for 1997, Pub. L. No. 105-17, § 618(c), 111 Stat. 37, 102 (1997).
Seven years later, when reauthorizing and amending the IDEA, Congress expanded the significant disproportionality provisions beyond the identification and placement of children with disabilities to cover the "the incidence, duration, and type of disciplinary actions, including suspensions and expulsions." Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 618(d)(1)(C); 118 Stat. 2647, 2739 (2004). See id. § 618(d)(1)(A) (identification); id.§ 618(d)(1)(B) (placement). If school districts (also referred to as local education agencies ("LEAs") ) are identified as having significant disproportionality in any of these respects, States must: (1) "provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement;" id. § 618(d)(2)(A); (2) require school districts to spend 15% of their federal IDEA money "to provide comprehensive coordinated early intervening services to serve children in the local educational agency particularly children in those groups that were significantly overidentified;" id. § 618(d)(2)(B), see id. § 613(f); and (3) "require the local educational agency to publicly report on the revision of policies, practices, and procedures." Id. § 618(d)(2)(C).
From 2006 through 2016, the Department of Education's (hereinafter "the Department" or "the government") regulations implementing the IDEA gave States "the discretion to define [significant disproportionality] for the LEAs and for the States in general." Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46540, 46738 (Aug. 14, 2006). This approach started to shift in 2014, when the Government Accountability Office ("GAO") reported that "the way some States defined overrepresentation made it unlikely that any districts would be identified." U.S. Gov't Accountability Office, GAO-13-137, Individuals with Disabilities Education Act: Standards Needed to Improve Identification of Racial and Ethnic Overrepresentation in Special Education (2013), https://www.gao.gov/products/GAO-13-137. The GAO recommended "a standard approach for defining significant disproportionality to be used by all states." Id. at 22.
In 2014, following the GAO report, the Department issued a Request for Information, 79 Fed. Reg. 35154 (June 19, 2014), because of "concern[ ] that the definitions and procedures for identifying LEAs with significant disproportionality that many States have established may set the bar so high that even LEAs with significant racial and ethnic disparities in the identification of children for special education are not identified as having significant disproportionality." Id. at 35155.
After considering the responses to the Request for Information, the Department issued a Notice of Proposed Rulemaking that would "require States to use a standard methodology ... when making determinations of significant disproportionality." Notice of Proposed Rulemaking Regarding Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 10968, 10978 (Mar. 2, 2016). In response to comments, the Department revised the proposed regulations and adopted its final regulations in 2016. Final Regulation Regarding Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 92376, 92378 (Dec. 19, 2016) (hereinafter "2016 Regulations"). In issuing the 2016 Regulations, the Department noted that "[m]any commenters" asserted that the proposed regulations "would put into place racial quotas that would interfere with the appropriate identification of children with disabilities based purely on the children's needs." Id. at 92385. The Department "recognize[d] 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." Id. To counter that incentive, the Department explained that the final regulations "provide[ ] States the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels." Id. This process, the Department believed, would "help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of child find procedures." Id. The Department further explained that "nothing in these regulations establishes or authorizes the use of racial or ethnic quotas limiting a child's access to special education and related services" and that "use of racial or ethnic quotas ... would almost certainly conflict with the LEA's obligations to comply with other Federal statutes, including civil rights laws governing equal access to education" and "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." Id. Moreover, the Department intended to "conduct an evaluation of the implementation of this regulation to assess its impact, if any, on how LEAs identify children with disabilities." Id. It explained that 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." Id.
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