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For nearly 20 years, the U.S. Department of Education has required states to flag districts that might be identifying minority students for special education services at rates higher than their peers.

But states, which make the rules for what counts as 鈥渟ignificant鈥� bias, have largely defined the problem out of existence.

Now, the department hopes that proposed regulations will capture more districts that have problems with minority overrepresentation in special education鈥攑otentially close to half the nation鈥檚 school districts鈥攊f the rules are adopted and every state chooses to follow the department鈥檚 recommended bias thresholds.

That鈥檚 not a bad thing, from the perspective of the department.

鈥淚t鈥檚 not about identifying bad actors. It鈥檚 an opportunity to check practices and supports,鈥� said Michael K. Yudin, the assistant secretary for special education and rehabilitative services, in a Feb. 22 press call introducing the proposal. 鈥淲e can鈥檛 begin this hard work unless we鈥檙e honest and forthright about the disparities that we see.鈥�

State monitoring of what鈥檚 known as 鈥渄isproportionality鈥� was first introduced into the Individuals with Disabilities Education Act in 1997. But it was the 2004 reauthorization of the law that established the requirement that federal funds beset aside for 鈥渃oordinated, early-intervening services.鈥�

Districts found to have significant disproportionality are required to use 15 percent of their federal special education allotment on early-intervention programs designed to address minority overrepresentation. In addition to monitoring potential overrepresentation in identifying minority students for special education, states must also evaluate whether districts are disproportionately suspending or expelling minority students with disabilities, or too often shifting minority students into restrictive settings.

Though the money can be spent at all grade levels, current regulations suggest that the primary focus be at K-3. Those regulations have also interpreted the law to mean that the set-aside is meant for students 鈥渨ho are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.鈥� Early intervention was seen as a key way to prevent special education enrollment.

Few and Far Between

A 2013 report from the Government Accountability Office found that only about 2 percent of the nation鈥檚 school districts were flagged by states for overrepresentation in the areas of identification, discipline, or educational settings. Half those districts were clustered in five states鈥� Louisiana, Michigan, Mississippi, New York, and Rhode Island.

The Education Department provided slightly more up-to-date numbers in the background information that accompanied the proposed rule. During the 2012-13 school year, about 3 percent of the nation鈥檚 districts were identified by states for overrepresentation, it says. About three-quarters of those districts were in just seven states鈥擟alifornia, Indiana, Louisiana, Michigan, New York, Ohio, and Rhode Island.

Examining the Data

That low rate of identification doesn鈥檛 match up with other Education Department data, federal education officials say. For example, 876 school districts gave African-American students with disabilities short-term, out-of-school suspensions at least twice as often as all other students with disabilities for three years in a row, according to data reported by states to the Education Department. But, in 2013, states identified fewer than 500 districts in total with significant disproportionality.

鈥淭he data we鈥檝e seen makes it very clear that we, as a country, are not living up to the intent of the law,鈥� said John B. King Jr., the acting secretary of education, in announcing the rule.

States use risk ratios to calculate overrepresentation. At its simplest, the ratio is derived by dividing the likelihood, or 鈥渞isk,鈥� that a minority student falls into a monitored category by the risk that a nonminority student has of being in that category.

A risk ratio of 1.0, for example, would show there鈥檚 no mathematical overidentification in the example district. A risk ratio of 2.0 would show that minority students are twice as likely as nonminority students to be enrolled in special education. States have developed complex adjustments to that formula to account for variations in demographics and in district size.

The new rule would standardize those calculations, while still leaving it up to states to determine a 鈥渞easonable鈥� risk ratio, in consultation with advisory panels.

But the Education Department has analyzed district data and offered examples of risk ratios that states could use. For example, a district may be identified with significant disproportionality if any racial or ethnic group is placed in separate settings at a rate more than about twice that of their peers who are not in that racial or ethnic group.

District Impact

If every state and the District of Columbia were to follow the Education Department鈥檚 lead and use its example risk ratios, about 8,100 of the nation鈥檚 17,000 local education agencies would be found to have significant disproportionality. Local education agencies include traditional school districts and charter schools.

But, the proposal also would eliminate the restriction that the money only be used for general education students. And the set-aside funds could also be used for children as young as 3.

Organizations such as the Center for Civil Rights Remedies said that the department is taking a step in the right direction. For example, it鈥檚 an 鈥渁bsurd鈥� interpretation to say that minority overrepresentation could trigger the use of the set-aside funds, but that minority students in special education can鈥檛 directly benefit from their use, said Daniel J. Losen, the director of the center and the co-editor of the book Racial Inequity in Special Education.

But the proposed rule doesn鈥檛 address what other researchers have said is a problem of under identifying students for special education. The Education Department said it also is seeking comments on the rule about the issue of potential underidentification.

Rhode Island is one of just a few states that had actively been identifying districts with significant disproportionality and guiding districts in using early-intervention money.

About 40 percent of the state鈥檚 52 districts (which include charter schools and state-run schools) have created early-intervention programs, either voluntarily or because they were required to do so by the state. The federal early-intervention dollars account for about $5 million a year, said J. David Sienko, the state鈥檚 director of special education services.

The money has been used about equally for supporting reading, math, and social-emotional learning, Sienko said.

鈥淲e saw it as a way to look at school-based practices,鈥� he said. 鈥淚t鈥檚 been really neat because school districts that weren鈥檛 required to use the 15 percent set-aside continued to pursue it.鈥�

The public has until May 16 to comment on the proposal.