Disproportionate Representation and Significant Disproportionality

The Individuals with Disabilities Education Act (IDEA), Part B requires states and local educational agencies (LEAs) to address the disproportionate representation of racial and ethnic groups in special education. The statute and regulations for the IDEA include important requirements on how states and LEAs must address disproportionate representation in special education.

To properly implement these requirements, it is critical for states and LEAs to understand the differences in the requirements between the monitoring priority indicators and the separate and distinct obligation to determine if significant disproportionality is occurring (20 U.S.C. 1416(a)(3)(C); 34 CFR §300.600(d)(3)) and (20 U.S.C. § 1418(d); 34 CFR §300.646(b)). The US Department of Education Office of Special Education Programs (OSEP) has developed the IDEA 2004 Requirements Chart, included in OSEP Memo 07-09, which illustrates the two distinct requirements of disproportionate representation and significant disproportionality. Below are the methodologies for indicator 9 and 10:

Related Analysis 

Additionally, the IDEA, Part B requires state education agencies to review LEA data annually to determine if a significant discrepancy in long-term (greater than 10 days) suspension and expulsion rates exists for students with disabilities as a whole and students with disabilities by race or ethnicity. State educational agencies must report their findings in Indicator 4A/B in the State Performance Plan (SPP) and Annual Performance Report (APR), 20 U.S.C 1416(a)(3)(C) and 1412(a)(22).

The TEA bases the identification of districts for significant discrepancies in the rates of suspension and expulsion of students with disabilities on the analysis of PEIMS data submitted by LEAs. Below are the methodologies for indicator 4A and 4B:

 Significant Disproportionality Representation 

States have separate obligations to collect and examine data to determine whether significant disproportionality based on race or ethnicity is occurring in the state and the LEAs, under 20 U.S.C. 1418 (d) and 34Code of Federal Regulations (CFR) §300.646, based on race or ethnicity is occurring in the state and the LEAs of the state with respect to:
  • the identification of students as students with disabilities, ages 6-21, including identification as students with particular impairments;
  • the placement of students in particular educational settings; and
  • the incidence, duration, and type of disciplinary actions occurring for students, including suspensions and expulsions. 

Each state has the discretion to define what constitutes significant disproportionality for the LEAs in the state and for the state in general. The state’s definition of significant disproportionality must be based on an analysis of numerical information only, and may not include consideration of the state’s or LEA’s policies, procedures, and practices. This definition reflects statutory language at section 618(d)(2) of the IDEA which explains that a review of policies, procedures, and practices is a consequence of rather than a part of a determination of significant disproportionality by race or ethnicity. States must conduct this analysis on the three elements of identification, placement, and disciplinary actions on an annual basis. 

Procedures and Requirements 

The TEA has adopted refined procedures for conducting the analyses of the three required elements of significant disproportionality based on state-level distributions and a two-year examination of PEIMS data. Each spring, the TEA follows a methodology for analyzing the three required elements of significant disproportionality. LEAs determined to have significant disproportionality are subject to the required actions explained in the following sections.  

 

Note: Amendments to the regulations under Part B of the IDEA governing the Assistance to States for the Education of Children with Disabilities program and the Preschool Grants for Children with Disabilities program were finalized on January 18, 2017. The amended regulations (1) 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 LEAs; (2) 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; (3) clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found; and (4) 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. States must comply with these final regulations by July 1, 2018, and as such, the Texas Education Agency (TEA) has begun a review of these requirements and has initiated engagement with stakeholders to obtain input regarding flexibilities, and is in process of incorporating the established standard in meeting compliance with the prescribed timeline. 

Additional information and resources:  

Federal Register Posting of 34 CFR Part 300 [Docket ID ED–2015–OSERS–0132] RIN 1820–AB73  Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities  

 

Review and Revision of Policies, Procedures, and Practices  

The review of LEA policies, procedures, and practices for identifying, placing, and disciplining students with disabilities occurs for LEAs that, based on the numerical analysis, are identified as having significant disproportionality in identification, placement, or discipline. The purpose of this review is to determine if the policies, procedures, and practices are consistent with the requirements of IDEA. 

Required Use of Maximum Amount of the Flow-Through Funds for Early Intervening Services  

In the case of determination of significant disproportionality with respect to the identification of students as students with disabilities, the placement in particular educational settings of such students, or disciplinary actions, the TEA must require the LEA to reserve the maximum amount (15%) of the flow-through funds it receives under Part B formula and Part B Preschool formula of IDEA, to provide comprehensive coordinated early intervening services (EIS) to serve students who have not been identified as students with disabilities in the LEA, particularly, but not exclusively, students in those groups that were significantly over-identified (34 CFR §300.646(b)(2)). The phrase “reserve the maximum amount of funds” is interpreted as meaning use of the funds for EIS. The statute does not authorize LEAs to use these funds for any other purpose.

Note: The amended regulations will 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, particularly, but not exclusively, children in those groups that were significantly over-identified, including children 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 and children with disabilities. (See 34 C.F.R. §300.646(d)(2).) An LEA may not limit comprehensive CEIS only to children with disabilities. (See 34 C.F.R. §300.646(d)(3).)

For clarity on the difference between CEIS and CCEIS, click this link

 It is important to note that the obligation to use 15% of the LEA’s IDEA funds for EIS is triggered solely on a determination of significant disproportionality. In other words, the obligation to reserve funds for EIS occurs independent of any analysis of whether that disproportionality is the result of inappropriate identification, which is the case for indicators 9 and 10 of the SPP. Below are other areas to find information about EIS: 

Public Reporting of Revisions to Policies, Procedures, and Practices 

The LEA is required to publicly report on the results of the revision of policies, procedures, and practices, used in identification, placement or discipline of students with disabilities, based on the third provision at 34CFR §300.646(b)(3). (Examples include, but are not limited to: school board meeting announcement, public notice in the local newspaper, posting on the LEA's web page, letter to parents.)  For more information, click this link

Additional guidance about disproportionality is available on the Education Service Center Region 1 Texas Initiative for Disproportionate Representation in Special Education web site.