Council of Parent Attorneys and Advocates, Inc. v. DeVos (Draft)
(June 2, 2019)
One area where racial disparity monitoring burdens consume great resources of state and local governments involves the Individuals with Disabilities Education Act (IDEA). IDEA requires recipients of federal education funds to identify “significant [racial/ethnic] disproportionality” (also termed “significant [racial/ethnic] discrepancies”) in the identification of children with disabilities and particular types of disabilities as well as in disciplinary actions among children with disabilities. When significant disproportionality is found, educational authorities are required to take certain actions. These actions commonly involve adding circumspection to decision-making processes in a way that reduces the frequency of identification of children with disabilities and the frequency of disciplinary actions among children with disabilities. For reasons I have explained in many places, including “Race and Mortality Revisited,” Society (July/Aug. 2014), “Compliance Nightmare Looms for Baltimore Police Department,” Federalist Society Blog (Feb. 8, 2017), that will tend to increase relative racial/ethnic differences in rates of experiencing these outcomes. See "Race and Mortality Revisited" at 343 and my Disabilities – Public Law 104-446 page regarding the IDEA requirement that when significant racial/ethnic discrepancies in discipline rates are found educational authorities must implement practices that commonly reduce suspension rates and thus tend to increase relative differences in suspension rates. See “Getting it Straight When Statistics Can Lie,” Legal Times ( June 23, 1993) regarding, among other things, a study reflecting the mistaken belief that an organization with many safeguards against arbitrary treatment of employees would tend to have comparatively small, rather than comparatively large, relative racial differences in termination rates.
In the case of determinations of significant racial/ethnic disproportionality in identification of children with disabilities, IDEA also requires education authorities to set aside a certain proportion of federal IDEA funds “to provide comprehensive coordinated early intervening services to serve children in the local educational agency, particularly children in those groups that were significantly overidentified.” Effective programs of this nature (i.e., those that reduce the numbers of children requiring special education services) that are provided equally for children of all racial/ethnic groups, by reducing the total number of identifications, will tend to increase relative racial/ethnic differences between identification rates of advantaged and disadvantaged groups. Effective programs of this nature that are provided solely for disadvantaged groups will tend to reduce all measures of differences between identification rates of advantaged and disadvantaged groups. The effect on relative differences of programs that are “particularly” focused on disadvantaged groups will turn on how “particularly” is interpreted and a range of other factors that will likely vary from setting to setting.
In December 2016, just before the change in administrations, leadership of the Department of Education issued a regulation requiring educational authorities covered by IDEA to measure significant disproportionality in terms of the relative difference between a particular group’s rate and the rate for all other persons, as reflected in the ratio of those two rates (termed the Risk Ratio in the regulation). The regulation left to the states to determine the size of the Risk Ratio that would constitute significant disproportionality and certain other things that would affect the frequency of determinations of significant disproportionality. The regulation also specified among things that should be measured with regard to racial/ethnic differences in disciplining of students with disabilities two categories of in-school suspensions (ten days or less, more than ten days) and two like categories of out-of-school suspensions. States were to comply with the requirements of the regulation in July 2018.
Current leadership of the Department of Education, believing that there has been too much required monitoring of racial/ethnic differences under IDEA when there was little reason to believe that bias is involved in those differences and that pressures to reduce significant disproportionality may have been causing the underidentification of disabilities among racial/ethnic minorities, wanted to reconsider this regulation. Therefore, in July 2018, the agency issued a regulation delaying implementation of the December 2016 regulation until July 2020 in order that it could give further thought to the matter.
Whatever else it might wish to say to justify the delay, an agency with a sound understanding regarding the measurement of demographic differences would sensibly have pointed out the irrationality of measuring demographic differences, especially in this context, by means of relative differences between rates. Apart from the illogic of the relative difference as a measure of association as discussed generally in "Race and Mortality Revisited" and many other places, in this context, other things being equal, agencies that are the more circumspect about the identification of children with disabilities or the imposition of discipline (and those that adopt programs to generally reduce discipline rates) will tend to show larger relative differences in these outcomes than other educational authorities. Fulfillment of the obligations arising from determinations of significant disproportionality (probably including the provision of comprehensive coordinated early intervening services) will tend to increase disproportionality as measured by Risk Ratios still further. In pointing these things out, the Department of Education would also have sensibly clarified that the matter had been complicated by the agency’s own promoting of the mistaken belief that generally reducing an outcome tends to reduce relative differences in rates of experiencing it when in fact the opposite is the case. That is something the agency could fairly be regarded as having an obligation to do in any case. See my July 17, 2017 letter to the U.S. Departments of Education, Health and Human Services, and Justice and my “Innumeracy at the Department of Education and the Congressional Committees Overseeing It,” Federalist Society Blog (Aug. 24, 2017),
The Department of Education could also have simply pointed out that at the time the 2016 regulation was issued, the agency, like most other federal agencies and most of the social science community, believed reducing an outcome tended to reduce relative differences in rates of experiencing an outcome, and that, now understanding that the opposite is the case, the agency needs time to consider the implications of the fact that its understanding was incorrect.
To be comprehensive, an agency that fully understood all pertinent measurement issues would also have pointed out problems with measuring a demographic difference by comparing a group’s rate with the rate for all other persons. That is, when black and white rates for any outcome are, say, 15 percent and 5 percent, all measures of differences concerning such rates would be different in situations where a student body is comprised solely of blacks and whites and situations where the student body is partly comprised of the groups. For example, if a student body, is one-third black, one-third white, and one-third Hispanic, and, say, the Hispanic rate is 10 percent, the black 15 percent rate would be compared with a 10 percent rate rather than a 5 percent rates. Further, in that situation, no measure would find disproportionality at to Hispanics since the Hispanic rate would be same as the rate for all other students combined. See my IDEA Data Center Disproportionality Guide page and slides 98 to 106 of my October 10, 2014 University of Maryland workshop.
An agency that fully understood measurement issues would also have pointed out that it is impossible to analyze differences in rates of experiencing either category of in-school suspensions or the category of out-of-school suspensions for ten days or less. These are what may be deemed Intermediate Outcomes categories. Differences between two groups reflected by their rates of falling into such categories can never be quantified in a rational manner, just as differences in rates of having fair health cannot be quantified in a rational manner (though difference between rates of less-than-good health, or between the corresponding rates of good-or-better health, can be rationally quantified).
By simply explaining the problems with the Risk Ratio for quantifying demographic differences in this (or any) context, in addition to educating the public, educational authorities, Congress, and the disparities research community, the Department of Education agency would have insulated the delay regulation from successful challenge under the Administrative Procedure Act. Such explanation would also have obviated reasons for any entity concerned about effective monitoring of demographic differences to challenge the delay regulation.
Failing to understand these issues, however, in justifying the delay regulation the Department of Education simply relied on concerns that the rule would incentivize educational authorities to reduce Risk Ratios (a) by improperly reducing the total number of students identified as having disabilities and (b) by improperly reducing the number of students in particular racial/ethnic groups identified as having disabilities. In making these arguments, the agency cited a Texas law specifically limiting the proportion of students in an educational authority identified as having disabilities to 8.5 percent.
It warrants note that in making the argument that the regulation would incentivize education authorities to reduce the total number of identifications in order to reduce the Risk Ratio, the agency was once again leading the public and educational authorities to believe that reducing an outcome would tend to reduce relative differences between rates of experiencing the outcome, which, as explained, is the opposite of reality. Nevertheless, there is a certain validity to the argument. The only entities actually incentivized to reduce Risk Ratios by limiting the total number of identifications are those that, like the Department of Education itself, mistakenly believe that limiting the total numbers of identifications will tend to reduce, rather than increase, Risk Ratios. But, since virtually everyone involved shares that mistaken belief, the incentive would exist, and it appears to have influenced Texas.
There is also a certain validity to the argument that using the Risk Ratio to measure significant disproportionality would incentivize education authorities to take race/ethnic-conscious action to reduce Risk Ratio, though not exactly as the delay regulation regards the matter. Attaching adverse consequences to a finding or racial/ethnic disproportionality will incentive authorities to take race/ethnic-conscious action to avoid such consequences regardless of the measure used to identify racial/ethnic disproportionality. But in this and varied other settings the incentive is especially strong when the sanctioned measure is the Risk Ratio. For the main actions commonly taken to reduce such ratios that are not race/ethnic-conscious in fact tend to increase Rick Ratios, thus providing additional incentives to take racial/ethnic-conscious action to reduce the ratios. Texas, for example, would have especially strong incentives to reduce the identification of particular racial/ethnic groups precisely because its limitation on the total number of identifications will tend to cause its educational authorities to have comparatively large risk ratios, at least where groups that commonly have comparatively high identification rates make up comparatively large proportions of the student population and the 8.5 percent limitation in fact reduces the total number of identifications.
Nine days after the Department of Education issued the delay regulation, an advocacy group brought Council of Parent Attorneys and Advocates, Inc. v. DeVos et al. to challenge the regulation as arbitrary and capricious. In cases like this, federal agencies are usually represented by the Department of Justice, which, as indicated in the body of this post, shares all the misunderstandings regarding the measurement of demographic differences that the Department of Education has. The Department of Justice defended the case using arguments in the delay regulation itself, while revealing no understanding that generally reducing identification rates tends to increase, not reduce, racial/ethnic Risk Ratios. In doing so, the agency at least impliedly led the court to believe not only that states and educational authorities would believe that generally reducing identification rates would tend to reduce Risk Ratios, but that generally reducing identification rates would in fact tend to reduce Risk Ratios. By ruling of 7 March 2019, the United States District Court for the District of Columbia rejected those arguments and vacated the delay regulation. The case was appealed on 6 May 2019.
Whether the appeal process will cause either agency or the courts to finally understand that generally reducing an outcome tends to increase, not reduce, relative differences in rates of experiencing it remains to be seen. If the plaintiff Council of Parent Attorneys and Advocates, Inc. comes to understand the issue, it would sensible withdraw the suit. Such an organization has no interest in causing the implementation of a nonsensical regulation. On the other hand, it has a strong interest in causing the Department of Education to rethink the regulation and to rethink everything else the agency has done with regard to quantifying of demographic differences in educational outcomes. See the above-mentioned “Innumeracy at the Department of Education and the Congressional Committees Overseeing It,” Federalist Society Blog (Aug. 24, 2017).