It’s bad when the federal government pressures school systems to have racial quotas. It’s even worse when government bureaucrats do that without any statutory authorization — the way the Education Department did in meddling in school discipline for disabled children.
Federal law requires school systems to track three things — the identification, placement, and discipline of special education kids — by race, to see if there are significant racial disproportionalities. But it only requires school systems to redirect federal funds based on disproportionality in two of those things — identification or placement — not in discipline.
But the Obama administration was not content with federal law, and decided to expand what it required in 2016 to racially meddle in school discipline. (Never mind that racial disproportionalities in school discipline do not show racial discrimination, and telling a school system to get rid of racial disproportionality was found by judges to be an illegal racial quota. A federal appeals court struck down as an illegal racial quota a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” It concluded that requiring the same rates of discipline for all races would lead to “either systematically overpunishing the innocent” of one race, “or systematically underpunishing the guilty” of another race. (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997). Another federal appeals court similarly explained that a school discipline “disparity does not, by itself, constitute discrimination,” even when blacks are 66% of those disciplined. (See Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001))).
But given its desire to racially meddle in school discipline, the Obama administration issued what is known as the Significant Disproportionality regulation, 34 CFR § 300.646 & 647 .
The Individuals with Disabilities Education Act orders states to track racial disproportionality in three facets of special education (identification, placement, and discipline of disabled children, see 20 U.S.C. 1418(d)(1)). But it only requires school systems to redirect special education funding based on disproportionality in two of them (identification or placement of disabled children, see 20 U.S.C. 1418(d)(2))), not discipline.
But the Education Department ordered school systems to redirect large amounts of funds if disproportionality is found in any of the three facets of special education, not just the two specified by the IDEA. Effectively, it read a requirement from one section of the IDEA statute, into the other. That is forbidden. As the Supreme Court explained in ruling against a federal agency, agencies may not read a requirement from one section of a statute into another; indeed, the omission of language in one section that appears in the other shows that “Congress intended a difference in meaning” between the two sections in what they cover, according to the Supreme Court’s decision in Digital Realty Trust v. Somers, 138 S.Ct. 767, 777 (2018).
What the Education Department did overstepped its authority, and misreads the IDEA. It violated a basic rule of statutory construction known as the canon against surplusage, that the Supreme Court has relied on to curb agencies’ regulatory power, in cases such as Yates v. United States, 574 U.S. 528 (2015).
The language of the IDEA statute doesn’t say anything about redirecting funding based on discipline, only identification and placement. It says, “In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children,” a school system is required to do three things, the most important of which, is “to reserve the maximum amount of ” federal special education “funds…to provide comprehensive coordinated early intervening services,” particularly to “children in those groups that were significantly overidentified” as needing special education. See 20 U.S.C. 1418(d)(2). There is nothing in there about discipline, only identification and placement.
To get around the fact that the statute omits discipline from its funding provision, the Obama Education Department argued that discipline is a form of placement, which is specifically covered by the statute’s funding provision. As it put it, “removals from placement” can be “the result of disciplinary actions” such as being suspended from school. See Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 92376, 92442 (Dec. 19, 2016). So it issued a regulation that tied funding to “placement in particular educational settings, including disciplinary removals of such children.” 34 CFR § 300.646(c).
It then defined individual disciplinary actions as “placements into particular educational settings” that could give rise to placement disproportionalities all by themselves, even those such disciplinary actions may have little affect on the overall placement rate by race, such as the racial breakdown of special education students in regular classes, or the racial makeup of special education classes. See 34 CFR § 300.647(b)(4).
For example, if blacks and whites differ a lot in the rate at which they receive “in-school suspensions of 10 days or fewer,” the Education Department’s regulation treats that as a significant racial disproportionality in “placements into particular educational settings,” even if the discipline disparity has little affect on the overall number of black and white students present in regular classes, special-education classes, or other classes constituting placements. See 34 CFR § 300.647(b)(4)(i)(V). And if blacks and whites have a big disparity in the rate at which they receive “out-of-school suspensions of 10 days or fewer,” see 34 CFR § 300.647(b)(4)(i)(III), that is deemed a disproportionality in “placements” even if it does not have a big impact on the racial breakdown of special education classes.
So the Education Department has fundamentally transformed the statute’s funding provision to cover discipline even if it has little overall effect on placement, which is what is supposed to affect funding. The tail is wagging the dog under the Education Department’s strange interpretation of the IDEA statute.
Even if disciplinary actions are one thing that affects placements, that does not make a discipline disproportionality a placement disproportionality, any more than the fact that Aristotle is a man means that killing Aristotle kills all mankind. The fact that Aristotle is a man does not mean that all men are Aristotle. At most, disciplinary actions are just a subset of placement decisions, not a standalone category that can trigger big changes in federal funding.
The Education Department claimed that the IDEA statute is ambiguous, and that it could thus extend the reach of the statute regarding discipline, because the Education “Department is the agency charged with administering IDEA…Therefore, the Department has the authority to resolve the statutory ambiguity and incorporate into the regulations its long-standing interpretation.” See Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 92376, 92442 (Dec. 19, 2016).
That is no longer true. The Education Department, like other federal agencies, did use to have the power to resolve ambiguous statutory language by issuing regulations, under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, 467 U.S 837 (1984).
But that decision was overruled two years ago by the Supreme Court in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
As the Supreme Court explained in that decision, courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 412-13 (2024).
That’s because “agencies have no special competence in resolving statutory ambiguities. Courts do.” Loper Bright, 603 U.S. at 400-01.
So the Education Department no longer has the power to resolve any statutory ambiguity by issuing regulations expanding the reach of the statute.
Moreover, there was no statutory ambiguity to resolve in the first place. Even under the Supreme Court’s Chevron decision, agencies did not have the power to alter the meaning of the statute as determined using “traditional tools of statutory construction,” Chevron v. Natural Resources Defense Council, 467 U.S 837, 843 n.9 (1984). Traditional tools of statutory construction include the anti-surplusage canon, as the Supreme Court explained in Digital Realty Trust v. Somers, 138 S.Ct. 767, 777 (2018) and Yates v. United States, 574 U.S. 528 (2015). That canon bars the Education Department from applying the funding provision to school discipline, as discussed earlier.
The Education Department claimed that the statute has an “ambiguity because IDEA section 618(d)(2) does not explicitly state that the remedies in IDEA section 618(d)(2) [20 U.S.C. 1418(d)(2)] apply to removals from placement that are the result of disciplinary actions.” Id. But the statute explicitly omits any coverage of discipline in the remedies in 20 U.S.C. 1418(d)(2)! That omission is clear and unambiguous and bars the Education Department from applying the remedies in 20 U.S.C. 1418(d)(2) to discipline. Interpreting the word “placement” to include both “placement” and “discipline” — as the Education Department did — renders the word “discipline” in 20 U.S.C. 1418(d)(1) superfluous. That violates the anti-surplusage rule, which is a longstanding principle of statutory interpretation stating that every word, clause, and provision in a statute is presumed to have meaning and purpose. Agencies should avoid interpreting a statute in a way that would render any language in the statute redundant, meaningless, or superfluous, as the Supreme Court explained in Digital Realty Trust v. Somers, 138 S.Ct. 767, 777 (2018) and Yates v. United States, 574 U.S. 528 (2015). That principle — known as the canon against surplusage, or the anti-surplusage rule — is a traditional tool of statutory construction used to determine what a statute means. Once the statute’s meaning is set using this principle, the statute’s meaning is no longer unclear, and there is no “statutory ambiguity” than an agency can cite to give the statute its preferred meaning (like claiming that discipline disproportionalities constitute disproportionalities in placement).
Even if the Education Department were entitled to deference in how it interprets the IDEA, it would have been reasonable for it not to apply 20 U.S.C. 1418(d)(2) to discipline, given that only 20 U.S.C. 1418(d)(1), not 20 U.S.C. 1418(d)(2), mentions “discipline.” The Supreme Court has noted that an agency certainly acts reasonably in refusing to treat statutory terms as surplusage (like refusing to treat “discipline” as redundant of the word “placement”). See, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697-98 (1995).
In 2018, David Brown and Roger Clegg explained to the Education Department that it lacked the power to redirect funding based on discipline disparities. Clegg, the General Counsel of the Center for Equal Opportunity, had “served in a variety of capacities” in the Justice Department during two “administrations, including a position as deputy assistant attorney general in both administrations, assistant to the solicitor general, associate deputy attorney general and acting assistant attorney general in the Office of Legal Policy.”
As Roger Clegg explained in regulatory comments he submitted to the Education Department:
We also believe that, as a statutory matter, the regulation is invalid with regard to discipline – that is, under the statute, 20 U.S.C. 1418(d)(2), it is improper for the regulation’s redirect of funding to apply to discipline at all, because discipline is not mentioned in Section 1418(d)(2) but only in Section 1418(d)(1). Thus, under settled principles of statutory interpretation, Congress precluded applying Section 1418(d)(2)’s redirect of funding to discipline (based on the plain language of the statute, which the Education Department cannot alter). As Justice Ginsburg explained for the Supreme Court in Digital Realty Trust v. Somers, 138 S.Ct. 767, 777 (2018), agencies may not read a requirement from one section of a statute into another; indeed, the omission of language in one section that appears in the other shows that “Congress intended a difference in meaning,” see id. at 777 (“‘When Congress includes particular language in one section of a statute but omits it in another … this Court presumes that Congress intended a difference in meaning'” between the two sections; “Courts are not at liberty to dispense with the condition — tell the SEC — Congress imposed”), quoting Loughrin v. United States, 134 S.Ct. 2384, 2390 (2014). The fact that such a narrow reading of the statute “undoubtedly” has less force “than the alternative” interpretation offered by the federal government is no reason to interpret the statute differently, because it is one’s duty to interpret the statute as having the limited “‘effect its language suggests, however modest that may be.'” Id. at 779-780, quoting Morrison v. National Australia Bank, 561 U.S. 247, 270 (2010). Thus, the Education Department simply lacks the power to apply Section 1418(d)(2) to discipline, as opposed to placement in special education, no matter how much the Department thinks it might enhance the statute’s goals to apply Section 1418(d)(2) to discipline.
See Roger Clegg comment, April 9, 2018, Comment ID: ED-2017-OSERS-0128-0028.
Similarly, David Brown argued,
As other commenters such as Roger Clegg have noted, applying the funding redirect of 20 U.S.C. 1418(d)(2) based solely on discipline disproportionality violates the anti-surplusage canon of statutory interpretation. See Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018). The plain language of this provision, which OSERS is powerless to change, makes clear that reservation of funds provision of 20 U.S.C. 1418(d)(2)(B) can only be applied to disproportionality in identification and placement, not discipline.”
See David Brown comment, April 29, 2018, Comment ID: ED-2017-OSERS-0128-0001.
These objections to the Education Department’s overreaching were not new. The Iowa Department of Education made similar points in its comments to the Obama administration, in response to the Education Department’s proposed Significant Disproportionality regulation:
In searching for a statute’s meaning, one must start with its plain language. See, e.g., Moskal v. United States, 498 U.S. 103 (1990). The statutory text is always the best evidence of Congressional intent. The statute clearly provides that paragraph 2 applies only to identification and placement, which echoes paragraph 1. Conspicuously missing from paragraph 2 is any reference to discipline. The plain language must drive, and in this case end, the search for statutory meaning.
Even if one looks beyond the plain language of the statute, it is clear that the purported “clarification” has no statutory support. If discipline in this context were merely a variety of a placement, then a portion of the IDEA is surplus and becomes meaningless. Congress specifically separated placement and discipline. 20 U.S.C. § 1414(d)(1)(B)-(C). To adopt the purported clarification would be to collapse paragraph 1’s subparagraphs B and C into one requirement. Congress’s intent, manifested by separating these matters into two requirements and including only one of them in paragraph 2 – placement – must be honored. The United States Department of Education cannot, through a clarifying rulemaking, erase a distinction that Congress has created. Every word of a statute is presumed to have purpose and meaning. See, e.g., Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237 (1985). Additionally, the comparison the United States Department of Education draws to the IDEA’s discipline rules is inappropriate. While, as a general proposition, some disciplinary removals are changes in placement, see 20 U.S.C. § 1415(k)(1), this specific statute deals with a specific application of the discipline process: significant disproportionality. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550-551 (1974). In a specific, narrow context, Congress drew a distinction between placement and discipline, and provided that certain actions be taken only with respect to placement. To erase that distinction by relying on § 1415(k)(1) would be inappropriate nullification of § 1418(d)’s plain language.
Finally, interpreting § 1418(d)(2) in a manner suggested by the United States Department of Education would result in other IDEA statutory language being rendered meaningless. § 1412(a)(22) requires states to examine disproportionality in suspension and expulsion rates, including rates in the LEAs. That section also requires LEAs with “significant discrepancies” in discipline to review, and revise if necessary, their policies, practices, and procedures for compliance with the IDEA. 20 U.S.C. § 1412(a)(22)(B); see also 34 C.F.R. § 300.170. The United States Department of Education’s proposed rules would upset the careful balance contained in the IDEA’s text and render § 1412(a)(22) meaningless. This cannot be. See, e.g., Mountain States Tel. & Tel., 472 U.S. 237. Of course, states should be free to include these requirements in the proposed rules, as a matter of state governance. In the absence of legislative action, however, the United States Department of Education has no authority to undertake a “clarification” in contradiction to the statute’s plain language, no matter how wise the “clarification” may be as a matter of public policy.
See Iowa Department of Education comment, May 16, 2016, pages 4-5, Comment ID: ED-2015-OSERS-0132.
Even putting aside the question of whether the Education Department had this authority to redirect funding based on discipline disparities, its significant disproportionality regulation is bad.
The regulation creates perverse incentives regarding the identification and placement of disabled children. As David Brown noted in his comments:
Please delay this harmful regulation, which is at odds with the individual-focused nature of the IDEA, and the individualized nature of constitutional equal-protection guarantees. This January, OSERS found Texas violated the IDEA by having an 8.5% goal, which functioned a bit like a quota in that school districts would be audited if they exceeded it. Yet this “significant disproportionality” regulation subjects schools that exceed its racial proportionality goal to much more than just an audit if they exceed it — it redirects 15% of their funds.
If a mere audit for not meeting a goal violates the IDEA by encouraging group-based outcomes at the expense of an individual’s right to a FAPE, then redirecting millions in funds for not meeting a goal clearly violates the IDEA by encouraging schools to do whatever is necessary to avoid the loss of millions of dollars from uses of the funds that directly benefit disabled students.
If a mere audit for failure to meet group-based proportionality goals is enough to violate constitutional equal-protection guarantees by pressuring regulated institutions to use race in placement or hiring — and it is, see Lutheran Church-Missouri Synod v. Federal Communications Commission, 141 F.3d 344 (D.C. Cir. 1998) — then redirecting millions of dollars definitely is. It is inconsistent with the individual-focused nature of the IDEA — and OSERS’ past ruling regarding Texas’s “goal” — for it to financially penalize state education agencies to the tune of millions of dollars for failing to achieve a proportionality goal, when OSERS itself says that even far milder pressure, such as a mere audit, violates the IDEA. It is arbitrary and capricious for an agency to treat analogous situations differently and inconsistently. See Lilliputian Systems v. FHMSA, 741 F.3d 1309 (D.C. Cir. 2014). As commenter Gloria Roach says, this regulation is at odds with OSERS’ recent Texas ruling enforcing basic IDEA rights.
As commenters Roger Clegg (Center for Equal Opportunity), Olivia Bobes, and others point out, this regulation is at odds with court rulings making clear that disproportionality should be assessed compared to students’ actual needs or behavior, and whether schools are disproportionately inaccurate in meeting those needs for a particular race — Not whether that group is overrepresented in special education because it needs special education at a greater rate than other races due to greater deprivation and disadvantages prevailing in that group. For example, a federal appeals court struck down requirements that a school district that had been found guilty of discrimination not assign minority students to remedial education at a higher rate than students generally. It found that this added insult to injury, by depriving minority students of compensatory education that they needed more than other students to their “educational deficits.” It also struck down a requirement that the schools not refer minority students for discipline at a higher rate than other students, finding that this, too, was an example of the racial “quotas” that the federal constitution and federal law forbid. See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997). Significant disproportionality should be based on whether there is overidentification of a minority group, not whether there is overrepresentation of that group because it is correctly identified as having greater need due to greater educational deficits. Indeed, that is suggested by the statute’s disproportionality provisions, which says that when the disproportionality is found, the focus should be on “children in those groups that were significantly overidentified.”
As researchers have found, African-American students are more likely to need special ed, since they are more likely to be exposed to health-related, environmental, nutritional, social, and economic factors causing developmental delays or disabilities. See Paul L. Morgan, George Farkas, et al., Are Minority Children Disproportionately Represented in Early Intervention and Early Childhood Special Education?, Educational Researcher, Vol. 41, pp. 339-351 (2012)). Researchers find that African-Americans are less likely to be identified as needing special education when they need it. The regulation will compound this problem, harming the very people that the civil-rights laws were enacted to protect.
See David Brown comment, April 29, 2018, Comment ID: ED-2017-OSERS-0128-0001.
Similarly, in another of his comments, former Justice Department lawyer Roger Clegg took issue with the way the Significant Disproportionality regulation deals with the identification of disabled children. Clegg argued that the regulation ignored the statutory language about “overidentification” in favor of a quota-like “overrepresentation” standard:
The text of 20 U.S.C. 1418(d)(2)(B) itself calls into question the regulation’s disregarding “overidentification” relative to the correct rate, in favor of “overrrepresentation” compared to the overall population. This point was well made in the May 7 comments of Anonymous, Comment ID # ED-2017-OSERS-0128-0060 — https://www.regulations.gov/document?D=ED-2017-OSERS-0128-0060 – and we endorse that comment.
See Roger Clegg comment, May 11, 2018, Comment ID: ED-2017-OSERS-0128-0221.
The Significant Disproportionality regulation should be amended to stop micromanaging school discipline and stop improperly conflating discipline disparities with placement disparities.
The regulation should be amended to:
✱Remove the words “,including disciplinary removals of such children,” from 34 C.F.R. § 300.646(c).
✱Remove the words “, including disciplinary removals,” from 34 C.F.R. § 300.646(c)(1).
✱Remove the words “, including disciplinary removals” from 34 C.F.R. § 300.647(b)(4).
✱Remove the following words from 34 C.F.R. § 300.647(b)(4):
(iii) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of 10 days or fewer;
(iv) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of more than 10 days;
(v) For children with disabilities ages 3 through 21, in-school suspensions of 10 days or fewer;
(vi) For children with disabilities ages 3 through 21, in-school suspensions of more than 10 days; and
(vii) For children with disabilities ages 3 through 21, disciplinary removals in total, including in-school and out-of-school suspensions, expulsions, removals by school personnel to an interim alternative education setting, and removals by a hearing officer.
✱Create a new paragraph, 34 C.F.R. § 300.647(b)(8), stating:
Except as provided in paragraphs (b)(5) and (c) of this section, the State must calculate the risk ratio for each LEA, for each racial and ethnic group in paragraph (b)(2) of this section with respect to the following disciplinary actions:
(i) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of 10 days or fewer;
(ii) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of more than 10 days;
(iii) For children with disabilities ages 3 through 21, in-school suspensions of 10 days or fewer;
(iv) For children with disabilities ages 3 through 21, in-school suspensions of more than 10 days; and
(v) For children with disabilities ages 3 through 21, disciplinary removals in total, including in-school and out-of-school suspensions, expulsions, removals by school personnel to an interim alternative education setting, and removals by a hearing officer.
Except as provided in paragraph (d) of this section, the State must identify as having significant disproportionality based on race or ethnicity, for purposes of 20 U.S.C. 1418(d)(1)(C), an LEA that has a risk ratio or alternate risk ratio for any racial or ethnic group in any of the categories described above that exceeds the risk ratio threshold set by the State for that category. This identification of the LEA as having significant disproportionality applies only for purposes of 20 U.S.C. 1418(d)(1)(C), not 20 U.S.C. 1418(d)(1)(B) or 20 U.S.C. 1418(d)(2).
