Research shows that students of color, boys, and students with disabilities are more likely to experience disciplinary removals than their peers. Indeed, black students with disabilities are more than twice as likely as peers to be suspended out of school or expelled, and the rates in Texas are even higher. Exclusionary discipline means missed instructional time and is associated with an increased likelihood of dropping out of school and interaction with the criminal justice system. These disparities are troubling both for student outcomes and for district legal liability.

This summer, we posted about comprehensive guidance on discipline and students with disabilities from the Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitation Services (OSERS). We continue to anticipate guidance from the Department of Education and Department of Justice related to student discipline and race under Title VI. In the meantime, we want to talk about the intersection of disability and race: significant disproportionality.

What does IDEA say about significant disproportionality?

The IDEA actually contains three related concepts dealing with intersection of disability and race: significant discrepancy, disproportionate representation, and significant disproportionality. While a district would need to correct an imbalance in any of these areas, significant disproportionality is the one that has a financial impact as well. The significant disproportionality regulation requires comparison of the rates of identification, restrictive placement, and discipline across racial and ethnic groups. States set their own thresholds for compliance. In Texas, significant disproportionality is recognized if the rate of identification, restrictive placement, or discipline for any racial or ethnic group is more than 2.5 times that of other groups for three consecutive years (and the district is not improving at a sufficient rate to drop below the threshold in year four).

A district that hits this threshold must review its policies, procedures, and practices to identify and revise any that are contributing to significant disproportionality and publicly report on changes made. Additionally, such districts must reserve 15% of their IDEA funds for Comprehensive Coordinated Early Intervening Services (CCEIS). These funds can be used for professional development, screening and evaluation, positive behavior supports, and academic interventions and must be targeted to address the factors that contributed to significant disproportionality. And of course there are tracking and documentation requirements. Additionally, districts with significant disproportionality are at increased risk for OCR complaints and lawsuits under Title VI.

How can a district avoid significant disproportionality, especially related to discipline?

First, track the data to identify patterns, trends, and discrepancies. Ideally, your team can spot and address problematic rates before they cross the 2.5 threshold for three years. Having a team of people with different areas of expertise can help, such as special education, discipline, equity and inclusion, data, MTSS, and policy/legal. Next steps will depend on the factors the team believes are contributing to the disproportionate rates of discipline, but plans might include some of these actions:

• Review of the student code of conduct to more clearly define behaviors that can lead to exclusionary discipline in order to reduce inconsistent implementation.
• Implementation of restorative practices over exclusionary discipline.
• Additional training and support to create meaningful FBAs and BIPs, monitor their effectiveness, and revise as needed.
• Training and support to conduct compliant MDRs to avoid exclusionary discipline for behaviors that are disability related.
• Recruiting, hiring, and retaining diverse administrators, teachers, and service providers.
• Instructional coaching to support engaging, culturally responsive teaching that is challenging but achievable.
• Professional development related to classroom management, implicit bias, and IEP/BIP implementation.

Many of these actions take time and sustained attention, as well as the buy-in of multiple stakeholders, to do effectively. At the same time, extraordinary incidents of student violence may mean a push by some for harsher, more traditional discipline. The IDEA, Section 504, and Title VI require a close look at school and district policies and practices to ensure students receive the special education supports they need and are not subject to discriminatory discipline on the basis of disability or race.

If you are attending TCASE Great Ideas 2023 and want to learn more, please come to my learning lab on this topic: Avoiding and Addressing Disproportionate Discipline: Legal Requirements and Practical Steps. And reach out to our team with questions and for support.