CEIS and Significant Disproportionality
11. What are the requirements for determining significant disproportionality and the use of IDEA funds for comprehensive CEIS?
Section 618(d) of the IDEA and the implementing regulations in 34 CFR §300.646 require States to collect and examine data to determine if significant disproportionality based on race or ethnicity is occurring in States and LEAs with respect to the following: (1) the identification of children as children with disabilities; (2) the identification of children as children with a particular disability; (3) the placement of children with disabilities in particular educational settings; and (4) the incidence, duration, and type of disciplinary actions, including suspensions and expulsions. This requirement is different from the requirement to determine disproportionate representation based on inappropriate identification that is reported in the IDEA State Performance Plan (SPP) and Annual Performance Reports (APR) in Indicators 9 and 10. One important difference is that the determination of significant disproportionality does not include a review to determine whether the disproportionality is the result of inappropriate identification, as does the determination of disproportionate representation as the result of inappropriate identification. In the case of a determination of significant disproportionality, a State must require any LEA identified as having significant disproportionality in any of the four above-mentioned analysis categories to reserve the maximum amount of funds for comprehensive CEIS.
12. How may States define significant disproportionality and disproportionate representation?
OSEP’s April 24, 2007 memorandum, Disproportionality of Racial and Ethnic Groups in Special Education, provides important guidance on the disproportionate representation requirements in 34 CFR §300.600(d)(3) and the significant disproportionality requirements in 34 CFR §300.646. States are required to provide a definition of “disproportionate representation that is the result of inappropriate identification” in the SPP pursuant to 34 CFR §300.600(d)(3).
States have a separate obligation, under 34 CFR §300.646, to examine data to determine whether significant disproportionality based on race or ethnicity is occurring, as described above. While it is permissible for States to use the same or similar definitions for both “disproportionate representation” and “significant disproportionality,” States’ definitions are usually different. For example, one possible way to set different, but coordinated, definitions is through a multi-level approach in which one level could be any numerical disproportionality; another level could be numerical disproportionality defined by the State to be disproportionate representation, which triggers a review to determine whether the disproportionate representation is the result of inappropriate identification; and another level could be numerical disproportionality that the State defines as significant disproportionality, which triggers the requirement to set aside the maximum amount for comprehensive CEIS.
It is important to consider some distinct differences between the requirements of 34 CFR §§300.600(d)(3) and 300.646. For example, under 34 CFR §300.600(d)(3), SPP Indicators 9 and 10 only require States to look at identification data, including by disability category, and are only concerned with disproportionality that is the result of inappropriate identification. In contrast, for purposes of determining whether an LEA must set aside 15 percent of its IDEA funds for comprehensive CEIS under 34 CFR §300.646(b)(2), States must examine the numerical data in four analysis categories -- identification of children with disabilities, identification of children with disabilities in a particular impairment category, placement of children in particular educational settings, and the taking of disciplinary actions. Further, 34 CFR §300.646 requires the identification of all significant disproportionality, whether or not it is the result of inappropriate identification.
13. Should States consider both overrepresentation and underrepresentation of racial and ethnic minorities when determining significant disproportionality under 34 CFR §300.646?
No. For purposes of §300.646, it is acceptable for States to consider only overrepresentation by race or ethnicity, rather than underrepresentation by race or ethnicity. During its deliberations on section 618(d) of the 2004 amendments to the IDEA, Congress expressed concern with the overrepresentation of racial and ethnic minorities in the identification, placement, or discipline of children with disabilities. The House Committee Report, H.R. Rep. No. 108-77, at 122 (2003), stated, “...the Committee’s desire to see the problems of overidentification of minority children strongly addressed....” Additionally, in drafting the language in section 618(d)(1) of the Act, Congress expressly provided that States must require LEAs identified with significant disproportionality to reserve the maximum amount of funds under section 613(f) to provide comprehensive CEIS to children in the LEA, “particularly, but not exclusively, children in those groups that were significantly overidentified.”
Based on Congress’ expressed desire to address the issue of overrepresentation, States’ resources may be better spent (1) collecting and analyzing data only on significant disproportionality that constitutes overrepresentation based on race or ethnicity in the identification, placement, or discipline of children with disabilities, and (2) ensuring that where such overrepresentation exists, the policies, practices, and procedures are reviewed and revised to comply with the Act, and LEAs use 15 percent of their Part B funds to provide comprehensive CEIS.
14. What must States consider in the analysis of significant disproportionality in the identification and placement of children with disabilities required in 34 CFR §300.646?
In each of its LEAs, a State must examine data to determine if significant disproportionality based on race or ethnicity exists in each of the four analysis categories required by 34 CFR §300.646. When examining data to determine if significant disproportionality exists with respect to the identification of children with particular impairments, it is acceptable for a State to examine the data with regard to children with impairments in only the following six disability categories: specific learning disabilities, mental retardation, speech or language impairments, other health impairments, autism, and emotional disturbance. Because the remaining disability categories typically have very small numbers of children, the Department does not deem disproportionality in the number of children with these disabilities to be significant. However, if a State has identified a problem or has reason to believe that there are issues with other disability categories (i.e., through written complaints, due process filings, etc.), then the State should explore the problems with those categories.
Additionally, with regard to data on placement of children with disabilities in particular educational settings, a State, using the data it collects for reporting under section 618 of the IDEA must, at a minimum, examine data for three of the section 618 reporting categories: children who received educational and related services in the regular class no more than 79 percent of the day and no less than 40 percent of the day; children who received special education and related services in the regular class for less than 40 percent of the day; and children who received special education and related services in separate schools and residential facilities. A State is not required to examine data for children who received special education and related services in homebound or hospital settings, correctional facilities, or in private schools (as a result of parental placement of the child in a private school) because those numbers are typically very small and an LEA generally has little, if any, control over these placements. Additionally, a State is not required to examine data for children who received special education and related services in the regular class for more than 79 percent of the day because the IDEA requires children with disabilities to be placed in the least restrictive environment and, therefore, presumes that placement in the regular classroom is the preferred educational setting.
15. What must States consider in the collection and examination of disciplinary data in 34 CFR §300.646?
The regulations in 34 CFR §300.646(a)(3) require States to annually collect and examine data to determine if significant disproportionality based on race or ethnicity is occurring with respect to the incidence, duration, and type of disciplinary action, including suspensions and expulsions. We interpret the term “incidence” to refer to the number of times children with disabilities ages 3 through 21 were subject to disciplinary actions. We interpret the term “duration” to refer to the length of suspensions or expulsions. The type of disciplinary action refers to, at a minimum, data on both in-school and out-of-school suspensions and expulsions, but could also include other disciplinary actions (e.g., exclusion from extracurricular activities). In order to determine if significant disproportionality exists for discipline, a State must consider all three areas (incidence, duration, and disciplinary actions) when examining its data. For example, a State could meet this requirement by determining whether significant disproportionality based on race or ethnicity is occurring in: the number of out-of-school suspensions of 10 days or less; the number of out-of-school suspensions (including expulsions) of greater than 10 days; the number of in-school suspensions of 10 days or less; the number of in-school suspensions of greater than 10 days; and the total number of disciplinary removals.
16. What funds must be reserved by the LEA for comprehensive CEIS if a State determines significant disproportionality?
A State must determine significant disproportionality annually and require any LEA that is found to have significant disproportionality based on race or ethnicity to reserve the maximum amount of funds under section 613(f) of the IDEA (15 percent) for comprehensive CEIS either from the funds awarded following the date on which significant disproportionality was determined or from funds awarded from the appropriation for a prior Federal fiscal year (FFY).
The following examples illustrate how funds could be reserved. (Note: The Department expects to begin making awards from FFY 2009 funds on July 1, 2009. FFY 2009 funds, which will begin to become available on July 1, 2009, will be available for obligation at the State and LEA levels until September 30, 2011.)
- The State uses data on discipline collected for school year 2007-08, and which is reported in November 2008, to make a determination in February 2009 (prior to when FFY 2009 funds begin to become available on July 1, 2009) that an LEA must set aside funds for comprehensive CEIS. The LEA has three options. The LEA may set aside: (1) 15 percent of the funds that it receives from the FFY 2009 appropriation (available for obligation from July 1, 2009 through September 30, 2011); (2)15 percent of the funds that it received from the FFY 2008 appropriation (available for obligation from July 1, 2008 through September 30, 2010); or (3) 15 percent of the funds that it received from the FFY 2007 appropriation (available for obligation from July 1, 2007 through September 30, 2009).
- The State uses data on enrollment or placement collected as of some time between October 1 and December 1, 2008, and which is reported in February 2009, to make a determination in August 2009 (after FFY 2009 funds begin to become available on July 1, 2009) that an LEA must set aside funds for comprehensive CEIS. In this case, the LEA has four options: the three options described above plus one additional option. Because the determination was not made until August, after the funds from the FFY 2009 appropriation have been awarded, the LEA may set aside 15 percent of the funds that it receives from the FFY 2010 appropriation (available for obligation from July 1, 2010 through September 30, 2012).
17. May multiple years of data be used to determine significant disproportionality?
A State must determine significant disproportionality annually. It is appropriate for a State’s determination of significant disproportionality to be based on multiple years of data. While a State may aggregate previous years’ data or look at trend data, the analysis must include data for the most recent fiscal year as described in Question 16.
18.May a State calculate significant disproportionality differently for the four analysis categories?
It is permissible for a State to use different calculation methods to determine significant disproportionality in the four analysis categories so long as the State can justify the calculation methods for each of the analysis categories and demonstrate that the methods are statistically sound. We recognize that there may be small numbers of students counted in some of the analysis categories, which might impact the reliability and validity of a calculation method. In such cases, a State might need to use a method of identifying significant disproportionality that is different from the method used for another analysis category. For example, a State might choose to use a “risk-ratio formula” to identify significant disproportionality in placement data and a “composition index” to identify significant disproportionality in identification data. In addition, a State may set its risk ratio or composition index at different points for the four analysis categories. For example, a State might decide to use a risk ratio for placement data that is higher than its threshold for discipline data as long as these differences can be justified. The Department encourages States to use the guidance provided by the Department on methods for calculating disproportionality. This guidance is found at: http://www.ideadata.org/docs/Disproportionality %20Technical%20Assistance%20Guide.pdf.
Additionally, if data appear not to be representative in a district that provides services for students with certain disabilities who come from several surrounding districts, it would be appropriate when calculating significant disproportionality to count those students in the “sending district” (i.e., the district that is responsible for ensuring that the student’s individualized education program (IEP) is implemented) and not in the district that is providing services.
19. May a State change its definition of significant disproportionality over time?
Yes. There are circumstances in which it may be appropriate for a State to modify its definition of significant disproportionality over time. For example, a State may make its definition broader as its LEAs improve in the areas of analysis, in order to identify more disproportionality than in previous years. If a State chooses to modify its definition of significant disproportionality for the analyses required under 34 CFR §300.646, the State is not required to recalculate data from previous years based on the revised definition.
20. Should States report on significant disproportionality in the SPP and APR?
States are not required to report on significant disproportionality and CEIS in the SPP/APR unless required by OSEP to do so because of previously identified noncompliance. As described above, the analysis of data to determine significant disproportionality required in 34 CFR §300.646 and the reservation of funds for comprehensive CEIS are separate from the requirement in 34 CFR §300.600(d)(3), which is the basis for Indicators 9 and 10 in the SPP and APR.
 More information on Indicators 9 and 10 of the SPP and APR can be found in the SPP and APR forms, available online at: http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.
 This memorandum is available online at: http://www.rrfcnetwork.org/images/stories/FRC/spp_mat/ 2007_October/dr %20memorandum%20final%204-24%20signed.doc.