Students with Special Needs are at Risk of Losing their Civil Rights

I’m detecting a trend.

Recently, The Atlantic ran a piece that catalogues the Trump administration’s disregard of civil rights protections for Americans (and aspiring Americans) during the tenure of Attorney General Jeff Sessions.

“Across every issue, from criminal-justice reform to voting rights to LGBTQ rights,” said Vanita Gupta, president and CEO of the Leadership Conference on Civil Rights, “the attorney general is advancing a vision of America that is narrow, and abdicating some of the Justice Department’s core responsibilities and mandate to ensure equal rights and access to justice for all.”

This willful departure from a culture of accountability seems in vogue within the federal Education Department as well, particularly its oversight of state compliance with laws that govern protections for students with disabilities. Three days after The Atlantic piece, Propublica issued a report outlining how the U.S. Education Department under Secretary Betsy DeVos has undermined student protections by tossing 1,200 civil rights investigations into the trash heap without any findings of wrongdoing or corrective action.

Jeff Goldberg, The Atlantic’s editor-in-chief, labels this swing towards eschewing federal oversight and accountability as the “Fuck Obama” Doctrine. True enough, but let’s delve a little deeper into this newly-fashionable subversion of civil rights.

A History of Barring Special Needs Children from Public Schools

Take a ride with me in the way-back machine to 1954 when the Supreme Court ruled in Brown v. Board of Education that it was unconstitutional to segregate Black students from White students. Advocates for children with disabilities watched and learned. In 1975, they persuaded Congress to pass the Education for All Handicapped Children Act, which forbade the practice of barring special needs children from public schools.

Instead, schools were required to evaluate children with disabilities and create programs, with parental input, that mirrored as closely as possible the programs of non-disabled children. This law, which in 1990 was renamed the Individuals with Disabilities Education Act (IDEA), mandates civil rights and due process for these children.

Those of us in the acronymic special needs world boil IDEA down to “FAPE in LRE,” which means a free appropriate public education in the least restrictive environment.

If my son Jonah was ready for school before 1975 our district could have refused to educate him. But he is protected under IDEA and our district has to follow the rules. If at any time during his school years (he just aged out) our district refused to adhere to his civil rights protections, we could have gone to the state. If the state was equally dismissive and unaccountable, the federal government would step in.

Federal Oversight is Slipping Away

And herein lies the problem: the place of last resort, the U.S. Education Department, is abdicating its responsibilities. Just as Attorney General Session ignores LGBTQ, immigrant and voting rights, Sec. DeVos ignores the civil rights of children with disabilities.

Last October DeVos rescinded 72 guidelines that protect students with disabilities, 63 from the Office of Special Education Programs and nine from the Rehabilitation Services Administration. One of them trashed regulations mandated that schools must educate preschool children in the “least restrictive environment (LRE),” a basic tenet of IDEA.

This past March at a House hearing, DeVos announced a two-year delay in implementing a rule created at the end of the Obama administration called “significant disproportionality.” According to Disability Scoop, the rule seeks to “create a uniform national standard to make sure that students from minority backgrounds are not overrepresented in special education.”

Rep. Barbara Lee, D-Calif, chastised DeVos for suggesting that an additional two years would be needed to get the regulation right, telling her “your head is in the sand about racial bias and racial discrimination.”

During the last 15 months of the Obama administration, the Office of Civil Rights (OCR) opened 13 compliance reviews, which Propublica describes as a “proactive type of civil rights investigations.” During the first 15 months of the Trump administration, OCR opened only two compliance reviews. As a response, the NAACP has filed a lawsuit against the DeVos department charging that civil rights investigators are dismissing complaints without a full investigation.

During the Obama administration, the Dallas civil rights office spent four years investigating a case where students of color were disciplined more harshly than White students. Under DeVos, the investigation was closed with no consequences for the district.

Federal oversight is slip-sliding away. Hence, a new hashtag, #ThisIsMyChild, which depicts the desperate need of special needs parents for strong accountability at the federal level.

Third Eve shares her story of adopting seven kids with special needs, and how her, and her late husband, couldn’t have done it without the critical federal programs that are now being cut.

UnCivil gets real. For Betsy DeVos this is a temporary job. For the families of the disabled, this is their life.

Nathan Young gets to the heart of the matter, “Betsy DeVos wants to not care about disabilities. I have Asperger’s, any child with disabilities deserves equal rights.”

As the Trump administration whittles down protections for traditionally-disenfranchised minority groups, children with disabilities are once again at risk of losing their civil rights. As a trend, it’s a dangerous one.

Laura Waters writes about education policy and politics for Education Post. As the daughter of New York City educators and parent of a son with special needs, she writes frequently about the need to listen to families and ensure access to good public school options for all. This post was originally published at Education Post.


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