More than a month after a federal court ruled against the U.S. Department of Education’s efforts to delay a special education regulation, advocates are blasting the agency for continuing to stall.

In early March, U.S. District Judge Tanya S. Chutkan found that the Education Department acted illegally when it sought to postpone an Obama-era special education rule and said that the regulation should take effect immediately.

But advocates say it took a month for the Education Department to even notify states that the so-called “significant disproportionality” rule was in effect and they say more needs to be done to ensure that states follow through on their new obligations.

“The department has dragged their heels for over four weeks following the district court’s decision to vacate the delay,” the Council of Parent Attorneys and Advocates, or COPAA, said in a statement this week. “On March 7, the judge was unequivocal — the regulations must be implemented, and states must come into compliance. It is now the department’s responsibility to make this happen.”

The brouhaha surrounds a rule finalized in the last weeks of the Obama administration. Under the Individuals with Disabilities Education Act, states must identify school districts with high rates of students from particular racial or ethnic groups who have disabilities, are placed in restrictive settings or are subject to discipline. In the past, states used different approaches to identify districts and schools were rarely flagged. With the regulation, the Obama administration wanted to establish a national standard.

The rule was set to take effect in July 2018, but under President Donald Trump, the Education Department moved to delay implementation for two years.

COPAA sued arguing that the way the agency went about delaying the regulation violated the federal Administrative Procedure Act. Chutkan sided with COPAA in the ruling last month saying that the Education Department acted in an “arbitrary and capricious” manner and lacked a “reasoned explanation” for holding off.

In a posting on its website last week — four weeks after the judge’s decision — the Education Department said that it was still reviewing the ruling and considering its options.

“This judicial decision means that the 2016 regulation is currently in effect,” the department acknowledged in the posting. “The Office of Special Education Programs (OSEP) staff is collecting information from states about the status of implementation and discussing how to assist with any issues that may arise.”

Selene Almazan, legal director at COPAA, said the Education Department’s posting is believed to be the first notice it has issued to states about the rule taking effect. She said it’s troubling that the agency has not done more to inform states and ensure compliance despite her group repeatedly inquiring with the department about next steps.

“Our concern is while they finally let the states know, there is no indication that they will provide technical assistance to those states who relied on the delay,” Almazan said. “We are concerned that there appears to be no plan to do so and believe it is incumbent on the the department to ascertain which states stopped working on the (significant disproportionality) compliance, which states may need technical assistance to start again in earnest or start from scratch.”

The Education Department did not respond to questions from Disability Scoop about its implementation of the regulation and whether technical assistance is forthcoming. But, appearing before the House Education and Labor Committee on Wednesday, Secretary of Education Betsy DeVos indicated that her agency has not yet implemented the significant disproportionality rule.

“We are currently reviewing the district court order and deciding on next steps,” DeVos told lawmakers. “We are moving toward implementation, but I’m also concerned about either over-identification or under-identification of students in need of special education services.”

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