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U.S. DOE Rescinds 72 ‘Outdated’ Special Ed Regulations

December 21, 2017

The U.S. Department of Education (DOE) has rescinded 72 regulations pertaining to special-needs education.

In February 2017, President Trump issued an executive order to agencies “to alleviate unnecessary regulatory burdens.” The DOE’s Office of Special Education and Rehabilitative Services, under the direction of U.S. Education Secretary Betsy DeVos, announced in a statement released in October 2017 it would be repealing the regulations because they were determined to be “outdated, unnecessary, or ineffective.”

Examples of the rescinded regulations include “a 2006 document that explained the rights of children with disabilities in private schools [that] had been updated in 2011,” The Washington Post reported at the time. “One 2007 document outlines a vocational program for students with disabilities that no longer exists, the department said. Another document — a 2012 letter which outlines the rights of preschoolers with disabilities — was updated in 2016.”

Responding to Backlash

DOE faced backlash from numerous organizations associated with disabled people and various media outlets critical of DeVos.

“There are no policy implications to these rescissions,” Elizabeth Hill, a DOE spokesman, announced shortly after the rescinding of the regulations was announced. “The department is clearing out guidance that is no longer in force or effect because the guidance is superseded by current law/guidance or out of date. Students with disabilities and their advocates will see no impact on services provided.”

Says Reactions Were ‘Overblown’

Nat Malkus, a resident scholar and the deputy director of education policy at the American Enterprise Institute, says DeVos’ critics are making a mountain out of a molehill.

“There was a furor over [the rescinding of the regulations],” Malkus said. “I thought that the furor sort of overlaid the general narrative that started in her confirmation process, when some folks really came after DeVos for her support of special-needs arrangements under private school choice programs, which I also think is overblown.”

‘Regulatory Brush-Clearing’

Malkus says the regulations rescinded were repetitive.

“I think the specifics of the regulations that [DeVos] rescinded were, and I haven’t read every single piece, but the vast majority of them were very old or duplicative, so it was more an exercise in regulatory brush-clearing than any sort of policy changes or any particularly potent ways of actually affecting anything on the ground,” Malkus said. “The other thing I’ll just point out is there are just a ton of regulations, and a lot of them get ossified into the landscape, and this sort of brush-clearing s extremely rare. It’s worth keeping an eye on, making sure that it’s not done haphazardly and foolishly, but none of the things that I saw, none of the follow-up on it, appeared to have any materials changes to protections for students with disabilities.”

Advocates for School Choice

Ben DeGrow, director of education policy at the Michigan-based Mackinac Center for Public Policy, says special-needs students get the best services when they are free to choose.

“Despite many good intentions, the top-down approach to addressing the unique educational needs of students with disabilities has left many families frustrated in their desire to help their children overcome obstacles and discover their fullest potential,” DeGrow said. “Though Michigan is not alone, our state has produced more than its share of horror stories of parents engaged in legal battles to ensure their special-needs children get helpful and appropriate services. Meanwhile, in states like Florida and Arizona, more parents of special-needs students have found welcome relief and satisfaction because they have been given more power to choose where and how their child is educated.”

‘Not Really Much There’

Malkus says the latest flap over DeVos’ actions are much ado about nothing.

“A lot of these sort of flare-ups over [education] issues are flare-ups because people on both sides of these issues just read quickly to the headlines,” Malkus said. “‘Rescind special ed guidelines’ immediately becomes a scandal, and when you look into the particulars, there’s not really much there.

“It’s incumbent on folks on both sides to look into the content before making accusations which are fundamentally ideologically grounded,” Malkus said. “Look into the substance and hold your fire on both sides until we really have a fight worth fighting over. I don’t think this is one of them.”

Teresa Mull (tmull@heartland.org) is a research fellow in education policy at The Heartland Institute. 

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