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Council of Parent Attorneys and Advocates, Inc. v. Devos

United States District Court, District of Columbia

March 7, 2019




         This decision resolves three motions currently pending before the court: (1) Defendants' Motion to Dismiss, ECF No. 14; (2) Plaintiff's Motion for Summary Judgment, ECF No. 16; and (3) Defendants' Cross-Motion for Summary Judgment, ECF No. 22.

         Having reviewed the parties' filings, the record, and the relevant case law, the court, for reasons set forth below, hereby DENIES Defendants' Motion to Dismiss, ECF No. 14; GRANTS Plaintiff's Motion for Summary Judgment, ECF No. 16; DENIES Defendants' Cross-Motion for Summary Judgment, ECF No. 22; and VACATES “the Delay Regulation, ” Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 83 Fed. Reg. 31306 (July 3, 2018).

         I. BACKGROUND

         A. IDEA

         The Individuals with Disabilities Education Act (“IDEA”) was enacted to improve educational outcomes for students with disabilities by “ensur[ing] that [they] receive needed special education services.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748 (2017). The statute requires States to implement various provisions or risk losing federal funding. See 20 U.S.C. §§ 1411, 1412; Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 10968-01, 10970 (Mar. 2, 2016).

         Congress has amended IDEA numerous times because of the over-representation of minority students in various special education programs. See, e.g., 20 U.S.C §§ 1400(c)(12)(B) (“More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.”); (C) (“African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts.”); (D) (“In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.”); (E) (“Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.”). See also Compl. ¶¶ 30-50.

         In 1997 Congress amended the IDEA after finding that “[g]reater efforts [were] needed to prevent the intensification of problems connected with mislabeling . . . among minority children with disabilities.” Pub. L. No. 105-17, § 601(c)(8)(A), 111 Stat. 37, 40 (1997). This was the first time Congress “expressly identified racial over-representation in special education as a problem.” Compl. ¶ 51. To address this problem, Congress required States to collect and examine data to determine if significant disproportionality based on race was occurring in the identification and placement of students with disabilities, and to provide reviews and appropriate revisions of policies, practices, and procedures utilized in identifying students with disabilities. Individuals with Disabilities Education Act Amendments for 1997, Pub. L. No. 105-17, § 618(c), 111 Stat. 37, 102 (1997).

         Seven years later, when reauthorizing and amending the IDEA, Congress expanded the significant disproportionality provisions beyond the identification and placement of children with disabilities to cover the “the incidence, duration, and type of disciplinary actions, including suspensions and expulsions.” Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 618(d)(1)(C); 118 Stat. 2647, 2739 (2004). See Id. § 618(d)(1)(A) (identification); id. § 618(d)(1)(B) (placement). If school districts (also referred to as local education agencies (“LEAs”)) are identified as having significant disproportionality in any of these respects, States must: (1) “provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement;” id. § 618(d)(2)(A); (2) require school districts to spend 15% of their federal IDEA money “to provide comprehensive coordinated early intervening services to serve children in the local educational agency particularly children in those groups that were significantly overidentified;” id. § 618(d)(2)(B), see Id. § 613(f); and (3) “require the local educational agency to publicly report on the revision of policies, practices, and procedures.” Id. § 618(d)(2)(C).

         B. 2016 Regulations

         From 2006 through 2016, the Department of Education's (hereinafter “the Department” or “the government”) regulations implementing the IDEA gave States “the discretion to define [significant disproportionality] for the LEAs and for the States in general.” Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46540, 46738 (Aug. 14, 2006). This approach started to shift in 2014, when the Government Accountability Office (“GAO”) reported that “the way some States defined overrepresentation made it unlikely that any districts would be identified.” U.S. Gov't Accountability Office, GAO-13-137, Individuals with Disabilities Education Act: Standards Needed to Improve Identification of Racial and Ethnic Overrepresentation in Special Education (2013), The GAO recommended “a standard approach for defining significant disproportionality to be used by all states.” Id. at 22.

         In 2014, following the GAO report, the Department issued a Request for Information, 79 Fed. Reg. 35154 (June 19, 2014), because of “concern[] that the definitions and procedures for identifying LEAs with significant disproportionality that many States have established may set the bar so high that even LEAs with significant racial and ethnic disparities in the identification of children for special education are not identified as having significant disproportionality.” Id. at 35155.

         After considering the responses to the Request for Information, the Department issued a Notice of Proposed Rulemaking that would “require States to use a standard methodology . . . when making determinations of significant disproportionality.” Notice of Proposed Rulemaking Regarding Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 10968, 10978 (Mar. 2, 2016). In response to comments, the Department revised the proposed regulations and adopted its final regulations in 2016. Final Regulation Regarding Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 92376, 92378 (Dec. 19, 2016) (hereinafter “2016 Regulations”). In issuing the 2016 Regulations, the Department noted that “[m]any commenters” asserted that the proposed regulations “would put into place racial quotas that would interfere with the appropriate identification of children with disabilities based purely on the children's needs.” Id. at 92385. The Department “recognize[d] the possibility that, in cases where States select particularly low risk ratio thresholds, LEAs may have an incentive to avoid identifying children from particular racial or ethnic groups in order to avoid a determination of significant disproportionality.” Id. To counter that incentive, the Department explained that the final regulations “provide[] States the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels.” Id. This process, the Department believed, would “help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of child find procedures.” Id. The Department further explained that “nothing in these regulations establishes or authorizes the use of racial or ethnic quotas limiting a child's access to special education and related services” and that “use of racial or ethnic quotas . . . would almost certainly conflict with the LEA's obligations to comply with other Federal statutes, including civil rights laws governing equal access to education” and “would almost certainly result in legal liability under Federal civil rights laws, including title VI of the Civil Rights Act of 1964 and the Constitution.” Id. Moreover, the Department intended to “conduct an evaluation of the implementation of this regulation to assess its impact, if any, on how LEAs identify children with disabilities.” Id. It explained that this evaluation would “include an examination of the extent to which school and LEA personnel incorrectly interpret the risk ratio thresholds and implement racial quotas in an attempt to avoid findings of significant disproportionality by States, contrary to IDEA.” Id.

         The 2016 Regulations set “common parameters for analysis, which each State must use to determine whether significant disproportionality is occurring at the State and local level.” 81 Fed. Reg. at 92391. As part of this analysis, States were required to use “risk ratios” to analyze disparities across seven racial and ethnic groups and compare each group to the children in the school district in fourteen categories. See 81 Fed. Reg. 10968, 10973; 34 C.F.R. §§ 300.647(a)(6), (b)(2)-(4).[1] Plaintiff explains that “a risk ratio of 1.0 indicates that children from a given racial or ethnic group are no more or less likely than children from all other racial or ethnic groups to experience a particular outcome” and that, for instance, a risk ratio of 2.0 means that one groups is twice as likely to experience that outcome. Compl. ¶ 67. As previously mentioned, States were given “the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels, ” 81 Fed. Reg at 92454, because the Department expected States to “work with stakeholders to identify particular risk ratio thresholds that help the State to address large racial and ethnic disparities without undermining the appropriate implementation of child find and evaluation procedures.” Id. In explaining the benefit of this collaborative approach, the Department noted that

it is important for States to take time to consult with their stakeholders and State Advisory Panels to ensure that, when setting risk ratio thresholds, they balance the need to identify significant disproportionality in LEAs with the need to avoid perverse incentives that would inhibit a child with a disability from being identified or placed in the most appropriate setting based on the determination of the IEP Team.

Id. at 92394.

         The risk ratio threshold is the point at which disproportionality based on race or ethnicity can be determined to be significant. 34 C.F.R. § 300.647(a)(7). The regulation provides that if the risk ratio for a group exceeds the risk ratio threshold, then an LEA may be identified as significantly disproportionate. Id. § 300.647(b)(6). If “a determination of significant disproportionality with respect to the identification of children as children with disabilities or the placement in particular educational settings” is made, the State must “review and, if appropriate, revis[e] . . .the policies, practices, and procedures used in identification or placement in particular education settings, ” id. § 300.646(c)(1). The LEA is required to “publicly report on the revision of policies, practices, and procedures, ” id. § 300.646(c)(2), and must “identify and address the factors contributing to the significant disproportionality, ” id. § 300.646(d)(1)(ii). Although the regulations took effect on January 18, 2017, the Department set the compliance date for States at July 1, 2018 to provide “States time to plan for implementing these final regulations, including to the extent necessary, time to amend the policies and procedures necessary to comply.” 81 Fed. Reg. at 92378.

         In addition to allowing States to set the risk ratio threshold applicable to their own school districts, subject to a requirement of reasonableness, 81 Fed. Reg. at 92388; 34 C.F.R. § 300.647(b)(1)(i), (b)(1)(iii)(B), the regulations gave States discretion in two additional respects. First, States had flexibility to determine when there were sufficient children in a particular racial or ethnic group to permit application of the regulation's methodology. 34 C.F.R. §§ 300.647(a)(3), (4). Second, States had discretion not to identify as significantly disproportionate if the risk ratio for a racial or ethnic group in the relevant category had not exceeded the risk ratio threshold for three prior consecutive years, or if the district had demonstrated reasonable progress in lowering its risk ratio for the group in each of the two prior years. 34 C.F.R. §§ 300.647(d)(1), (2).

         C. The 2018 Postponement of the 2016 Regulations - The “Delay Regulation”

         In February 2018 the Department issued a Notice of Proposed Rulemaking, proposing to “postpone the compliance date [of the 2016 Regulations] by two years, from July 1, 2018 to July 1, 2020.” Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 83 Fed. Reg. 8396 (Feb. 27, 2018). In seeking public comment, the Department noted it would “consider comments on proposed delayed compliance dates only and [would] not consider comments on the text or substance of the final regulations.” Id. In July 2018, citing concerns that the 2016 Regulations “may create an incentive for LEAs to establish de facto quotas, ” the Department issued its final rule postponing the compliance date of the 2016 Regulations by two years. Final Rule Delaying Compliance Date Regarding Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 83 Fed. Reg. 31306, 31308 (July 3, 2018) (hereinafter the “Delay Regulation”). In support of the delay, the Department argued that data from Texas corroborated its concern that the 2016 Regulations could incentivize LEAs to employ de facto quotas. Id. at 31308, 31311. The Department decided it was “more prudent to delay the compliance date [of the 2016 Regulations] and address that concern through a review of the standard methodology before States [were] required to implement the regulations rather than during implementation.” Id. at 31310. The Delay Regulation, however, allowed States to use the standard methodology from the 2016 Regulations. Id. at 31309 (“States may implement the standard methodology or may use any methodology of their choosing to collect and examine data to identify significant disproportionality in their LEAs until the Department evaluates the regulations and issues raised in this rulemaking.”). Indeed, the Department predicted that when the Delay Regulation went into effect, many States would implement the standard methodology. Id. at 31312 (“States may, and many States have commented that they intend to, implement the standard methodology in the 2016 significant disproportionality regulations even if the Department delays these regulations.”).

         D. Plaintiff's Lawsuit

         Plaintiff Council of Parent Attorneys and Advocates, Inc. (“COPAA”) is a “national not for-profit organization of parents of children with disabilities, their attorneys, and their advocates, ” whose mission is “to protect and enforce the legal and civil rights of students with disabilities and their families.” Compl. ¶ 12. COPAA advances its mission by:

providing resources, training, and information to parents, advocates, and attorneys to assist them in obtaining the equal educational opportunity to which children with disabilities are entitled under the federal civil rights laws, including the IDEA; educating members of the public and policy makers, including federal agencies, about the educational experiences of children with disabilities and their families (including the intersection of race and disability); and educating COPAA members about developments in the federal civil rights laws and policies affecting education of children with disabilities.

Id. ¶ 14. To help prepare its educational materials, COPAA relies “on information and research it collects about what school districts are doing with regard to disability and race, including how States identify school districts as significantly disproportionate and how school districts respond (with or without their states' assistance) to determinations of significant disproportionality.” Id. ¶ 17. COPAA relies heavily on reports and analyses generated after school districts are identified as significantly disproportionate, including publicly available reports of revisions to school districts' policies, practices, and procedures, and analyses of identifying factors contributing to the significant disproportionality determinations, known as “root-cause analyses.” Compl. ¶ 119; 34 C.F.R. §§ 300.646(c)(2), (d)(1)(ii). COPAA claims these “reports and analyses are an important source of information relied upon by COPAA in preparing educational materials, in adopting policy positions, and in advocating on behalf of children before federal agencies.” Compl. ¶ 119.

         On July 3, 2018 the Department published the Delay Regulation in the Federal Register. Nine days later, COPAA filed suit, requesting that this court declare the Delay Regulation unlawful; vacate and set aside the Delay Regulation; enjoin the Department of Education and its officers, employees, and agents from implementing the Delay Regulation; award COPAA its reasonable costs and attorney's fees incurred in the prosecution of this action; and award such other equitable and further relief as this court deems just and proper. Compl. ¶ 133.

         COPAA claims, among other injuries, that the Delay Regulation will “reduce the number of school districts that are identified as significantly disproportionate in the 2018-19 school year compared to what would occur if compliance with the 2016 Final Regulations were required for the 2018-19 school year in all States.” Compl. ¶ 116. COPAA asserts that the reduction “will have certain inevitable consequences that will injure COPAA, its members, and students, ” id. ¶ 117; that it will “reduce the number of school districts that must engage in a review of their policies, practices, and procedures, ” id. ¶ 118, and “reduce the amount of information available to COPAA and its members, ” id. ¶ 119. See Plaintiff's Opposition to Defendants' Motion to Dismiss and Plaintiff's Motion for Summary Judgment, ECF No. 16 at 9 (“Pl.'s Opp'n to Defs.' Mot. to Dismiss and Pl.'s Mot. for Summ. J.”) (“The two-year delay of the 2016 Regulations hampers COPAA's public education activities by reducing the amount of information available to it about significant disproportionality at the state and local levels compared to what it would have received under the 2016 Regulations.”). COPAA further asserts that some of its members will be individually harmed by the Delay Regulation because they have children “enrolled in school districts that would have been identified as significantly disproportionate absent the Delay Regulation.” Id. These parents, COPAA maintains, “have lost important practical services that would have flowed from a determination of disproportionality, including an automatic review provided by the state of the policies, practices and procedures—including individual review of their child's identification, placement, or discipline—and mandatory revisions of any illegal practices, ” id. at 9-10, and “the opportunity for their district[s] to engage in a root-cause analysis to ensure that the comprehensive coordinated early intervening services (“CEIS”) are used toward reducing such disparities, ” id. at 10 (citing Compl. and Almazan, Adams, Cone, and Gerland Affidavits).

         Defendants have moved to dismiss for lack of standing, and both parties have moved for summary judgment.


         A. Legal Standard

         A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) “presents a threshold challenge to the court's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff bears the burden of establishing the elements of standing, id. at 561, and each element “‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan, 504 U.S. at 561). The plaintiff must “show a ‘substantial probability' that it has been injured, that the defendant caused its injury, and that the court could redress that injury.” Sierra Club v. E.P.A., 292 F.3d 895, 899 (D.C. Cir. 2002) (citation omitted). With respect to a facial 12(b)(1) motion to dismiss, the court must “accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). At the summary judgment stage, the plaintiff “must support each element of its claim to standing by affidavit or other evidence.” Scenic Am., Inc. v. U.S. Dep't of Transp., 836 F.3d 42, 48 n.2 (D.C. Cir. 2016).

         Under the law of this Circuit, COPAA “‘can assert standing on its own behalf, on behalf of its members, or both.'” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015) (quoting Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011)). In asserting standings on its own behalf, i.e., organizational standing, COPAA must, “like an individual plaintiff, ” show “[1] actual or threatened injury in fact [2] that is fairly traceable to the alleged illegal action and [3] likely to be redressed by a favorable court decision.” Id. (quotation marks and citations omitted). In asserting standing on behalf of its members, i.e., associational standing, COPAA must show “(1) at least one of its members has standing in its own right, (2) the interests [it] seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual . . . member in the suit.” Interstate Nat. Gas Ass'n of Am. v. FERC, 494 F.3d 1092, 1095 (D.C. Cir. 2007) (citation omitted).

         B. Organizational Standing

         1. Injury in Fact

         COPAA claims that the Delay Regulation has denied it the information it would have received if the 2016 Regulations had not been delayed. An Article III injury in fact occurs if the government cuts off information that legally must be publicly disclosed. “[A] plaintiff suffers an ‘injury in fact' when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998) (citations omitted). “To establish such an injury, a plaintiff must espouse a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain.” ASPCA v. Feld Entm't, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011).

         The D.C. Circuit has set forth well-established principles for determining standing. In Action All. of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 935 (D.C. Cir. 1986), plaintiffs were “four organizations that endeavor[ed], through informational, counseling, referral, and other services, to improve the lives of elderly citizens.” Id. They sued the Department of Health and Human Services (HHS), alleging that HHS's regulation “significantly restrict[ed], ” the flow of “information regarding services available to the elderly” that, if possessed by plaintiffs, “would enhance [their] capacity . . . to refer members to appropriate services and to counsel members when unlawful age discrimination may have figured in[to] a benefit denial.” Id. at 937. The D.C. Circuit found that the plaintiffs established standing, because the regulations kept plaintiffs from “access to information and avenues of redress they wish[ed] to use in their routine information-dispensing, counseling, and referral activities. Unlike the mere ‘interest in a problem' or ideological injury in Sierra Club [v. Morton, 405 U.S. 727, 739 (1972)], plaintiffs had “alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they [were] engaged.” Id. at 937-38 (quotation marks omitted) (footnote omitted).

         In PETA, Plaintiff, an animal rights organization, sued the USDA, asking the court to order USDA to “extend enforcement of the AWA [Animal Welfare Act] to birds covered by the AWA, by enforcing the general AWA standards that presently exist.” 797 F.3d at 1091 (quotation marks omitted) (footnote omitted). PETA claimed that USDA's failure to investigate allegations of bird mistreatment denied the public reports of those alleged instances, and that PETA used the information in the reports to educate its members and the public. Id. at 1095, 1096. The district court found that PETA had standing because USDA's decision not to apply the AWA to birds “precluded PETA from preventing cruelty to and inhumane treatment of these animals through its normal process of submitting USDA complaints and it deprived PETA of key information that it relies on to educate the public.” Id. at 1094 (quotation marks and citation omitted). The D.C. Circuit affirmed, noting that “[t]he key issue is whether PETA has suffered a concrete and demonstrable injury to [its] activities, mindful that, under our precedent, a mere setback to [PETA's] abstract social interests is not sufficient.” Id. at 1093 (second alteration in original) (quotation marks and citations omitted). The Circuit explained that in determining “whether an organization's injury is concrete and demonstrable, ” a court asks “first, whether the agency's action or omission to act injured the [organization's] interest and, second, whether the organization used its resources to counteract that harm.” Id. at 1094 (alteration in original) (quotation marks and citations omitted). Applying these standards, the Court found that PETA's alleged injuries were “materially indistinguishable from those alleged by the organizations in Action Alliance[].” Id. It held that the “USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has perceptibly impaired PETA's ability to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public.” Id. at 1095 (quotation marks and brackets omitted). PETA established organizational standing because it had expended resources to counter its injuries. Id.

         In Waterkeeper All. v. EPA, 853 F.3d 527, 530 (D.C. Cir. 2017), plaintiffs challenged an EPA regulation that “generally exempt[ed] farms from [statutory] reporting requirements for air releases from animal waste.” The Court of Appeals found here, too, that the challenged regulation inflicted “informational injury.” Id. at 533. Invoking the rule “that the plaintiff must assert ‘a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain, '” id. (quoting ASPCA, 659 F.3d at 22-23), the Court explained that the question is “whether a reporting mandate under CERCLA triggers a requirement of public disclosure. If so, exempting a release from the mandate extinguishes the corresponding disclosure.” Id. The Court held “the EPA's allegedly unlawful CERCLA exemption reduces the ...

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