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DeVos Rescinds Guidance Documents for Disabled Students: What Does It Mean?

By Casey Bayer on October 24, 2017 5:02 PM
Thomas Hehir, former director of the U.S. Department of Education's Office of Special Education Programs, says it’s not sending the right signal.

Professor Thomas HehirRecently, the U.S. Secretary of Education Betsy DeVos rescinded 72 guidance documents from the Office of Special Education Programs (OSEP) and from the Rehabilitation Services Administration (RSA). These guidance documents provide interpretation for the policies and regulations under the Individuals with Disabilities Education Act and the Rehabilitation Act (IDEA). We talked to Professor Thomas Hehir about these changes and what they mean going forward for the administration, and for the parents and families of disabled students. Hehir, as former director of the OSEP from 1993 to 1999, was responsible for federal leadership in implementing IDEA, and wrote some of the guidelines that were rescinded by DeVos.

What does rescinding these guidance documents mean for the future of IDEA? Should parents and families, and educators expect new policy changes now for students with disabilities?

Every new administration has the right to do this. These guidelines are policy interpretations. The laws and regulations themselves are not changing as a result of this — yet. Generally, these guidelines have been used for those implementing at a local level, and written in plain language, they’re meant to be a service to educators and parents. But, they do also reflect an administration’s interpretation of the law and policies.

Generally, these guidelines have also remained, for the most part, consistent from administration to administration. When I was at the Department of Education (DOE) in the Clinton administration, we worked closely with government legal teams to ask ourselves how the Bush administration interpreted the law. And we ultimately made a decision and moved to withhold funds from a state because of their past interpretation. With complex laws like IDEA, consistency in interpretation from administration to administration is important. Now, if they want to change the law itself, that is a different story. Only Congress can do that.

Any administration can propose changes through a reauthorization proposal to Congress. This was last done in 2004. But changes to IDEA will require new legislation and passing a reauthorization through the House and Senate. Rescinding these documents does not have the effect of changing the laws. It remains to be seen what they will do next as far as trying to change the regulations themselves, or the law. But while The Washington Post reported that a spokesperson for DeVos has come out and said that these changes will have no policy implications, I have to ask, if this isn’t for a policy change, then what is it for? There are some aspects about this move that are curious to me.

You raise an interesting question. What are these changes for then? What are some examples that have you questioning the move by the DOE to rescind these guidelines?

For example, in the list of the 72 guidance documents that have been rescinded, the DOE describes these guidelines as “outdated, unnecessary, or ineffective.” Reevaluating outdated or outmoded documents makes perfect sense to me — and many of those removed are outdated. Funding formulas from 12 or more years ago may not apply any more; documents written in 1993 by myself have since become outmoded with the reauthorization of IDEA that happened in 2004. It’s valid to, and it makes sense to, clean up outdated documents from the guidelines as they’re no longer relevant to audiences trying to interpret and implement IDEA regulations.

But there’s a gray area here. For those that are not outdated because of changes to statutes or laws, we have to ask what makes those guidelines now “unnecessary” or “ineffective?” And if you refer to the last column on the list, where it says “keep, modify, or rescind,” I’m curious why they are all just being rescinded. Why aren’t some being modified at least?

Though it is still early, what’s your initial reaction?

Some of these changes amount to nothing, to be honest, such as outdated memos regarding a previous reauthorization. However, others deal with very important matters. It is an interesting signal the administration is sending though, and I don’t think, as an advocate for students with disabilities and as an educator, it is the right one.

This may be part of President Trump’s effort to show that he and his administration are in the business of deregulating. But these documents and guidelines aren’t regulations to begin with; they’re interpretations. The message the administration is sending and the lack of clarity behind the changes is what is curious and a bit worrisome.

Today the department amended the document giving reasons why these have been rescinded. In general these explanations make sense. However, in some areas, where the law may have changed, it would be helpful to issue new policy guidance.