CLOSED,TYPE−C
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01636−TSC

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. v. DEVOS et al Assigned to: Judge Tanya S. Chutkan Case in other court: USCA, 19−05137 Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 07/12/2018 Date Terminated: 05/16/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.

represented by Jennifer J. Clark SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 (202) 736−8954 Email: jennifer.clark@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin G. Barokh SIDLEY AUSTIN, LLP 1999 Avenue of the Stars − 17th Floor Los Angeles, CA 90067 213−896−6000. Fax: 213−896−6600 Email: bbarokh@sidley.com TERMINATED: 09/14/2018 PRO HAC VICE

Crystal M. Adam NATONAL CENTER FOR YOUTH LAW 1313 L St. NW, Suite #130 Washington, DC 20005 202−868−4785 Fax: 202−868−4788 ATTORNEY TO BE NOTICED

Jean−Claude Andr SIDLEY AUSTIN, LLP 555 West Fifth Street Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Harris NATIONAL CENTER FOR YOUTH LAW 405 14th St., 15th Floor Oakland, CA 94612 510−899−6566 Fax: 510−835−8099 Email: mharris@youthlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED

Seth Michael Galanter NATIONAL CENTER FOR YOUTH

LAW 1313 L Street NW Suite 130 Washington, DC 20005 (202) 288−8188 Email: sgalanter@youthlaw.org ATTORNEY TO BE NOTICED

V. Defendant ELIZABETH (BETSY) DEVOS in her official capacity as Secretary of Education
Defendant JOHNNY W. COLLET in his official capacity as Assistant Secretary for Special Education and Rehabilitative Services
Defendant U.S. DEPARTMENT OF EDUCATION

represented by Kevin Matthew Snell U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 305−0924 Fax: (202) 616−8460 Email: kevin.snell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Lee U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 450 5th St, NW Washington, DC 20001 (202) 514−0515 Fax: (202) 515−8742 Email: jason.lee3@usdoj.gov TERMINATED: 05/06/2019
represented by Kevin Matthew Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Lee (See above for address) TERMINATED: 05/06/2019
represented by Kevin Matthew Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Lee (See above for address) TERMINATED: 05/06/2019

Date Filed 07/12/2018

# Docket Text
1 COMPLAINT against JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION ( Filing fee $ 400 receipt number 0090−5583940) filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Elizabeth (Betsy) DeVos, # 3 Summons Johnny W. Collet, # 4 Summons U.S. Department of Education, # 5 Summons Jefferson B. Sessions, III, # 6 Summons Jessie K. Liu)(Clark, Jennifer) (Attachment 1 replaced on 7/12/2018) (zmd). (Entered: 07/12/2018)

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2 Corporate Disclosure Statement by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Clark, Jennifer) (Entered: 07/12/2018)
Case Assigned to Judge Tanya S. Chutkan. (zmd) (Entered: 07/12/2018)
3 SUMMONS (5) Issued Electronically as to JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 07/13/2018)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ELIZABETH (BETSY) DEVOS served on 7/19/2018 (Clark, Jennifer) (Entered: 07/19/2018)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHNNY W. COLLET served on 7/19/2018 (Clark, Jennifer) (Entered: 07/19/2018)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF EDUCATION served on 7/19/2018 (Clark, Jennifer) (Entered: 07/19/2018)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/19/2018. (Clark, Jennifer) (Entered: 07/19/2018)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/19/2018. Answer due for ALL FEDERAL DEFENDANTS by 9/17/2018. (Clark, Jennifer) (Entered: 07/19/2018)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jean−Claude Andr, :Firm− Sidley Austin LLP, :Address− 555 West Fifth Street, Suite 4000, Los Angeles, CA 90013. Phone No. − 213−896−6000. Fax No. − 213−896−6600 Filing fee $ 100, receipt number 0090−5596876. Fee Status: Fee Paid. by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Clark, Jennifer) (Entered: 07/19/2018)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Benjamin G. Barokh, :Firm− Sidley Austin LLP, :Address− 555 W. Fifth Street, Suite 4000, Los Angeles, CA 90013. Phone No. − 213−896−6000. Fax No. − 213−896−6600 Filing fee $ 100, receipt number 0090−5596925. Fee Status: Fee Paid. by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Clark, Jennifer) (Entered: 07/19/2018)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Michael Harris, :Firm− National Center for Youth Law, :Address− 405 14th St., 15th Floor, Oakland, CA 94612. Phone No. − 510−835−8098. Fax No. − 510−835−8099 Filing fee $ 100, receipt number 0090−5596936. Fee Status: Fee Paid. by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Clark, Jennifer) (Entered: 07/19/2018)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Crystal M. Adams, :Firm− National Center for Youth Law, :Address− 1313 L St. NW, Suite #130, Washington, DC 20005. Phone No. − 202−868−4785. Fax No. − 202−868−4788 Filing fee $ 100, receipt number 0090−5596952. Fee Status: Fee Paid. by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Clark, Jennifer) (Entered: 07/19/2018)
MINUTE ORDER: Granting 9 10 11 Motions for Leave to Appear Pro Hac Vice. JEAN−CLAUDE ANDR, BENJAMIN G. BAROKH, and MICHAEL HARRIS are hereby admitted pro hac vice to appear in this matter on behalf of Plaintiff. Signed by Judge Tanya S. Chutkan on 7/25/18. (DJS) (Entered: 07/25/2018)
MINUTE ORDER: Granting in part and denying in part 12 Motion for Admission Pro Hac Vice. Attorney CRYSTAL M. ADAMS may be heard in open court on behalf of

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11/12/2018

Plaintiff, but may not file papers in this court. See Local Civil Rule 83.2(c)(2) ("An attorney who engages in the practice of law from an office located in the District of Columbia must be a member of the District of Columbia Bar AND the Bar of this Court to file papers in this Court."). Signed by Judge Tanya S. Chutkan on 7/25/18. (DJS) (Entered: 07/25/2018)
13 NOTICE OF WITHDRAWAL OF APPEARANCE as to COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. Attorney Benjamin G. Barokh terminated. (Barokh, Benjamin) (Entered: 09/14/2018)
14 MOTION to Dismiss by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lee, Jason) (Entered: 09/17/2018)
15 Memorandum in opposition to re 14 MOTION to Dismiss filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Exhibit)(Clark, Jennifer) (Entered: 10/01/2018)
16 Cross MOTION for Summary Judgment by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Exhibit, # 9 Text of Proposed Order)(Clark, Jennifer) (Entered: 10/01/2018)
17 MOTION to Stay Defendants' Response to Plaintiff's Cross−Motion for Summary Judgment by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lee, Jason) (Entered: 10/03/2018)
18 ERRATA by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. 15 Memorandum in Opposition, filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., 16 Cross MOTION for Summary Judgment filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Clark, Jennifer) (Entered: 10/09/2018)
19 REPLY to opposition to motion re 14 MOTION to Dismiss filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION. (Lee, Jason) (Entered: 10/09/2018)
20 Memorandum in opposition to re 17 MOTION to Stay Defendants' Response to Plaintiff's Cross−Motion for Summary Judgment filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Declaration of Jean−Claude Andre, # 2 Text of Proposed Order)(Clark, Jennifer) (Entered: 10/11/2018)
21 REPLY to opposition to motion re 17 MOTION to Stay Defendants' Response to Plaintiff's Cross−Motion for Summary Judgment filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION. (Lee, Jason) (Entered: 10/12/2018)
MINUTE ORDER: Granting in part and denying in part 17 Defendants' Motion to Stay. Defendants shall file their response to Plaintiffs' Motion for Summary Judgement by November 12, 2018. Signed by Judge Tanya S. Chutkan on 10/12/18. (lctsc3) (Entered: 10/12/2018)
Set/Reset Deadlines: Response due by 11/12/2018. (tb) (Entered: 10/15/2018)
22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION (Attachments: # 1 Memorandum in Support, # 2 Exhibit Certification of the Administrative Record, # 3 Text of Proposed Order)(Lee, Jason) (Entered: 11/12/2018)
23 Memorandum in opposition to re 16 Cross MOTION for Summary Judgment and Motion for Summary Judgment filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Certification of the Administrative Record, # 3 Text of Proposed Order)(Lee, Jason) (Entered: 11/12/2018)

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01/10/2019 01/25/2019 03/07/2019 03/07/2019 05/06/2019 05/06/2019
05/06/2019

24 Consent MOTION to Modify Briefing Schedule as to 22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment, 16 Cross MOTION for Summary Judgment by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Text of Proposed Order)(Clark, Jennifer) Modified event title on 11/20/2018 (znmw). (Entered: 11/15/2018)
MINUTE ORDER: The 24 Consent Motion for Extension of Time to File Response/Reply is GRANTED. COPAA's Combined Reply and Opposition is due on November 30, 2018. The Government's Reply is due on December 14, 2018. Signed by Judge Tanya S. Chutkan on 11/15/2018.(lctsc3) (Entered: 11/15/2018)
Set/Reset Deadlines: Response to Cross Motion due by 11/30/2018. Reply to Cross Motion due by 12/14/2018. Reply to Motion for Summary Judgment due by 11/30/2018. (tb) (Entered: 11/20/2018)
25 Memorandum in opposition to re 22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Declaration of Crystal Adams)(Clark, Jennifer) (Entered: 11/30/2018)
26 REPLY to opposition to motion re , 16 Cross MOTION for Summary Judgment filed by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.. (Attachments: # 1 Declaration of Crystal Adams)(Clark, Jennifer) Modified text and linkage on 12/3/2018 (ztd). (Entered: 11/30/2018)
27 REPLY to opposition to motion re 22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION. (Attachments: # 1 Exhibit, # 2 Exhibit)(Lee, Jason) (Entered: 12/13/2018)
28 NOTICE of filing of Administrative Record Joint Appendix by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. re 22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment, 16 Cross MOTION for Summary Judgment , 14 MOTION to Dismiss (Attachments: # 1 Appendix of the Administrative Record)(Clark, Jennifer) (Entered: 12/21/2018)
29 NOTICE OF SUPPLEMENTAL AUTHORITY by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Clark, Jennifer) (Entered: 01/10/2019)
30 NOTICE of Appearance by Seth Michael Galanter on behalf of COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Galanter, Seth) (Main Document 30 replaced on 1/25/2019) (zjf). (Entered: 01/25/2019)
31 MEMORANDUM OPINION: Regarding Defendants' Motion to Dismiss 14 , Plaintiff's Motion for Summary Judgment 16 , and Defendants' Motion for Summary Judgment 22 . Signed by Judge Tanya S. Chutkan on 3/7/2019. (lctsc3) (Entered: 03/07/2019)
32 ORDER denying Defendants' Motion to Dismiss 14 , granting Plaintiff's Motion for Summary Judgment 16 , and denying Defendants' Motion for Summary Judgment 22 . Signed by Judge Tanya S. Chutkan on 3/7/2019. (lctsc3) (Entered: 03/07/2019)
33 NOTICE OF SUBSTITUTION OF COUNSEL by Kevin Matthew Snell on behalf of JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION Substituting for attorney Jason Lee (Snell, Kevin) (Entered: 05/06/2019)
34 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 31 Memorandum & Opinion, 32 Order on Motion to Dismiss, Order on Motion for Summary Judgment, by U.S. DEPARTMENT OF EDUCATION, JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS. Fee Status: No Fee Paid. Parties have been notified. (Snell, Kevin) (Entered: 05/06/2019)
35 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 34 Notice of Appeal to DC Circuit Court,. (ztd) (Entered: 05/06/2019)

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10/18/2019

USCA Case Number 19−5137 for 34 Notice of Appeal to DC Circuit Court, filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION. (zrdj) (Entered: 05/13/2019)
36 MANDATE of USCA as to 34 Notice of Appeal to DC Circuit Court, filed by JOHNNY W. COLLET, ELIZABETH (BETSY) DEVOS, U.S. DEPARTMENT OF EDUCATION ; USCA Case Number 19−5137. (Attachments: # 1 USCA Order)(zrdj) (Entered: 09/24/2019)
37 Unopposed MOTION to Permit Skeletal Filing of Motion for Attorneys' Fees Pursuant to the Equal Access to Justice Act with Supplement Permitted at Later Date If No Settlement Reached , Unopposed MOTION to Stay Briefing by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Text of Proposed Order)(Clark, Jennifer) Modified event on 10/16/2019 (znmw). (Entered: 10/15/2019)
NOTICE OF ERROR re 37 Motion for Miscellaneous Relief; emailed to jennifer.clark@sidley.com, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. Do Not Refile. FYI, Please remember to use the /s/ and a typed or signed name of the filer on the signature line. (ztd, ) (Entered: 10/16/2019)
MINUTE ORDER: Granting 37 Plaintiff's motion to file a skeletal application for attorneys' fees and costs pursuant before October 18, 2019, with leave to alter, supplement, and/or amend the application should a settlement not be reached on the fees−and−costs issue. Briefing on Plaintiff's fee application, including Plaintiff's opportunity to alter, supplement, and/or amend, is stayed pending further order of the court. This case is ADMINISTRATIVELY CLOSED until further order of the court. In the event that the parties reach a settlement agreement for attorneys' fees and costs, Plaintiff shall withdraw its fee application. In the event the parties are unable to reach a settlement agreement, they shall file a joint motion to return this case to the active docket. I proposed order shall accompanying any such motion. Signed by Judge Tanya S. Chutkan on 10/16/19. (DJS) (Entered: 10/16/2019)
38 MOTION for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act by COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC. (Attachments: # 1 Declaration of Selene Almazan)(Clark, Jennifer) (Entered: 10/18/2019)

 
 Case 1:18-cv-01636-TSC Document 1 Filed 07/12/18 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., P.O. Box 6767 Towson, Maryland 21285

Plaintiff,

v.

ELIZABETH (BETSY) DEVOS, in her official capacity as Secretary of Education, 400 Maryland Avenue, SW Washington, D.C. 20202
JOHNNY W. COLLET, in his official capacity as Assistant Secretary for Special Education and Rehabilitative Services, 400 Maryland Avenue, SW Washington, D.C. 20202

Civil Action No.

U.S. DEPARTMENT OF EDUCATION, 400 Maryland Avenue, SW Washington, D.C. 20202

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. For more than 40 years, States have been required by the Individuals with Disabilities Education Act (the IDEA) to identify all children with disabilities residing within their jurisdiction and to place those children in the least restrictive educational setting appropriate to their needs. In that time, States have also been required to examine potential discipline of those children to avoid punishing them for having a disability.

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2. These federal requirements, tied to the annual receipt of billions of dollars in federal IDEA funds, have led to vast improvements in the provision of special education and related services for many children with disabilities. But problems in implementing the IDEA with fidelity remain widespread.
3. One consistent problem in implementation of the IDEA has been the treatment of students of color. In 2004, Congress responded by revising the IDEA to require States to determine whether “significant disproportionality based on race and ethnicity is occurring in the State and the local educational agencies of the State” with respect to the identification, placement, and discipline of children with disabilities. 20 U.S.C. § 1418(d). Section 618(d) also required States to “provide for the collection and examination of data” to determine whether significant disproportionality is occurring, without specifying the methodology to be used. Regulations adopted in 2006 essentially tracked the statutory language. 34 C.F.R. § 300.646 (2007).
4. When a State identifies significant racial disproportionality in a school district’s identification, placement, or discipline of students with disabilities, the State must provide for a review of the school district’s policies, practices, and procedures to ensure they comply with the IDEA; engage in an analysis that identifies the factors contributing to the significant disproportionality, i.e., a root-cause analysis; and spend a percentage of their IDEA funds on comprehensive coordinated intervening services for students. There is no requirement that a school district eliminate any significant disproportionality; the statute and regulations anticipate situations where the disproportionality is not a result of violations of the IDEA but instead reflects differences among different student populations in that community.
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5. After collecting extensive information from a Government Accountability Office report in 2013, and through a Request for Information in 2014 and a Notice of Proposed Rulemaking (NPRM) in March 2016, the Department of Education (“the Department”) determined that the approaches many States had adopted to comply with Section 618(d) were wanting. It promulgated final regulations in December 2016 (“2016 Final Regulations”) to meaningfully implement Section 618(d). These Final Regulations, codified at 34 C.F.R. §§ 300.646 and 300.647, established a standard methodology to use to determine whether disproportionality is occurring and provided flexibility for States in determining when that disproportionality is significant.
6. The 2016 Final Regulations took effect on January 18, 2017. In order to give States and school districts time to implement the new regulations, the compliance date for the regulations was set for almost 18 months after the effective date, that is July 1, 2018.
7. On July 3, 2018 – two days after the States were required to be in compliance – the Department issued a final regulation in the Federal Register delaying the requirement to comply with the regulations for two years (the “Delay Regulation”).
8. The Department claims in the Delay Regulation that it delayed the 2016 Final Regulations because it is “concerned” they “may create an incentive” for school districts to use racial quotas in identification, placement, and discipline of students with disabilities. The Department acknowledged that it had “addressed the issue of quotas in the 2016 significant disproportionality regulations,” but it did not point to any new facts or arguments to explain its new-found concerns. Instead, it claimed the right to reverse course “even in the absence of changed facts and circumstances” because it now believed that the Department did not previously “give sufficient weight” to the risk.
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9. In the Delay Regulation, the Department gave short shrift to seven safeguards it built into the 2016 Final Regulations to address the risk of quotas. It summarily declared that the express prohibition on racial quotas included in the preamble to the 2016 Final Regulations was “insufficient.” The Department likewise dismissed out of hand a number of other measures included in the 2016 Final Regulations to mitigate any such risk, because it would “require[] careful review” to “[k]now[] if these measures would be effective.” And the Department failed to discuss at all some measures it relied on in the 2016 Final Regulations. The Department nonetheless delayed the 2016 Final Regulations for two years to allow it to “evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas.”
10. As explained below, the Delay Regulation violates the Administrative Procedure Act (APA). The Delay Regulation is arbitrary and capricious, an abuse of discretion, otherwise not in accordance with law, and without observance of procedures required by law because, separately or combined, the Department:
a) relied only on arguments and facts that were before the Department in 2016 but failed to provide a reasoned explanation for reaching a different result;
b) failed to consider and address plausible available alternatives to delay in light of the acknowledged failure of many States to comply meaningfully with Section 618(d);
c) failed to consider significant aspects of the problem, including the costs to society, parents, and their children of delay the regulation, and the resources invested by States over the past 18 months in reliance on the 2016 Final Regulations;
d) had a closed mind, bordering on pre-determination, about the outcome even before it initiated the notice-and-comment process leading to the Delay Regulation;
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e) improperly limited the comments it said it would consider; and 11. The Delay Regulation should be set aside under the APA, and the original compliance date of July 1, 2018, reinstated for these critical regulations.
PARTIES 12. Plaintiff Council of Parent Attorneys and Advocates, Inc. (COPAA) is a national notfor-profit organization of parents of children with disabilities, their attorneys, and their advocates. COPAA’s mission is to protect and enforce the legal and civil rights of students with disabilities and their families. 13. COPAA has more than 2,100 members located across the United States. Membership is open to all persons who are interested in furthering COPAA’s purposes, and each member pays annual dues. Persons who work for, or contract with, state, regional, or local education agencies (e.g., state Departments of Education or school districts), however, are presumptively not permitted to join COPAA, but a super–majority of the Board of Directors may permit such persons to join as members after an interview and other varied requirements. The Board of Directors is composed exclusively of COPAA members. 14. In its daily operations, COPAA accomplishes its mission by, among other things: 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.
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15. COPAA maintains a resource library available to members only. It also creates and makes available webinars for its members and others.
16. COPAA periodically submits comments on federal agencies’ proposed rules and regulations to inform agencies about the impact of such proposals on the lives and rights of children with disabilities and their families.
17. In conducting these activities to fulfill its mission, 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.
18. COPAA regularly issues reports and policy papers on issues that are important to its members. COPAA, under agreement from The National Council on Disability, an independent federal agency, conducted research for a five-report series examining the implementation of the IDEA. To assure input from key stakeholders, COPAA held local and national fora in multiple cities across the country and online. The findings in these reports serve to provide policymakers – including the White House, Congress, and state and local education agencies – with insight needed to make policy decisions designed to improve outcomes for all students with disabilities.
19. Defendants are the U.S. Department of Education (“the Department”), current U.S. Secretary of Education Elizabeth (Betsy) DeVos, and Johnny W. Collet, Assistant Secretary for Special Education and Rehabilitative Services. Ms. DeVos and Mr. Collet are sued in their official capacities.
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20. As the U.S. Secretary of Education, Ms. DeVos is responsible for the administration of the Department in accordance with law, including adoption of rules and regulations pursuant to the rule-making procedures set out in the APA.
21. Defendant Johnny W. Collet is the Assistant Secretary for Special Education and Rehabilitative Services. He serves as the principal adviser to the Secretary on Departmental matters related to special education and rehabilitative services.
JURISDICTION AND VENUE 22. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because it arises under federal law, namely the Individuals with Disabilities Education Act (IDEA) and the Administrative Procedure Act (APA). This Court also has jurisdiction pursuant to 28 U.S.C. § 1346(a)(2) because a department of the United States is a defendant. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-2202. 23. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district.
FACTUAL AND REGULATORY BACKGROUND 24. Section 618(d) of the IDEA, 20 U.S.C. § 1418(d), is one of several provisions added to the IDEA in 2004 that reflects congressional concern that a student’s race improperly influences – at both individual and systemic levels – a school district’s determination about whether that student is identified as a student with a disability, what type of disability the student is identified as having, where that student is placed to receive special education, and whether and how often that student is disciplined. 25. In response to that concern, Congress adopted a tailored, important provision: IDEA Section 618(d). It did not declare racially significant disproportionality unlawful. Instead,
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Section 618(d) required states to implement certain measures that could address problems related to racial disproportionality, regardless of reason for that disproportionality. First, there are measures aimed at figuring out and disclosing to the public why the disproportionality was occurring. In addition, the school district is required to use IDEA funds for comprehensive coordinated early intervening services. The statutory expectation is that these services would be provided particularly (but not exclusively) to children in groups that are significantly overidentified to meet their needs – even before they are identified as children with disabilities.
26. After a dozen years’ experience, during which time most States found ways to evade this provision, in 2016 the Department adopted regulatory guiderails – a standard methodology – for measuring disproportionality, while still providing flexibility to States in determining what would constitute significant disproportionality. The Department adopted the standard methodology after an extensive collaborative process involving recommendations from the GAO, a formal Request for Information, and an NPRM.
27. The Department’s current effort to delay these regulations allows States to effectively eliminate any obligations they have under the statutory provision. Thus, it should be rejected. Disproportionality & Misidentification
28. Section 618(d) is focused on over-representation of students of color in special education, in more restrictive placements, and in discipline. Section 618(d)’s trigger is not the appropriateness of any disproportionality detected, but instead the existence of “significant” disproportionality determined by the “examination of data.” A State’s definition of significant disproportionality thus needs to be based on an analysis of numerical information.
29. Congress anticipated that when States identified school districts with significant disproportionality, they would identify school districts where students were not over-identified
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and the disproportionality was due to only extrinsic differences. Nonetheless, there are strong reasons to think that some (but obviously not all) of the amount of the over-representation is the result of misidentification of students of color.
30. Students of color have long been identified as students with disabilities when they did not have any disabilities. This misidentification leads to students of color disproportionately being over-represented in the population of students with disabilities compared to their presence in the student population. At the national level, for example, African American students have been found to be consistently over-represented as students with disabilities compared to their percentage of the student population.
31. The Department itself has explained during in its 2016 NPRM leading to the 2016 Final Regulation that “[w]hen children of color are identified as children with disabilities at substantially higher rates than their peers, there is a strong concern that some of these children may have been improperly identified as children with disabilities, to their detriment. Misidentification interferes with a school’s ability to provide children with appropriate educational services. The overidentification of children of color in special education, in particular, raises concerns of potential inequities in both educational opportunities and outcomes.”
32. This misidentification can be attributed to pre-existing implicit or explicit bias that people of color were inferior, and thus any educational difficulties were the result of something being “wrong” with the child.
33. Additionally, this misidentification can be attributed to institutional pressures resisting racial desegregation in classrooms. By identifying students of color (particularly males) as
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having a disability, a school district has a seemingly neutral justification to place them in a separate “special education” classroom away from their white peers.
34. Indeed, as discussed below, Congress itself suggested the possible influences on such identifications when it included in the 2004 amendments to IDEA a finding that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of minority students into special education.” Pub. L. No. 108446, § 601(c)(12), 118 Stat. 2651 (2004).
35. The Department itself acknowledged, in proposing the Delay Regulation, that “the status quo for school districts across the country properly identifying children with disabilities is troubling.” In the preamble to the final Delay Regulation, the Department continued to acknowledge “problems in the status quo.”
36. In a similar vein, school districts may correctly identify a student of color as a student with a disability, but incorrectly identify the type of disability. This misidentification can affect the services provided to the student, the location where the students receive such services (i.e., in a general education classroom or otherwise), and a proper understanding of whether discipline for misbehavior is appropriate.
37. The Department itself reported, in proposing the Delay Regulation, that: In 2012, American Indian and Alaska Native students were 60 percent more likely to be identified for an intellectual disability than children in other racial or ethnic groups, while black children were more than twice as likely as other groups to be so identified. Similarly, American Indian or Alaska Native students were 90 percent more likely, black students were 50 percent more likely, and Hispanic students were 40 percent more likely to be identified as having a learning disability. In addition, black children were more than twice as likely to be identified with an emotional disturbance.
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38. Disproportionality is greater for students of color in the subjective or “soft” disability categories of Intellectual Disability, Emotional Disturbance, or Learning Disability, than in the more objective or “hard” categories, such as hearing impairment or visual impairment.
39. This greater disproportionality in the more subjective categories suggests that the overrepresentation of students of color as students with certain disabilities may be the result of untoward factors that are more able to influence subjective judgments.
40. The Department itself recognized in the NPRM for the 2016 Final Regulations that “[o]ver-identification may differentially diminish the opportunities of children of color to interact with teachers and others within the larger school context, especially when education is provided in separate settings.” Disproportionality in Placement
41. Disproportionality on the basis of race also occurs in the placement of students with disabilities, that is the setting in which they learn (a general education classroom, a classroom solely for special education in a regular school, a separate school, etc.).
42. Available data demonstrates that students of color, especially African Americans, are over-represented in more restrictive educational environments and underrepresented in less restrictive settings compared to their white peers with the same disabilities.
43. Again, as the Department itself reported in the NPRM preceding the 2016 Final Regulations:
Research has found that African American, Hispanic/Latino, and American Indian/ Alaska Native children and English language learners have a greater chance of receiving placements in separate educational settings than do their peers. Nationally, Black/African–American, Asian, and Native Hawaiian and Other Pacific Islander children with disabilities (ages 6 through 21) were less likely than their White peers to be inside the regular classroom 80 percent or more of the day (56 percent, 57
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percent, 54 percent, and 65 percent, respectively) during the 2012–2013 school year (SY).
44. In February 2018, The National Council on Disability, an independent federal agency, issued a report entitled The Segregation of Students with Disabilities, which found that “White students and Native American students continue to be included in general education classrooms more often than African American students, Asian students, and those from the Pacific Islands, including Hawaii.” The Council found this racial disproportionality “[m]ost troubling, because variables other than child–related factors (such as IQ or communication skills) appear to be at play in placement decisions.”
45. That same report also credited a 2016 analysis of placements for students with autism that “suggested that African American students with autism are disproportionately placed in more restrictive educational settings” than students of other races with autism. Disproportionality in Discipline
46. Disproportionality on the basis of race also occurs in the disciplining of children with disabilities.
47. The Department’s Office for Civil Rights reported in March 2018 that during the 2015– 16 school year, students with disabilities were consistently disciplined at disproportionate rates. Students with disabilities represented 12 percent of the overall student enrollment yet schoollevel reported data show they are:
• 28 percent of students referred to law enforcement or arrested; • 26 percent of students who received an out-of-school suspension; and • 24 percent of those students who were expelled. 48. Students of color with disabilities experience even higher rates of discipline.
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49. In March 2018, the Government Accountability Office (GAO), a non–partisan arm of Congress, reported that “Black students with disabilities” were “disproportionately disciplined” in public schools. For example, “Black students with disabilities represented about 19 percent of all K–12 students with disabilities, and accounted for nearly 36 percent of students with disabilities suspended from school (about 17 percentage points above their representation among students with disabilities).”
50. The GAO found that “[t]his pattern of disproportionate discipline persisted regardless of the type of disciplinary action, level of school poverty, or type of public school these students attended.” Statutory Response to Disproportionality
51. Although the issue has been studied since the 1970s, Congress first expressly identified racial over-representation in special education as a problem in its 1997 amendments to the IDEA, Pub. L. No. 105-17, 111 Stat. 37 (1997). It added statutory findings to the IDEA that stated that “[m]ore minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.” Specifically, “[a]lthough African–Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education.” Congress also found that for certain disabilities, the disproportionality based on race was even larger, even when controlling for poverty: “[p]oor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart.” After identifying these examples of over-representation, Congress thus concluded that “[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling … among minority children with disabilities.” Id. § 601(c)(8), 111 Stat. at 40-41.
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52. In response to these findings, Congress adopted its first provision that referenced significant disproportionality. That provision required States to “collect[] and examin[e] data to determine if significant disproportionality based on race is occurring in the State with respect to” identification and placement of children with disabilities. A finding of significant disproportionality triggered a requirement for the State to “review and, if appropriate, revis[e], the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this Act.” Id. § 618(c), 111 Stat. at 102. The regulation promulgated by the Department in 1999 simply mirrored the statutory language.
53. Twelve years later, Congress addressed the topic again when it reauthorized and amended the IDEA. Pub. L. No. 108–446, 118 Stat. 2647 (2004). Congress specifically amended the statutory findings to include its determinations that “African-American children are identified as having [intellectual disabilities] or emotional disturbance at rates greater than their White counterparts;” that “[i]n 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;” and that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of minority students into special education.” Id. § 601(c)(12), 118 Stat. at 2651.
54. Apparently dissatisfied with the results yielded by the 1997 significant disproportionality provision, Congress enhanced the provision’s scope. It expanded the States’ significant disproportionality obligation to cover the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, in addition to identification and placement. Id. § 618(d)(1)(A)-(C), 118 Stat. at 2739.
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55. At the same time, Congress included two solutions – one substantive and one procedural – for school districts that were determined to be significantly disproportionate. First, any school districts identified as having significant disproportionality are required to spend 15% of their federal IDEA money to provide comprehensive coordinated early intervening services to children in the school district, particularly (but not exclusively) to children in groups that are significantly overidentified. Second, school districts are required to publicly report on any revision of its policies, procedures, and practices used in identification, placement, and disciplinary actions it creates in response to a disproportionality designation. Id. § 618(d)(2)(A)(C), 118 Stat. at 2739-2740.
56. The scope of Section 618(d)’s significantly-disproportionate requirement is informed by two other provisions enacted at the same time. Section 612(a)(24) requires States to have in effect “policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity.” 118 Stat. at 2691. Section 616(a)(3) requires States to monitor school districts using quantifiable and qualitative indicators to adequately measure “[d]isproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.” 118 Stat. at 2731. These provisions show that when Congress was concerned only about the reasons for racial disproportionality, it expressly discussed “inappropriate” disproportionality. Response to Section 618(d) by the Department and States
57. When initially regulating to implement Section 618(d), the Department took a handsoff approach. It decided that “[w]ith respect to the definition of significant disproportionality,
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each State has the discretion to define the term for the LEAs [local education agencies] and for the State in general” (71 Fed. Reg. 46,540, 46,738).
58. That decision proved to be an error. Many States knowingly adopted metrics for determining disproportionality, and what constituted significant disproportionality, that resulted in no school districts in those States being identified as significantly disproportionate. Thus, districts in those States have not been required to review their policies, procedures, and practices and to spend IDEA funds on comprehensive coordinated early intervening services.
59. The GAO issued a report in February 2013 that found “the discretion that States have in defining significant disproportionality has resulted in a wide range of definitions that provides no assurance that the problem is being appropriately identified across the nation.” Further, the GAO found that “the way some States defined overrepresentation made it unlikely that any districts would be identified.” According to the GAO, 21 States did not identify any school districts as significantly disproportionate on any measure. In addition, “[a]mong the almost 15,000 school districts nationwide that received IDEA funding in school year 2010-2011, states required 356 (2.4 percent) districts to use these funds for early intervening services due to significant disproportionality.” Of the school districts identified, over half were located in only 5 States, with 73 districts located in Louisiana.
60. “To better understand the extent of racial and ethnic overrepresentation in special education and promote consistency in how States determine the districts required to provide early intervening services,” the GAO recommended that the Department “develop a standard approach for defining significant disproportionality to be used by all states. This approach should allow flexibility to account for state differences and specify when exceptions can be made.”
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61. Data that came out after the GAO issued its report did not indicate States were improving on their own. The Department reported that in the 2012-13 school year – two school years after the period relied on by the GAO in its report – 22 States did not identify any school districts as significantly disproportionate on any measure. Of the 491 school districts identified as significantly disproportionate, 75 percent were located in only 7 States. Process for Developing and Adopting 2016 Final Regulations
62. In response to the GAO’s report, the Department issued a Request for Information in June 2014 (79 Fed. Reg. 35,154) in which it stated that it was “concerned 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.”
63. In March 2016, the Department issued an NPRM to propose changes to its regulation to provide the standard methodology that States must use to determine whether there is significant disproportionality based on race or ethnicity in the State and its LEAs (81 Fed. Reg. 10,968).
64. In December 2016, after considering comments received, the Department issued Final Regulations (81 Fed. Reg. 92,376). The Department determined that, “given the widespread disparities in rates of identification, placement, and disciplinary removal across racial and ethnic groups,” the “relatively low number of LEAs identified as having significant disproportionality, raises concerns about whether the prior approach [by States] was being implemented to meet Congress’ intent to address racial and ethnic disparities in special education and to ensure compliance with IDEA.” The Final Regulations, the Department explained, “are necessary to ensure that States meaningfully identify LEAs with significant disproportionality and that the
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statutory remedies are implemented in a manner that addresses any significant disproportionality identified.”
65. The Department determined that the Final Regulations would provide substantial benefits to students, parents, and members of the public, although it acknowledged that it could not “meaningfully quantify the economic impacts of the benefits.” And it further determined that the benefits of the regulations “outweigh the estimated costs of these final regulations.”
66. The 2016 Final Regulations require all States to use a standard methodology to identify significant disproportionality. 34 C.F.R. § 300.646(b). The standard methodology uses risk ratios to analyze disparities for seven racial or ethnic groups, comparing each to all other children within the school district in 14 different categories of analysis. Id. § 300.647(b)(2)(b)(4).
67. A risk ratio is a numerical comparison, expressed as a ratio or decimal, between the risk of a specific outcome for a specific racial or ethnic group in a school and the risk of that same outcome for all other children in the district. 34 C.F.R. § 300.647(a)(6). Generally, 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. A risk ratio of 2.0 indicates that one group is twice as likely as all other children to experience that outcome. A risk ratio of 3.0 indicates three times as likely, etc.
68. Drawing from an example the Department used in a Questions and Answers document it issued in March 2018, if 40 out of 200 Hispanic children in a school district are identified as children with disabilities, the risk of a Hispanic child being identified as a child with a disability in that district is 40/200 or 20 percent. If 200 out of all of the other 2,000 children in the school district are identified as children with disabilities, then the risk of all other children being
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identified as children with disabilities is 200/2,000 or 10 percent. The risk ratio for Hispanic children in the district being identified as children with disabilities is 20/10, 2:1, or 2.0.
69. The 2016 Final Regulations also provide substantial flexibility to the States within that framework. States determine the thresholds above which the risk ratio in each category of analysis indicates significant disproportionality. 34 C.F.R. § 300.647(b)(1)(i)(A). Using the same example as above, if a State sets a risk ratio threshold for identification of children as children with disabilities at 2.5, then the disproportionality for Hispanic children identified as children with disabilities is not significant despite the fact they are twice as likely as all other children to be identified as children with disabilities. States may set different risk ratio thresholds for different categories of analysis. Id. § 300.647(b)(1)(ii).
70. Risk ratio thresholds must be reasonable. 34 C.F.R. § 300.647(b)(1)(i)(A). “Reasonable” is not defined in the regulation itself, but Department stated in the preamble to the 2016 Final Regulations that “it is reasonable” for States “to consider the racial and ethnic composition of the State and LEAs, unique enrollment demographics, as well as factors correlated with disability.” In the Department’s Questions and Answers document issued in March 2018, the Department stated that “reasonable” means “a sound judgment in light of all of the facts and circumstances that bear upon the choice.”
71. States also have flexibility to identify a school district with significant disproportionality only after it exceeds a risk ratio threshold for up to three prior consecutive years, 34 C.F.R. § 300.647(d)(1); to exclude small populations from analysis (through setting minimum cell sizes and n–sizes), id. § 300.647(a)(3) & (4), (b)(1)(i)(B) & (C); and to exclude from determinations of significant disproportionality LEAs that have made reasonable progress in reducing their risk ratios, id. § 300.647(d)(2).
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72. In adopting the standard methodology and the attendant flexibilities, the Department responded in the 2016 Final Regulations preamble to multiple comments raising the concern that the standard methodology “would create an incentive to not identify children for special education and related services in order to reduce [racial] disproportionality numbers” and thus result in de facto racial quotas. The Department established seven safeguards against such results.
73. First, the Department made clear in the preamble 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.”
74. Second, the Department amended the regulation to add section 300.646(f) to make clear that these regulations do not authorize a State or an LEA to develop or implement policies, practices, or procedures that result in actions that violate any IDEA requirements, including requirements to ensure that all children with disabilities residing in the State who are in need of special education and related services are identified, located, and evaluated (the so-called child find requirement) and to ensure that a free appropriate public education is available to all eligible children with disabilities.
75. Third, the Department declared in the regulatory preamble that such quotas would violate the IDEA: “[I]t is a violation of IDEA for LEAs to attempt to avoid determinations of significant disproportionality by failing to identify otherwise eligible children as children with disabilities.”
76. Fourth, the Department warned in the regulatory preamble that a school district’s use of racial quotas “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.” Thus, not only would
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quotas violate the express prohibition in the regulation, school districts faced the risk of private civil litigation for damages and attorneys’ fees.
77. Fifth, the Department acknowledged in the regulatory preamble that the incentives for quotas were most likely to occur “in cases where States select particularly low risk ratio thresholds.” It was “[f]or this reason” that the 2016 Final Regulations provided “States the flexibility to set their own reasonable risk ratio thresholds.” Working with knowledgeable stakeholders, the Department explained, States are required to “identify particular risk ratio thresholds that help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of [the IDEA’s] child find procedures.” It is up to States, in the first instance, to accommodate “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.” Further, the Department would “monitor States for any use of risk ratio thresholds that may be unreasonable and take steps, as needed, to ensure the States’ compliance.”
78. Sixth, the Department stated in the regulatory preamble its intent “to publish guidance to help schools to prevent racial discrimination in the identification of children as children with disabilities, including over-identification, under-identification, and delayed identification of disabilities by race.” That guidance, Preventing Racial Discrimination in Special Education, was issued by the Department’s Office for Civil Rights in December 2016. It affirmed that it is unlawful for a school district not to identify a student with a disability due to the student’s race.
79. Seventh, the Department in the regulatory preamble committed to conduct an evaluation of the implementation of the 2016 Final Regulations that would “include an examination of the extent to which school and LEA personnel incorrectly interpret the risk ratio
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thresholds and implement racial quotas in an attempt to avoid findings of significant disproportionality by States, contrary to IDEA.”
80. The 2016 Final Regulations also addressed the steps required after a finding of significant disproportionality within a school district. First, the State must provide for the review and, if appropriate, revision of the district’s policies, practices, and procedures to ensure compliance with the requirements of the IDEA. 34 C.F.R. § 300.646(c)(1). If revisions are made, the State must require the school district to publicly report on any such revisions. Id. § 300.646(c)(2). Second, the school district must use 15% of its IDEA funds for comprehensive coordinated early intervening services. Id. § 300.646(d). In implementing these services, the district must perform an analysis that identifies the factors contributing to the significant disproportionality, i.e., a root-cause analysis. Id. § 300.646(d)(1)(ii). The district must then “address” any policy, practice, or procedure it identifies as contributing to the significant disproportionality. Id. § 300.646(d)(1)(iii). The district may address those causes through professional development and behavior evaluations, services, and supports. Id. § 300.646(d)(1)(i). These services must be focused particularly, but not exclusively, on children in those groups that were significantly overidentified. Id. § 300.646(d)(1)(iii).
81. Recognizing that significant disproportionality is not always reflective of racial discrimination or other untoward considerations, the Department concluded that these consequences were appropriate for all school districts. Even where “differential exposure to risk factors” or other non-discriminatory factors contributed to racially significant disproportionality in special education, the Department determined requiring school districts to engage in the comprehensive coordinated early intervening services would be beneficial because “schools may
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help to mitigate the effects of these risk factors by screening children early and by providing early and appropriate intervention and supports.”
82. The Department also decided that States would not be required to comply with the regulations until July 1, 2018, for the 2018-19 school year. The Department explained that it “recognize[d] the practical necessity of allowing States time to plan for implementing these final regulations, including to the extent necessary, time to amend the policies and procedures necessary to comply.”
83. After the 2016 Final Regulations were published in the Federal Register, the Department provided technical support to assist the States in getting ready to comply. In February 2017, the Department hosted a symposium on significant disproportionality for States and released a webinar about the 2016 Final Regulations.
84. In March 2017, a month after Secretary DeVos took office, the Department issued a “model timeline” for States that identified all the preparatory tasks required to meet the July 1, 2018 compliance deadline, issued a Questions and Answers document for States about the 2016 Final Regulations, and released another webinar. The Questions and Answers document, like the 2016 Final Regulations, cautioned that States may not “explicitly, or by their choice of risk ratio thresholds, implicitly, set racial quotas for any category of analysis.”
85. As late as October 24, 2017, the Department sent a letter to a member of Congress reassuring him that the Department had “provided supplemental technical assistance to assist States as they prepare to implement the final regulations in school year 2018–2019” and “to help States implement the regulations and implement [them] with fidelity.”
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The Department Reverses Course 86. Only two days later, however, on October 26, 2017, Politico published an article about
a draft NPRM it had obtained that would propose to extend the compliance date of the 2016 Final Regulations for two years. Politico reported that a Department official said the draft Politico had was “an early version” of the NPRM “and has been significantly revised.”
87. On November 8, 2017, the Department proposed dropping questions from its Annual State Application under Part B of the IDEA that related to significant disproportionality. It explained to commenters that these questions were deleted as a result of “the Department continu[ing] to analyze the significant disproportionality regulations to further examine issues such as fiscal impact on SEAs [state education agencies] and LEAs and unintended consequences of the regulations, particularly on the identification of children with disabilities.”
88. On December 15, 2017, The Washington Post and The New York Times both published articles that reported that a Department official said that “ED is looking closely at this rule and has determined that, while this review takes place, it is prudent to delay implementation for two years.”
89. On February 27, 2018, the Department’s NPRM for a two-year delay was published in the Federal Register.
90. The NPRM started by inviting readers “to submit comments regarding this notice of proposed rulemaking” but then immediately stated that the Department “will consider comments on the proposed delayed compliance dates only and will not consider comments on the text or substance of the final regulations.”
91. The NPRM then started its discussion of the “Reasons” for the proposed delay with an acknowledgement that “the status quo for school districts across the country properly identifying
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children with disabilities is troubling.” It restated the statistics, quoted in paragraph 37 above, showing that students of color were more likely to be identified for various disabilities than white students. “And yet,” the Department observed, “only 28 States and the District of Columbia identified any LEAs with significant disproportionality, and of the 491 LEAs identified, 75 percent were located in only seven States.”
92. The NPRM noted that, in response to the Department’s general solicitation in 2017 on regulatory reform – which had requested input on regulations that may be appropriate for repeal, replacement or modification – it had received comments on the 2016 Final Regulations. Subsequently, in response to a Freedom of Information Act request, the Department revealed that it relied on only seven comments as the basis for the Delay NPRM – out of the over 16,000 comments submitted in response to the general solicitation. https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0& dct=PS&D=ED-2017-OS-0074.
93. The Department described those seven comments as raising five “concerns”: (1) lack of statutory authority to mandate a standard methodology; (2) the regulations improperly look at group outcomes through statistical measures rather than the needs of each individual child; (3) the regulations provide incentives to school district to establish quotas; (4) inability to assess the impact of the regulations; and (5) failure to align the regulations with other statistical measures required by the Department.
94. The Department stated the two-year delay was warranted because, in light of those comments, it had concerns that the 2016 Final Regulations “may not appropriately address the problem of significant disproportionality.” The extra time would be used “to review all of the issues raised and determine how to better serve children with disabilities.”
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95. In identifying the “[a]lternatives [c]onsidered,” the NPRM said the Department considered “proposing a delay of the compliance dates for different lengths of time” and elected two years because one year is “too little time as a general matter” for the Department to “develop, propose, and promulgate complex regulations” but three years was “too long” “given the amount of work on this issue the Department has already done.” The Department did not identify any non-delay alternatives.
96. In the analysis of costs and benefits, the NPRM concluded that the delay would generate benefits (i.e., cost savings to States and school districts) between $10.9 and $11.5 million over a ten-year period. It did not identify any costs of the delay. To the contrary it estimated that the proposed delay “will not impose any additional costs.”
97. After receiving comments, the Department published the final Delay Regulation in the Federal Register on July 3, 2018. The Delay Regulation mirrors the NPRM, with no textual changes.
98. The Delay Regulation stated that “[a]s of June 29, 2018” – prior to its publication in the Federal Register – “the date of compliance for recipients of Federal financial assistance ... is delayed” for two years.
99. The Delay Regulation stated that the Department “is not certain” that the standard methodology “is the best method for States to identify significant disproportionality.”
100. This purported uncertainty stemmed, first, from the Department’s claim that there was “conflicting research” as to what caused significant racial disproportionality; how much of the disproportionality was the result of racial discrimination; whether over-identification of students of color was, in fact, a problem; and how prevalent was under-identification of students of color.
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But the Department did not explain why these questions were legally relevant to determining significant disproportionality, which is a numerical calculation
101. The Department’s primary concern, repeated numerous times, was that the standard methodology “may create an incentive for LEAs to establish de facto quotas” to avoid being identified as significantly disproportionate. The Department said that it wanted time to “evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas.” (Both emphases added.)
102. The Delay Regulation acknowledged that the Department had “addressed the issue of quotas in the 2016 significant disproportionality regulations,” but it did not point to any new facts or arguments. Instead, the Department claimed the right to reverse course “even in the absence of changed facts and circumstances” because it now believed that Department did not previously “give sufficient weight” to the risk that the standard methodology “[p]otentially creates” racial quotas.
103. The Department did acknowledge that, confronting these same concerns, the Department previously responded by expressly noting in the preamble to the 2016 Final Regulations that quotas were prohibited and amending the text of the regulation to confirm that nothing in the regulations abrogated each child’s right under IDEA to special education in the least restrictive environment. But, in the Delay Regulation, the Department stated that these two actions were “insufficient protection against LEAs creating de facto quotas because, regardless of the disclaimer, the regulations themselves may, in fact, incentivize quotas.” The Department did not offer any explanation of how it had determined that expressly prohibiting quotas and expressly amending the regulations to say that the significant disproportionality regulations did
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not absolve school districts of their other responsibilities under the IDEA were insufficient to address the concern that the regulations may incentivize quotas.
104. The Department did not acknowledge the five other safeguards that were identified in the 2016 Final Regulations to prevent racial quotas, including the clear explanation that racial quotas would violate the IDEA; the warning that racial quotas could result in legal liability under Title VI and the Constitution; the regulatory responsibility given to each State to select (subject to Departmental review) risk ratios that were not so low as to incentivize quotas; the additional guidance issued by the Department’s Office for Civil Rights about preventing racial discrimination in special education; and the promised study of the effects of the 2016 Final Regulations to determine whether and to what extent school districts were using racial quotas.
105. The Department did acknowledge a commenter’s suggestion that the Department could “close[ly] monitor[] States for compliance with IDEA.” The Department said that “monitoring may not be able to resolve applicable issues,” but it gave no explanation why that was so. It instead transitioned to a non sequitur about the efficacy of the 2016 Final Regulations themselves, asserting that it was “not certain that compliance-driven monitoring will, by itself, effectively address the factors contributing to significant disproportionality or enable the Department to best support States to improve their systems.” Such a rethinking of the 2016 Final Regulations were not at issue with the Delay NPRM and the Department expressly stated that it would not consider comments based on the merits of the disproportionality Regulations themselves. The Department failed to address the pertinent issue – whether monitoring could address the factors that the Department was concerned may incentivize quotas.
106. The Department summarily disposed of reasonable alternatives to delay suggested by COPAA in its comments. COPAA urged the Department to accelerate the evaluation – to which
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it committed in the 2016 Final Regulations – to examine if any school districts in States that already used risk ratios were implementing racial quotas in an attempt to avoid findings of significant disproportionality, rather than wait until the 2018-19 school year was completed. COPAA also suggested that the Department could provide more technical assistance to States. It could also initiate reviews of States and school districts under Title VI of the Civil Rights Act to ensure they are not using racial quotas and publicize these reviews to deter others from doing so. The Department responded only that “[k]nowing if these measures would be effective requires careful review, which we will do during this delay.” The Department thus admitted that it was changing the status quo (compliance with the 2016 Federal Regulations on July 1, 2018) simply because it had concerns – no facts.
107. Despite the Department’s expressed concerns that the standard methodology may create an incentive to establish quotas that would be in violation of IDEA, Title VI, and the Constitution, the Department made clear that States “may implement the standard methodology” during the two-year delay. Indeed, the Department acknowledged that many States intend to “implement the standard methodology in the 2016 significant disproportionality regulations.”
108. In declaring that the regulations may incentivize racial quotas, the Department did not acknowledge the presumption of good faith and regularity to which state and local officials are entitled. Nor did the Department provide any examples of States or school districts that had been incentivized by the IDEA in the past to impose racial quotas, despite States having to comply with this provision for 14 years.
109. Instead, the Department offered a single example arising out of Texas, which did not involve racial disparities or discrimination. In that instance, Texas established an indicator involving the percentage of children identified as students with disabilities. Inadequate state
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supervision allowed some school districts to impose unlawful barriers to the identification of children as students with disabilities in order to meet the indicator. The Department did not explain what lessons it could draw from that single example. It could not have concluded that numerical measurements are inappropriate to ensure compliance with the IDEA. The IDEA itself requires each State to establish measurable quantitative targets for various indicators, and to use those targets to analyze the performance of each school district. 20 U.S.C. § 1416(a)(3), (b)(2)(C); 34 C.F.R. §§ 300.600, 602.
110. In issuing the final Delay Regulation, the Department failed entirely to consider an important aspect of the problem when it failed to address whether the Delay Regulation provided net cost savings to society as a whole, including the parents and students, or whether there were alternatives that would provide society net cost savings without delaying the compliance date.
111. Similarly, the Department failed entirely to consider another important aspect of the problem when it insisted that because “States are still required to comply with the statutory requirements of IDEA” around significant disproportionality, some progress might occur even with the Delay Regulation in place. But the Department did not revisit or question its prior determinations that, left to their own statistical devices, many States would select measures so that they would not identify any districts.
112. In the Final Delay Regulation, the Department revised its cost-benefit analysis and asserted that it “has included a copy of all calculation spreadsheets supporting this analysis in the docket folder for this notice.” No revised calculation spreadsheets have been made available as of the date of the Complaint.
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Injuries Caused by the Delay Regulation 113. The Department “recognize[d] the time, effort, and resources” that the States (and those
they consulted with) had already expended to come into compliance with the 2016 Final Regulations. The Department described these costs as “sunk investments” because “[r]egardless of whether the Department delayed the required compliance date, States would be unable to recover those expenses.” It further could not assure States that if they did accept the delay authorized by the Delay Regulation that they would not have to spend more money in two years, even if the 2016 Final Regulations were not changed. The most it could state is that “those [States] that delay implementation until a later date would not necessarily be required to recreate the work already completed.”
114. States expended their time and resources in reliance on the 2016 Final Regulations and the fair assumption that the Department would not change the rules simply based on a reweighing of potential risks. The Department did not acknowledge those reliance interests in deciding to delay the rule.
115. To be sure, the Department has given States a choice whether to delay or not. But regardless of what path a State chooses, the delay interferes with reliance interests. A State could stay the course and expend more resources to comply with the 2016 Final Regulations now. It risks, however, being told within the next two years that its spending was for naught and it must change its system again. Alternatively, a State could delay compliance with the 2016 Final Regulations for now to see if there are regulatory amendments. If there are regulatory amendments, the State will learn then how much of the time and resources already expended must be written off; if there are no amendments, the State will learn how much it will need to
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spend “to recreate the work already completed.” Yet the Department did not consider these important interests.
116. While many States have stated their intention to comply with the 2016 Final Regulations despite the adoption of the Delay Regulation, some States will not do so because of the Delay Regulation. The Department’s delay in the compliance date 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.
117. This reduction in the number of school districts identified will have certain inevitable consequences that will injure COPAA, its members, and students.
118. The delay in the compliance date will reduce the number of school districts that must engage in a review of their policies, practices, and procedures. These reviews can find students that are mis-identified, misplaced, or improperly disciplined, and districts can correct such mistakes. As the Department explained in promulgating the 2016 Final Regulations, “the State must ensure that the LEA has corrected each individual case of noncompliance, unless the child is no longer within the jurisdiction of the LEA.” Absent these mandated reviews, some such mistakes will continue unabated, to the detriment of COPAA and its members.
119. The delay in the compliance date will necessarily reduce the amount of information available to COPAA and its members because it will reduce the number of school districts determined to be significantly disproportionate and, in turn, reduce the number of school districts subject to two information-generating provisions of the IDEA and the 2016 Final Regulations: first, a report, which will be made publicly available, of revisions, if any, of the school district’s policies, practices, and procedures, 34 C.F.R. § 300.646(c)(2); and second, an analysis that
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identifies the factors contributing to the significant disproportionality, i.e., a root–cause analysis, id. § 300.646(d)(1)(ii). 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.
120. The delay in the compliance date will drastically deprive COPAA of key information on which it relies to educate its members and the public and will prevent COPAA from receiving information it wishes to use in its routine information–dispensing activities. The delay will deny COPAA and its members the opportunity to learn what school districts that would otherwise be determined to be significantly disproportionate under the 2016 Final Regulations are doing, resulting in a significantly restricted flow of information. Indeed, in States that choose to delay compliance with the 2016 Final Regulations, this information about the practices occurring in the 2018-19 school year and why these practices happened will not be able to be reconstructed when compliance is required in two years.
121. The delay in requiring all States to comply with the 2016 Final Regulations has already impaired and will continue to impair COPAA’s ability to bring potential IDEA violations to the attention of the Department and to continue to educate the public about racial disproportionality and possible remedies.
122. The Department’s failure to require compliance with the 2016 Final Regulations deprives COPAA of information on which it routinely relies when reported by the small number of existing school districts currently identified as significantly disproportionate. This lack of information directly conflicts with COPAA’s mission to prevent violations of the IDEA and frustrates its public education efforts. As a result of the Department’s Delay Regulation, COPAA is required to expend resources to obtain information about significant
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disproportionality, and effective remedies, through investigations, research, and state and local public records requests.
123. But for the Department’s Delay Regulation, COPAA would not need to undertake such extensive efforts. Requiring all States to comply with the 2016 Final Regulations in the 2018-19 school year will make this information available to COPAA in the near term. The information would enhance the capacity of COPAA to point its members and others to school districts that are responding to a determination of significant disproportionality in a positive manner and to counsel its members and school districts when unlawful discrimination may have figured into the disproportionality. The Delay Regulation thus puts the Department at loggerheads with COPAA in obtaining and using information for its membership and the public.
CLAIMS Administrative Procedure Act, 5 U.S.C. § 706(2)(A) & (2)(D) 124. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as though fully set forth herein. The Department failed to provide a reasoned explanation for its change. 125. The APA requires that an agency seeking to delay an existing regulation must “show that there are good reasons for the new” timing and provide “a reasoned explanation is needed for disregarding facts and circumstances that underlay” the timing of the existing regulation or “facts and circumstances that … were engendered by” the regulation, in order for the change not to be “arbitrary and capricious.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515-516 (2009)). A “change that does not take account of legitimate reliance on prior interpretation” is also “arbitrary and capricious.” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996).
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126. The Department did not comply with this APA requirement because it did not identify any reason for disregarding its prior factual determination that the 2016 Final Regulations, with the safeguards included, would not incentivize racial quotas. It identified no intervening facts or circumstances. The Department also ignored the circumstances engendered by the 2016 Final Regulations, in that States had invested time and money for 18 months in reliance on these regulations going into effect in July 2018. And the Department’s purported justification for delay – its “concern” that standard methodology may incentivize quotas – is inconsistent with Department’s express endorsement of immediate implementation of the 2016 Final Regulations by many States. The Department failed to consider significant aspects of the problem.
127. The APA requires that an agency issuing a regulation “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” in order for the regulation not to be “arbitrary and capricious.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In doing so, the agency issuing a regulation must consider all the “important aspect[s] of the problem.” State Farm, 463 U.S. at 43.
128. The Department did not comply with this APA requirement in at least two ways. First, it failed to address whether the Delay Regulation provided net cost savings to society as a whole, including the parents and students. Instead, the Department myopically focused on supposed cost savings to the regulated entities, the States and school districts. Congress, however, was directly concerned the high costs on society that accompanies over- and under-identification, placement, and discipline of students based on race. In 2016, the Department considered these
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benefits of the 2016 Final Regulation, and in 2018 it “entirely failed to consider” these costs to society created by its delay.
129. Second, the Department failed to consider meaningful alternatives to delay. The APA requires that an agency consider “reasonably obvious alternatives” that could serve the agency’s identified goals. Multicultural Media, Telecom & Internet Council v. FCC, 873 F.3d 932, 942 (D.C. Cir. 2017). In its consideration of the alternatives, the agency must “give a reasoned explanation for its rejection of such alternatives.” Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 242 (D.C. Cir. 2008). When the agency is proposing a delay, its justifications must refer to the delay itself and not be based on the suggestion of future regulation. See, e.g., California v. BLM, 286 F. Supp. 3d 1054, 1064 (N.D. Cal. 2018).
130. The Department did not comply with this APA requirement because it did not consider the obvious alternatives that were addressed in the 2016 Final Regulations and/or raised by commenters during the Delay Regulation rulemaking. The Department failed to meaningfully consider these alternatives, ignoring some altogether, and addressing others cursorily at best. In addition, the Department’s meager reasoning purported to address why certain alternatives would not solve the supposed issues with the 2016 Regulations themselves instead of why they would not be preferable to the proposed delay. The Department failed to provide for meaningful participation.
131. The APA requires that members of the public have an opportunity to “participate in the rulemaking through submission of” comments and only “[a]fter the consideration of relevant matter presented” may the agency adopt a regulation. 5 U.S.C. § 553(c); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1101 (D.C. Cir. 2009) (“The opportunity for comment must be a
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meaningful opportunity, and we have held that in order to satisfy this requirement, an agency must also remain sufficiently open-minded.” (citation omitted)).
132. The Department did not comply with this APA requirement because it informed the public that it would not consider certain comments, and it did not actually consider the comments submitted. Instead, it began the rule-making process with a closed mind and simply adopted its preordained result. This closed mind is reflected in, among other things, the statement of a Department official and removal of the Department’s data collection questions prior to the issuance of NPRM; and by the multiple procedural and substantive errors in the 2018 NPRM and 2018 Final Regulations.
133. The Department did not comply with this APA requirement because it did not disclose the materials it relied on in making its cost-benefit assessments, despite saying it would do so.
REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter an order and judgment: A. Declaring that Defendants’ Delay Regulation is unlawful. B. Vacating and setting aside the Delay Regulation as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with lawl and without procedure required by law. C. Enjoining the Department of Education and its officers, employees, and agents from implementing the Delay Regulation; D. Awarding Plaintiff its reasonable costs and attorney’s fees incurred in the prosecution of this action; and E. Awarding such other equitable and further relief as the Court deems just and proper.
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RESPECTFULLY SUBMITTED this 12th day of July, 2018.

Michael Harris* NATIONAL CENTER FOR YOUTH LAW 405 14th St., 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (410) 835-8099 mharris@youthlaw.org
Crystal M. Adams* NATIONAL CENTER FOR YOUTH LAW 1313 L St. NW, Suite 130 Washington, DC 20005 Telephone: (202) 868-4785 Facsimile: (202) 868-4788 cadams@youthlaw.org

______/s/ Jennifer J. Clark_________
Jennifer J. Clark (Bar No. 1003483) SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 Telephone: (202) 736-8000 Facsimile: (202) 736-8711 jennifer.clark@sidley.com
Jean-Claude André* Benjamin G. Barokh* SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 400 Los Angeles, CA 90013 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 JCAndre@sidley.com bbarokh@sidley.com

* Application for admission pro hac vice to be submitted.

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 Case 1:18-cv-01636-TSC Document 31 Filed 03/07/19 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

COUNCIL OF PARENT ATTORNEYS )

AND ADVOCATES, INC.,

)

)

Plaintiff,

)

)

v.

)

)

)

ELIZABETH (BETSY) DEVOS,

)

SECRETARY OF EDUCATION;

)

JOHNNY W. COLLET, ASSISTANT )

SECRETARY FOR SPECIAL

)

EDUCATION AND REHABILITATIVE )

SERVICES; U.S. DEPARTMENT OF )

EDUCATION,

)

)

Defendants.

)

)

Civil Action No. 18-cv-1636 (TSC)

MEMORANDUM OPINION

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’ CrossMotion 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).

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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) (“AfricanAmerican children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts.”); (D) (“In the 1998-1999 school year, AfricanAmerican 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
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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
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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), https://www.gao.gov/products/GAO-13-137. 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
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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
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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
1 A “risk ratio is a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA by the risk for children in all other racial and ethnic groups within the LEA.” 34 C.F.R. §300.647(a)(6).
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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
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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.”).
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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
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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
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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. II. MOTION TO DISMISS
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-orcontroversy 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
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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).
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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
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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
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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 information that must be publicly disclosed under EPCRA. As a result Waterkeeper (and others) who previously sought that information no longer have a statutory right to access it. For the purpose of standing, that’s injury enough.” Id.
This trio of cases – Action Alliance, PETA, and Waterkeeper – controls this court’s decision. The Delay Regulation prevents COPAA from receiving information to which it is legally entitled. Because 20 U.S.C. § 1418(b)(1) directs States to “publicly report[]” information that the Department requires they collect, States must publicly disclose the significant disproportionality designation of LEAs. See 83 Fed. Reg. at 31313 (“States will continue to report to the Department and the public whether each LEA was identified with significant disproportionality and the category or categories of analysis under which the LEA was identified.”). The IDEA also requires States to publicly disclose revisions made to LEAs’ policies, procedures, and practices. 20 U.S.C. § 1418(d)(2)(C); 34 C.F.R. § 300.646(c)(2).
COPAA has convincingly shown that the Delay Regulation deprives it of information it would have received if the 2016 Regulations had gone into effect, that this information would assist it, including with educating its members and the public, and that it has expended resources counteracting the loss of information.
First, COPAA explains that to fulfill its mission “to protect and enforce the legal and civil rights of students with disabilities and their families,” Compl. ¶ 12, it relies on information related to significant disproportionality. Specifically:
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.
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Id. ¶ 17; see also Almazan Aff. ¶ 6 (“In conducting these activities to fulfill its mission, including its public education activities, COPAA relies on public 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, including revising policies, practices, and procedures and spending their IDEA funds on comprehensive coordinated early intervention services.”).
Second, COPAA explains “[t]he delay in the compliance date will necessarily reduce the amount of information available to COPAA and its members because it will reduce the number of school districts determined to be significantly disproportionate and, in turn, reduce the number of school districts subject to two information-generating provisions of the IDEA and the 2016 Final Regulations.” Compl. ¶ 119. COPAA identifies two types of information that it will lose: “first, a report, which will be made publicly available, of revisions, if any, of the school district’s policies, practices, and procedures, 34 C.F.R. § 300.646(c)(2); and second, an analysis that identifies the factors contributing to the significant disproportionality, i.e., a root–cause analysis, id. § 300.646(d)(1)(ii).” Id. COPAA explains that “[t]hese reports and analyses are an important source of information relied upon by [it] in preparing educational materials, in adopting policy positions, and in advocating on behalf of children before federal agencies.” Id.; see also Almazan Aff. ¶ 8.
Third, COPAA demonstrates that the information it will be deprived of is of the type “on which it relies to educate its members and the public” and that it uses that information as part of its “routine information–dispensing activities.” Id. ¶ 120. COPAA explains that this, in turn, prevents its members from “learn[ing] what school districts that would otherwise be determined
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to be significantly disproportionate under the 2016 Regulations are doing.” Id.; see also Almazan Aff. ¶¶ 8-12.
Fourth, COPAA explains that the loss of information will necessarily result in the additional expenditure of revenues.
[I]n order to continue to educate the public, policy makers, and its members, COPAA will have to find the same information elsewhere. Such efforts include independent investigation and public records requests to numerous states and LEAs; researching the labyrinth of state significant disproportionality formulas and thresholds; and reaching out to parents directly. These more costly methods hardly guarantee the same information, impairing COPAA’s ability to provide the same robust guidance to the public and its members. Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss and in Supp. of Pl.’s Mot for Summ. J. at 14 (citations omitted). See also Almazan Aff. ¶ 15; Compl. ¶ 122. COPAA demonstrates that even its own independent research efforts will not provide access to the same quality of information that would be available under the 2016 Regulations. It explains that the “Department of Education does not make publicly available data that would allow COPAA to calculate racial disparities in identification, placement, and discipline of students with disabilities at the school district level disaggregated by disability type (as opposed to as the state level).” Almazan Aff. ¶ 7. Similarly, “in virtually all States, there is very little public data available that would allow COPAA to calculate racial disparities in identification, placement and discipline of students with disabilities at the school district level.” Id. Therefore, COPAA “relies on the determinations of significant disproportionality announced by the States in determining which school districts have the most significant racial disparities in the State and consequently are in most need of COPAA’s monitoring and education functions.” Id. ¶ 8.2
2The government claims that, because States maintain considerable discretion “under the 2016 Regulations, Plaintiff will still lack comparable information on racial disproportionality . . .
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In sum, because COPAA’s alleged injury—i.e., denial of access to significant
disproportionality information—is “concrete and specific to the work in which [it is] engaged,”
and because it has expended resources to counter that injury, COPAA has alleged a cognizable injury sufficient to support organizational standing. PETA, 797 F.3d at 1095.3
The government argues on several fronts that COPAA fails to establish organizational
standing. First, it contends that the underlying premise of COPAA’s injury-in-fact argument –
“that ED’s postponement of the compliance date for the 2016 regulations will result in fewer
school districts being identified with significant disproportionality than would have occurred
absent the postponement” – is “speculative.” Defendants’ Motion to Dismiss at 19, ECF No. 14
(“Defs.’ Mot. to Dismiss”); see also id. at 3, 14, 18, 23, 28, 31. “Plaintiff simply assumes
without any factual basis that States would have chosen to implement the 2016 Regulations in
such a way as to result in more school districts being identified with significant
disproportionality,” and therefore COPAA’s alleged injuries are “conjectural and hypothetical, as
[because] the amount and types of information made available through school districts’ reports will still necessarily vary.” Defendants’ Reply in Support of Motion to Dismiss at 13, ECF No. 19 (“Defs.’ Reply in Supp. of Mot. to Dismiss”) (quotation marks omitted). The government’s prior statements undercut its current assertion. In 2018, the government stated that “the only benefits we believe could be reasonably argued to be delayed as a result of this regulatory action would be the reduction in the use of inappropriate policies, practices, and procedures, and the increased comparability of data across States.” 83 Fed. Reg. at 31316. The government said the same in 2016. See 81 Fed. Reg. at 92457 (“The Department believes this regulatory action to standardize the methodology States use to identify significant disproportionality will provide clarity to the public, increase comparability of data across States . . . [and] will accrue benefits to stakeholders in reduced time and effort needed for data analysis and a greater capacity for meaningful advocacy.”); see also id. at 92386, 92407. Therefore, the Delay Regulation hampers Plaintiff’s ability to conduct comparability assessments of data across States. 3 There is reason to believe that for informational standing COPAA does not need to demonstrate a diversion of resources. See, e.g., Campaign Legal Center v. FEC, 245 F. Supp. 3d 119, 127– 128 (D.D.C. 2017). But the court need not decide this question because COPAA has shown that the Delay Regulation has forced it to expend resources trying to collect the information.
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opposed to actual or imminent,” id. at 20. The essence of the government’s argument is that the likelihood of fewer school districts being identified “depends on the independent actions of entities not before the Court and not parties to this litigation . . . ,” id., and those entities have wide latitude in implementing the regulations. In particular, States had three types of discretion in implementing the 2016 Regulations: (1) States could set a reasonable risk ratio threshold applicable to their own schools districts, 81 Fed. Reg. at 92388; 34 C.F.R. §§ 300.647(b)(1)(i), (b)(1)(iii)(B); (2) States had flexibility to determine when there were sufficient children in a particular racial or ethnic group to permit application of the regulations’ methodology in the first instance, 34 C.F.R. §§ 300.647(a)(3), (4); and (3) States had discretion not to identify an LEA as significantly disproportionate if the risk ratio for a racial or ethnic group in the relevant category of analysis 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 the relevant category of analysis in each of the two prior years, 34 C.F.R. §§ 300.647(d)(1), (2). This discretion, the government argues, renders any prediction about whether the 2016 Regulations would have led to more schools being identified as significantly disproportionate as an exercise in speculation. Defs.’ Mot. to Dismiss at 23.
In further support of this argument, the government also points to the fact that when it issued the 2016 final regulations, the Department admitted that it was uncertain “how many LEAs would be newly identified in future years, particularly given the wide flexibilities provided to States in the final regulations,” 81 Fed. Reg. at 92388, and that it was “possible that these regulations may not result in any additional LEAs being identified as having significant disproportionality.” Id. at 92458. Finally, the government argues that Plaintiff has not proffered “markers or allegations to suggest how the States intended to implement the 2016 Regulations,
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or how they intend to act following postponement of the compliance date.” Defs.’ Mot. to Dismiss at 26.
The government’s own statements undermine its argument that an increase in LEAs being identified as significantly disproportionate is speculative. Indeed, these statements demonstrate that an increase in the number of LEAs found to be significantly disproportionate was likely had the 2016 Regulations gone into effect. Although the Department said that it is possible that these regulations may not result in any additional LEAs being identified as having significant disproportionality, it found this outcome “unlikely” and that “400 LEAs above baseline represents the most reasonable estimate of the likely costs associated with these final rules.” 81 Fed. Reg. at 92458, 92462. In a similar vein, when the Department promulgated the Delay Regulation, it estimated there would be fewer LEAs identified as having significant disproportionality. See 83 Fed. Reg. at 31316 (“[W]e also estimate that 150 additional LEAs will be identified with significant disproportionately in Year 1 [2018-2019], 220 in Year 2 [2019-2020], and 400 in Year 3 [2020-2021].”). While the court notes that these projections were not made “with a high degree of certainty,” 81 Fed. Reg. at 92388, COPAA’s “burden of proof is not to demonstrate certainty but to show a substantial probability” of injury. In re Idaho Conservation League, 811 F.3d 502, 508 (D.C. Cir. 2016) (quotation marks and citation omitted) (emphasis in original). Moreover, although the government now argues that these estimates were “proffered without explanation or analytical support,” Defs.’ Reply in Supp. of Mot. to Dismiss at 1, this claim is undercut by the government’s pre-litigation statement that its estimates were based on “the expertise of its staff members and relevant external sources.” Adams Decl. II ¶ 37, Plaintiff’s Reply in Support of its Motion for Summary Judgment and Opposition to Defendants’ Cross-Motion for Summary Judgment, ECF No. 25 at 5 (“Pl.’s Reply Supp. Mot.
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Case 1:18-cv-01636-TSC Document 31 Filed 03/07/19 Page 21 of 43
for Summ. J. and Opp’n to Defs.’ Cross-Mot. for Summ. J.”) (quoting an e-mail from Ms. Hill, the Department of Education Press Secretary).
Furthermore, information from three states that have not implemented the 2016 Regulations – Colorado, Missouri, and South Dakota – shows that had they done so, more LEAs would have been identified. The Colorado Department of Education “did not expect to identify any districts as significantly disproportionate in the 2018-19 school year under the non-federal methodology Colorado has opted to use instead of the 2016 federal regulations.” Adams Decl. I ¶ 5, Pl.’s Opp’n to Defs.’ Mot. to Dismiss and Pl.’s Mot. for Summ. J., Ex. E. “[F]ive LEAs . . . would have been identified as significantly disproportionate for the 2018-19 school year under the 2016 federal regulations.” Id. ¶ 6. Missouri did not expect to identify any LEAs using its methodology, while predicting it would have identified 33 school districts as significantly disproportionate for the 2018-19 school year if using the 2016 Regulations. Id. ¶¶ 15, 16. South Dakota reported that under its methodology, one school district would likely be identified as significantly disproportionate. Id. ¶ 21. Under the 2016 Regulations, South Dakota would have identified ten. Id. ¶ 22. This information from the States shows that the likelihood of increased identification of LEAs as significantly disproportionate if the 2016 Regulations had gone into effect is not speculative.4
The government also contends that COPAA’s informational injury is speculative, because the likelihood of additional information being publicly reported would require a school
4 The government nonetheless argues that the States’ own reporting was “uncertain,” and that “States did not indicate whether they did or would exercise any of the discretion afforded to them under the 2016 Regulations.” Defs.’ Reply in Supp. of Mot. to Dismiss at 5-6. However, COPAA confirmed with Missouri, South Dakota and Colorado that they “took into account all the flexibilities permitted by the Final Regulations when the department identified school districts as significantly disproportionate.” Adams Decl. II ¶ 3; see also id. ¶¶ 14-15.
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district to determine that a change to its “policies, practices, or procedures” is necessary for compliance and then actually make a change. Defs.’ Mot. to Dismiss at 43 (citing 34 C.F.R. § 300.646(c)(2)). Again, the government’s prior statements refute its current argument. In promulgating the 2016 Regulations, the government estimated that “half of the new LEAs identified with significant disproportionality . . . would need to revise their policies, practices, and procedures.” 81 Fed. Reg. at 92461. This estimate remained unchanged when the government adopted the Delay Regulation. 83 Fed. Reg. at 31316.
The government next argues that COPAA is in the same position it has always been in and cannot show any injury to its daily operations and activities because the regulations’ compliance date was postponed, and so school districts were never required to adopt the standard methodology. Defs.’ Mot. to Dismiss at 29. This argument is misplaced because the compliance date for the 2016 Regulations was July 1, 2018, two days before the Delay Regulation was published in the Federal Register. Moreover, “the baseline for measuring the impact of a change or rescission of a final rule is the requirements of the rule itself, not the world as it would have been had the rule never been promulgated.” Air All. Hous. v. EPA, 906 F.3d 1049, 1068 (D.C. Cir. 2018). The government’s argument that COPAA cannot show injury because it did not previously have access to the increased information about significant disproportionality is inconsistent with both PETA and Action Alliance. In those cases, the Court of Appeals found injury in fact even though plaintiffs claimed an entitlement to information to which they previously did not have access. See PETA, 797 F.3d at 1089 (“Although the Agency has taken steps to craft avian-specific animal welfare regulations, it has yet to complete its task after more than ten years and, during the intervening time, it has allegedly not applied the Act's general animal welfare regulations to birds.”); Action Alliance, 789 F.2d at 937.
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The government further contends that none of the cases on which COPAA relies “involves an alleged informational injury that arises from the Government’s non-regulation of non-parties to the litigation and which is therefore contingent on how third-party actors will exercise their discretion.” Defendants’ Reply in Support of Motion to Dismiss, ECF No. 19 at 9 (Defs.’ Reply in Supp. of Mot. to Dismiss). However, in Waterkeeper, a statute required certain private entities to notify state or local governments if the entities released hazardous substances into the environment. 853 F.3d at 534. The state or local government was required to make the “followup emergency notices” from the entity available to the public. Id. (internal brackets and quotation marks omitted). A federal agency sought to exempt certain entities from the reporting requirement, and the Court of Appeals held that petitioners had standing to challenge the exemption because it “reduces the information that must be publicly disclosed.” Id. at 533. Petitioners did not have to show how many local and state governments would comply with the disclosure requirements, or how many emergency notices would be submitted by exempted third parties to local and state governments. The Court concluded that petitioners had informational standing, even though the production of information required the involvement of two sets of parties not before the court.5
5 The government argues that Plaintiff’s inability to obtain “root-cause analyses” cannot create standing, because Plaintiff does not have a statutory right to that information. See, e.g., PETA, 797 F.3d at 1103 (Millett, J., concurring dubitante); Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). The court need not decide this question, because COPAA adequately alleges informational harm based on the loss of information on disproportionality designations, to which COPAA has a legal right. See 20 U.S.C. §§ 1418(b)(1), (d)(2); 83 Fed. Reg. at 31313; 34 C.F.R. § 300.646(c)(2).
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2. Causation and Redressability The causation element of standing requires “a fairly traceable connection between the plaintiff’s injury and the complained-of conduct.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998) (citation omitted). Because the 2016 Regulations required States to use a standard methodology, but for the Delay Regulation COPAA would have the information it seeks. Therefore, COPAA has satisfied the causation element. To satisfy the redressability requirement, COPAA must show “a likelihood that the requested relief will redress the alleged injury.” Id. COPAA does not have “‘to prove that granting the requested relief is certain to alleviate’ [its] injury.” Int'l Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 811 (D.C. Cir. 1983) (quoting Cmty. Nutrition Inst. v. Block, 698 F.2d 1239, 1248 (D.C. Cir. 1983), rev’d on other grounds, 467 U.S. 340 (1984)) (emphasis in original). If this court vacates the Delay Regulation, the 2016 Regulations will likely provide COPAA access to the information it seeks. Therefore, COPAA has satisfied the redressability element.6 C. Associational Standing A plaintiff asserting associational standing must show that “(1) at least one of its members has standing in its own right, (2) the interests [plaintiff] 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). Based on the record before it, the court finds that COPAA has satisfied this standard.
6 The government’s argument on causality and redressability relies on its erroneous conclusion that the likelihood of more LEAs being identified as significantly disproportionate if the 2016 Regulations were implemented is only speculative. See Defs.’ Mot. to Dismiss at 41-43.
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In its Cross-Motion for Summary Judgment, see Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss and in Supp. of Pl.’s Mot for Summ. J., COPAA identified two members, Cone and Gerland, whose children are enrolled in LEAs in States where, but for the Delay Regulation, the LEAs would have been identified as significantly disproportionate. See Almazan Aff. ¶ 21; Adams Aff. ¶¶ 3-7; Cone Aff. ¶¶ 3-5, 7-8; Gerland Aff. ¶¶ 3-7.7
These individual members suffered two types of injuries caused by the Delay Regulation: First, they suffered informational injuries because the loss of the disproportionality information undercuts their ability to keep abreast of important developments that shape their children’s education under the IDEA, such as picking school districts and coordinating individual educational plans. See, e.g., Cone Aff. ¶ 8; Gerland Aff. ¶ 7. “[W]e have recognized that a denial of access to information can work an injury in fact for standing purposes, at least where a statute (on the claimants' reading) requires that the information be publicly disclosed and there is no reason to doubt their claim that the information would help them.” ASPCA v. Feld Entm't, Inc., 659 F.3d at 22 (citations and quotation marks omitted). Members also suffered an injury because they lost the opportunity to adjust and correct their children’s treatment. A failure to designate their LEAs as significantly disproportionate denies members an automatic
7 Cone and Gerland were not identified in COPAA’s Complaint, and the government argued that this fact was fatal to COPAA’s associational standing argument. See Defs.’ Mot. to Dismiss at 38-39. Cone and Gerland were subsequently identified through affidavits in COPAA’s motion for summary judgment, after which the government ceased to press its argument. Although the D.C. Circuit has not held that a plaintiff need not identify an affected member by name at the pleading stage, numerous other courts have so found. See, e.g., Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19, 31 (D.D.C. 2012) (collecting cases and stating that at the pleading stage “the plaintiff need not identify an affected member by name”). The court finds that the addition of Cone and Gerland’s names in pleadings filed after the Complaint was sufficient.
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state review to identify students who are misidentified, misplaced, or improperly disciplined. See Cone Aff. ¶¶ 6-7; Gerland Aff. ¶ 7. As a result, these members are deprived of the beneficial effect of these reviews, which would lead to corrections and improvements to their children’s education.
Second, COPAA seeks to protect and enforce the legal and civil rights of students with disabilities and their families. See Compl. ¶ 12. COPAA’s litigation goals in this suit are “germane” to this mission. This requirement is not demanding, requiring “only that an organization’s litigation goals be pertinent to its special expertise and the grounds that bring its membership together.” Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 56 (D.C. Cir. 1988) (footnote omitted).
Third, COPAA’s members do not have to participate in the litigation for this court to issue injunctive and declaratory relief. See id. at 53 (“[T]he declaratory and injunctive relief requested by [the plaintiff organization] is clearly not of a type that requires the participation of any individual member.”); see also id. at n.8.
The government contends that the fact that Cone and Gerland “would read school district reports issued under 34 C.F.R. § 300.646(c) does not . . . demonstrate that the absence of those reports has or will imminently undermine their parental involvement . . . .” Defs.’ Reply in Supp. of Mot. to Dismiss at 16 (emphasis in original). But the Supreme Court rejected this argument in Havens Realty:
As we have previously recognized, [t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing. Section 804(d), which, in terms, establishes an enforceable right to truthful information concerning the availability of housing, is such an enactment. A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions. That the tester may have approached the real estate agent fully expecting that he would receive false
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information, and without any intention of buying or renting a home, does not negate the simple fact of injury within the meaning of § 804(d). Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982) (alteration in original) (quotation marks and citations omitted). The government also denies that COPAA’s members are injured by the loss of automatic reviews because the IDEA and the Department do not require those reviews to “identify individual instances of student misidentification, misplacement, or improper discipline.” Defs.’ Reply in Supp. of Mot. to Dismiss at 17 (emphasis in original). This argument ignores case law holding that losing the opportunity to review the child’s school district is injury enough. “We have held that ‘a plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit . . . even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity.’” Teton Historic Aviation Found. v. U.S. Dep't of Defense., 785 F.3d 719, 724 (D.C. Cir. 2015) (quoting CC Distribs., Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989) (emphasis in original)). For the reasons discussed above, the court finds that COPAA has proven both organizational and associational standing. Because the court is denying the government’s motion to dismiss, it will now address the parties’ cross-motions for summary judgment.
III. SUMMARY JUDGMENT A. Legal Standard A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a plaintiff challenges an agency’s final action under the Administrative Procedure Act (“APA”), summary judgment “is the mechanism for deciding whether as a matter
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of law an agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.” Louisiana v. Salazar, 170 F. Supp. 3d 75, 83 (D.D.C. 2016) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)).
The APA requires courts to “hold unlawful and set aside” an agency’s action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency must “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The court’s role is to “consider whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (quotation marks and citations omitted). An agency must provide a satisfactory explanation for departing from its prior position. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he agency must show that there are good reasons for the new policy.”).
B. Analysis The court finds that the Department of Education violated the APA in two ways. First, it failed to provide a reasoned explanation for delaying the 2016 Regulations. Second, it failed to consider the costs of delay, rendering the Delay Regulation arbitrary and capricious.8
8 COPAA argues the Delay Regulation is arbitrary and capricious for two additional and independent reasons: (1) the government failed to consider reasonable alternatives; and (2) the government failed to provide for meaningful participation in the rulemaking. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss and Pl.’s Mot. for Summ. J. at 39-45. Because the court finds that the government’s failure to provide a reasoned explanation and its failure to consider costs render the Delay Regulation arbitrary and capricious, it will not reach these two arguments.
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1. The Government Failed to Provide a Reasoned Explanation The government implemented the Delay Regulation because it was concerned that the 2016 Regulations could incentivize LEAs to use racial quotas to avoid findings of significant disproportionality. This decision did not have adequate support in the rulemaking record. The issue of the 2016 Regulations acting as an incentive for racial quotas was thoroughly discussed and dealt with years before 2018, when the government cited it as the basis for implementing the Delay Regulation. In adopting the 2016 Regulations, the government responded to comments arguing that the regulations “would create an incentive [for LEAs] to not identify children for special education and related services in order to reduce disproportionality numbers,” 81 Fed. Reg. at 92454, by acknowledging this possibility, but concluded that it was limited to States that selected “particularly low risk ratio thresholds.” Id. (“[T]he Department recognizes 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.”). Although the government in 2016 found this danger to be smaller than some commenters proposed, it nonetheless worked to address them in the final regulations. The preamble to the final 2016 Regulations condemned the use of racial quotas. Id. at 92381 (“[N]othing in these regulations establishes or authorizes the use of racial or ethnic quotas limiting a child’s access to special education and related services.”). The government expressly stated that the use of quotas violates the IDEA. Id. at 92393 (“[I]t is a violation of IDEA for LEAs to attempt to avoid determinations of significant disproportionality by failing to identify otherwise eligible children as children with disabilities.”). The preamble also warned that the use of quotas would expose an LEA to various forms of legal liability. See id. at 92381 (“[A]n LEA's use of quotas to
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artificially reduce the number of children who are identified as having a disability, in an effort to avoid a finding of significant disproportionality, would almost certainly conflict with their obligations to comply with other Federal statutes, including civil rights laws governing equal access to education.”); id. at 92385 (“[T]he establishment of any such quotas 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.”). And the government stated that it had “added a new § 300.646(f) to make clear that these regulations do not authorize a State or an LEA to develop or implement policies, practices, or procedures that result in actions that violate any IDEA requirements.” Id.
The government implemented additional safeguards beyond these warnings. Because the government found that States which “select particularly low risk ratio thresholds,” id., were most likely to be incentivized to use quotas, the 2016 Final Regulations “provide[d] States the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels.” Id. The government explained that “[a]s part of the process of setting risk ratio thresholds, States must work with stakeholders to identify particular risk ratio thresholds that help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of child find procedures.” Id.
Moreover, the government committed to “monitor States for any use of risk ratio thresholds that may be unreasonable and take steps, as needed, to ensure the States’ compliance.” Id. at 92419. The regulations required “States to report all risk ratio thresholds, minimum cell sizes, minimum n-sizes, standards for measuring reasonable progress, and the rationales for each,” and these rationales had to “include a detailed explanation of why the numbers are reasonable and how they ensure appropriate analysis for significant disproportionality.” Id. at
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92460. The government also committed “to publish guidance to help schools to prevent racial discrimination in the identification of children as children with disabilities, including overidentification, under-identification, and delayed identification of disabilities by race.” Id. at 92397. Finally, the regulations included monitoring of States and LEAs. Id. at 92385 (“[T]he Department intends to conduct an evaluation of the implementation of this regulation to assess its impact, if any, on how LEAs identify children with disabilities.”). 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. at 92386.
In 2018, the government rejected its prior conclusion that the 2016 Regulations adequately protected against the risk of States using racial quotas to avoid findings of significant disproportionality. However, the government did not explicitly find that the safeguards in the 2016 Regulations were insufficient or that the 2016 Regulations would result in the use of quotas. Rather, it stated it needed more time to determine whether the regulations “may” incentivize quotas. 83 Fed. Reg. at 31308 (“We want to evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas or lead LEAs to artificially reduce the number of children identified as children with disabilities under the IDEA.”). Such equivocation pervades the explanation for the Delay Regulation. See, e.g., 83 Fed. Reg. at 31307 (“We are concerned the 2016 significant disproportionality regulations could result in de facto quotas ….”); id. at 31308 (Quotas are “precisely the risk[] that the Department believes the standard methodology may pose.”); id. (“The Department is concerned that the 2016 significant disproportionality regulations may create an incentive for LEAs to establish de facto quotas ….”); id. (“[T]he regulations themselves may, in fact, incentivize quotas.”); id. (“We want
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to evaluate whether the numerical thresholds in the 2016 significant disproportionality regulations may incentivize quotas ….”); id. at 31309 (“may result in encouraging quotas”); id. at 31311 (“may result in de facto quotas”); id. at 31312 (“concerned that the 2016 significant disproportionality regulations, potentially create[] an express or implied incentive for LEAs to set quotas”) (emphasis added to all).
The Delay Regulation either did not address the 2016 Regulations’ safeguards to deter the use of racial quotas or responded to them in an inadequate or cursory manner. The Delay Regulation dismissed the explicit warning in the 2016 Regulations against the use of quotas as “insufficient” to protect “against [LEAs] creating de facto quotas because, regardless of the disclaimer, the regulations themselves may, in fact, incentivize quotas.” 83 Fed. Reg. at 31308. In response to its earlier commitment to provide public guidance and conduct an evaluation of whether States erected quotas in implementing the 2016 Regulations, the government in 2018 stated only that the efficacy of these measures “require[d] careful review, which we will do during this delay.” Id. at 31315. The Delay Regulation did not address the other specific safeguards in the 2016 Regulations. Moreover, the safeguards built into the 2016 Regulations were not meant to operate in isolation; they worked together to prevent LEAs from being incentivized to use quotas. In implementing the Delay Regulation, the government failed to explain why the safeguards as a whole would not prevent against the risk of quotas being used by LEAs.
The government did not explain why it had changed its position that the 2016 safeguards would be effective. Instead, it concluded that the 2016 Regulations could incentivize the use of quotas—a conclusion that was contrary to and inconsistent with its prior determination. While “[a]gencies are free to change their existing policies,” in doing so they must “provide a reasoned
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explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citations omitted). The Supreme Court has explained an agency’s obligation when it departs from a prior decision:
When an agency changes its existing position, it need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. But the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy. In explaining its changed position, an agency must also be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. It follows that an [u]nexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice. Id. at 2125-26 (quotation marks and citations omitted) (alteration in original). The government’s “concerns”—drenched in qualification—about the possibility of incentivizing racial quotas amount to the type of speculation the Supreme Court and the D.C. Circuit have rejected. “Though an agency's predictive judgments about the likely economic effects of a rule are entitled to deference . . . deference to such ... judgment[s] must be based on some logic and evidence, not sheer speculation.” Sorenson Commc'ns Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014) (quotation marks and citations omitted) (alteration in original). See also Nat’l Lifeline Ass’n v. FCC, No. 18-1026, 2018 WL 4154794 (D.C. Cir. Aug. 10, 2018) (per curiam); Sorenson Commc’ns, Inc., 755 F.3d at 708 (“[A]gency action based on speculation rather than evidence is arbitrary and capricious.”). Moreover, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” the agency must “provide a more detailed justification than what would suffice for a new policy created on a blank slate” by providing “a reasoned explanation … for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television Stations, Inc., 556 U.S. at 515-16. Again, the government here provides no such
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“reasoned explanation.” It relies exclusively on data from Texas to justify its change in position regarding the possible use of racial quotas and the adequacy of the safeguards to prevent their use. During a monitoring visit to Texas in February 2017, Department officials “determined that some ISDs [Independent School Districts] took actions specifically designed to decrease the percentage of children identified as children with disabilities under the IDEA to 8.5 percent or below.” Texas Part B 2017 Monitoring Visit Letter at 1, AR-001290, ECF No. 28. The report showed that ISDs believed that reducing identification rates below 8.5 percent could result in “less monitoring.” Id. at 2, AR-001291. This information, the government concluded, was “a clear example of what can happen when schools are required to meet numerical thresholds in conjunction with serving children with disabilities.” 83 Fed. Reg. at 31308.
The Texas data proves nothing new. First, it sheds no light on how likely LEAs are to incorrectly identify students based on their race or ethnicity to avoid significant disproportionately findings, because, as the government concedes, the Texas example did not involve the use of racial or ethnic quotas. Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment at 19, ECF No. 22 (“Defs.’ CrossMot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J.”). As noted, the 2016 Regulations emphasize the danger of legal liability to deter LEAs from utilizing racial quotas. See 42 U.S.C. §§ 1983, 1988, 2000d. By contrast, the IDEA does not allow recovery of civil damages. Second, the fact that numerical limitations could incentivize the use of quotas was not new information to the government, which was aware of this risk when drafting the 2016 Regulations, and which included safeguards to prevent the use of quotas. The Texas system did not contain those safeguards.
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The insufficiency of the government’s explanation for its policy change is highlighted by the fact that, while the government expressed “concern” about using standard methodology incentivizing quota use, the Delay Regulation did not forbid LEAs from using this methodology. Rather, it allowed states to comply voluntarily with the 2016 Regulations during the delay. 83 Fed. Reg. 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 government acknowledged that “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.” Id. at 31312.9 This inconsistency between the government’s purported concern about the risk of using the standard methodology and the government’s decision to permit LEAs to use the standard methodology is amplified by the government’s decision to allow the use of the standard methodology without the 2016 Regulations safeguards designed to deter racial and ethnic quotas.
The government denies any inconsistency. It argues that ED did not find that the 2016 regulations would result in racial quotas, or even that they would incentivize racial quotas. Rather, ED simply concluded that the regulations may or potentially could incentivize [districts] to establish quotas. In light of this perceived risk, ED chose not to require nationwide compliance with the standard methodology while it studied the issue. At the same time, it chose not to divest States of the ability to decide for themselves what type of methodology to use.
Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 28-29 (quotation marks and citations omitted) (emphasis in original) (alteration in original). This explanation merely
9 The government predicted: “20 States will implement the 2016 significant disproportionality regulations on July 1, 2018. We further assume 10 States will implement the standard methodology on July 1, 2019, with the remainder doing so on July 1, 2020, if the standard methodology is required by law then.” 83 Fed. Reg. at 31316.
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reinforces the point that the government never “even” found that the 2016 Regulations would incentivize the use of racial quotas. See id. The inconsistency in the government’s argument only serves to show that there was no need for the delay at all, and it renders the Delay Regulation arbitrary and capricious. See Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 59 (D.C. Cir. 2015) (“We have often declined to affirm an agency decision if there are unexplained inconsistencies in the final rule.”) (citations omitted).
The government also urges the court to defer to its “predictive judgment” concerning its regulatory actions, “even in the absence of evidence.” Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 20 (quoting Fox Television Studios, Inc., 556 U.S. at 521). The court is hard-pressed to classify the government’s many equivocations about the effect of the 2016 Regulations as “predictive judgments.” As noted, the government itself emphasizes that it never found “that the 2016 regulations would result in racial quotas, or even that they would incentivize racial quotas . . . [and] simply concluded that the regulations may or potentially could incentivize [districts] to establish quotas.” In any event, as the D.C. Circuit has made clear, “[T]hough an agency's predictive judgments about the likely economic effects of a rule are entitled to deference . . . deference to such . . . judgment[s] must be based on some logic and evidence, not sheer speculation.” Sorenson Commc'ns Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014) (quotations marks and citations omitted).
The government in 2018 likewise failed to adequately explain why it needed to delay the implementation of the 2016 Regulations to further evaluate whether the regulations could incentivize using quotas. This failure also renders the Delay Regulation arbitrary and capricious. As the D.C. Circuit has explained:
Agencies regularly reconsider rules that are already in effect [and] a decision to reconsider a rule does not simultaneously convey authority to indefinitely delay the
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existing rule pending that reconsideration. Thus, the mere fact of reconsideration, alone, is not a sufficient basis to delay promulgated effective dates specifically chosen by [an agency] on the basis of public input and reasoned explanation. Air All. Hous. v. EPA, 906 F.3d 1049, 1067 (D.C. Cir. 2018) (quotation marks and citations omitted). In delaying a regulation, an agency must explain “how the effectiveness of the rule would prevent [the agency] from undertaking notice and comment or other tasks for reconsideration, why a delay is necessary to [the agency’s] process, or how the [underlying] Rule becoming effective on schedule would otherwise impede [the agency’s] ability to reconsider that rule.” Id. (citation omitted). See Pub. Citizen v. Steed, 733 F.2d 93, 102 (D.C. Cir. 1984) (“Without showing that the old policy is unreasonable, for [the agency] to say that no policy is better than the old policy solely because a new policy might be put into place in the indefinite future is as silly as it sounds.”) (emphasis in original). In promulgating the Delay Regulation, the government explained that it was “more prudent to delay the compliance date and address [its] concern through a review of the standard methodology before States are required to implement the regulations rather than during implementation.” 83 Fed. Reg. at 31310. The government contends that this distinguishes the Delay Regulation from Air All. Houston because “ED chose postponement pending reevaluation to avoid a specific, undesirable outcome—here, incentivizing the use of de facto quotas—while its study of such issues took place, in contrast to EPA’s explanation [in Air All. Houston] for delay, which rested on ‘the mere fact of reconsideration alone.’” Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 21 n.4 (quoting Air All. Hous. v. EPA, 906 F.3d at 1067) (comma from Air All. Houston omitted in the government’s pleading). The argument is unavailing. In Air All. Houston, the EPA delayed a regulation, pointing to “a specific, undesirable outcome,” Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for
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Summ. J at 21 n.4, namely “security risks and other hypotheticals raised by industry” even
though the EPA did not conclude that the underlying rule “would increase such risks.” Air All.
Hous. v. EPA, 906 F.3d at 1065 (quotation marks and citations omitted). The Court of Appeals
found that the EPA did not provide a “sufficient basis [for] delay,” id. at 1067, because it did not
explain how implementing the rule would interfere with reconsideration of the rule. Id. Here
too, the government has not shown that delay is necessary to permit reconsideration of the 2016 Regulations.10
2. Failure to Consider the Cost was Arbitrary and Capricious
The Delay Regulation is also arbitrary and capricious because the government failed to
consider all the relevant factors when considering the cost of the regulation. “Agencies have
long treated cost as a centrally relevant factor when deciding whether to regulate. Consideration
of cost reflects the understanding that reasonable regulation ordinarily requires paying attention
to the advantages and the disadvantages of agency decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (emphasis in original).11 Courts must be deferential when reviewing “an
10 In its briefing, COPAA addressed several other rationales included in the Delay Regulation. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss and Pl.’s Mot. for Summ. J.at 32-34. The government neither responded to COPAA’s arguments concerning these rationales nor independently advanced them. COPAA therefore argued that the government “abandoned” these reasons as “bases for the delay.” Pl.’s Reply Supp. Mot. for Summ. J. and Opp’n to Defs.’ Cross-Mot for Summ. J. at 12 n.5. The government did not respond to this abandonment argument in its Reply, and the court deems those arguments abandoned. 11 The government contended in its Motion for Summary Judgment that because its regulatory impact analysis was conducted pursuant to Executive Orders, it is not subject to judicial review. Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 29-30. Similarly, it argued that the IDEA does not provide a statutory cause of action to challenge its cost-benefit analysis. Id. at 30-31. These arguments are contrary to D.C. Circuit precedent. Because the government relied on its cost-benefit analysis in its Delay Regulation, see 83 Fed. Reg. at 31314, a flaw in that analysis can render the regulation arbitrary and capricious. Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1039-40 (D.C. Cir. 2012) (explaining that although an agency
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agency’s cost/benefit analysis,” Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 254 (D.C. Cir. 2013), and their review is limited to deciding whether the agency’s “decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment,” Ctr. For Auto Safety v. Peck, 751 F.2d 1336, 1342 (D.C. Cir. 1985). Here, the government failed to adequately account for two relevant factors—the States’ reliance cost and the cost of delay on children, parents, and society.
An agency must consider reliance costs when delaying a regulation. “In explaining its changed position, an agency must also be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quotation marks and citations omitted). As the government concedes, for 18 months—the time between the effective and compliance dates of the 2016 Regulations—States and LEAs incurred costs by coming into compliance with the 2016 Regulations. See 83 Fed. Reg. at 31316 (explaining that the costs incurred by States in implementing the standard methodology in reliance on the 2016 Regulations were “expenditures already incurred by entities that cannot be recovered in any case”). The government labels these costs “sunk investments” and explains that “[r]egardless of whether the Department delayed the required compliance date, States would be unable to recover those expenses, and therefore it would not be appropriate to assign their value as either a cost or benefit of this action.” Id. The government, however, does not explain why this would be inappropriate. Under this logic, the requirement to consider reliance costs would become illusory, because an agency could simply
may “not have a statutory duty to demonstrate that the benefits of the amended rule outweigh its costs,” if the “agency decides to rely on a cost-benefit analysis as part of its rulemaking, a serious flaw undermining that analysis can render the rule unreasonable”) (citations omitted). The government did not press this argument in its Reply Brief.
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rebrand “reliance costs” as “sunk costs.” Tellingly, the government cites no law in support of this proposition.
The Delay Regulation also fails to account for the costs to children, their parents, and society. In promulgating the Delay Regulation, the government identified “five sources of benefits” for children with disabilities, their parents, and society from the 2016 Regulations: “(1) Greater transparency; (2) increased role for the State Advisory Panels; (3) reduction in the use of inappropriate policies, practices, and procedures; (4) increased comparability of data across States; and (5) expansion of activities allowable under comprehensive CEIS.” 83 Fed. Reg. at 31315. In so far as the delay in implementation undercuts these benefits, the Delay Regulation imposes costs that must be accounted for. But the government has not fully accounted for these costs. As to the potential losses of the transparency benefit and the increased stakeholder participation, the government claims that the mere preparation for the 2016 Regulations effectively achieve those benefits. See id. This argument ignores the fact that “part of the purpose of the standard methodology [was] to foster greater transparency in how States identify significant disproportionality,” and that States would adopt “simple and easily interpreted analyses” when identifying LEAs with significant disproportionality. 81 Fed. Reg. at 92404. This is a loss for which the government does not account. Similarly, the government fails to explain how preparation for stakeholders’ expanded involvement would also have occurred if compliance with the standard methodology were required. IV. REMEDY
The D.C. Circuit has stated that “vacatur is the normal remedy” for an APA violation. Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). The APA “itself contemplates vacatur as the usual remedy when an agency fails to provide a reasoned
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explanation for its regulations. 5 U.S.C. § 706(2)(A) (‘The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .’” AARP v. U.S. Equal Emp’t Opportunity Comm'n, 292 F. Supp. 3d 238, 242 (D.D.C. 2017) (emphasis in original). The presumption of vacatur, “however, is not absolute, and a remand without vacatur may be ‘appropriate [if] “there is at least a serious possibility that the [agency] will be able to substantiate its decision’ given an opportunity to do so, and when vacating would be ‘disruptive.”’” Bauer v. DeVos, 332 F. Supp. 3d 181, 184 (D.D.C. 2018) (quoting RadioTelevision News Dirs. Ass'n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999)) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 151 (D.C. Cir. 1993)) (alterations in original). “Courts in this Circuit . . . have long recognized that ‘when equity demands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy.’” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 267 (D.D.C. 2015) (quoting Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991) (citation omitted) (footnote omitted).
Whether to remand without vacatur “depends on the ‘seriousness of the order’s deficiencies’ and the likely ‘disruptive consequences’ of vacatur.” Allina Health Servs., 746 F.3d at 1110 (quoting Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)). As discussed above, the government’s deficiencies were substantial, and the court finds it unlikely that the government could justify its decision on remand. The government stresses that if the court remanded without vacatur, it would be able to “provide a more fulsome explanation of what occurred in Texas, the lessons it took from that experience, and the reasons why the conclusions it drew from that example support the action it took in the
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2018 Final Rule.” Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 44. However, this court has already found the Texas example provides no evidence of whether the 2016 Regulations incentivize LEAs to use racial quotas, and the government has not been able to explain how, on remand, it could extract more useful information from the Texas study than it was able to do during its rulemaking and in its summary judgment pleadings. “To the extent the Secretary bears the burden of demonstrating that the ‘normal remedy’ of vacatur does not apply, Allina Health Servs., 746 F.3d at 1110, [the government] has failed to show that the flaw in the rule was not serious.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 268 (D.D.C. 2015).
The court must also consider the second Allied-Signal factor—the disruptive consequences—of vacating the Delay Regulation. The government argues that vacatur “could be extremely disruptive.” Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 44 (emphasis added). But the suggestion that States were unprepared to comply with the 2016 Regulations is not supported by the record and inconsistent with the fact that for eighteen months between the effective date of the 2016 Regulations and the compliance date, States were preparing to utilize the standard methodology. And as noted earlier, the Delay Regulation rulemaking record showed that even if the government decided to delay the 2016 Regulations, many States planned to use the standard methodology. 83 Fed. Reg. at 31312 (“The Department notes that, in any event, 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.”). Moreover, the government’s contention that States might have to shift funding in the middle of the school year, Defs.’ Reply in Supp. Mot. for Summ. J. at 25, is both speculative and without support in the record.
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In weighing the two Allied-Signal factors, the court finds that they both favor vacatur as the appropriate remedy. Moreover, ordering vacatur for the illegal delay of a legal regulation differs from ordering vacatur of a new rule on a clean slate. “This is not a case in which ‘the egg has been scrambled and there is no apparent way to restore the status quo ante.’ Rather, vacating the Delay Rule would simply allow the [the original rule] to take effect, as the agency originally intended.” Nat'l Venture Capital Ass'n v. Duke, 291 F. Supp. 3d 5, 21 (D.D.C. 2017) (quoting Sugar Cane Growers Co-op of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002)). To order remand without vacatur “would simply remedy the agency’s delay with more delay.” Id. Considering this court’s findings above, and the weighing of the Allied-Signal factors, the appropriate remedy is vacatur.
V. CONCLUSION The court 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).
An appropriate Order will accompany this Memorandum Opinion.

Date: March 7, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

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