Advocacy groups and special education students won a recent victory this April when the Department of Education’s Office of Special Education Programs rescinded its instructions to school districts from last June that would have effectively allowed school districts to make permanent reductions in their spending on special education. School districts, however, are not happy as they want flexibility to cut and reallocate funds from special education budgets.
The “maintenance of effort” clause in IDEA protects special education funding from school districts that might otherwise attempt to balance their budgets on the backs of students with disabilities. Under the MOE clause, school districts must either maintain or increase their spending for special education each year. IDEA recognizes, however, that there are legitimate reasons for special education budgets to be reduced. But the recognized exceptions are few: e.g., the voluntary departure of a highly-paid staff member who is replaced by a staff person at a lower salary, when a student whose needs are particularly costly for a district no longer needs services either due to age or moving out of the district, or the termination of costly expenditures, such as the building of a new school. Going forward, these school districts with approved reductions may use the lower budget amount to meet their MOE obligations. Conversely, districts that have cut their budgets for other than the explicit exceptions outlined by IDEA are considered in violation and will lose federal funds. These districts remain in violation until they have restored their budgets to the previous higher level of spending.
This whole understanding of MOE appeared to have been turned upside down last June, when the Department of Education, in response to a query by the executive director of the National Association of State Directors of Special Education (NASDSE), stated that the MOE obligation applied only to the actual amount expended in the prior fiscal year, whether the reduction was legitimate or not. Districts could then subsequently use this lower budget as their new benchmark. Kathleen Boundy, co-director of the Center for Law and Education, wrote the OSEP in August suggesting that the Department of Education’s reasoning was not only a misinterpretation of IDEA but also was inconsistent with IDEA’s legislative history. Additionally, Ms. Boundy argued that OSEP was allowing school districts to “enrich” themselves from their violations. In response to Ms. Boundy’s letter as well as other complaints from parents and advocacy groups, the OSEP reversed its decision this past A.
Not everyone is happy, of course, with the decision. The American Association of School Adminstrators had been relieved with the original June letter from OSEP. According to an AASA spokesperson, the challenge of meeting state budget cuts along with a decrease in federal dollars has made achieving MOE exceedingly difficult. According to this group, school districts can make legitimate cuts to special education budgets that in no way affect the students; however, MAO allows the districts no flexibility in these circumstances. Ironically, one group that appears comfortable with the latest OSEP letter is the National Association of State Directors of Special Education, whose initial query to the OSEP started the whole outcry. The NASDSE’s deputy executive director stated, “We think the revision makes sense.”