Council of Parent Attorneys v. Devos (365 F. Supp. 3d 28, 2019)

United States Court of Appeals for the District of Columbia 2019-03-07

Education

Citations

Full opinion text

TANYA S. CHUTKAN, United States District Judge

This decision resolves three motions currently pending before the court: (1) Defendants'

Motion to Dismiss, ECF No. 14 ; (2) Plaintiff's Motion for Summary Judgment, ECF No. 16 ; and (3) Defendants' Cross-Motion for Summary Judgment, ECF No. 22.

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

I. BACKGROUND

A. IDEA

The Individuals with Disabilities Education Act ("IDEA") was enacted to improve educational outcomes for students with disabilities by "ensur[ing] that [they] receive needed special education services." Fry v. Napoleon Cmty. Sch. , --- U.S. ----, 137 S.Ct. 743, 748, 197 L.Ed.2d 46 (2017). The statute requires States to implement various provisions or risk losing federal funding. See 20 U.S.C. §§ 1411, 1412 ; Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 10968-01, 10970 (Mar. 2, 2016).

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

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

Seven years later, when reauthorizing and amending the IDEA, Congress expanded the significant disproportionality provisions beyond the identification and placement of children with disabilities to cover the "the incidence, duration, and type of disciplinary actions, including suspensions and expulsions." Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 618(d)(1)(C); 118 Stat. 2647, 2739 (2004). See id. § 618(d)(1)(A) (identification); id.

§ 618(d)(1)(B) (placement). If school districts (also referred to as local education agencies ("LEAs") ) are identified as having significant disproportionality in any of these respects, States must: (1) "provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement;" id. § 618(d)(2)(A); (2) require school districts to spend 15% of their federal IDEA money "to provide comprehensive coordinated early intervening services to serve children in the local educational agency particularly children in those groups that were significantly overidentified;" id. § 618(d)(2)(B), see id. § 613(f); and (3) "require the local educational agency to publicly report on the revision of policies, practices, and procedures." Id. § 618(d)(2)(C).

B. 2016 Regulations

From 2006 through 2016, the Department of Education's (hereinafter "the Department" or "the government") regulations implementing the IDEA gave States "the discretion to define [significant disproportionality] for the LEAs and for the States in general." Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46540, 46738 (Aug. 14, 2006). This approach started to shift in 2014, when the Government Accountability Office ("GAO") reported that "the way some States defined overrepresentation made it unlikely that any districts would be identified." U.S. Gov't Accountability Office, GAO-13-137, Individuals with Disabilities Education Act: Standards Needed to Improve Identification of Racial and Ethnic Overrepresentation in Special Education (2013), 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 noted that "[m]any commenters" asserted that the proposed regulations "would put into place racial quotas that would interfere with the appropriate identification of children with disabilities based purely on the children's needs." Id. at 92385. The Department "recognize[d] the possibility that, in cases where States select particularly low risk ratio thresholds, LEAs may have an incentive to avoid identifying children from particular racial or ethnic groups in order to avoid a determination of significant disproportionality." Id. To counter that incentive, the Department explained that the final regulations "provide[ ] States the flexibility to set their own reasonable risk ratio thresholds, with input from stakeholders and State Advisory Panels." Id. This process, the Department believed, would "help States and LEAs to address large racial and ethnic disparities without undermining the appropriate implementation of child find procedures." Id. The Department further explained that "nothing in these regulations establishes or authorizes the use of racial or ethnic quotas limiting a child's access to special education and related services" and that "use of racial or ethnic quotas ... would almost certainly conflict with the LEA's obligations to comply with other Federal statutes, including civil rights laws governing equal access to education" and "would almost certainly result in legal liability under Federal civil rights laws, including title VI of the Civil Rights Act of 1964 and the Constitution." Id. Moreover, the Department intended to "conduct an evaluation of the implementation of this regulation to assess its impact, if any, on how LEAs identify children with disabilities." Id. It explained that this evaluation would "include an examination of the extent to which school and LEA personnel incorrectly interpret the risk ratio thresholds and implement racial quotas in an attempt to avoid findings of significant disproportionality by States, contrary to IDEA." Id.

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

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

Id. at 92394.

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

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

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

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

D. Plaintiff's Lawsuit

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

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

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

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

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

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

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-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff bears the burden of establishing the elements of standing, id. at 561, 112 S.Ct. 2130, 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, 112 S.Ct. 2130 ). The plaintiff must "show a 'substantial probability' that it has been injured, that the defendant caused its injury, and that the court could redress that injury." Sierra Club v. E.P.A. , 292 F.3d 895, 899 (D.C. Cir. 2002) (citation omitted). With respect to a facial 12(b)(1) motion to dismiss, the court must "accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor." Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). At the summary judgment stage, the plaintiff "must support each element of its claim to standing by affidavit or other evidence." Scenic Am., Inc. v. U.S. Dep't of Transp. , 836 F.3d 42, 48 n.2 (D.C. Cir. 2016).

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

B. Organizational Standing

1. Injury in Fact

COPAA claims that the Delay Regulation has denied it the information it would have received if the 2016 Regulations had not been delayed. An Article III injury in fact occurs if the government cuts off information that legally must be publicly disclosed. "[A] plaintiff suffers an 'injury in fact' when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute." FEC v. Akins , 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (citations omitted). "To establish such an injury, a plaintiff must espouse a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain." ASPCA v. Feld Entm't, Inc. , 659 F.3d 13, 23 (D.C. Cir. 2011).

The D.C. Circuit has set forth well-established principles for determining standing. In Action All. of Senior Citizens of Greater Philadelphia v. Heckler , 789 F.2d 931, 935 (D.C. Cir. 1986), plaintiffs were "four organizations that endeavor[ed], through informational, counseling, referral, and other services, to improve the lives of elderly citizens." Id. They sued the Department of Health and Human Services (HHS), alleging that HHS's regulation "significantly restrict[ed]," the flow of "information regarding services available to the elderly" that, if possessed by plaintiffs, "would enhance [their] capacity ... to refer members to appropriate services and to counsel members when unlawful age discrimination may have figured in[to] a benefit denial." Id. at 937. The D.C. Circuit found that the plaintiffs established standing, because the regulations kept plaintiffs from "access to information and avenues of redress they wish[ed] to use in their routine information-dispensing, counseling, and referral activities." Unlike the mere 'interest in a problem' or ideological injury in Sierra Club [v. Morton , 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ], plaintiffs had "alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they [were] engaged." Id. at 937-38 (quotation marks omitted) (footnote omitted).

In PETA , Plaintiff, an animal rights organization, sued the USDA, asking the court to order USDA to "extend enforcement of the AWA [Animal Welfare Act] to birds covered by the AWA, by enforcing the general AWA standards that presently exist." 797 F.3d at 1091 (quotation marks omitted) (footnote omitted). PETA claimed that USDA's failure to investigate allegations of bird mistreatment denied the public reports of those alleged instances, and that PETA used the information in the reports to educate its members and the public. Id. at 1095, 1096. The district court found that PETA had standing because USDA's decision not to apply the AWA to birds "precluded PETA from preventing cruelty to and inhumane treatment of these animals through its normal process of submitting USDA complaints and it deprived PETA of key information that it relies on to educate the public." Id. at 1094 (quotation marks and citation omitted). The D.C. Circuit affirmed, noting that "[t]he key issue is whether PETA has suffered a concrete and demonstrable injury to [its] activities, mindful that, under our precedent, a mere setback to [PETA's]

abstract social interests is not sufficient." Id. at 1093 (second alteration in original) (quotation marks and citations omitted). The Circuit explained that in determining "whether an organization's injury is concrete and demonstrable," a court asks "first, whether the agency's action or omission to act injured the [organization's] interest and, second, whether the organization used its resources to counteract that harm." Id. at 1094 (alteration in original) (quotation marks and citations omitted). Applying these standards, the Court found that PETA's alleged injuries were "materially indistinguishable from those alleged by the organizations in Action Alliance [ ]." Id. It held that the "USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has perceptibly impaired PETA's ability to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public." Id. at 1095 (quotation marks and brackets omitted). PETA established organizational standing because it had expended resources to counter its injuries. Id.

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

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 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.

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.

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 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, 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. 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.

The government also contends that COPAA's informational injury is speculative, because the likelihood of additional information being publicly reported would require a school 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.

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.

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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 104 S.Ct. 2450, 81 L.Ed.2d 270 (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.

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.

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.

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 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 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, 102 S.Ct. 1114, 71 L.Ed.2d 214 (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 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, 91 S.Ct. 814, 28 L.Ed.2d 136 (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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (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, 103 S.Ct. 2856 (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, 129 S.Ct. 1800, 173 L.Ed.2d 738 (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.

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 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 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 over-identification, 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 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 reg