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Published in Print: October 1, 2014, as Steps Weighed on Method for Flagging Bias in Spec. Ed.

Steps Weighed on Method for Flagging Bias in Spec. Ed.

States, advocates divided on need for single standard

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Federal officials face sharply polarized opinions among advocates and educators as they consider creating a bright line for states to use in deciding whether minorities are being overidentified for special education services.

The U.S. Department of Education is analyzing the close to 100 comments it received on the issue this summer after asking whether it should craft a standard federal definition for "significant disproportionality"—a key yardstick for determining whether a school district must take action to fix the problem, and something now set on a state-by-state basis. The department plans to take action in 2015.

Michael K. Yudin, the acting assistant secretary for the office of special education and rehabilitative services, also said the department for the first time is asking states to explain how they define whether such overidentification is serious enough to merit attention. That information will be collected through the federal EDFacts data initiative and released next spring.

"We're talking about the interplay between race and disability, and those are very, very difficult conversations to have," Mr. Yudin said. "But this is really a critical priority for us."

Long-Standing Issue

The overidentification of students who are members of racial or ethnic minorities has been a long-running problem in special education.

The most recent data collection from the Education Department's office for civil rights also found that students with disabilities are more likely than their typically developing peers to face school discipline such as restraint, seclusion, suspension, and expulsion.

Black students, in particular, tend to be clustered in disability categories that carry the greatest stigma, such as emotional and behavioral disturbance and intellectual disability. Overidentification is not seen in disability categories with clearer definitions, such as hearing impairment and visual impairment.

In addition to the stigma, students who have emotional or intellectual disabilities "have the greatest chance of being removed from mainstream classes," said Daniel J. Losen, the director of the Center for Civil Rights Remedies, an initiative at the Civil Rights Project/Proyecto Derechos Civiles, based at the University of California, Los Angeles.

But in other situations, minority students end up being underidentified, such as in the early-intervention programs designed to address developmental difficulties before they become entrenched.

In a 2013 report, the U.S. Government Accountability Office, the watchdog arm of Congress, found that most states were not identifying any problems in their districts. In the 2009-10 school year, it said, only 356 of about 13,000 school districts nationwide were required to provide extra services to students because of overidentification issues. Half those districts were clustered in five states; 73 were in Louisiana.

States Wary

Many states have told the Education Department that they don't welcome a federal definition of overidentification. Several signed on to comments from the Alexandria, Va.-based National Association of State Directors of Special Education.

"NASDSE recognizes that the overidentification of minority students in special education is a concern that should be addressed," the group said. "The temptation to address this concern by developing a standard approach is great. ... But, if our nation has learned just one thing since the No Child Left Behind Act was signed into law, it would be that 'one size does not fit all.' "

Though the Education Department cannot currently define overidentification for states, it has the power to direct districts that have significant disproportionality to spend 15 percent of their federal special education money on "coordinated early-intervening services," intended to help students at risk of special education placement. The Minnesota Department of Education said that requirement, in itself, is a disincentive to properly identifying students who need services.

"There is risk in the current system for districts to not identify or to delay identification of students with special needs to avoid mandatory ... set-asides," the Minnesota department said in its comments. "This may lead to situations where students who might otherwise need specialized instruction do not receive the services and supports that they need."

However, advocacy organizations, such as the Council of Parent Attorneys and Advocates, based in Towson, Md., said that strong guidance from the federal Education Department was long overdue.

"It is time to squarely resolve the disproportionality problem. We urge the [office of special education and rehabilitative services] to take additional action in both regulation and guidance to ensure that existing mechanisms to address these issues are fully utilized as required by federal law," the group said in its response. "[The Education Department] has allowed this racial disparity to go on unchecked for far too long."

Court Hurdles

Issues of disproportionality have made it to the courts, though the bar can be high.

In a recent lawsuit, Blunt v. Lower Merion School District, a group of black parents in Pennsylvania claimed the 7,300-student district was improperly placing their children in special education. About 8 percent of the district's enrollment is black, but in special education courses, the percentage of black students is about 16 percent.

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A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, split 2-1 in dismissing the parents' case.

"Looking at the whole record, which includes statistical evidence showing that minorities are overrepresented in low-achievement classes, we conclude ... there is no evidence showing that the district intended to discriminate against plaintiffs," the majority said in its Sept. 12 ruling.

That result illustrates the difficulty that parents and advocates have in proving that a school district intentionally engages in discriminatory practices, despite what the statistics may show.

"The focus was on intent, and in civil rights cases, that is always very difficult to prove unless you have some kind of smoking gun," Mr. Losen said.

Sonja Kerr, the director of disability rights for the Public Interest Law Center of Philadelphia, who worked on the Blunt case, said the group plans to ask that the case be heard by the full appeals court.

The law center wrote a letter to the Education Department asking for more federal regulation and guidance on the issue. Ms. Kerr said there is at least one important point of commonality between those who want to see more federal action and those who are opposed to it.

"I don't think anyone wants to end up with kids in special education who don't belong in special education," Ms. Kerr said. "That's the common ground for us to find ways to work together."

Vol. 34, Issue 06, Pages 17,23

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