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Natasha M. Strassfeld, The Future of Idea: Monitoring Disproportionate Representation of Minority Students in Special Education and Intentional Discrimination Claims , 67 Case Western Reserve Law Review 1121 - 1151 (Summer, 2017) (177 Footnotes Omitted) (FULL ARTICLE)

NatashaStrassfeldFollowing the progress made by the civil rights movement to secure educational opportunities for racial and ethnic minority students in landmark decisions such as Brown v. Board of Education, civil rights advocates and policymakers were able to use prior successful legal strategies and challenges to secure educational rights for students with disabilities. Several of the earliest legal challenges to school segregation involved separate classrooms and instruction for students with a disability or the disproportionate representation of racial and ethnic minority students with disabilities within the most restrictive special education settings in public schools. In the decades following the Brown decision, racial and ethnic minority students gained access to integrated classrooms. Over time, however, student placement by factors such as ability-level grouping, disability category, and academic achievement produced patterns of internal resegregation for racial and ethnic minority students in desegregated schools. Even though students with disabilities and students without disabilities share a vibrant civil rights legacy in regards to securing educational rights and opportunities, the achievement gap between students with and without disabilities persists. Moreover, decades of research affirms that racial and ethnic minority students have often been reported to be both under- and over-identified for special education and related services.

Disproportionality is a complex phenomenon, but it can best be defined as the overrepresentation or underrepresentation of a racial or ethnic minority group in special education relative to the presence of this group within the overall student population. According to a 2016 report issued by the National Center for Education Statistics, approximately 13.5% (6.5 million) of all students in K-12 public schools receive special education and related services. The percentage of students served under the Individuals with Disabilities Education Act (IDEA) is highest for American Indian/Alaska Native students (seventeen percent), followed by African American/Black students (fifteen percent), White/Caucasian students (thirteen percent), students of two or more races (twelve percent), Hispanic students (twelve percent), Pacific Islander students (elevent percent), and Asian students (six percent).

Studies that have examined disproportionate representation in special education have identified various factors to explain the presence of disproportionate representation including teachers' race and ethnicity bias, school-level characteristics such as student population size, rural/urban school district classification, or student- and parent-level characteristics such as family-level income, parental education attainment, or disability category of the student. However, studies have had inconclusive or contradictory findings as to which of these factors predominately account for disproportionality within a district. A criticism of studies in this area is that some studies are only correlational in nature or have not adequately addressed causal factors such as discriminatory practices, procedures, or racial, ethnic, and gender bias in the referral and evaluation process. Because of the uncertainty regarding the underlying causal factors for disproportionate representation within special education, federal law has required that local educational agencies (LEAs) monitor, report, and identify ways to address disproportionate representation of racial and ethnic minority students in special education.

Even with monitoring and enforcement provisions in place, there are concerns that states fail to adequately monitor and identify the disproportionate representation of racial and ethnic minority students in special education. In 2013, the U.S. Government Accountability Office issued a report on racial and ethnic overrepresentation in special education in U.S. public schools. The report examined the characteristics and extent to which LEAs provide coordinated early intervening services (CEIs) when overrepresentation is found, how states determine which LEAs are required to provide CEIs, the types of CEIs provided, and what constituted oversight by the State Department of Education. The report found that, even though overrepresentation is consistently cited as an education practice concern by education researchers, most states actually do not identify problems in their districts regarding over-identification of minority students in special education. The report concluded that some of the examined states did have some instances of district-level and state-level overrepresentation within the oversight process. However, a lack of uniformity across states' disproportionality monitoring and measures made it more difficult to make state comparisons or interpret findings of disproportionate representation.

In 2014, the Department of Education submitted a Request for Information to address significant disproportionality under section 618(d) of IDEA, which included a specific request to the public to submit comments for recommendations for how to best address significant disproportionality based on race and ethnicity in the identification of children for special education, placements, and disciplinary actions. After an impassioned public comment period, the final Department of Education regulations to guide states and LEAs regarding special education practices were released in December 2016.

These new and revised regulations address the effects of disproportionate identification, both over- and under-identification, of racial or ethnic minority students who receive special education and related services and are intended to promote equity within IDEA enforcement. The regulations are further intended to increase state accountability for the effects, if any, of being placed in more restrictive environments or in settings that lack academic rigor. Specifically, the new regulations under IDEA require that states and LEAs take steps to determine the presence of significant disproportionality, and to address and to remedy disproportionate placement, if found. The regulations also establish a standard methodology that states must use to determine whether significant disproportionality occurred within the state and in LEAs. In addition, each state must now address significant disproportionality by incidence, duration, and type of disciplinary action (including suspensions and expulsions). Finally, states must clarify their existing requirements for the review and revision of relevant policies, practices, and procedures when significant disproportionality is found. LEAs must then identify and correct the factors that contributed to significant disproportionality via comprehensive CEIs.

While the revised regulations aim to provide greater uniformity for states on the reporting of both over- and under-identification of students with disabilities by race and ethnicity, the systemic identification of students with disabilities into special education and related services by race and ethnicity must be examined not only as a policy-based issue, but also as a legal concern for parents, school districts, and states. That is, even though states are, increasingly, under greater pressure to identify and address significant disproportionality in the placement of minority children into special education, current reports indicate that states under-report, fail to report, or face a lack of severe penalties or sanctions when found to have significant disproportionality within the state. For racial or ethnic minority parents who have a child with a disability enrolled in an LEA that has been found to have significant disproportionality under IDEA, there is a growing interest in pursuing legal action with the limited number of legal remedies for plaintiff parents and children that are available.

The pursuit of equity regarding proportional placement for minority students with disabilities must also be placed within the broader provision of civil rights for racial and ethnic minority students. The continuing difficulties faced by parents of racial and ethnic minority students who reside in districts that have run afoul of IDEA regulations must be viewed as a continuing civil rights concern where civil rights continue to be at stake. This Article proceeds in three parts.

Part I focuses on the history of the Individuals with Disabilities Education Act, specifically analyzing how the Act has been reauthorized over time to include provisions that address the disproportionate representation of minority students in special education.

Part II examines how states currently use different measures to frame and, ultimately, address the problem of disproportionate representation and the Department of Education's role in preventing over-identification. It also explores how education federalism, the practice of favoring significant autonomy for states and local school boards, even in instances where constitutional or federal statutory rights are involved, causes inconsistent definitions of disproportionality and under-enforcement of IDEA's protection against disproportionate placement.

Part III examines Blunt v. Lower Merion School District and the high bar that courts set for plaintiffs who assert that their school district discriminated against racial and ethnic minority students with disabilities and allege intentional discrimination claims against school districts. Finally, this Article concludes by examining the potential impact of new regulatory changes and offering recommendations for future best practices.

Assistant Professor of Special Education, New York University Steinhardt School of Culture, Education, and Human Development.