Write a three-paragraph reflection on what you learned, how you can use the information as a teacher, and suggestions for resolving disproportionality in special education settings.

CCBD'S Position Summary on Federal Policy on Disproportionality in Special Education

The Council for Children with Behavioral Disorders

A Division of the Council for Exceptional Children

ABSTRACT: This document provides policy recommendations of the Council for Children with Behavioral Disorders (CCBD) regarding disproportiona/ity in special education and the need for federal policy driving state regulations to support efforts to eliminate this outcome in schools. CCBD is committed to advancing knowledge, effective instruction, and advocacy ior students with emotional and behavioral disabilities, a special education population particularly vulnerable to disproportionate practices. Monitoring requirements in the 1997 and 2004 amendments to the Individuals with Disabilities Education Act (IDEA) acknowledged the extent of racial and ethnic disproportiona/ity in special education, especially when Congress designated tfos concern among the top three priority areas for monitoring and enforcement in IDEA 2004. However, federal interpretations of the 2004 requirements by the US Department of Education have created confusion at the State !SEA) and Local Education Agency (LEA) levels. While quantitative indices of racial and ethnic disparities remain high, an increasing number of states are finding no LEAs with disproportionality when it must be shown that disproportionality was caused by inappropriate identification. Such data suggest that federal interpretations of IDEA 2004, subsequent regulatory guidelines, and the design of indicators for monitoring and enforcement have not been effective in addressing disproportionate representation in special education. This policy paper includes (a) a review of information on the extent, status, and causes of special education disproportionality; (b) a review of the history and issues involved in the enforcement of IDEA's disciplinary provisions; and (c) recommendations for improving federal policy regarding disproportionality in special education.

Introduction and Background

Extent and Status of Special Education Disproportionality

Special educatior., guaranteeing the rights of students with disabilities to a free and appropriate public education, has been through­ out its history a part of the struggle for civil rights. Advocates who brought the first legal

·challenges to the inappropriate exclusion of students with disabilities were inspired by, and modeled their legal strategies upon, the civil rights movement in the 1950s and 1960s (Smith & Kozleski, 2005). Concerns about racial and ethnic disproportionality in special education were central to the earliest court cases (e.g.,

Mills v. Board of Education, 1972) that led to the promulgation of the first antidiscrimina­ tion laws including the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act (P.L. 94- 142, 1975). Also, many of the early influential writings on special education (Dunn, 1968; Mercer, 1973) raised racial inequity as a central issue for the field. Moreover, concerns about the misuse of special education labeling for African Amer­ ican children were commonly raised in legal challenges to segregated schools after 1954 when segregated schools were struck down as inherently unequal (Losen & Welner 2002). So it is ironic that, despite court challenges, abundant research, and policy initiatives, racial and ethnic disproportional-

108 / February 2013 Behavioral Disorders, 38 (2), 1 08-120

ity persists as a critical and unresolved problem in the field.

As Losen and Welner (2002) observed, culturally and linguistically diverse students are twice vulnerable to discrimination: first by race and again by disability. National data from the US Department of Education Office for Civil Rights (OCR) have revealed consistent patterns over time in the disproportionate representation of some racial and ethnic groups in special education (e.g., Chinn & Hughes, 1987; Dono­ van & Cross, 2002; Finn, 1982). For African American students, there have been consistent findings of overrepresentation in overall special education service, as well as the categories of mental retardation (MR) and emotional distur­ bance (ED). Secondary analyses of national databases have reported that that African American students are the group most overrep­ resented in special education programs in nearly every state (Parrish, 2002). In addition, American Indian and Alaska Native students have been found to be overrepresented in the category of learning disabilities (LO). Findings for Hispanic and Latino students have been somewhat inconsistent. While there have been some state- and district-based studies that have found Latino overrepresentation in special education (Artiles, Rueda, Salazar & Higareda, 2002; Wright & Santa Cruz, 1983), the under­ representation of Latino students is more common in both overall special education service and in disability categories where Latino disproportionality is in evidence (Chinn & Hughes, 1987; NCCRESt, 2006).

Additional characteristics of dispropor­ tionate representation in special education service have been noted in the literature. Rates of overrepresentation in special education tend to increase as a racial or ethnic minority group constitutes a larger percentage of their states' population (Parrish, 2002). In addition, racial and ethnic disparities are typically found less frequently in the nonjudgmental, or "hard," disability categories, such as hearing impair­ ment, visual impairment, or orthopedic impair­ ment, and more often in the judgmental, or "soft," disability categories of MR, ED, or LO (Donovan & Cross, 2002; Parrish, 2002).

Racial and ethnic disparities for students with disabilities have also been found with respect to the restrictiveness of various educa­ tional settings. Both African American and Hispanic students have been found to be overrepresented in more restrictive education­ al environments and underrepresented in less

Behavioral Disorders, 38 (2), 108-120

restrictive settings (Fierros & Conroy, 2002; Skiba, Poloni-Staudinger, Simmons, Gallini, & Feggins-Azziz, 2006). It has been suggested that racial and ethnic disparities in educational setting are due to the disproportionate repre­ sentation of some groups in disability catego­ ries that are more likely to receive service in more restrictive settings (U.S. Department of Education, 2002). Yet more detailed analyses of disproportionality in educational settings have found African American children were more likely than their peers with the same disability to be overrepresented in more restrictive settings, or underrepresented in the general education setting (Skiba et al., 2006), especially in milder, more judgmental catego­ ries such as learning disabilities or speech or language impairment. Given a dramatically increased commitment to serving students with disabilities in general education (Mcleskey, Henry, & Axelrod, 1999), it could be argued that the underrepresentation of culturally and linguistically diverse students in less restrictive educational environments may be more im­ portant than disparities in disability categories.

Finally, issues of discipline remain cen­ tral to issues of disproportionality in special education. The overrepresentation of African American students in a range of disciplinary outcomes, including office referrals, suspen­ sion, corporal punishment, and school expul­ sion has been well documented for nearly 40 years (Bradshaw, Mitchell, O'Brennan, & Leaf, 201 O; Children's Defense Fund, 1975; Eitle & Eitle, 2004; Raffaele, Mendez, & Knoff, 2003; Payne & Welch, 201 O; Skiba et al., 2011; Wu et al., 1982). There are also indications of racial disproportionality in the application of the specific disciplinary provisions of IDEA. Rausch and Skiba (2006) found that African American students with disabilities were 2.8 times more likely than other students with disabilities to receive at least one of the categories of disciplinary exclusion monitored by IDEA. Investigations of disproportionality in referrals to special education or prereferral teams consistently find that African American students are more likely to be referred for behavioral reasons (Gottlieb, Gottlieb, & Tron­ gone, 1991; MacMillan & Lopez, 1996).

Causes of Disproportionate Special Education Representation

A number of factors have been identified as possible causes of, and maintaining condi-

February 2013 / 109

tions of, special education disproportionality, but the research literature is insufficient to accept any single cause as fully determinative of racial disparity. Extensive research investi­ gation in the 1970s and early 1980s suggested that test bias was not sufficient to fully explain racial and ethnic disparities in achievement or special education referral, but more recent research suggests that test bias has not been conclusively ruled out as a contributing factor (Valencia & Suzuki, 2000), especially for English Language Learners (Abedi, 2004). It is clear that wide disparities in educational opportunities, such as poor faciI ities (Kozol, 2005) or absence of highly qualified personnel (Darling-Hammond, 2004), probably contribute to disproportionate outcomes, but the impact of such disparities on actual rates of special education referral has not been addressed. Research investigations have found mixed evidence concerning the contributions of the special education eligibility process to dispro­ portionality (Donovan & Cross, 2002), although breakdowns in the referral decision-making process remain a plausible source of contribu­ tion to racial disparities (Harry & Klingner, 2006). Issues of behavioral management at the classroom level (Vavrus & Cole, 2002) and overall school climate (Gregory, Cornell, & Fan, 2011) appear to contribute to both rates of school discipline and racial disparities in discipline, but more direct observational re­ search is needed to document the specific processes that drive the relationship between classroom management and school discipline outcomes. Finally, although it remains an uncomfortable topic, the literature on stereo­ type threat (Steele, 1997), cultural mismatch (King, 2005), microaggressions towards individ­ uals of color (Howard, 2008; Sue, 201 0), and implicit bias (Amodio & Mendez, 2010) sug­ gests that conscious or unconscious bias must be considered as a possible contributor to special education disproportionality.

Thus, there appears to be no one single cause driving special education disproportion­ ality. Instead, racial and ethnic disparities in special education are likely due to complex interactions among student characteristics, teacher capabilities and attitudes, and the structural characteristics of schools. The multi­ determined nature of disproportionality sug­ gests that (a) the form that disproportionality takes will likely differ in different schools and school systems, and (b) intervention will need to be multifaceted, in order to respond to the

110 / February 2013

full complexity of the problem. Yet it is important to note that there remains a serious dearth of research that specifically seeks to reduce racial and ethnic disparities in special education. A ERIC search between the years 1980 to 2010 using the terms disproportion­ a/ity or overrepresentation, special education, and intervention or program revealed only three data-based published reports of individ­ ual or systems-based research aimed specifi­ cally at reducing disproportionate rates of special education referral (Gravois & Rosen­ field, 2006; Hernandez, Ramanathan, Harr, & Socias, 2008; Lo & Cartledge, 2006).

Implementation and Interpretations of Federal Disproportionality Provisions

Remedies to racial disproportionality were first introduced as part of the IDEA in the 1997 Individuals with Disabilities Education Amend­ ments Act, requiring that states begin to monitor the presence of disproportionality in local education agencies (LEAs) and

In the case of a determination of significant disproportionality … provide for the review and, if appropriate, revision of policies, procedures and practices used in such identification or placement to ensure that such policies, proce­ dures and practices comply with the require­ ments of this Act. Section 613 (c) (available at www2.ed.gov/policy/speced/leg/idea/idea.pdf).

These provisions were considerably strength­ ened in IDEA 2004. Three of the most notable changes were that the 2004 Act (a) made special education disproportionality one of three prior­ ity areas for monitoring and enforcement, (b) shifted from an emphasis fixir.g noncompliance with special education law to prevention in the general education setting, and (c) made inter­ ventions mandatory, including the use of 15% of the district's IDEA funds spent on early intervening services when racial disproportion­ ality was deemed significant in identification, placement or discipline, thus focusing change efforts on the general education setting.

These changes represented a welcome advance in monitoring and enforcement. Yet, the interpretation of the statute, which in turn has driven OSEP's implementation efforts, has been fraught with confusion and backpedaling, and may have contributed to an underidentification of LREs with dispro­ portionate representation. A number of issues

Behavioral Disorders, 38 (2), 1 08-120

involving interpretation of the statute by the USDOE Office of Special Education Programs have been problematic, including the introduc­ tion of two distinct required inquiries into disproportionality and allowing for the use of several different definitions of the phenomenon within the same state, along with the ongoing failure to monitor racial disparities in discipline.

Significant Disproportionality versus Disproportionate Representation

The 2004 amendments to IDEA expanded the attention given to disproportionality and, for the first time, included consideration of racial disparities among students with disabil­ ities subjected to long term suspension (Wil­ liams, 2007). The statutory provisions govern­ ing disproportionality are found in Sections

1612, 616, and 618 of the act:

Section 618 (d)(l) states: Each State that receives assistance under this subchapter, and the Secretary of the Interior, shall provide for the collection and examina­ tion of data to determine if significant dis­ proportionality based on race and ethnicity is occurring in the State and the local educational agencies of the State with respect to-.

(A) the identification of children as children with disabilities, including the identifi­ cation of children as children with disabilities in accordance with a partic­ ular impairment described in section 1401 (3) of this title;

(B) the placement in particular educational settings of such children; and

(C) the incidence, duration, and type of disciplinary actions, including sus­ pensions and expulsions. (20 U.S.C. 1418(d))

Enfor<:ement provisions were added to the definition of significant disproportionality, re­ quiring that LEAs found to have significant disproportionality in any of these areas spend 15% of their Part B funds on coordinated early intervening services pursuant to section 613(f). (618(d)(2)).

Congress also made it clear that dispro­ portionality was to be considered a high priority by specifically including dispropor­ tionality as one of three delineated monitoring priorities, in Section 616:

(C) Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representa­ tion is the result of inappropriate identifica­ tion. (20 U.S.C. 1416 (a)(3)(C))

The Secretary of Education was to monitor the states, and each state was charged with monitoring their districts in the priority areas using quantifiable and qualitative indicators. Disproportionality in special education eligi­ bility was represented by two out of twenty indicators the Federal Government uses to monitor state compliance. Indicator 9 requires states to identify the proportion of districts exhibiting "disproportionate representation of racial and ethnic groups in special education and related services, to the extent the repre­ sentation is the result of inappropriate identi­ fication" [20 U.S.C. §1416(a)(3)(C)]. Indicator 10 requires states to identify the percent of districts in the state with "disproportionate representation of racial and ethnic groups in specific disability categories that is the result of inappropriate identification" [20 U.S.C. §1416(a)(3)(C)]. In contrast to a finding of significant disproportionality, there is no fiscal penalty to a finding of disproportionate repre­ sentation due to inappropriate identification.

Despite the separate locations of required actions to address racial and ethnic dispropor­ tionality in the Act, it is highly unlikely that Congress intended to create two entirely distinct and independent sets of policy to remedy special education disproportionality, since no such distinction had ever been previously proposed in research or practice. Yet, the implementing regulations and especially the policy guidance (U.S. Department of Education, 2007) issued during the Bush Administration interpreted the language of IDEA 2004 as two separate concepts, significant disproportionality under Section 618, and disproportionate repre­ sentation under Section 616.2

Table 1 presents the distinctions between significant disproportionality and dispropor­ tionate representation as they have been operationalized by OSEP. According to the implementing regulations and guidance pro­ vided by OSEP, significant disproportionality includes only issues of overrepresentation of racial and ethnic groups, while disproportion­ ate representation has been interpreted as including both issues of over- and under­ representation. Significant disproportionality addresses issues of disproportionality in edu­ cational environments, while the monitoring for disproportionate representation excludes the examination of disproportionality with regard to the restrictiveness of the environ­ ment. Significant disproportional ity clearly includes racial and ethnic disproportionality

Behavioral Disorders, 38 (2), 108-120 February 2013 / 111

TABLE 1

Differential Requirements for Significant Disproportionality and Disproportionate Representation

Type of Disproportionality

Significant Oisproportionality

Only overrepresentation

Disproportionate Representation

Both over- and under-representation

Scope Overall eligibility, disability categories, discipline by race/ethnicity, educational environments

Overall eligibility, disability categories, (discipline by race/ethnicity at best unclear)

Data required Only numerical finding Numerical finding plus qualitative finding of inappropriate identification

Review of policies, practices, & procedures

Consequence of finding of significant disproportionality

Part of determination of disproportionate representation

Consequence of finding to LEA Mandatory reservation of full 15% Corrective action plan and continued of CEIS funds monitoring

in school discipline as a trigger mechanism, but special education (e.g., Donovan & Cross, legal interpretations from the Office of Special Education Programs under the Bush Administra­ tion initially included, then removed, then reinserted consideration of racial disparities in the monitoring of disproportionality in discipline (see more complete description below). Signif­ icant disproportionality is viewed as a simple numerical criterion that may be defined by each state, but triggers the use of funds for prevention without qualitative considerations or a finding of noncompliance with the Act. In contrast, disproportionate representation is dependent on first finding that the disparity in question was caused by inappropriate identification, determined through the qualitative review of LEA policies, practices, and procedures. As a result, the review of policies, practices, and procedures at the LEA level becomes a conse­

quence of identification for significant dispro­ portionality, but part of the criteria needed to establish disproportionate representation as a result of inappropriate identification.

Other Issues of Interpretation

In a number of areas, the federal interpre­ tation of IDEA statutory language appears to run counter to consistent findings in special educa­ tion research. Requiring that judgments of disproportionality be based upon procedural noncompliance in special education is incon­ sistent with a long line of research indicating that general education practices make an important and probably primary contribution to special education disparities (Donovan & Cross, 2002; Harry & Klingner, 2006; Heller, Holtzman, & Messick, 1982; Skiba et al., 2008). Moreover, while there is a strong and consistent database concerning the overrepresentation of culturally and linguistically diverse students in

2002; Losen & Orfield, 2002), issues of un­ derrepresentation are only beginning to be explored (Perez, Skiba, & Chung, 2008). With almost no research-based guidance to rely on, it is unclear how SEAs and LEAs wi:I be able to apply evidence-based interventions to address under­ representation. Finally, research has documented that the overrepresentation of culturally and linguistically diverse (CLD) students in more restrictive environments is a serious concern (Fierros & Conroy, 2002; Skiba et al., 2006). Yet, although educational environments are part of the determination of significant disproportionality, policy interpretations from OSEP do not include educational environments in the monitoring and enforcement of disproportionate representation. There appears to be widespread misunderstanding among parents and teachers about the nature of disproportionality (Shippen, Curtis, & Miller, 2009). It seems unlikely that federal policy promulgating idiosyncratic distinctions that are not always grounded in the evidence base will in any way allay that confusion.

Inappropriate Identification

Where IDEA 2004 sought to expand the inquiry required beyond issues of compliance with special education law and to require prevention, the interpretation by the Bush Administration that Congress intended only to prioritize disproportionate representation due to inappropriate identification (read as non­ compliance with the Act) seems to represent a retreat into the procedural language contained in the 1997 Act. IDEA 2004's implementing regulations heavily emphasized the notion of disproportionate representation due to inap­ propriate identification. Under the implement­ ing regulations and subsequent guidance from

112 / February 2013 Behavioral Disorders, 38 (2), 108-120

OSEP (Knudsen, 2008), monitoring dispropor­ tionate representation is defined as a two-step process. First, quantitative criteria (e.g., risk ratio) are applied in order to make a determi­ nation of disproportionate representation. Sec­ ond, the policies, practices, and procedures of each LEA exhibiting numerical disproportion­ ate representation are examined to determine whether that disproportionate representation is due to inappropriate identification.

OSEP guidance documents have noted that the term inappropriate identification is intended to move beyond special education eligibility determination to include a range of variables in both special and general educa­ tion (Williams, 2007). Yet, guidance offered by OSEP, and the definitions adopted by most states, assess the presence or absence of inappropriate identification primarily through the examination of LEA policies, practices, and procedures. To what extent has research shown that policies, practices, and procedures of special education identification and referral contribute to disproportionate outcomes in special education service?

The evidence is mixed. Large discrepancies between actual practice and IDEA requirements have been documented in the special education eligibility determination process. Harry and Klingner (2006), for example, described numer­ ous inconsistencies in evaluations and IEP team meetings that may contribute to disproportion­ ality, including the deference in eligibility decisions given to the opinion of the experts and their interpretation of tests, as compared to information provided by parents or deficiencies in instruction. Yet, research on factors associated with disparities (Donovan & Cross, 2002; Harry & Klingner, 2006; Heller, Holtzman, & Messick, 1982; Skiba et al., 2008) has consistently found that special education disproportionality is determined by a complex range of factors (see above). Leaders in the field (e.g., Losen & Orfield, 2002; Reschly, 2009) have argued that special education eligibility determination may indeed be a less significant contributor to disproportionate outcomes than these other factors. Thus, interpreting "policies, practices, and procedures" solely as an examination of the narrow range of processes involved in deter­ mining eligibility for special education would be inconsistent with our best knowledge of over thirty years of research on the possible causes of disproportionality, making it highly likely that a large proportion of the causes of special education inequity would remain unaddressed.

Racial and Ethnic Disparities in Discipline and IDEA Enforcement

Among the added provisions of the 2004 Amendments to the Individuals with Disabili­ ties Education Act was the analysis of racial disparities as part of provisions requiring states to n:ionitor levels of suspension and expulsion for students with disabilities, and to compare these with their non-disabled peers. The 2004 Amendments to IDEA sought remedies to racial disproportionality in discipline in two provisions, Section 612 and 618. To imple­ ment the statutory requirements OSEP origi­ nally prescribed that states provide the Secre­ tary with information on two discipline indicators. Indicator 4a asked states to report on the incidence of long-term suspension for students with disabilities as compared to their nondisabled peers, while Indicator 4b required states to monitor the same discrepancies, further disaggregated by racial and ethnic category (l 412(a)(22)).

From the start, however, all provisions of IDEA that called for an examination of race faced resistance from the Bush Administration. President Bush's signing of IDEA 2004 was accompanied by a signing statement expressing reservations about, among other provisions, the disproportionality clauses of the· law, thus claiming the right to selectively implement those provisions (Bush, 2004). That selective implementation eventually carried forward into educational policy with the first round of monitoring state Annual Performance Review/ State Performance Plan (APR/SPP) do­ cuments in 2007, in the decision to remove Indicator 4b from monitoring. The response to all state submissions under Priority 4b was that data monitoring was "not required" due to a concern about its constitutionality. Finally, OSEP issued a guidance document that al lowed states to begin collecting data on Indicator 4b in 2011, but modifying the priority based on the rationale that the collection of race-based data could raise Constitutional concerns:

B. Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of children with IEPs of greater than 10 days in a school year by race and ethnicity and that have policies, procedures, or practices that contribute to the significant discrepancy and that do not comply with requirements relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards.

Behavioral Disorders, 38 (2), 1 08-120 February 2013 / 113

TABLE 2 Number of States Reporting Percentage of LEAs with Disproportionality Due to Inappropriate

Identification, 2005-2006 to 2007-2008a

APR Report Year Indicator 9

2007-2008

2006-2007

2005-2006

0%

42

38

26

0.1-2.9%

6

7

13

3.0-5.9%

4

3

9% or 6.0-8.9% Higher Total SEAs

0 50

0 50

3 2 47

•Reprinted from Part B APR/SPP State Report Summary Document, 2009.

The added language regarding policies, practices, and procedures is a novel interpreta­ tion of the provisions of IDEA. In contrast to its guidance concerning significant disproportion­ ality and disproportionate representation, in which OSEP inte�preted existing statutory lan­ guage literally, the provisions added in this case are nowhere to be found in the law itself. The OSEP guidance concerning Indicator 4b prompted a number of prominent scholars, including Harvard Law School Dean Martha Minow, and civil and disability r

Collepals.com Plagiarism Free Papers

Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.

Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS

Why Hire Collepals.com writers to do your paper?

Quality- We are experienced and have access to ample research materials.

We write plagiarism Free Content

Confidential- We never share or sell your personal information to third parties.

Support-Chat with us today! We are always waiting to answer all your questions.