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Excerpted From: Elizabeth R. Schiltz and Samia Young, Exploring Minnesota's Problematic Racial Imbalance in Special Education Services for Students with Emotional or Behavioral Disorders, 17 University of Saint Thomas Law Journal 1022 ( Spring, 2022) (95 Footnotes) (Full Document)


SchiltzAndYoungOn January 23, 2020, the authors of this article began their work together on a one-time course offered at the University of St. Thomas School of Law (UST Law) called “IEP Clinic Design.” Professor Elizabeth Schiltz was exploring the idea of establishing a clinic at UST Law that could offer services in a woefully underserved legal field: helping parents and students navigate the complex federal and state laws governing special education services. This course offered an opportunity for a small group of students to work with Schiltz to conduct research, outreach, and analysis to determine how such a clinic might be structured. The five students enrolled in the class all had varying degrees of professional or personal experience in the field of special education and shared a deep commitment to exploring how law students might serve in this area.

By the last day of class, exactly three months later, the world had changed. The upheavals wrought by the global coronavirus pandemic transformed social interactions across the globe. At midnight on March 27, 2020, the residents of Minnesota joined much of the globe in sheltering at home under the emergency order of its governor. (UST Law had already moved its instruction online two weeks earlier.) But that was only the first of that spring's global social earthquakes. On May 25, 2020, George Floyd was killed by a police officer who was captured on video kneeling on Floyd's neck during an arrest for allegedly passing a counterfeit twenty-dollar bill, about three miles away from UST Law. The killing of yet another Black person at the hands of a white police officer sparked protests not only in Minneapolis but across the nation and the globe, spurring a global call to examine not only the excessive use of force against Black people by police officers, but also wider underlying systemic structures that continue to have disproportionate negative effects on Black people.

Even before George Floyd's death, the partners in the IEP Clinic Design course had concluded that a particular aspect of systemic injustice merited sustained focus: the fact that Black and American Indian students receiving special education services in Minnesota are significantly more likely to be labeled as having an emotional or behavioral disorder (EBD) than other students. This is problematic for a number of reasons. The criteria for eligibility for this diagnosis are based on behaviors, rather than any specific disability; many of the specific criteria applied are largely subjective and thus possibly shaped by implicit biases. The diagnosis often leads to segregation in special EBD classrooms or even more restrictive settings, with lower chances of high school graduation and a greater possibility of entry into the “school to prison pipeline.” The focus of educators in such settings is on modifying behavior rather than addressing learning or dealing with undiagnosed disabilities. This focus emphasizes short-term goals aimed at preparing students to enter society or act appropriately in the segregated school setting, rather than longer-term goals aimed at social, emotional, and academic learning that is the focus of general education.

The disproportionate nature of the EBD diagnosis given to special education students who are Black or American Indian is a national problem that has been widely noted and debated for decades. UST Law's Community Justice Project (CJP) has studied and documented this phenomenon for years. It appears to be a persistent instance of a systemic structure in place in our community that has significant disproportionate negative effects on Black and American Indian people. In this article we explore this problem and suggest some possible ways for UST Law to help our community address it. In part I, we explain the legal framework in which the EBD definition resides--an interwoven web of federal and state laws and regulations governing the provision of special education services. We highlight the many elements of the relevant legal definitions that not only leave space for but require subjective evaluations easily influenced by implicit biases. In part II, we describe the disproportionate application of the EBD diagnosis to Black and American Indian students and the negative impacts of this diagnosis. In part III, we describe how a special education clinic at UST Law might attempt to address these issues in our community.

[. . .]

The study's statistical analysis was careful and attempted to correct for covariates such as sex, race-ethnicity, free-and-reduced lunch eligibility (as a proxy for parental income), and academic performance. Nevertheless, the authors caution that, just as with the research to date on racial disproportionality in special education programs, teasing out the effects of other complicating factors that might affect these findings is difficult but important. They offer a roadmap of possible complexities to be considered in future research:

These findings should be investigated further relative to the complicated and controversial body of literature on racial disproportionality in special education identification and outcomes, particularly for students with behavioral difficulties, and the complex intersections of race, educational opportunity, and achievement gaps in the school-to-prison pipeline. Additional research on the experiences of students with disabilities prior to court appearance wherein these varied lenses are applied could help explain their overrepresentation. In addition, arrest rates and information about county attorneys' propensity to refer youth to court or divert them from the juvenile justice system could provide valuable insight into why certain groups of students with disabilities are overrepresented in juvenile courts.

[. . .]

The statistically disproportionate classification of Minnesota's Black and American Indian students as falling into the EBD category is a fact, regardless of our inability to directly isolate its cause. Similarly, the statistically disproportionate rates of students in the EBD category who experience segregated education, expulsion and suspension, and involvement in the juvenile justice system are facts, regardless of the obstacles to teasing out the many variables that might contribute to this disproportion. Finally, the vague and subjective nature of the ED and EBD definitions is also a fact, leaving open the possibility that this classification is more likely to be influenced by unconscious biases than disability classifications that are based on more objective criteria, even if studies have not conclusively proven such influences.

Taken together, these realities offer a compelling argument for UST Law to continue and intensify its involvement in this area. This could be done by establishing a clinic in which students are trained to assist local students receiving special education services and their parents, with a particular focus on students with an EBD diagnosis. The guiding document for all services and placement decisions under the IDEA is the IEP. This document is negotiated annually by a team consisting of education professionals, the student, and the student's parents or guardians. Because it is unlikely that families would have the ability to get legal assistance at the time of classification, the annual review of the IEP may be the most productive point for counsel to intervene and attempt to assess the legitimacy of the diagnosis and the resultant decisions about services and placement.

Professor Schiltz offered such a clinic for the first time in the 2021 spring semester. In collaboration with the Minnesota Disability Law (MDL) Center of Mid-Minnesota Legal Aid, UST Law students have begun building a platform to train parents and students to navigate the complexities of special education placement and services, as well as to provide direct services to families with annual IEP reviews, analyzing IEPs for proper documentation of diagnoses, least restrictive placement possibilities, and appropriate, measurable academic goals. Experience gained over the years with such direct service work might someday offer the basis for more systemic reform work to address disproportionality in special education services in our community, in collaboration with and building on the work already begun in this area by the CJP.

In a message for the International Day of Persons with Disabilities on December 3, 2019, Pope Francis said:

In recent years inclusive processes have been put in place and developed, but this is still not enough, because, in addition to physical barriers, prejudice also gives rise to limitations on access to education for all, employment and participation. In order to build themselves, people with disabilities not only need to exist but they also need to belong to a community.

UST Law's continued efforts to address the racially disproportionate application of the EBD label in special education offer a response to Pope Francis's call, potentially dismantling barriers to accessing fully integrated educational opportunities for all members of our community.

John D. Herrick Professor of Law, University of St. Thomas School of Law.

J.D., 2020, University of St. Thomas School of Law.

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