Abstract

Excerpted From: Richard D. Marsico, The Intersection of Race, Wealth, and Special Education: The Role of Structural Inequities in the IDEA, 66 New York Law School Law Review 207 (2021/2022) (195 Footnotes) (Full Document)

Congress passed the Individuals with Disabilities Education Act (IDEA) in 1975 to counteract public schools' widespread discrimination against children with disabilities by warehousing them in separate classrooms where they did not receive a meaningful education or excluding them from school altogether. At the time of its passage, approximately four million children with disabilities attended public school but received an inappropriate education and one million were excluded from school entirely. There was very little that their parents could do to challenge this treatment because the courts gave school officials significant discretion to exclude children with disabilities from school.

Fueled in large part by Brown v. Board of Education, the 1954 Supreme Court decision that banned race-based school segregation, a movement emerged to require school districts to provide an appropriate education to children with disabilities. This movement was largely successful. By 2018, of the roughly fifty million children who attended public school in the United States, more than seven million (14.1 percent) were receiving services under the IDEA. In 2019, the high school graduation rate for students with disabilities was 72 percent.

The IDEA provides federal funds to states to help them educate children with disabilities in exchange for a commitment from the state to abide by the IDEA's requirements. Race has no bearing on determining whether a child has a disability, the scope of the educational services they should receive, the classroom setting in which they should receive them, or the right of their parents to advocate on their behalf. However, structural inequities in the IDEA, including time-consuming and expensive procedural provisions and ill-defined standards for meeting the educational needs of children with disabilities, allow race and wealth to intersect with the provision of special education services.

The structural inequities in the IDEA manifest themselves in at least nine inflection points where race and special education meet. These inflection points, presented in three different categories that reflect the IDEA's process for developing and delivering a child's special education program, its substantive education rights, and its enforcement mechanisms, are as follows:

Category 1 The IDEA's Procedures for Developing and Providing Special Education

Inflection Point One: Identifying a Child Suspected of Having a Disability

Inflection Point Two: Evaluating a Child for a Disability

Inflection Point Three: Determining Eligibility for Special Education

Inflection Point Four: Preparing a Child's Individualized Education Program (IEP)

Category 2 The IDEA's Substantive Educational Requirements

Inflection Point Five: Determining the Elements of a Free Appropriate Public Education (FAPE)

Inflection Point Six: Identifying the Least Restrictive Environment (LRE)

Category 3 The IDEA's Enforcement Mechanisms

Inflection Point Seven: Advocacy Rights and Opportunities

Inflection Point Eight: Remedies

Inflection Point Nine: The Administrative Exhaustion Requirement

At many of these points, educators exercise significant discretion over educational decisions, which can mask discriminatory intent or unconscious bias. At other points, parents with limited economic resources will have difficulty securing the advisors, attorneys, or experts they need to help them navigate the IDEA's procedures and advocacy opportunities and to secure positive outcomes for their children. Because Black families have lower median income and wealth than other groups, the negative impact that limited financial resources can have on IDEA outcomes is likely to have a disparate impact on Black students.

Part II of this article describes the legislative history of the IDEA relating to Congress's awareness of race discrimination in special education when it passed and amended the IDEA and the limited steps it took to address it. Part III examines each of the IDEA's inflection points, describing the legal standards that apply at each point and how these standards give educators discretion over decisions regarding special education and place economic burdens on parents seeking to secure positive outcomes for their children. Part IV describes evidence suggesting that the intersection of race and special education creates racialized outcomes in the form of the overrepresentation of Black students in special education programs and in the intellectual disability and emotional disturbance classifications. Part V offers proposals to limit or eliminate the intersection of race and special education, identifying steps that states and school districts can take without congressional approval, and then actions that only Congress can take. Part VI concludes this piece.

[. . .]

We have come full circle. When the IDEA was passed in 1975, thousands of Black children were inappropriately placed in separate classrooms for students with disabilities based on inappropriate assessments, the cultural incompetence of teachers and administrators, and race discrimination. Now, nearly fifty years later, more than one hundred thousand Black children are receiving special education services that they likely do not need, and tens of thousands of these children have been inappropriately separated from the general education classroom and curriculum based on disability classifications that are likely incorrect.

Along the way, Congress took minimal steps to address over and underrepresentation, and instead established a regime that allowed race to intersect with special education through a combination of the discretion that the IDEA gives to educators and the advantages that parents with economic resources have to secure favorable outcomes for their children. States and local school districts must take immediate steps to limit the impact of the structural inequities, discretion, and economic advantage on special education, and to reduce the harm to the hundreds of thousands of Black children who, as a result of the inequities, are in classrooms that do not meet their needs.

Professor of Law and Director of the Wilf Impact Center for Public Interest Law, New York Law School.