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Excerpted From: Kevin P. Brady and Suzanne Kucharczyk, Racial Disproportionality and the Special Education Paradox: The Divide Between Legal Compliance and the Best Practice(s), 384 Education Law Reporter 585 (February 18, 2021)(114 Footnotes) (Full Document)

BradyandKucharczykIn 2019, the U.S. Commission on Civil Rights released a comprehensive and alarming report, Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline For Students of Color with Disabilities, which highlighted numerous research studies investigating disciplinary incident data involving students with disabilities. A majority of these studies revealed significant disparities in exclusionary disciplinary practices, including out-of-school suspension and expulsion rates, most notably for racial and ethnic minority students with disabilities compared to other groups of students with disabilities as well as the overall student population.

The Civil Rights Data Collection (CRDC) survey reveal that while students with disabilities represent approximately 12% of the overall student population nationwide, these students are also more than twice as likely to receive exclusionary disciplinary practices compared to their student peers in general education. During the 2018-19 school year, for instance, 17.89% of students with disabilities in the United States were identified as Black and 1.35% of students with disabilities were identified as American Indian or Alaska Native. A study revealed that Black students with disabilities are approximately 2.8 times more likely compared to their student peers with disabilities to receive some form of exclusionary discipline in response to their alleged problem behavior(s). There are growing concerns involving the use of exclusionary disciplinary practices throughout the nation's schools, particularly students with disabilities who are identified as Black, Indigenous, or from other underrepresented communities.

The research literature often refers to evidence of racial and ethnic disparities in special education as disproportionality. Disproportionality is defined by the extent of a particular student group's over- or underrepresentation within a given educational category, program, or service in relationship to the particular student group's proportion within the overall student population. Students identified as most negatively impacted by disproportionality in special education practices tend to be lower income, Black, and Indigenous children and youth with disabilities. Nationwide, approximately 13.5%, or 6.5 million students attending K-12 public schools receive some type, or level of special education services. Yet, however, research studies consistently indicate that racial and ethnic minority students enrolled in special education comprise a disproportionately high representation of the total student special education population. For instance, although Black students comprise roughly 16% of the total K-12 public school population, they represent 21% of the overall percentage of students receiving special education and related services. Black students with disabilities are more likely to be identified with an intellectual disability and/or emotional disturbance and more infrequently identified with a speech or language impairment or Autism compared to the total national population of students with disabilities.

For nearly a half century, advocates, educators, parents, researchers, and school administrators have observed and discussed the issue of minority disproportionate representation, or MDR of students with disabilities as both a troubling and persistent phenomenon in schools. Empirical evidence detailing racial disproportionality in special education was first identified in the research literature beginning in the late 1960s. Since then, a plethora of published peer-reviewed research studies, large-scale policy reports, and full-length books have examined racial disproportionality as a complex and concerning practice in special education requiring more careful research scrutiny. While previous studies of racial and ethnic disproportionality in special education have examined influential factors that help explain the presence of disproportionality, including a teacher's inherent racial and ethnic bias, the level of the student's parental educational attainment, or the specific identified disability category(ies) of the student, the research has been consistently inconclusive at identifying causal factors.

For example, more recent research reveals that racial and ethnic student disparities vary considerably among the thirteen present federally defined disability categories under the Individuals with Disabilities Education Act (IDEA), with the highest levels of racial and ethnic student disproportionality documented under the four high-incidence IDEA disability categories, including (1.) emotional and behavioral disturbance; (2.) intellectual disability; (3.) learning disabilities; and (4.) speech/language impairments. Research exploring racial disproportionality in special education involves legal as well as research-informed “best practices” for educational practitioners. Notwithstanding, most researchers and policy analysts agree that racial disproportionality in special education is due, in part, to the avoidable misidentification of students of color by school officials at the local level. Research suggests that current federal civil rights laws, including the IDEA are ill-equipped to effectively reduce racial disproportionality in special education because 'local-level educators and school administrators biases' often accompany the student disability identification process in special education.

Since the 1975 passage of the Education for All Handicapped Children Act (EAHCA), later renamed the Individuals with Disabilities Education Act (IDEA), educators, researchers, and policymakers have recognized the “paradox of special education.” On the one hand, today's special education infrastructure provides eligible students with invaluable access to special education, services, supports, accommodations, as well as the necessary federal and state-level legal mandates to gain access and achieve levels of success in traditional school environments. On the other hand, special education's systemic process of identifying potentially eligible students for special education and related services can result in lowered student expectations from the student's teachers, some special education students receive limited access to the general education curriculum, the use of biased eligibility assessments, and enduring negative stigma(s) of students with disabilities from others. This paradox critiques special education as a professional and institutional practice which unlike public education serves as a social practice. As a result, special education legal mechanisms, such as the IDEA, the most comprehensive federal statute assisting students with disabilities, used in school organizations are not necessarily conducive to fulfilling goals of educational excellence and equity. Based on this special education paradox, negative consequences often associated with student misidentification in the special education identification process become increasingly more severe and increase existing inequities, especially if these students are misidentified and/or placed in substantially separate and unequal school settings.

This commentary suggests that equity and equal educational opportunities for racial and ethnic minority students with disabilities have not been successfully achieved as evidenced by an overreliance on the Individual with Disability Education Act's (IDEA) legal compliance model of monitoring provisions and protocols, which have afforded significant discretion to individual states in terms of how monitoring and protocols are implemented. Despite over a half century of equity-based caselaw and federal legislation dating back to Brown v. Board of Education, a legal compliance-focused approach to reduce racial disparities in special education has been, to date, largely unsuccessful at significantly improving educational equity among local school systems, especially those with existing and deeply entrenched “structured power relationships to serve the dominant social and economic classes.” The present prevalence of ethnic and racial disproportionality in special education is considered and often framed exclusively as a legal issue since federal civil rights legislation, namely the IDEA has helped define the issues surrounding the identification and eligibility of students with disabilities, developed procedural due process legal protections in efforts to remedy the issue, and allocated designated funds to incentivize improvements at both the state and local levels.

Part I of the commentary provides an introduction to the increasing prevalence of minority disproportionate representation (MDR) in special education nationwide and the consistent history of research documenting its existence and prevalence in schools.

Part II, provides an overview of the existing legal landscape of MDR in special education and the many challenges associated with federal legislation's repeated efforts to effectively monitor and remedy instances of “significant disproportionality” across states using varying measurements to identify racial disproportionality among students in their local school systems.

Part III, summarizes the leading caselaw involving specific legal issues focusing on racial disproportionality in special education.

Part IV, provides a brief discussion of potential options to consider moving forward given the inherent limitations of a legal compliance- focused model of addressing MDR in special education. Finally, this commentary concludes with addressing the limitations of a legal compliance model for addressing racial disproportionality in special education. Instead, this commentary points out the significance of culturally relevant special education referral, evaluation, and identification policies and procedures that can be more effectively implemented by contemporary educators and administrators nationwide.

[. . .]

This commentary's discussion of the IDEAs continued and challenging efforts to effectively handle the prevalence of racial disproportionality in special education argues that “... disproportionality is not just a problem of numbers. It is more about the fact that students are being misdiagnosed as disabled and being placed in special education programs they do not need.” Similarly, the problem of racial disproportionality in special education is not simply about legal compliance-centered policies and procedures. Instead, the current prevalence of racial disproportionality in special education cannot be resolved primarily with an individualized, racially neutral legal compliance focused solution, including the legal remedies currently available under the federal IDEAs statute and regulations. As evidenced by over a half-century of research detailing the presence of racial disproportionality and emerging litigation since the most recent IDEA reauthorization, significant disproportionality, as identified by statistical evidence, does not merely impact individual states and local school districts as they attempt to improve their daily practices surrounding racial disproportionality. More importantly, the presence of racial disproportionality in special education directly and adversely impacts students and their parents or legal guardians who rely in many instances almost exclusively on local school systems to advocate, address, and ameliorate the repetitive cycles of racial and ethnic discrimination that federal civil rights legislation was originally enacted to eliminate, or at minimum, significantly reduce. Recent legal decisions involving racial disproportionality in special education have made it exceedingly difficult for parents and students plaintiffs to seek effective and long-term legal relief and redress from the nation's courts, even with credible and sizable historical and statistical evidence of significant disproportionality within their own local school systems. Given the 2019 Council of Parent Attorneys and Advocates (COPAA) v. U.S. Department of Education ruling allowing for the implementation of the 2016 “Equity in IDEA” regulations to proceed, it is imperative that the nation's local public school systems comprehensively and equitably address racial disproportionality in special education issues as they are impacting local educational contexts. Fortunately, there is promising and emerging research analyzing the effectiveness of culturally responsive school-wide positive behavior interventions and supports, commonly known as SWPBIS, which create a collaborative context for conversations against racial disproportionality to occur in local school systems and actively encourage community dialogue concerning how these issues are impacting the schooling process.

Moving forward, it is critical that today's educators and researchers alike acknowledge and understand the inherent limitations of federal legal compliance as a method to address the myriad of problems associated with racial disproportionality in special education programs. While the current 2016 “Equity in IDEA” regulations can shed useful information on whether racial disproportionality does exist in particular states within local school systems, the IDEAs legal compliance model of focusing on individualized remedies to the problem misses the necessary considerations of both the localized context and culture of race and how it manifests itself in local school environments. Instead, individual states should seriously consider state-wide training initiatives in culturally relevant special education referral, evaluation, and identification “research-informed practices” that can be disseminated to local school systems as model procedures and practices toward reducing and ultimately eliminating explicitly racial disproportionality practices in special education. In these current and troubling times, we must acknowledge the shortcoming of the IDEA to significantly reduce racial disproportionality in special education for nearly a half century. As stated by educational researchers Catherine Voulgardes, Edward Fergus, and Kathleen King Thorious state:

... the race-neutral approach embedded in the IDEA contributes to an understanding of disability that is separate from race and therefore racialized outcomes are located within an individual rather than in systems of oppression. This individual-centered and race-neutral approach limits the ability of research-based interventions to eliminate disproportionate outcomes in special education.


Kevin P. Brady is currently Program Director of the University Council of Educational Administration (UCEA) Program Center for the Study of Leadership and the Law and Professor of Educational Leadership at the University of Arkansas located in Fayetteville, Arkansas

Suzanne Kucharczyk is an Assistant Professor in the Graduate Program in Special Education in the Department of Curriculum and Instruction at the University of Arkansas located in Fayetteville, Arkansas.

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