Responses and Remedies to Disproportionality in Special Education: Beyond Compliance By Daniel J. Losen © 1

This presentation will cover: A national overview of racial/ethnic disproportionality in special education in the context of racial disparities, generally. Why disproportionality was made a special education priority. Exploration of district responses to being identified as having disproportionality Approaches to finding remedies to disproportionality.

I had a dream…. About a bear that was chasing me… My reality, as a teacher…. I didn’t see the problem as involving me… I deferred to others. I saw no bear… But it was there.

Is the Issue Special Education? No ? Yes ? Both Special and General Education ?

No? Why Not? Racial and ethnic inequalities are pervasive in general education, too. Most of the students are referred from general education. Consensus among researchers is that racial disproportionality can be linked to issues in the general education setting, including classroom management problems. Documented historic abuse of special education as one way to avoid school desegregation. Bias and inequity are not special education specific.

Racial Inequity In Education School Finance and Resource Inequity –Pre-school –Teacher Quality –Access to Highly Resourced, High Quality Schools Achievement Gap School Discipline Gifted and Talented SPECIAL EDUCATION

No Child Left Behind and Subgroup Accountability Reveals stark differences Rejects the status quo of inequality Focus on taking responsibility for racially disparate outcomes. Problems in mechanisms not the concept that schools can and should do more.

“Soft Bigotry of Low Expectations” Rhetoric around NCLB acknowledged prevalence of unconscious bias. What about special education and disproportionality?

Reauthorized IDEA Racial or ethnic disparities trigger intervention primarily focused on prevention No blame with “significant disproportionality.” “Inappropriate causes” also require interventions. Step one is acknowledging there is a problem that educators can help solve. We need to evaluate whether interventions are working.

Racial Gap Since NCLB: Grade 8 Reading (NAEP) Shows No Change

Are NCLB Interventions Working? Use data to re-evaluate Don’t just look at one indicator Special education disparities are similar

Consensus among researchers that teacher quality has the largest impact on achievement outcomes The greatest achievement affect is for poor and minority children. The negative impact of inadequate teachers, over time, can be devastating. There is no dispute that poor and minority children have lower exposure to highly qualified teachers, and higher exposure to inadequate teachers.

Racial Impact of The Rising Use Of Suspension

RACIAL IMPACT OF SUSPENSION AND BLACK MALES For

Reasons for Suspensions Research by Dr. Russ Skiba, that blacks are far more likely to be suspended, but that the racial disparities are greatest regarding minor non-violent violations of school codes. Violations regarding truancy, dress codes, loitering, tardiness, foul language, and insubordination are among the most common reasons for suspension.

Exclusionary Discipline and Dropout Suspended students 3 times more likely to drop out by 10 th grade Florida Study: Lengthier school suspensions showed significant correlation with scheduling of state achievement test Center for Evaluation and Education Policy Sources: Russ Skiba, Director, Center for Evaluation and Education Policy Indiana University, citing Ekstrom, R.B., Goertz, M.E. Pollack, J.M. & Rock, D.A. (196). Who drops out of high school and why?: Findings from a national study. Teachers College Record, 87, David Figlio, Testing, Crime and Punishment, Working Paper, 11194, National Bureau of Economic Research, March 2005, available on line at Center for Evaluation and Education Policy Sources: Russ Skiba, Director, Center for Evaluation and Education Policy Indiana University, citing Ekstrom, R.B., Goertz, M.E. Pollack, J.M. & Rock, D.A. (196). Who drops out of high school and why?: Findings from a national study. Teachers College Record, 87, David Figlio, Testing, Crime and Punishment, Working Paper, 11194, National Bureau of Economic Research, March 2005, available on line at

Pinellas County, Florida Two thirds of poor black males with disabilities in grade 6 suspended at least once. Data suggests a relationship between repeated suspension and failure to complete HS.

Do Principals Know The Law? Two districts in Delaware: About 50% knew that students with disabilities had additional due- process rights Manifestation determination: –Behavior caused by disability, or –Resulted from failure to properly implement the IEP

Graduation Rates of Students With Disabilities? Indiana Trails the Nation in Graduation Rates for Students With Disabilities

NYC’s Students With Disabilities Are “Leaving School Empty Handed” Report by Advocates for Children, June 2005 Only 11.84% of students who receive special education leave school with a regents or local diploma. Only 4% of students with “emotional disturbance” (ED) leave with a diploma. Less than 1% of students with disabilities earned a GED. The IEP diplomas earned by 11% are “poor substitutes” for a regular diploma.

Students With Disabilities are Disproportionately Confined Approximately one third of all juveniles in detention had been identified as having a disability that impaired their education. Many others are suspected to exist, but likely undiagnosed. Over 70% are estimated to have mental illness, most are undiagnosed.

Behavioral Improvement Plans Behavioral assessments… Improvement plans: They are supposed to work…or they should be changed. Should be updated regularly.

Problem in Special Education? Yes, sometimes. Deference to the evaluation instrument (IQ) and evaluator. (S. Facts) Procedural safeguards not followed. Kindergarten screening. No exit! Inappropriate can be “lawful.” Disciplinary Support?

Special Education and Discipline The National Research Council’s report suggests that difficult to manage minority students are removed via special education and more likely to be placed in restrictive settings. Nationally, among students with disabilities, Blacks were over 3 times as likely as Whites to be suspended short term.

Worrying about Compliance vs Problem Solving The Data Suggest Real Problems Most Educators Believe Schools Can Make a Difference If Both Regular and Special Educators Collaborate, Meaningful and Effective Remedies are Possible 27

They Were Identified Before They Arrived Net in-migration? Were they re-evaluated? Within district rates are markedly different than those entering? What is the “mobility” or “in- migration” argument asserting?

What is Behind the Argument The fault of the district they left. “Outsiders are not like us.” They come from “a culture of poverty.” We cannot, should not, be expected to change. We do not have a problem, DON’T BLAME US.

Responses to In-migration Legal responsibility to re-evaluate if inappropriate identification is suspected. When district does label, patterns tend to be repeated. Poverty does not equal disability, and law requires ruling out cultural differences. Labeling based on class differences is inappropriate. The math rarely supports the assertion. Often asserted by districts with substantially higher rates of identification than surrounding districts.

Patterns of Racial Disparity in Indiana (U.S. Dept of Ed.)

Prevention of Inappropriate Disproportionality “Prevention” Must Include Regular Education & Special Education. Real Problem Solving Happens when Districts Attempt to: –Get At Root Causes, –Go Beyond Over-identification, & –Analyze More Than Those Specific Areas The State Has Determined Caused The District To Meet The Criteria For “Significant Disproportionality.” 32

Three Stages to Do Something 1.Develop Hypothesis 2.Intervene 3.Evaluate Efforts and Outcomes Using Multiple Data Sources (General and Special Ed.) Review List and Reconsider Hypothesis Discuss Additional Factors Adjust Interventions 33

Your Considerations should include General Education & … Experienced with diverse learners? Adequately trained to teach reading and math? Otherwise highly qualified? Classroom Management Problems? Cultural Issues confounding Understanding of the Issue? Quality of Actions to Manage Problems, Early Intervening Services(EIS) or Response to Intervention (RTI) & PBIS Are Students of Color, in particular, Benefiting in Measurable Ways? 34

Evaluation of Referring Classroom Rule Out, as the Determinant Factor: Need for services arising from insufficient instruction in: –Reading (Literacy), &/or –Math (Numeracy), &/or –LEP status. Also Consider: –Classroom Management/PBS –Appropriate Supports for Teachers –Capacity to Teach Diverse Learners (Cultural Responsive Instruction) 35

Getting Beyond Compliance Means Getting Over Common Misconceptions Not race, it’s poverty….

Are Significant Racial Disparities Explained Away by Poverty? Blacks and Latinos have divergent patterns for MR, ED and SLD identification, yet similar poverty and reading achievement profiles. Poverty does not explain large gender differences. Why are there no meaningful disparities in the “hard” disability categories?

State Z Risk for Disability Category by Racial/Ethnic Groups

Minimal Racial Disproportionality in Medically Diagnosed “Hard” Categories

Problem Solving = Beyond Compliance Look at all the numbers, by race, including academic outcomes in general education. Are your early interventions effective? What is the impact of improving the quality of regular education? Do you know the racial impact of these efforts?

The Civil Rights Project Harvard University 41 Lead and other Environmental Toxins v. Bias National Research Council (NRC) implies environment contributes to racial disparities, but provides no correlation study linking increased risk with racial disparities for MR, ED or SLD in any location.

The Civil Rights Project Harvard University 42 Where is Lead Exposure in Housing the Greatest? According to The Prevalence of Lead-Based Paint Hazards in U.S. Housing (survey of national sample between 1998 and 2000) Northeast (40% risk) Midwest (33%) Lowest in South (17 %) West (15%) Government Supported Housing (17%)

The Civil Rights Project Harvard University 43 Restriction Risk by Disability Category percent of students with MR, and over 70 percent with ED are educated in resource rooms or substantially separate settings. Approximately 56 percent of students with specific learning disabilities are in full inclusion placements (pulled out less than 21 percent of the school day). Overrepresentation for ED and MR significantly increases the risk for blacks of being educated in a substantially separate program.

The Civil Rights Project Harvard University 44 Inclusion: Race with Disability Among students with mental retardation, emotional disturbance and specific learning disabilities in Connecticut in 1995 Black and Latino Males and Females were far less likely to be in an inclusive setting than their White counterparts. Dramatic improvement was noted after the filing of a lawsuit and change in the federal law requiring monitoring of these racial disparities.

The Civil Rights Project Harvard University 45 Harvard’s Research Findings Under-servicing of minority students with disabilities increases the likelihood of discipline problems and school failure. Minority students are more likely to receive services in restrictive special education settings.

The Civil Rights Project Harvard University 46 The Civil Rights Project and The National Research Council Say… Research indicates that special education over-identification and overly restrictive placements suggest inappropriate use of special education as a disciplinary tool.

The Civil Rights Project Harvard University 47 Areas of Agreement Continued… To focus on reducing numeric disparities alone, without ensuring that minority students are making meaningful academic progress, is ill advised.

The Civil Rights Project Harvard University 48 Revised 1418 New Data (1418)(a) New Requirements (1418)(d): analyze for significant disparities by race and ethnicity in identification, placement, and discipline. Early intervening services required where problems are evident as well as public reporting of interventions. Specifically triggers 15% spending on early intervention services under 613(f). Prevention means greater control over how money is used… Another reason to not wait until your district has been flagged…going beyond compliance.

The Civil Rights Project Harvard University 49 Monitoring and Enforcement Priority Area in New Law 1412 and : (a)(3) Monitoring Priorities: “Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification for special education” is one of three priority areas for the U.S. Secretary of Education.

The Civil Rights Project Harvard University 50 Subjectivity of Evaluation and Identification Myth of objectivity – who is being referred? Most referred students are identified as eligible Technical Controversies: 10 out of 55 LD misdiagnosed – and that was the most favorable study Who to test, what test to use, how to weigh the results, how to interpret the score.

The Civil Rights Project Harvard University 51 IEP TEAM Parents perspectives are often given little weight – especially poor and minority parents. Conclusions of evaluators are rarely doubted by parents or educators. Teachers are often reluctant to question team members (especially superiors). High degree of deference to the “experts.”

The Civil Rights Project Harvard University Evaluation procedures (1414)(b)(2)(A) Shall use a variety of assessment tools…(3) are selected and administered so as not to be discriminatory on a racial or cultural basis: 2.(b)(5)Rule out inadequate instruction and LEP issues.

The Civil Rights Project Harvard University 53 Black Males In the most profound example, contrary to expectations, as factors associated with wealth and better schooling increase, Black males are at greater risk of being disproportionately labeled “mentally retarded.” (See Oswald, Coutinho and Best, “Community and School Predictors of Over Representation of Minority Children in Special Education” in Racial Inequity in Special Education)

Racial Bias? Is there gender bias? Ex-Harvard president Larry Summers said “no.”

Implicit and Institutional Bias Unconscious Bias The President’s Grandmother Bush’s “Soft Bigotry of Low Expectations” Institutional Bias (my own experience). Legacy of Resource Distribution (inter and intra-district).

The Civil Rights Project Harvard University 56 Implicit/Unconscious Bias Perceptions that have been reinforced are hard to change. We don’t see or use all the evidence – what we pay attention to matters. Measured through subtle, reflexive, unconscious types of behavior. All races….

The Civil Rights Project Harvard University 57 Implicit Bias Measurement Brain science – based on speed of positive and negative associations. Implict Attitude Test (IAT) developed to elicit unconscious attitude. Applies to wide ranges of categories (Harvard v. Yale) (Age)(Gender)

The Civil Rights Project Harvard University 58 Implicit Bias Findings Conscious attitudes can influence the magnitude of implicit bias. Explicitly non-biased respondents showed implicit pro-White bias. Asian and Hispanic respondents showed implicit and explicit pro- White bias at same levels as Whites.

The Civil Rights Project Harvard University 59 Implicit and Explicit Racial Bias for Whites Exhibited by Blacks and Whites Source: Nosek, Banaji and Greenwald (2002)

Test Yourself

The Civil Rights Project Harvard University 61 Schools and Unconscious Bias Understand the Difference Between Unconscious Bias and Intentional Racism Understand the Magnitude: One of Many Factors No Simple Solutions

The Civil Rights Project Harvard University 62 What Should the Remedy Look Like? Change the numbers: Reduce the differential? The risk? The risk ratio? Early Intervening Services? Multiculturally Responsive Measures? Improve the quality of regular education?

Avoid the Pledge! Kindergarten experience Look at Many Data Indicators On a Regular Basis There are Remedies

The End Further questions: Daniel J. Losen Independent Consultant and Senior Education Law and Policy Associate The Civil Rights Project at UCLA (Formerly at Harvard) Cell: