Racial Inequity in Special Education By Daniel J. Losen ©

Addressing Racial Disproportionality The New Priority Area for OSEP Monitoring and Enforcement

Time Line Reauthorized IDEA passed in 2004 and made racial disproportionality one of three priority areas for monitoring and enforcement Final Regulations--Differences From Draft Regulations: –Spells out the areas of priority including racial disproportionality; –Clarifies the state’s obligation to report publicly on all LEAs, with regard to the areas of priority; and –Comments clarify that a finding of “significant” disproportionality triggers the mandatory use of 15% of part B funds for early intervening services Draft Guidance Under Reauthorized Law Indicator 9: Disproportionality in Special Education Indicator 10: Certain Disability Categories Restrictive Environment: Was an indicator in 2004 guidance and was used by the state this year. Indicator: Discipline (coming) –Guidance is not comprehensive coverage of all requirements

Compliance versus Problem Solving The Data Demonstrate Real Problems and Raise Concerns About Harm to Children that a “Minimum Compliance” Approach Will Only Perpetuate Most Educators Believe Schools Can Make a Difference If Both Regular and Special Educators Acknowledge the Problem, And Collaborate to Address the Challenges, Real Remedies are Possible and Children Will Be Better Off

Many Relevant Provisions 612 State Eligibility, State Plans and Prevention 613(f) Early Intervening Services 614 Evaluations, IEPs and Placement 615 Procedural Safeguards 616 Monitoring and Enforcement and Public Reporting of LEA Data 618 Data, Public Reporting and Specific Requirements on Disproportionality

Other Education Laws and Policies Are in Play The New IDEA Regulations No Child Left Behind Regulations of Title VI of The Civil Rights Act of 1964 State Education Codes Constitutional Equal Protection and Due Process “Inappropriate” Need Not Be Unlawful

Part B IDEA (ages 3-5 and 6-21) Pub. L ; 20 U.S.C. Sec et. seq. Section 612 NEW: (a)(24) state plan has to include policies and procedures “designed to prevent the inappropriate over- identification or disproportionality…” Not limited to disproportionality caused by non-compliance with IDEA

Prevention of Inappropriate Disproportionality Prevention is embodied in the spirit and letter of the law. “Prevention” must include both regular education and special education. This concept is not limited to over-identification, or just the areas within a district that the state has determined to meet the criteria for “significant disproportionality.”

Compliance with IDEA Requires Analysis of Regular Education Evaluations are supposed to rule out deficiencies in regular education instruction. Using special education as a form of discipline violates child-find provisions. “Significant Disproportionality” triggers early intervening services in the context of regular education.

614: Exposure to Poor Instruction or LEP (b)(5) Rule out, as the determinant factor: The need for services that arise from insufficient instruction in: –Reading –or Math –or because of LEP status. Was in 1997 Act, but can expect renewed attention to this provision.

Considerations should include regular education and the classroom instruction… Experienced with diverse learners? Adequately trained to teach reading and math? Otherwise highly qualified? Having classroom management problems? Is there a language or cultural issue confounding the understanding of the issue? Might behavioral interventions early on prevent identification later? What is the quality of pre-referral actions, early intervening services or response to intervention and are students of color, in particular, benefiting?

Evaluation: Beyond Biased Tests The tools themselves may appear race-neutral yet have a discriminatory impact. Look at what measures are used, and not used, and the weight attributed to scores, classroom observations, and perspective of the parents. Non-compliance or inappropriate practice can result if the administration or evaluation procedure has an unintended discriminatory impact. What knowledge and training do district evaluators have regarding alternative and culturally responsive forms of assessment? The data often suggests this is one area to review carefully. Do district level staff regularly review the data on referrals and outcomes disaggregated by race?

Evaluation, Eligibility Determinations, IEPs Placements and Bias: Evaluation procedures (614)(b)(2)(A) The district shall use a variety of assessment tools… 2.Each district shall ensure that assessments and other evaluation tools …(3) are selected and administered so as not to be discriminatory on a racial or cultural basis: The IDEA references unintended bias here.

Are there systemic issues that contribute to inappropriate identification? Do minority children have equitable access to the highly qualified teachers and resources? Does the system adequately address the needs of culturally diverse learners and their parents? Are teachers trained to understand and eliminate unconscious bias? Does the administration support discussions of racial disparities?

Unconscious Bias is Not Equivalent to Intentional Discrimination Research specifically designed by neurologists to reveal unconscious bias demonstrates that the overwhelming majority of Americans, from all racial groups, have some degree of racial bias. The vast majority of educators are not intentionally discriminating against certain groups. The data do support the theory that unconscious racial bias is an important contributing factor to racial disproportionality in special education.

LRE and Minority Exclusion Right to special education and related services in the least restrictive environment to the maximum extent appropriate. Calls for an individualized determination – the category of disability should not drive the placement. Increased risk for being labeled CD or EBD should not mean greater exclusion from the regular education setting.

618 New Data (618)(a) Racial and ethnic disparities in the incidence and duration of discipline including suspensions of one day or more. Gender and English Language Learners added for collection and reporting. Annual public reporting of data at the state level.

Revised 618 (d) New Requirements (618)(d): analyze district level data for significant disparities by race and ethnicity in identification, placement, and incidence and duration of discipline. Public reporting of interventions at the district level. Finding of significant disproportionality in identification or placement triggers mandatory reservation of 15% of IDEA part B funds (the maximum) for early intervening services under 613(f).

15% Use of Funds for Early Intervening Services The comments to the final regulations clarify that the 15% requirement is triggered when the state determines a district has “significant racial disproportionality” in either identification, or placement, or discipline, of students with disabilities.

15% Solutions The 15% requirement means there must be a focus on preventing racial disproportionality and highlights the responsibility to address the needs of students in the over-identified racial groups. The regulations clarify that other students may benefit from these services as well.

Can Special Educators Provide Early Intervening Services? To Whom? Yes. The regulations clearly state that states and districts decide who provides these services. Students who were inappropriately identified or placed and are no longer eligible under IDEA may also benefit directly. Students not eligible under IDEA (such as those on a 504 plan) should be allowed to benefit from early intervening services.

613 (f) Early Intervening Services Are Triggered Before a Finding of Non-compliance? Up to 15% of Part B funds reserved for early intervening services is explicitly triggered when the state identifies the LEA of having “significant disproportionality” in identification or placement. “Significant” may be equated with a rebuttable presumption of “inappropriate” and require a closer analysis. 613(f) spending for regular education triggered by significant disproportionality: Further evidence that “inappropriate” encompasses far more than a specific finding of non-compliance with IDEA.

Monitoring and Enforcement Priority Area in New Law 616 (July 2005) 616(a)(1)(C): The Secretary monitors the states and ensures that the States monitor the districts. States must develop a plan of district oversight and action with rigorous measurement and set targets. The state “shall report annually to the public on the performance of each local educational agency….”616(b)(2)(C(ii).

What Should States Do? Transparency is the best policy: Report publicly on the State and Districts with regard to each area of data collection in section 618. Significant racial or ethnic disparity in identification, placement, or discipline, triggers reservation of 15% for Early Intervening Services. Look for inappropriate identification due to factors in regular education that are not specifically delineated in IDEA.

Data Analysis in Wisconsin Wisconsin: Uses a multi-tiered approach Risk – compared to state average for Whites Risk Ratio compared to all others. Three consecutive years at or above the standard Statistical presumption of “significant” requires at least ten students of a racial group in a given category Smaller districts with this issue will also be supported in addressing this issue.

Wisconsin Risk for Other Health Impaired by Racial/Ethnic Groups

Wisconsin Risk for Specific Learning Disability by Racial/Ethnic Groups

Wisconsin Risk for Emotional Behavioral Disability by Racial/Ethnic Groups

Wisconsin Risk for “Cognitive Disability” by Racial/Ethnic Groups

Wisconsin Risk for Disability Category by Racial/Ethnic Groups

Minimal Racial Disproportionality in Medically Diagnosed “Hard” Categories

Q: Why is it important to analyze risk as well as risk ratio? A: Risk ratios alone leave out important information.

Why Risk, Risk Ratio, Consecutive Years? A single measure may miss a problem A single measure may inappropriately indicate a major problem where only a minor issue exists A single measure from one year is more prone to error Judgments based on a single measure for one year are more likely to be resisted

Risk Ratios: How to Calculate For Example: Risk for Black students with CD = 2.0 Risk for White students with CD =.50 Risk Ratio = means the same risk 2.0 means twice as likely 4.0 means four times as likely.5 means half as likely

Wisconsin Risk and Risk Ratio for Disability Category by Racial/Ethnic Groups

Common Misconceptions Not race, it’s poverty Not us, other districts No non-compliance, we don’t need to change Compliance with IDEA causes the disparity

Are Significant Racial Disparities Explained Away by Poverty? Regression analysis says no. Blacks and Latinos have divergent patterns for CD, ED and SLD identification, yet similar poverty and reading achievement profiles. Gender differences for risk for CD among Blacks are far greater than among Whites. Wisconsin’s state averages in some cases are among the highest in the nation.

It’s All Poverty: Not Race Is poverty a legitimate reason to label a student disabled under IDEA? Poverty cannot explain why there are relatively little or no racial differences among students with medically diagnosed disabilities. Poverty cannot explain the different identification rates between Blacks and Latinos. Poverty cannot explain why the gender gap exists, and why it is largest between Black girls and boys. Poverty doesn’t explain why racial differences are significant after controlling for poverty. Poverty doesn’t explain why Black males are at greater risk for being labeled cognitively disabled in wealthier districts, a phenomenon that doesn’t exist with other racial or ethnic groups.

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)

Risk Ratios of “Mental Retardation” and “Hard” Disability Categories for Blacks Compared to Whites Data from Tom Parrish /1999 school year - OSEP data.

Restriction Risk by Disability Category percent of students with CD, 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 CD significantly increases the risk for blacks of being educated in a substantially separate program.

The Civil Rights Project and The National Research Council Say… School policies and decisions are contributing factors. Inadequate teacher training and support for classroom and behavior management likely contributes to the problem of racial disproportionality.

What Should the Remedy Look Like? Change the numbers: Reduce the differential? The risk? The risk ratio? When are racial goals permissible? Desirable? Should the goals be driven by the context? Early Intervening Services? Improve the quality of regular education? Assuming institutional racism contributes – how can you change that?

Problem Solving and the 15% A finding of significant triggers the reservation of funds. The funds should be spent to help solve the problem that triggered their reservation, but are not restricted to that specific issue.

Triggering The Reservation Over-identification Overly Restrictive Placements Discipline Discretion of States (i.e. series of complaints, prior non-compliance, refusal to submit data analysis or acknowledge issue….)

Contact and Book Purchase Information Daniel J. Losen, M.E D., J.D. Independent Consultant for the State of Wisconsin’s Department of Public Instruction Senior Education Law and Policy Associate, The Civil Rights Project at Harvard University (CRP) Phone: Editor: RACIAL INEQUITY IN SPECIAL EDUCATION Book Purchases: Harvard Education Press at CRP Website: