August 2, 2016

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Make Sure IDEA Is Helping All Children with Disabilities

By Paul L. Morgan and George Farkas

Many have concluded that racial and ethnic minorities in the U.S. are disproportionately over-represented in special education.  For example, Black children represent about 14% and 19% of the general school-aged and special education populations, respectively. These disparities have been taken as clear evidence that schools are racially biased in how they identify children as disabled.

In response, the U.S. Congress amended IDEA in both 1997 and 2004 to ensure that minority children were not over-represented in special education based on their race or ethnicity. In 2016, the U.S. Department of Education’s Office of Special Education Programs (OSEP) proposed expanding these regulations. For example, OSEP proposed that States use a standard method for monitoring over-representation and adopt what it would judge as “reasonable” amounts of over-representation. 

Although these regulations are well-intentioned, they may actually be exacerbating inequities experienced by racial and ethnic minority children in the U.S. This is because, as we explain more fully below, the best-available empirical evidence repeatedly indicates that white children are more likely to receive special education services than otherwise similar racial or ethnic minority children. Rather than establishing quota-like systems for how many minority children can qualify as having disabilities in U.S. schools, IDEA should instead be rewritten to better ensure that all children with disabilities receive the special education services that are their civil right. This might include having States use universal screening methods rather than relying mostly on teacher- or parent-referrals. Universal screening has been suggested as a means of addressing similar disparities in both pediatric care and gifted education.

To date, most of the studies used to justify IDEA’s amendments and OSEP’s proposed regulations have not been adequately designed to answer whether minority children’s over-representation in special education is occurring because of racially biased disability identification. Clear evidence of misidentification based on race or ethnicity requires “apples to apples” contrasts between children who are otherwise identical and who differ only in their race or ethnicity. Yet most prior studies have only reported “apples to oranges” contrasts between children who differ in their race and ethnicity but who also may differ in many other ways. For example, most of the prior work has not properly accounted for differences between the children in their relative exposure to poverty. Doing so is important because poverty is known to function as a type of “neurotoxin” that negatively interferes with children’s cognitive and behavioral development. Living in poverty also increases children’s exposure to many of the known risk factors for disability, including environmental toxins (e.g., lead) and pollutants, being born with low birthweight, and experiencing chronically stressful environments associated with lower executive functioning (e.g., attention regulation and inhibitory control). Currently, almost 40% of Black children but only 10% of White children live in poverty. 

Even more striking, almost none of the prior work has attempted to account for academic achievement differences. This is despite academic achievement being a major reason why children are considered for special education. Decades of research have documented very large racial and ethnic achievement gaps. Because achievement differences and exposure to poverty are confounded with race and ethnicity, and may themselves explain minority children’s over-representation in special education, they are  important to control for before attributing over-representation to racial bias and discrimination.  

Our recent research has attempted to address well-known methodological shortcomings in the existing research by better controlling for these other explanatory factors. Doing so should provide clearer evidence as to whether minority children’s over-representation in special education is the result of misidentification based on race or ethnicity. In essence, we conducted a series of “apples to apples” contrasts between children who can reasonably be characterized as otherwise similar by controlling for many other factors known to increase children’s risk for disability identification. For example, we controlled for academic achievement, exposure to poverty, birthweight and gender, and access to health insurance. Controlling for these factors better approximates the condition in which the children are otherwise identical except in their race or ethnicity. 

What do we find? We repeatedly find that white, English-speaking children are more likely to be identified as disabled and so receive special education services than otherwise similar racial or ethnic minorities. That is, white, English-speaking children are more likely to be receiving special education services when contrasted to racial and ethnic minority children displaying the same relative need for services. We find identification disparities again, and again, and again, and again, and again, and again.  We sometimes observe that racial and ethnic minority children are over-represented in special education before accounting for potential confounds, but never after. Instead, we repeatedly find that minority children are less likely to be receiving special education services than otherwise similar white children. We find this to be the case whether we use parent- or teacher-report of disability status, whether we investigate for disproportionate representation before or after school entry, and whether we examine this to be the case for special education service receipt generally or for specific disability conditions.  We have yet to find any evidence to indicate that minority children’s over-representation in special education is explained by widespread misidentification based on race or ethnicity. We do consistently find that schools mostly provide special education to children who are struggling academically or behaviorally.

What does this mean for IDEA’s reauthorization? Our findings suggest that the law should be rewritten to instead address widespread under-identification and under-treatment of racial and ethnic minority children. As has been reported by  public health researchers, our findings suggest that schools and districts may be acting in ways that are more responsive to better-resourced White, English-speaking families. It may also be that, because of IDEA’s emphasis on addressing over-representation based on race or ethnicity, schools may have been actively avoiding identifying “too many” children with disabilities who are racial or ethnic minorities, despite these children’s potential needs for additional services.

One way to address this disproportionate under-representation based on race or ethnicity might be to ensure that IDEA’s Child Find procedures are standardized, perhaps by using universal screening measures to better identify children who may have disabilities. Another possibility is to increase the use of school-to-community partnerships, in which community members help to disseminate empirically-based information about the risk factors, symptoms, and available treatments and services for disabilities provided by schools or clinics. These types of partnerships have helped address similar  disparities in public health. Still another way might be to require that due process materials are written in a way that are accessible by all families. Currently, about 95% of due process materials in the U.S. need a college work or beyond to understand. Ensuring that all children with disabilities are receiving evidence-based and effective special education services is also important, and itself requires further investigation.

The bottom line is this: IDEA should be ensuring that all children with disabilities are being helped, regardless of their race or ethnicity. That is IDEA’s most important promise.  

George Farkas is a Professor in the School of Education at the University of California, Irvine. He studies educational inequality and how it can be reduced.  His tutoring program, Reading one-to-One, was the basis for President Clinton's "America Reads" initiative. He has published more than 100 articles in peer reviewed journals, is an Associate Editor of AERA Open, and is a Fellow of the American Educational Research Association. 

 Paul L. Morgan, Ph.D., is a Professor in the Department of Education Policy Studies and the Director of the Center for Educational Disparities Research at Penn State. He investigates factors that increase children's risk for disabilities, as well as practices and policies that may better help the children as they attend U.S. schools. Paul has been awarded the Distinguished Early Career Research Award from the Council of Exceptional Children's Division for Research as well as the Distinguished Researcher Award from the American Educational Research Association's Special Education Research Group.  

Reclaiming the LRE Debate from the Courts

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By Susan C. Bon

Several provisions in IDEA focus on protecting the critical educational rights of children with disabilities: the right to FAPE, education in the LRE, an IEP, and due process are some of the requirements that come to mind first. These key IDEA provisions, however, are the source of increasingly destructive and contentious disagreements over interpretation and implementation of the IDEA in public schools. 

One possible solution is for Congress, in the forthcoming IDEA reauthorization, to engage in a data mining process of sorts, by carefully examining previous court cases for valuable insights regarding the issues that provoke parents of children with disabilities to turn to the courts for solutions.   In other words, reauthorization presents an opportunity to alter the status quo which leads too many parents to seek educational solutions from a largely removed body – the court – that lacks both experience and expertise in special education, rather than working with their children’s schools to achieve a reasonable solution. Recognizing this opportunity, I propose it is time to address the seeming contradictions between the least restrictive environment (LRE) and a free appropriate public education (FAPE). With respect to this conflict, I advocate for using past litigation outcomes as a source of data to drive future revisions to the IDEA.  

This perceived tension continues to frustrate efforts to determine when and if it is appropriate to place a child with a disability in a non-traditional classroom or segregated learning environment.Also, the mischaracterization of LRE as comparable to inclusion, leads to significant discord between parents and school districts when determining educational placements.

At present, the LRE mandate requires schools to educate children with disabilities, to the maximum extent appropriate, with children who are not disabled.  The IDEA specifically states that removing a child with a disability from the regular educational environment should only occur when the nature or severity of the disability, even with supplementary aids and services, is such that “education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”  The focus on achieving education satisfactorily in the regular classroom has been too often relegated to a secondary status given the primary emphasis on inclusion as the sole means to achieve education in the regular educational environment to the maximum extent appropriate.  

To ensure a systematic process of determining educational placements for students with disabilities, the IDEA reauthorization should include clear statutory language to guide educational placement decisions and determination of the LRE mandate. Such language should reflect the following priorities: 

  • Determine the LRE so as to maintain educational benefit as the primary factor, consistent with FAPE standards.   
  • Document and consider a range of special and general education placements, along with supplementary and related services consistent with the existing continuum and services doctrines.
  • Balance the mainstreaming preference with the “reality that general education is not suitable for all disabled students” (J.H. ex rel. A.H. and S.H. v. Fort Bend Independent Sch. Dist., 2012). 
  • Recognize the important distinction between educational and non-academic benefits and assess the benefits of both. 
  • Consider the effect on the general education classroom environment. 

The guidelines proposed herein could positively impact the contentious debates over the determination of LRE and are illustrated in the following hypothetical scenario. The language used in the example below is taken directly from the case (J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012). 

In order to determine LRE for CB, a student with an I.Q. of 46 and classified as mentally retarded, the IEP team should first conduct an assessment of the academic benefit provided in CB’s general education classes. It would not be appropriate to only consider placing CB in a general education classroom if he received no benefit according to the professional expertise of the educators most familiar with CB’s needs, such as an aide, teacher, or special education teacher. Further, if CB was assisted by an aide at all times and still had to have his assignments modified more than 70%, it is likely that the general education classroom is not providing him with educational benefit. Thus, a range of placements should be explored and supplementary and related services should be considered if providing these will help achieve the educational benefit goal. In addition, the IEP team should consider the input of the aide and teachers to determine if CBs frustration or failure to understand the curriculum has a negative impact not only on his educational needs but also on the general education classroom environment. Finally, it is important for the team to recognize that mainstreaming provides both educational and non-academic benefits, yet the team should not risk the educational benefits or minimize FAPE in order to achieve non-academic benefits for CB. Throughout the determination, parental input should be considered and the primary focus should be on ensuring educational benefit for CB. 

As described above, the clarified LRE guidelines promote a focus on educational benefit, but also include the existing statutory and regulatory language. Although these changes will not ensure uniformity of LRE decisions across state boundaries, such guidelines could lead to a reduction of litigation and establish the supremacy of FAPE and educational benefit over LRE. Finally, clarification of the current LRE statutory framework has potential to ease the educational, financial, and emotional strains that are placed on parents and school officials when special education litigation reaches the courts. 

 Fortified with insights from the extensive history of litigation, legislators may be better prepared to offer solutions that fix gaps in agreement regarding the IDEA provisions that are most often sources of litigation and confrontational disputes between parents and school officials. 

 References: J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012). 

Susan C. Bon teaches education law, higher education law, policy, and disability courses as a professor at the University of South Carolina. Her scholarship focuses on the impact of law and ethics on leadership and special education leadership in K-12 schools and higher education. She previously worked as the ombudsman at the Ohio Department of Education and received her law degree and a doctorate in education policy and leadership from The Ohio State University.

April 25, 2016

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A Fresh Look at IDEA Eligibility Criteria

By Robert Garda

The thirty year old eligibility criteria of the Individuals with Disabilities Education Improvement Act (IDEA) should be re-considered by Congress during the next re-authorization.  The apparently simple eligibility criteria – a child must have an enumerated disability and as a result of the disability must need special education and related services – are in fact among the most complex requirements of the IDEA and spawn significant litigation, scholarship, and controversy.  The critics of the eligibility criteria can be divided into two basic camps: those that believe they are too stringent and call for eligibility to be expanded, and those that believe they are too broad and include mere instructional casualties and difficult to educate students rather than exclusively students with disabilities.  Based on changes made during the 2004 re-authorization, Congress appears to fall into the latter camp.  It should take even further steps to clarify and narrow IDEA eligibility during the next re-authorization.

The 2004 re-authorization of the IDEA embodied a dramatic educational paradigm shift to resolve the problems of over-identification and minority overrepresentation.  For the first time, Congress reached into the general education system to remedy the over-identification crises by legislating a certain level of individualized instruction before eligibility attached.  It did this in two ways.  First, it required, under very limited circumstances, for schools to provide “early intervening services” to students before finding a child IDEA eligible.  It also permitted states to use RTI as well as the more traditional severe discrepancy test to establish that a child qualified under SLD.  Both of these changes required a low level of “individualized instruction” in the general education classroom and departed significantly from the one-size-fits-all educational model embodied in the old IDEA, wherein individualized instruction was exclusively the domain of special education. 

But the re-authorization fell short of solving the eligibility crisis because its steps were too incremental.  The IDEA simply cannot redefine general education to include individualization until special education releases its monopoly over individualized instruction.  This can only be done by redefining “special education” and who “needs” it in the stagnant thirty-year-old eligibility criteria.

Eligibility under the IDEIA and all of its predecessor statutes hinges on finding that the child has an enumerated disability and “needs special education.”  The broad definition of “special education” – the adaptation of instructional content, methodology or delivery – permits some decision-makers to find that children requiring any adaptation to the general education environment need “special education” and are eligible.  The non-existent definition of “need” leads to diverging views as to what level of services a child must be provided in general education before a “need” for special education is found.  With little statutory guidance, decision-makers often find that if a child would benefit from any level of individualized instruction then eligibility should attach.  The problem with this approach is that today’s increasingly diverse students require a certain level of differentiated instruction in the general classroom.  It is better to address diverse needs in the general education classroom than to classify children as disabled and rely on special education as the exclusive venue to address their unique learning styles, cultural backgrounds and different abilities.

The next re-authorization should reclaim special education from overrepresented African-Americans and instructional casualties and place it back in the hands of the genuinely disabled by having “special education” relinquish its exclusive grip on individualized instruction, thus allowing certain unique student needs to be served in regular education without IDEA eligibility attaching.  To do so, Congress should redefine “special education” to be limited to only significant instructional adaptations that are not provided all students, regardless of disability.  Congress should also insure that a child should not be found in “need” of special education until all available accommodations and regular education interventions have proven to be unsuccessful in the general education setting.  These circumscribed definitions prohibit the placement of students into special education if their individual needs can properly be served through general education.  It is only by limiting the definition of “special education” and when it is “needed” that general education can truly embrace and provide individualized instruction.  So long the IDEA eligibility criteria allow administrators, teachers and eligibility teams to find that a student needing any level of individualization belongs in special education, differentiated and individualized instruction will be relegated to “special education” and will be excluded from the general education classroom.

Robert Garda is the Fanny Edith Wynn Distinguished Professor of Law at Loyola University of New Orleans.  He teaches and publishes in the field of education law with an emphasis on special education law and policy.

March 2, 2016(1)

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The Changes We Need In Federal Special Education Policy

Administrators in public schools are well aware of the fact that the Department of Education issues "Dear Colleague" letters on many issues from time to time. Often these create controversy and confusion. One of these, the November 16  Letter about a free appropriate public education, is discussed below.

November 16, “Dear colleague” Letter by the US Department of Education about a FAPE: A school attorney’s response

By Miriam Kurtzig Freedman

 The seven-page Letter tells educators—presumably, general and special educators—that holding students with disabilities to “rigorous academic standards and high expectations” is a “shared responsibility for all of us,” and that these students should be taught the “same challenging academic content and achievement standards [as] all children in the State”… at the “grade level in which the child is enrolled” The Letter raises many concerns.

 First, it is unclear whether the general education teachers and administrators’ perspective was taken into account.  Their voice and leadership in this “shared responsibility,” especially as most services are provided in general education classrooms, is vital. Two special education Department offices authored this Letter—OSEP (Office of Special Education) and OSERS (Office of Special Education and Rehabilitative Services). Where is general education’s OESE—Office of Elementary and Secondary Education?  While this Letter presumes to be about special education, it is also very much about general education.  OESE needs to be at the planning table especially since the Letter urges the same standards for all students “regardless of nature or severity of the disability.”  Without input from general education, this Letter is simply a one-sided approach—like the tail wagging the dog.   

 Second, while no one disagrees about the importance of holding all students to high standards and expectations, I fear that the Letter downplays the cornerstone of special education law—individualization.  The Individuals with Disabilities Education Act (IDEA) provides services to meet eligible students’ unique needs. Yet, this Letter appears to gloss over the reality that, even with similar curricular standards, students’ rate of learning and ability to master skills and concepts will differ, as they are impacted by the nature and severity of their disability.  The concept of “closing the gap” (Letter, at page 5), while prominent in this Letter, is inconsistent with the IDEA!    

Special education focuses on whether students make gains in their areas of need—not on how they measure up against others. For some students with disabilities, the gap between them and their non-disabled peers will widen over time.  That does not mean per se that they are failing to learn, or that their teachers are failing to teach them. Sadly, this Letter leads us to see failure even when students succeed—in direct contrast to the law’s mission and good education practice.

Third, in order to include students with disabilities in general education settings, this Letter favors the use of modifications of assignments, audio and other aids—inadvertently creating a trap for schools. Such methods often bypass the student’s unique needs and entitlement to a FAPE (free appropriate public education). The sad reality is that schools that follow this Letter’s approach may lose at due process hearings and in the courts because the approach can be viewed as a way to get students to “pass” and get “through” school—without providing the individualized benefit the law requires.   

In sum, general education teachers and administrators who currently work in our schools need to lead the effort and be at the table to build schools that truly educate all students—from the most needy to the most advanced.  Their input is especially vital now, given the Department’s push for inclusion to occur in general education classrooms.  The Department should aid schools in their efforts to comply with current legal mandates, not divert them to paths that contradict the law. 

Miriam Kurtzig Freedman has written six books (including the influential Fixing Special Education) on law and education and has spent her career in public education as a teacher, hearing officer, and an attorney representing public schools.

March 2, 2016

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The Start of a New Blog Series - A New IDEA: The Changes We Need In Federal Special Education Policy

Now that we are finished lobbying members of Congress to fix ESEA, AASA’s Policy and Advocacy team is beginning to explore the areas in IDEA that must be addressed in the next reauthorization. To assist us and to spur conversation and discussion with our superintendents, it is with great excitement that we launch a monthly series of blogposts by professors, lawyers, education researchers and other experts on issues to consider for IDEA reauthorization (with a focus on ways to improve IDEA). Our first post, below, is a very important one because it tackles the recently released guidance by the Department of Education on the provision of a “free appropriate public education” and the obligation of school districts to incorporate high expectations for students with disabilities into IEPs. If you haven’t read this, please read the guidance itself as well as our post below. In a nut-shell, the Dear Colleague letter proposes that districts adopt standard based-IEPs for all students with disabilities. As we begin to discuss IDEA reauthorization, this Dear Colleague letter will certainly be a boon to advocates who would like to mandate a standards-based approach to IEPs, and as such, a deep look at this letter is a terrific way to start our series examining how IDEA can/must be improved as well as, importantly, how it should not be changed.
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