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 2002-2003
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 10th grade
• Florida Study: Lengthier school suspensions
showed significant correlation with
scheduling of state achievement test
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
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 dueprocess 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 “inmigration” 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
2006-2007 (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 2003-04
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?
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
41
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
42
Restriction Risk by Disability
Category
• 80-90 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
43
Harvard University
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
The Civil Rights Project
44
racial disparities.
Harvard University
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
45
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
46
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
47
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
48
Monitoring and Enforcement
Priority Area in New Law 1412
and 1416
• 1416: (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
49
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
50
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
51
614
1. 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
52
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)
The Civil Rights Project
Harvard University
53
Racial Bias?
• Is there gender bias?
• Ex-Harvard president Larry
Summers said “no.”
Implicit and Institutional Bias
•
•
•
•
Unconscious Bias
www.implicit.harvard.edu
The President’s Grandmother
Bush’s “Soft Bigotry of Low
Expectations”
• Institutional Bias (my own experience).
• Legacy of Resource Distribution (inter
and intra-district).
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
56
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
57
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 proWhite bias at same levels as
Whites.
The Civil Rights Project
Harvard University
58
Implicit and Explicit Racial Bias for
Whites Exhibited by Blacks and
Whites
Source: Nosek, Banaji and Greenwald (2002)
The Civil Rights
59
Project
Test Yourself
www.implicit.harvard.edu
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
61
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?
The Civil Rights Project
Harvard University
62
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: 617-285-4745
harvardlosen@gmail.com