Disproportionality

CCBD'S Position Summary on Federal Policy on Disproportionality in Special Education

The Council for Children with Behavioral Disorders

A Division of the Council for Exceptional Children

ABSTRACT: This document provides policy recommendations of the Council for Children with Behavioral Disorders (CCBD) regarding disproportiona/ity in special education and the need for federal policy driving state regulations to support efforts to eliminate this outcome in schools. CCBD is committed to advancing knowledge, effective instruction, and advocacy ior students with emotional and behavioral disabilities, a special education population particularly vulnerable to disproportionate practices. Monitoring requirements in the 1997 and 2004 amendments to the Individuals with Disabilities Education Act (IDEA) acknowledged the extent of racial and ethnic disproportiona/ity in special education, especially when Congress designated tfos concern among the top three priority areas for monitoring and enforcement in IDEA 2004. However, federal interpretations of the 2004 requirements by the US Department of Education have created confusion at the State !SEA) and Local Education Agency (LEA) levels. While quantitative indices of racial and ethnic disparities remain high, an increasing number of states are finding no LEAs with disproportionality when it must be shown that disproportionality was caused by inappropriate identification. Such data suggest that federal interpretations of IDEA 2004, subsequent regulatory guidelines, and the design of indicators for monitoring and enforcement have not been effective in addressing disproportionate representation in special education. This policy paper includes (a) a review of information on the extent, status, and causes of special education disproportionality; (b) a review of the history and issues involved in the enforcement of IDEA's disciplinary provisions; and (c) recommendations for improving federal policy regarding disproportionality in special education.

Introduction and Background

Extent and Status of Special Education Disproportionality

Special educatior., guaranteeing the rights of students with disabilities to a free and appropriate public education, has been through­ out its history a part of the struggle for civil rights. Advocates who brought the first legal

·challenges to the inappropriate exclusion of students with disabilities were inspired by, and modeled their legal strategies upon, the civil rights movement in the 1950s and 1960s (Smith & Kozleski, 2005). Concerns about racial and ethnic disproportionality in special education were central to the earliest court cases (e.g.,

Mills v. Board of Education, 1972) that led to the promulgation of the first antidiscrimina­ tion laws including the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act (P.L. 94- 142, 1975). Also, many of the early influential writings on special education (Dunn, 1968; Mercer, 1973) raised racial inequity as a central issue for the field. Moreover, concerns about the misuse of special education labeling for African Amer­ ican children were commonly raised in legal challenges to segregated schools after 1954 when segregated schools were struck down as inherently unequal (Losen & Welner 2002). So it is ironic that, despite court challenges, abundant research, and policy initiatives, racial and ethnic disproportional-

108 / February 2013 Behavioral Disorders, 38 (2), 1 08-120

ity persists as a critical and unresolved problem in the field.

As Losen and Welner (2002) observed, culturally and linguistically diverse students are twice vulnerable to discrimination: first by race and again by disability. National data from the US Department of Education Office for Civil Rights (OCR) have revealed consistent patterns over time in the disproportionate representation of some racial and ethnic groups in special education (e.g., Chinn & Hughes, 1987; Dono­ van & Cross, 2002; Finn, 1982). For African American students, there have been consistent findings of overrepresentation in overall special education service, as well as the categories of mental retardation (MR) and emotional distur­ bance (ED). Secondary analyses of national databases have reported that that African American students are the group most overrep­ resented in special education programs in nearly every state (Parrish, 2002). In addition, American Indian and Alaska Native students have been found to be overrepresented in the category of learning disabilities (LO). Findings for Hispanic and Latino students have been somewhat inconsistent. While there have been some state- and district-based studies that have found Latino overrepresentation in special education (Artiles, Rueda, Salazar & Higareda, 2002; Wright & Santa Cruz, 1983), the under­ representation of Latino students is more common in both overall special education service and in disability categories where Latino disproportionality is in evidence (Chinn & Hughes, 1987; NCCRESt, 2006).

Additional characteristics of dispropor­ tionate representation in special education service have been noted in the literature. Rates of overrepresentation in special education tend to increase as a racial or ethnic minority group constitutes a larger percentage of their states' population (Parrish, 2002). In addition, racial and ethnic disparities are typically found less frequently in the nonjudgmental, or "hard," disability categories, such as hearing impair­ ment, visual impairment, or orthopedic impair­ ment, and more often in the judgmental, or "soft," disability categories of MR, ED, or LO (Donovan & Cross, 2002; Parrish, 2002).

Racial and ethnic disparities for students with disabilities have also been found with respect to the restrictiveness of various educa­ tional settings. Both African American and Hispanic students have been found to be overrepresented in more restrictive education­ al environments and underrepresented in less

Behavioral Disorders, 38 (2), 108-120

restrictive settings (Fierros & Conroy, 2002; Skiba, Poloni-Staudinger, Simmons, Gallini, & Feggins-Azziz, 2006). It has been suggested that racial and ethnic disparities in educational setting are due to the disproportionate repre­ sentation of some groups in disability catego­ ries that are more likely to receive service in more restrictive settings (U.S. Department of Education, 2002). Yet more detailed analyses of disproportionality in educational settings have found African American children were more likely than their peers with the same disability to be overrepresented in more restrictive settings, or underrepresented in the general education setting (Skiba et al., 2006), especially in milder, more judgmental catego­ ries such as learning disabilities or speech or language impairment. Given a dramatically increased commitment to serving students with disabilities in general education (Mcleskey, Henry, & Axelrod, 1999), it could be argued that the underrepresentation of culturally and linguistically diverse students in less restrictive educational environments may be more im­ portant than disparities in disability categories.

Finally, issues of discipline remain cen­ tral to issues of disproportionality in special education. The overrepresentation of African American students in a range of disciplinary outcomes, including office referrals, suspen­ sion, corporal punishment, and school expul­ sion has been well documented for nearly 40 years (Bradshaw, Mitchell, O'Brennan, & Leaf, 201 O; Children's Defense Fund, 1975; Eitle & Eitle, 2004; Raffaele, Mendez, & Knoff, 2003; Payne & Welch, 201 O; Skiba et al., 2011; Wu et al., 1982). There are also indications of racial disproportionality in the application of the specific disciplinary provisions of IDEA. Rausch and Skiba (2006) found that African American students with disabilities were 2.8 times more likely than other students with disabilities to receive at least one of the categories of disciplinary exclusion monitored by IDEA. Investigations of disproportionality in referrals to special education or prereferral teams consistently find that African American students are more likely to be referred for behavioral reasons (Gottlieb, Gottlieb, & Tron­ gone, 1991; MacMillan & Lopez, 1996).

Causes of Disproportionate Special Education Representation

A number of factors have been identified as possible causes of, and maintaining condi-

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tions of, special education disproportionality, but the research literature is insufficient to accept any single cause as fully determinative of racial disparity. Extensive research investi­ gation in the 1970s and early 1980s suggested that test bias was not sufficient to fully explain racial and ethnic disparities in achievement or special education referral, but more recent research suggests that test bias has not been conclusively ruled out as a contributing factor (Valencia & Suzuki, 2000), especially for English Language Learners (Abedi, 2004). It is clear that wide disparities in educational opportunities, such as poor faciI ities (Kozol, 2005) or absence of highly qualified personnel (Darling-Hammond, 2004), probably contribute to disproportionate outcomes, but the impact of such disparities on actual rates of special education referral has not been addressed. Research investigations have found mixed evidence concerning the contributions of the special education eligibility process to dispro­ portionality (Donovan & Cross, 2002), although breakdowns in the referral decision-making process remain a plausible source of contribu­ tion to racial disparities (Harry & Klingner, 2006). Issues of behavioral management at the classroom level (Vavrus & Cole, 2002) and overall school climate (Gregory, Cornell, & Fan, 2011) appear to contribute to both rates of school discipline and racial disparities in discipline, but more direct observational re­ search is needed to document the specific processes that drive the relationship between classroom management and school discipline outcomes. Finally, although it remains an uncomfortable topic, the literature on stereo­ type threat (Steele, 1997), cultural mismatch (King, 2005), microaggressions towards individ­ uals of color (Howard, 2008; Sue, 201 0), and implicit bias (Amodio & Mendez, 2010) sug­ gests that conscious or unconscious bias must be considered as a possible contributor to special education disproportionality.

Thus, there appears to be no one single cause driving special education disproportion­ ality. Instead, racial and ethnic disparities in special education are likely due to complex interactions among student characteristics, teacher capabilities and attitudes, and the structural characteristics of schools. The multi­ determined nature of disproportionality sug­ gests that (a) the form that disproportionality takes will likely differ in different schools and school systems, and (b) intervention will need to be multifaceted, in order to respond to the

110 / February 2013

full complexity of the problem. Yet it is important to note that there remains a serious dearth of research that specifically seeks to reduce racial and ethnic disparities in special education. A ERIC search between the years 1980 to 2010 using the terms disproportion­ a/ity or overrepresentation, special education, and intervention or program revealed only three data-based published reports of individ­ ual or systems-based research aimed specifi­ cally at reducing disproportionate rates of special education referral (Gravois & Rosen­ field, 2006; Hernandez, Ramanathan, Harr, & Socias, 2008; Lo & Cartledge, 2006).

Implementation and Interpretations of Federal Disproportionality Provisions

Remedies to racial disproportionality were first introduced as part of the IDEA in the 1997 Individuals with Disabilities Education Amend­ ments Act, requiring that states begin to monitor the presence of disproportionality in local education agencies (LEAs) and

In the case of a determination of significant disproportionality ... provide for the review and, if appropriate, revision of policies, procedures and practices used in such identification or placement to ensure that such policies, proce­ dures and practices comply with the require­ ments of this Act. Section 613 (c) (available at www2.ed.gov/policy/speced/leg/idea/idea.pdf).

These provisions were considerably strength­ ened in IDEA 2004. Three of the most notable changes were that the 2004 Act (a) made special education disproportionality one of three prior­ ity areas for monitoring and enforcement, (b) shifted from an emphasis fixir.g noncompliance with special education law to prevention in the general education setting, and (c) made inter­ ventions mandatory, including the use of 15% of the district's IDEA funds spent on early intervening services when racial disproportion­ ality was deemed significant in identification, placement or discipline, thus focusing change efforts on the general education setting.

These changes represented a welcome advance in monitoring and enforcement. Yet, the interpretation of the statute, which in turn has driven OSEP's implementation efforts, has been fraught with confusion and backpedaling, and may have contributed to an underidentification of LREs with dispro­ portionate representation. A number of issues

Behavioral Disorders, 38 (2), 1 08-120

involving interpretation of the statute by the USDOE Office of Special Education Programs have been problematic, including the introduc­ tion of two distinct required inquiries into disproportionality and allowing for the use of several different definitions of the phenomenon within the same state, along with the ongoing failure to monitor racial disparities in discipline.

Significant Disproportionality versus Disproportionate Representation

The 2004 amendments to IDEA expanded the attention given to disproportionality and, for the first time, included consideration of racial disparities among students with disabil­ ities subjected to long term suspension (Wil­ liams, 2007). The statutory provisions govern­ ing disproportionality are found in Sections

1612, 616, and 618 of the act:

Section 618 (d)(l) states: Each State that receives assistance under this subchapter, and the Secretary of the Interior, shall provide for the collection and examina­ tion of data to determine if significant dis­ proportionality based on race and ethnicity is occurring in the State and the local educational agencies of the State with respect to-.

(A) the identification of children as children with disabilities, including the identifi­ cation of children as children with disabilities in accordance with a partic­ ular impairment described in section 1401 (3) of this title;

(B) the placement in particular educational settings of such children; and

(C) the incidence, duration, and type of disciplinary actions, including sus­ pensions and expulsions. (20 U.S.C. 1418(d))

Enfor<:ement provisions were added to the definition of significant disproportionality, re­ quiring that LEAs found to have significant disproportionality in any of these areas spend 15% of their Part B funds on coordinated early intervening services pursuant to section 613(f). (618(d)(2)).

Congress also made it clear that dispro­ portionality was to be considered a high priority by specifically including dispropor­ tionality as one of three delineated monitoring priorities, in Section 616:

(C) Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representa­ tion is the result of inappropriate identifica­ tion. (20 U.S.C. 1416 (a)(3)(C))

The Secretary of Education was to monitor the states, and each state was charged with monitoring their districts in the priority areas using quantifiable and qualitative indicators. Disproportionality in special education eligi­ bility was represented by two out of twenty indicators the Federal Government uses to monitor state compliance. Indicator 9 requires states to identify the proportion of districts exhibiting "disproportionate representation of racial and ethnic groups in special education and related services, to the extent the repre­ sentation is the result of inappropriate identi­ fication" [20 U.S.C. §1416(a)(3)(C)]. Indicator 10 requires states to identify the percent of districts in the state with "disproportionate representation of racial and ethnic groups in specific disability categories that is the result of inappropriate identification" [20 U.S.C. §1416(a)(3)(C)]. In contrast to a finding of significant disproportionality, there is no fiscal penalty to a finding of disproportionate repre­ sentation due to inappropriate identification.

Despite the separate locations of required actions to address racial and ethnic dispropor­ tionality in the Act, it is highly unlikely that Congress intended to create two entirely distinct and independent sets of policy to remedy special education disproportionality, since no such distinction had ever been previously proposed in research or practice. Yet, the implementing regulations and especially the policy guidance (U.S. Department of Education, 2007) issued during the Bush Administration interpreted the language of IDEA 2004 as two separate concepts, significant disproportionality under Section 618, and disproportionate repre­ sentation under Section 616.2

Table 1 presents the distinctions between significant disproportionality and dispropor­ tionate representation as they have been operationalized by OSEP. According to the implementing regulations and guidance pro­ vided by OSEP, significant disproportionality includes only issues of overrepresentation of racial and ethnic groups, while disproportion­ ate representation has been interpreted as including both issues of over- and under­ representation. Significant disproportionality addresses issues of disproportionality in edu­ cational environments, while the monitoring for disproportionate representation excludes the examination of disproportionality with regard to the restrictiveness of the environ­ ment. Significant disproportional ity clearly includes racial and ethnic disproportionality

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TABLE 1

Differential Requirements for Significant Disproportionality and Disproportionate Representation

Type of Disproportionality

Significant Oisproportionality

Only overrepresentation

Disproportionate Representation

Both over- and under-representation

Scope Overall eligibility, disability categories, discipline by race/ethnicity, educational environments

Overall eligibility, disability categories, (discipline by race/ethnicity at best unclear)

Data required Only numerical finding Numerical finding plus qualitative finding of inappropriate identification

Review of policies, practices, & procedures

Consequence of finding of significant disproportionality

Part of determination of disproportionate representation

Consequence of finding to LEA Mandatory reservation of full 15% Corrective action plan and continued of CEIS funds monitoring

in school discipline as a trigger mechanism, but special education (e.g., Donovan & Cross, legal interpretations from the Office of Special Education Programs under the Bush Administra­ tion initially included, then removed, then reinserted consideration of racial disparities in the monitoring of disproportionality in discipline (see more complete description below). Signif­ icant disproportionality is viewed as a simple numerical criterion that may be defined by each state, but triggers the use of funds for prevention without qualitative considerations or a finding of noncompliance with the Act. In contrast, disproportionate representation is dependent on first finding that the disparity in question was caused by inappropriate identification, determined through the qualitative review of LEA policies, practices, and procedures. As a result, the review of policies, practices, and procedures at the LEA level becomes a conse­

quence of identification for significant dispro­ portionality, but part of the criteria needed to establish disproportionate representation as a result of inappropriate identification.

Other Issues of Interpretation

In a number of areas, the federal interpre­ tation of IDEA statutory language appears to run counter to consistent findings in special educa­ tion research. Requiring that judgments of disproportionality be based upon procedural noncompliance in special education is incon­ sistent with a long line of research indicating that general education practices make an important and probably primary contribution to special education disparities (Donovan & Cross, 2002; Harry & Klingner, 2006; Heller, Holtzman, & Messick, 1982; Skiba et al., 2008). Moreover, while there is a strong and consistent database concerning the overrepresentation of culturally and linguistically diverse students in

2002; Losen & Orfield, 2002), issues of un­ derrepresentation are only beginning to be explored (Perez, Skiba, & Chung, 2008). With almost no research-based guidance to rely on, it is unclear how SEAs and LEAs wi:I be able to apply evidence-based interventions to address under­ representation. Finally, research has documented that the overrepresentation of culturally and linguistically diverse (CLD) students in more restrictive environments is a serious concern (Fierros & Conroy, 2002; Skiba et al., 2006). Yet, although educational environments are part of the determination of significant disproportionality, policy interpretations from OSEP do not include educational environments in the monitoring and enforcement of disproportionate representation. There appears to be widespread misunderstanding among parents and teachers about the nature of disproportionality (Shippen, Curtis, & Miller, 2009). It seems unlikely that federal policy promulgating idiosyncratic distinctions that are not always grounded in the evidence base will in any way allay that confusion.

Inappropriate Identification

Where IDEA 2004 sought to expand the inquiry required beyond issues of compliance with special education law and to require prevention, the interpretation by the Bush Administration that Congress intended only to prioritize disproportionate representation due to inappropriate identification (read as non­ compliance with the Act) seems to represent a retreat into the procedural language contained in the 1997 Act. IDEA 2004's implementing regulations heavily emphasized the notion of disproportionate representation due to inap­ propriate identification. Under the implement­ ing regulations and subsequent guidance from

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OSEP (Knudsen, 2008), monitoring dispropor­ tionate representation is defined as a two-step process. First, quantitative criteria (e.g., risk ratio) are applied in order to make a determi­ nation of disproportionate representation. Sec­ ond, the policies, practices, and procedures of each LEA exhibiting numerical disproportion­ ate representation are examined to determine whether that disproportionate representation is due to inappropriate identification.

OSEP guidance documents have noted that the term inappropriate identification is intended to move beyond special education eligibility determination to include a range of variables in both special and general educa­ tion (Williams, 2007). Yet, guidance offered by OSEP, and the definitions adopted by most states, assess the presence or absence of inappropriate identification primarily through the examination of LEA policies, practices, and procedures. To what extent has research shown that policies, practices, and procedures of special education identification and referral contribute to disproportionate outcomes in special education service?

The evidence is mixed. Large discrepancies between actual practice and IDEA requirements have been documented in the special education eligibility determination process. Harry and Klingner (2006), for example, described numer­ ous inconsistencies in evaluations and IEP team meetings that may contribute to disproportion­ ality, including the deference in eligibility decisions given to the opinion of the experts and their interpretation of tests, as compared to information provided by parents or deficiencies in instruction. Yet, research on factors associated with disparities (Donovan & Cross, 2002; Harry & Klingner, 2006; Heller, Holtzman, & Messick, 1982; Skiba et al., 2008) has consistently found that special education disproportionality is determined by a complex range of factors (see above). Leaders in the field (e.g., Losen & Orfield, 2002; Reschly, 2009) have argued that special education eligibility determination may indeed be a less significant contributor to disproportionate outcomes than these other factors. Thus, interpreting "policies, practices, and procedures" solely as an examination of the narrow range of processes involved in deter­ mining eligibility for special education would be inconsistent with our best knowledge of over thirty years of research on the possible causes of disproportionality, making it highly likely that a large proportion of the causes of special education inequity would remain unaddressed.

Racial and Ethnic Disparities in Discipline and IDEA Enforcement

Among the added provisions of the 2004 Amendments to the Individuals with Disabili­ ties Education Act was the analysis of racial disparities as part of provisions requiring states to n:ionitor levels of suspension and expulsion for students with disabilities, and to compare these with their non-disabled peers. The 2004 Amendments to IDEA sought remedies to racial disproportionality in discipline in two provisions, Section 612 and 618. To imple­ ment the statutory requirements OSEP origi­ nally prescribed that states provide the Secre­ tary with information on two discipline indicators. Indicator 4a asked states to report on the incidence of long-term suspension for students with disabilities as compared to their nondisabled peers, while Indicator 4b required states to monitor the same discrepancies, further disaggregated by racial and ethnic category (l 412(a)(22)).

From the start, however, all provisions of IDEA that called for an examination of race faced resistance from the Bush Administration. President Bush's signing of IDEA 2004 was accompanied by a signing statement expressing reservations about, among other provisions, the disproportionality clauses of the· law, thus claiming the right to selectively implement those provisions (Bush, 2004). That selective implementation eventually carried forward into educational policy with the first round of monitoring state Annual Performance Review/ State Performance Plan (APR/SPP) do­ cuments in 2007, in the decision to remove Indicator 4b from monitoring. The response to all state submissions under Priority 4b was that data monitoring was "not required" due to a concern about its constitutionality. Finally, OSEP issued a guidance document that al lowed states to begin collecting data on Indicator 4b in 2011, but modifying the priority based on the rationale that the collection of race-based data could raise Constitutional concerns:

B. Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of children with IEPs of greater than 10 days in a school year by race and ethnicity and that have policies, procedures, or practices that contribute to the significant discrepancy and that do not comply with requirements relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards.

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TABLE 2 Number of States Reporting Percentage of LEAs with Disproportionality Due to Inappropriate

Identification, 2005-2006 to 2007-2008a

APR Report Year Indicator 9

2007-2008

2006-2007

2005-2006

0%

42

38

26

0.1-2.9%

6

7

13

3.0-5.9%

4

3

9% or 6.0-8.9% Higher Total SEAs

0 50

0 50

3 2 47

•Reprinted from Part B APR/SPP State Report Summary Document, 2009.

The added language regarding policies, practices, and procedures is a novel interpreta­ tion of the provisions of IDEA. In contrast to its guidance concerning significant disproportion­ ality and disproportionate representation, in which OSEP inte�preted existing statutory lan­ guage literally, the provisions added in this case are nowhere to be found in the law itself. The OSEP guidance concerning Indicator 4b prompted a number of prominent scholars, including Harvard Law School Dean Martha Minow, and civil and disability rights advocacy organizations, to formally petition the US Office of Management and Budget to return to the original indicator 4b guidance (The Civil Rights Project et al., 2008), arguing that the new restrictions would (a) prevent parents and advocates from becoming aware of statistical discrepancies; (b) set overly narrow restrictions, ignoring factors such as teacher quality or cultural bias that have been shown to be associated with disproportionate outcomes; and (c) unnecessarily delay the enforcement of IDEA provisio:1s for seven years from the passage of the law in 2004. To this point, there has been no indication from the Obama Administration concerning whether it intends to retain or revise this interpretation of Indicator 4b.

Outcomes: Do Policy Interpretations Effect Disproportionality Findings?

As part of the monitoring and enforcement process for the IDEA monitoring indicators, OSEP has instituted an annual review process. The Annual Performance Review (APR) of the State Performance Plan (SPP) is submitted each year by all states and territories and includes a description for each indicator, the state defini­ tion used, the types of data being collected, data describing state progress in addressing the indicator, and the types of interventions or programs being implemented for LEAs found to be out of compliance. In response, OSEP finds

states either in or out of compliance with respect to the provisions of IDEA 2004.

Table 2 represents the extent of dispropor­ tionality reported for each state for Indicator 9, overall special education disproportionality, in the first three APR/SPP reports from the states. Those data show that few states find any LEAs showing evidence of disproportionate represen­ tation due to inappropriate identification, and that the percent of states finding zero districts out of compliance has been increasing, from 55% in the 2005-2006 data, to 76% in the 2006--2007 data, and 85% for 2007-2008. Analysis of data for Indicator 1 O reveals similar conclusions: 50% of states found no districts with disproportionate representation due to inappropriate identifica­ tion in 2005-2006; 54% found no districts out of compliance in 2006--2007; and 68% of states found no LEAs with disproportionate represen­ tation due to inappropriate identification in 2007-2008. The 2009 APR/SPP Summary Re­ port suggests that these data represent a "nu­ merical improvement over previous years" (U.S. Department of Education, 2009).

More extensive analyses raise serious questions, however, concerning the degree to which these data indicate improvement. Al­ brecht, Skiba, Losen, Chung, and Middelberg (2011) analyzed four years of data from the Annual Performance reports (2006-2007 to 2008-2009 school years) and compared those findings with state risk ratios for disproportion­ ality drawn from Annual Reports to Congress on the implementation of IDEA. State APR reports indicated a trend among states towards setting higher risk ratio criteria between 2005 and 2008. While 15% of states set a criteria of less than two times discrepant to indicate noncompliance in 2005, none did so by 2008, while the number of states setting a risk ratio criterion of more than four times discrepant tripled during the same time period. The use of the qualitative criterion of inappropriate iden­ tification also appears to have an impact in

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reducing the identification of districts: Although the percent of school districts meeting quantita­ tive criteria for disproportionality has increased slightly over time, the application of the inap­ propriate identification clause reduces the rate of identification of school districts to nearly zero for both Indicator 9 and Indicator 10. The 28th Annual Report to Congress on the Implementa­ tion of the Individuals with Disabilities Education Act reports that nationally, African American students remain 2.83 times more likely than other students to be served in the category mentally retarded and 2.24 times as likely to be served in the category emotionally disturbed. Given these national and state figures, a plausible alternate hypothesis is that the "numerical improvement" represented in the APR/SPP reports is not a reflection of real improvement in racial and ethnic disparities, but rather an indicator of the failure of OSEP's current system of monitoring and enforcement to find continu­ ing disproportionality in special education.

Recommendations

The disproportionality prov1s1ons of IDEA 2004 emerged from a decades-long concern to address the overrepresentation of students of culturally and linguistically diverse students in special education identification and more restrictive placements. The inclusion of those principles in statute appeared to be a positive step forward. Yet, interpretations of statute in the implementing regulations, and especially in guid­ ance offered by OSEP that has emphasized procedural compliance in identification, has re­ duced the effectiveness of policy efforts to address and reduce racial and ethnic disparities in special education. As the professional association repre­ senting teachers of children with emotional and behavioral disorders, CCBD offers the following short- and long-term recommendations for improv­ ing monitoring and enforcement of federal dis­ proportionality provisions contained within IDEA. It should be noted that CCBD continues to applaud the presence of provisions addressing dispropor­ tionality in IDEA; these recommendations are intended as a means of improving the implemen­ tation and enforcement of those provisions.

Immediate or Short-Term

Recommendations

In the short-term, federal and state efforts should be focused on bringing disproportion­ ality monitoring efforts more into line with the

Behavioral Disorders, 38 (2), 108-120

spirit of special education law, moving away from procedural compliance towards a focus on identifying, addressing, and preventing a range of issues that may contribute to dispro­ portionate representation. Specific recommen­ dations include:

1. Shift the monitoring of SEA and LEA practices from a narrow focus on compliance with procedural aspects of eligibility determina­ tion to a broadened focus on the multiplicity of factors, including those in general educa­ tion, that have been identified as contributing to special education disproportionality. Ra­ cial and ethnic disparities in special educa­ tion appear to be a function of a wide range of variables, from behavior management to cultural competence, with contributions from both general and special education. A narrow focus on special education policies, practices, and procedures through such practices as special education file review will almost certainly fail to capture many of the most important causes of disproportion­ ality, in turn restricting the capability of interventions to address true causal factors.

2. Prevent states from defining disproportion­ a/ity in ways that minimize or mask the identification of true disparities at the LEA level. National criteria using both the risk index and risk ratio might provide one method for reaching this goal. An alternate approach might be to develop guidelines regarding the minimum percentage of districts that a state must identify as long as that state's risk ratio indicates that disproportionality remains an issue.

3. Interpret "inappropriate identification" broadly, to include all educational practic­ es that might contribute to disproportionate representation, not simply those within special education. Guidance from OSEP should acknowledge that corrective action plans submitted by LEAs found out of compliance should include changes to all "inappropriate policies, practices and pro­ cedures," not only those that violate a particular law. Rather, LEAs found to have disproportionate representation should be required to investigate and take remedial action on all possible inappropriate factors that may be contributing, in both special and general education.

4. Ensure full reporting of the extent of disproportionality. OSEP should increase its attention to the public reporting of disproportionality, holding states to the

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requirement that LEAs found out of compli­ ance with respect to the disproportionality indicators be publicly identified [20 U.S.C. §1416(b)(2)(C)(ii)(I)]. Under these require­ ments, not only is the state required to monitor data for each LEA, but it is also required that "The State shall report annu­ ally to the public on the performance of each local educational agency ... on the targets in the State's performance plan." Currently, OSEP requires states to report only on the percentage of districts found out of compli­ ance, making it impossible for the public to assess the performance of any particular LEA. In order to meet the requirements of the statute, • public reports of states should provide detail on racial and ethnic dispro­ portionality in the areas of identification, placement and discipline for each identified LEA. Further, this annual public reporting by district should include (a) information con­ cerning the level of disproportionality and (b) remedial efforts planned or in progress. Finally, rather than limiting reporting of disproportionality to those instances where disproportionality was determined to be caused by inappropriate policies, practices or procedures, OSEP should require that states report to the public all data concern­ ing LEA disproportionality, including initial data on the quantitative level of racial disproportional ity in identification, restric­ tive environments, and discipline.

5. Ensure that monitoring efforts are consistent with Congressional intent in framing the disproportionality provisions of IDEA. It is clear that both (a) racial disproportionality in discipline and (b) attention to dispropor­ tionality in least restrictive environments were both intended by Congress to be important components to be addressed in IDEA's disproportionality provisions. Ac­ cordingly, OSEP should ensure that both of these issues are addressed in all definitions, monitoring, and enforcement. It is impor­ tant to note that OSEP is not restricted to monitoring only those areas deemed prior­ ities. Specifically, under the heading "Per­ missive Areas of Review," Congress explic­ itly authorized the Secretary to "consider other relevant information and data, in­ cluding data provided by States under section 618" (20 U.S.C. Sec 1416 (a)(4)).

6. Acknowledge the long-term nature of the problem. Requirements that all instances of disproportionality must be corrected within

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one year may motivate SEAs or LEAs out of compliance to engage in ''quick fixes" that fail to address the deeper root causes of disproportionality. In cases where noncom­ pliance with a federal or state law is determined to be causing disproportionate representation, OSEP should require correc­ tion of those factors contributing to noncom­ pliance within a year. In cases in which it is apparent that large-scale systemic change will be required to address longstanding issues, the remedy should begin within a year, but it should be acknowledged that corrective action addressing systemic issues may require longer periods for full implementation.

7. Increased focus on issues of culture. The Findings section of IDEA 2004, which pro­ vides a guide to the intent of Congress in framing the law, noted, in particular, large discrepancies between the increasing diver­ sity of our Nation's students, and the homo­ geneity of its teaching force (Strizek, Pittson­ berger, Riordan, Lyter & Orlofsky, 2006). Issues of cultural responsiveness in both general and special education have been consistently identified in the literature as key contributors to racial and ethnic disparities in special education (Cartledge & Kourea 2008; Garcia & Ortiz, 2004). Further, the difficulty that educators have in addressing the topic of race (Singleton & Linton, 2006; Tatum, 2001) suggests that federal and state leadership will be required in order to ensure that needed conversations about race and culture occur. State and federal guidance should focus increasingly on providing professional devel­ opment and technical assistance in order to (a) increase recruitment of an increasingly diverse teaching force, (b) increase preservice and inservice training on culturally respon­ sive pedagogy and classroom management, and (c) encourage and increase frank conver­ sations about race and culture whenever racial and ethnic disparities are identified.

8. Increased focus on intervention and preven­ tion. Identifying the extent to which dispro­ portionate representation exists is merely the first step in addressing disproportionality, not the ultimate goal. In order to move towards reducing disproportionate outcomes, OSEP should increase its focus on intervention and remediation of those factors in general and special education have been identified in research as contributing to disproportionate representation. IDEA 2004 also mandates that states have in place policies and

Behavioral Disorders, 38 (2), 108-120

practices to prevent overidentifcation or disproportionate representation by race or ethnicity (20 U.S.C. 1412(a)(24)). This re­ quirement has been underutilized, and should become a more prominent focus in federal enforcement and monitoring efforts.

Intermediate or Long-Term Recommendations

Some of the issues that have plagued monitoring and enforcement of disproportional­ ity at the federal and state level are due to inconsistent use of terminology within the statute itself, suggesting reconsideration of specific language regarding disproportionality during the reauthorization of IDEA. Long-term efforts should also be focused on increasing the availability of research on intervention approaches and im­ proved staff training in cultural competence. Specific recommendations include:

1. Consider whether disproportionate repre­ ·sentation and significant disproportionality are or should be different terms and processes. The terms disproportionate rep­ resentation and significant disproportional­ ity emerged as separate descriptors in different sections of IDEA 2004, but had never previously been identified as separate constructs in research or practice. Although two terms may be necessary at this point due to the language of IDEA, interpretations of those terms have yielded a dual system of monitoring and enforcement that creates confusion at the state and local level. A single term that is more clearly defined and in line with best evidence could be expected to increase progress towards reducing or eliminating disproportionality.

2. Reconsider the necessity of the qualifier "inappropriate identification." The addi­ tion of the term inappropriate identification appears to be one important factor driving low rates of identification of districts with disproportionality. Vague and inconsistent­ ly defined terms make monitoring and enforcement difficult at best, and it is not clear whether the qualtitative term inap­ propriate identification can be defined in a clear enough manner to allow the consis-

. tent measurement needed for effective monitoring and enforcement efforts.

3. Address structural needs through research and training priorities. Racial and ethnic dispari­ ties in our educational system, including

Behavioral Disorders, 38 (2), 1 08-120

disproportionality in special education, are the result of a long history of racial discrim­ ination and will require a significant long­ term effort in many schools and districts. To ensure that SEAs and LEAs have the resources they will need to engage in long-term reform efforts, the US DOE should promote grant competition priorities that support the study and development of:

a. Interventions and systems reform efforts focused on specifically addressing and reducing disproportionate representation in special education and school discipline;

b. Improved preservice and inservice training of teachers and administrators in culturally responsive instruction and classroom man­ agement and discipline; and

c. Improved school-based data collection systems for monitoring disaggregated data and in particular for training school personnel in the interpretation and use of such data to improve practices.

Conclusion

Making progress in ensuring the civil rights of all of America's students has never been easy or straightforward. From Dwight Eisenhower to Robert Kennedy, the federal government provid­ ed leadership that enforced the intent of federal legislation, often in the face of intense local resistance. In the same way, OSEP provided exemplary leadership in guidance issued throughout the 1970s and 1980s on a number of key issues concerning the rights of students with disabilities; many of those rulings became enshrined as statute in IDEA 1997 and 2004.

In March of 2010, Secretary of Education Arne Duncan stood on the Edmund Pettis Bridge in Selma, Alabama and spoke on the importance of strengthening civil rights en­ forcement in education (Education Secretary Says Some Public Schools Discriminate, 2010). He suggested that students with dis­ abiI ities and Black students, especially males, are suspended far more than their White counterparts and often punished more severely for similar misdeeds. In July, 2011, the Departments of Education and Justice an­ nounced the Supportive School Discipline Initiative, a joint project designed to address disciplinary practices that push students out of school and into the juvenile justice system,

February 2013 / 117

and to support effective discipline practices that foster safe and productive learning cli­ mates (US Dept. of Justice, 2011 ). Finally, on March 6, 2012, Secretary Duncan announced the release of the USDOE Office for Civil Rights Civil Rights Data Collection by stating "The undeniable truth is that the everyday educational experience for many students of color violates the principle of equity at the heart of the American promise. It is our collective duty to change that" (U.S. Depart­ ment of Education, 2012).

These represent highly encouraging signs that the US Department of Education is once again providing key leadership on civil rights. As the organization representing students in one of the two disability categories in which racial and ethnic disparities are most in evidence, CCBD shares the Secretary's vision of our collective duty to address issues of educational equity. Students with emotional and behavioral disabilities are at particular risk for being subjected to disproportionate practices in iden­ tification and placement. We believe that the recommended changes in monitoring and enforcement policy for the disproportionality provisions of IDEA will move special education policy in a direction consistent with those goals, and we offer our support and assistance to the Department in all efforts to more effectively address, and ultimately eliminate, racial and ethnic disparities in special education.

NOTES 1. The legislative language is identical in the Public Law, and in the United States Code. The section numbers of the Public Law are retained in part in the statute as officially recorded in the US code by replacing the first 6 with 14. Section 612 becomes 20 U.S.C. Sec. 1412; Section 616 becomes 20 U.S.C. Sec. 1_416, and 618 becomes 20 U.S.C. Sec. 1418. Both are used in this article. 2. In contrast to the Bush administration's separation of 616 and 618, the statute itself calls for a more coordinated approach guided by the principle of prevention. Specifically, in the section on State eligibility requirements called "Overidentification and Disproportionality" the law requires that for eligibility "The State has in effect, consistent with the purposes of this title and with section 678(d), policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities" (Cite Section 612(a)(24), emphasis added).

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AUTHORS' NOTE

The Executive Committee of CCBD recognizes and thanks Advocacy and Governmental Rela­ tions Committee members Russ Skiba and Susan Albrecht (Chair), and Dan Losen of the Civil Rights Project for primary authorship of drafts of this position summary. © 2012 Council for Children with Behavioral Disorders. All rights reserved. Unlimited copying and distribution are permitted with appropriate acknowledgement.

Please direct correspondence to Russell Skiba at [email protected]

MANUSCRIPT

Initially Approved by the Executive Committee on 4/11/2012

Behavioral Disorders, 38 (2), 108-120

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