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License No Innovative Solutions. Enduring Principles. Kathy Espinoza, AVP, Ergonomics/Safety Keenan & Associates Jennifer Rowe - Gonzalez Fagen, Friedman & Fulfrost, LLP Disproportionality in Special Education Part 1: Disproportionality of Racial and Ethnic Minorities in Special Education (California)

Presented by: Jennifer Rowe Gonzalez

4 Agenda Defining Disproportionality The Harm of Disproportionality Identifying Disproportionality Best Practices

5 Defining Disproportionality Disproportionality is when the percentage of students with a specific characteristic (e.g., race or ethnicity) enrolled in, and eligible for, special education is higher or lower than their proportion in the general population.

6 Defining Disproportionality The California Department of Education states that in the school year:  African-American students comprised 7.5% of the general population, but 10.92% of special education students;  Asian students comprised 12.2% of the general population, but 6.84% of special education students.

7 Defining Disproportionality Findings in the Individuals with Disabilities in Education Act (“IDEA”) note that:  African-American children are identified as having intellectual disabilities and emotional disturbances at rates greater than their Caucasian counterparts;  More minority children continue to be served in special education than would be expected from the percentage of minority students in the general population;  Studies support that schools with predominantly Caucasian students and teachers have placed disproportionately high numbers of minority students in special education programs.

8 Defining Disproportionality Both California and the Federal government have identified reducing disproportionality in special education programs:  IDEA 2004 and the implementing regulations include important changes addressing the over-identification of racial and ethnic minorities in special education.  State Departments of Education must now monitor and address disproportionality and notify school districts that are out of compliance.

9 The Harm of Misidentification: Why Does it Matter? Special education may not provide the supports that a student requires. “Disability” label may stigmatize a student. May result in lowered expectations. Potentially separates a student from peers. May lead to poor educational outcomes.

10 The Harm of Misidentification: Why Does it Matter? May lead to poor life outcomes (or lower self-esteem). May result in higher drop out rates. Students may be denied access to the general education curriculum. Students may be misunderstood or under- served in the general education setting.

11 The Harm of Misidentification: Why Does it Matter? What about race discrimination claims?  IDEA violations, including evidence of disproportionality in special education programs does not necessarily result in per se race discrimination.  Race discrimination requires discriminatory intent.  However, if a District knows that a particular race or ethnicity is overrepresented in special education programs, it must review identification, evaluation and placement procedures under the IDEA to address deficiencies. Blunt v. Lower Merion School District (ED Penn. 2011) 826 F.Supp.2d 749, 111 LRP 67652

12 Identifying Disproportionality: How Do We Know if There is a Problem? The IDEA requires State Departments of Education:  To determine both the percentage of disproportionate representation and the extent to which it is the result of inappropriate identification and  With respect to each LEA in the state: To review data to determine if a “significant disproportionality” exists; and If so, determine if the disproportionality is the result of inappropriate identification; and If so, notify the district and assist the district in carrying out improvement activities.

13 Identifying Disproportionality: How Do We Know if There is a Problem? Where an LEA shows a significant disproportionality, the State must:  Provide for review and (if appropriate) revision of the LEA’s procedures, practices and policies used in the identification, placement or discipline of children with disabilities to determine if they are consistent with the requirements of the IDEA;  Require the LEA to reserve 15% of its federal funds to provide comprehensive coordinated early intervening services to serve children who have not been identified as children with disabilities, particularly those children in the over-identified groups (even if the disproportionality is not related to inappropriate identification); and  Require the LEA to publicly report on the revision of its policies and procedures used in the identification, placement and discipline of children with disabilities.

14 Preventing Disproportional Representation in Special Education Understand the causes. Implement preventative measures. Keep an open dialogue. Work with the CDE if there is a finding of disproportionality.

15 Causes of Disproportional Representation This is a complex issue. At least four key reasons:  Lack of effective pre-referral instruction and intervention services.  Bias in the/incomplete assessment process.  Teacher inexperience with classroom management and cultural behavior differences.  Underlying racism and cultural ignorance in staff and school processes.

16 Best Practices: Pre-Referral Examine the quality of instruction and classroom management of the referring general education teacher.  What pre-referral strategies have been implemented?  Are referrals primarily behavior-based? Rigorously rule out ELL status. Have efforts been made to reach out to minority parents prior to referral?  Community services?  Parent-Teacher conferences to address behavior?

17 Best Practices: Pre-Referral Is parental-rights information pursuant to the IDEA being provided appropriately to language minority parents? Consider poverty issues:  Screening for hearing and vision or environmental risk factors in the home (e.g., lead levels);  Excessive absences, displacement (family mobility);  Lack of consistent access to technology or supplies.

18 Best Practices: Assessment The IDEA requires that all assessments be administered in a “non-discriminatory” manner. However, The National Council on Disability finds a higher level of over-identification in areas where assessment is "judgmental" (i.e., based on subjective observation rather than actual tests):  Emotional Disturbances;  Other Health Impairments;  Intellectual Disabilities; and  Specific learning disabilities.

19 Best Practices: Assessment Use multiple measures and modalities, including non- verbal assessments where appropriate.  Evaluations should be individualized.  Evaluations should be completed by appropriate personnel. Must be “administered so as not to be racially, culturally, or sexually discriminatory.” (Ed. Code § 56320(a).) “Shall be provided in the pupil’s native language or mode of communication, unless it is clearly not feasible to do so.” (Ed. Code § 56320(a).) “Provided and administered in the language an form most likely to yield accurate information on what the pupil knows and can do academically, develomentally, and functionally….” (Ed. Code § 56320(b)(1).)

20 Best Practices: Assessment Observations “in an appropriate setting” should include both measurable (numeric) and observable data as well as a narrative ruling out possible cultural reasons for identified behaviors. (See Ed. Code § 56327(c).) Examine the quality of the general education instruction and classroom management techniques. Evaluators should gather, include and consider information about the student’s home and family culture.  What about attendance/truancy? Family members should be included throughout the evaluation process (as appropriate).

21 Best Practices: Assessment Rule out environmental or socio-economic factors (including life stressors).  Document this discussion in both the assessment and during any IEP team meetings. Report on “educationally relevant health and development, and medical findings, if any.” (Ed. Code § 56327(e).) Make “a determination concerning the effects of environmental, cultural, or economic disadvantage….” Ed. Code § 56327(g).) Examine a student’s previous instruction in math and reading to determine if this is the primary reason for learning or behavior difficulties. Allow for ample time for assessment.

22 Best Practices: Supporting Teachers Examine whether this is racial disparity among teacher referrals. By race? By experience of teacher? Examine whether referrals come from teachers with classroom management issues.  Provide support in classroom management techniques.  Provide on-going training and supervision to improve techniques. Ensure all teachers have been trained to effectively participate in pre-referral intervention strategies.  Response to Intervention (RTI)—Academics and Behavior

23 Best Practices: Supporting Teachers Allocate time for general education and special education teachers to collaborate on a routine basis. Ensure that teachers are making a consistent effort to communicate with parents.  Are teachers given the time and opportunity to do so? Are they encouraged to do so?  Do they know how? Ensure that all students are given access to enrichment opportunities, technology and supplies.

24 Best Practices: Underlying Bias Ensure administrators and teachers are trained in sensitivity to racial and cultural bias in instruction and assessment. Cultivate a diverse culture through curriculum and student expectations. Include both special and general education teachers in discussion and review of data. Understand that behavioral standards are culture-bound.  Behavioral incidents may occur as a result of “cultural mismatch” – Address these accordingly.  What are the differences between a student’s culture and the school’s culture? What are the expectations?  What if the child is from another country?

25 Keeping an Open Dialogue Issues of race can be sensitive. Keep an open, non-judgmental dialogue to address biases and solutions. Get “ahead of the game” and pinpoint where any disproportionality may exist.  Are certain programs racially unbalanced?  Do certain administrators or teachers express a bias? If a finding of significant disproportionality is made, work with the CDE and legal counsel to ensure policies and procedures are compliant.

26 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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