HJR 707

Joint Subcommittee Studying the Overrepresentation of African-American Students in Special Education Programs

August 20, 1999, Richmond

The meeting began with a staff briefing regarding definitions and concepts in special education and a review of Virginia's special education laws and regulations. The primary focus of the meeting was to provide a primer on special education to establish a framework for future subcommittee deliberations.

Special Education Law and Regulations

Federal

Educational services for students with disabilities are largely guided by federal law. However, federal law, together with federal regulations and the case law, governs decisions respecting the identification, placement, and educational and related services provided disabled children. The right of such children to an education was based on Section 504 of the Rehabilitation Act of 1973, which prohibited recipients of federal funds from discriminating on the basis of a handicapping condition, and the due process and equal protection clauses of the Fourteenth Amendment. Under federal law, disabled students are entitled to a free and appropriate education in the least restrictive environment. Due process provisions, other procedural safeguards, and the development of an individualized education plan (IEP) also afford certain protections to such students. Eligibility for federal funding is contingent upon the implementation of policies and procedures that ensure state compliance with federal requirements.

In 1997, amendments to the Individuals with Disabilities Education Act constituted the first major revision to the act in over 23 years. The original provisions of the law have been retained; however, there are significant changes, which include new and modified definitions, requirements for evaluation and reevaluation, certain stipulations for service plans, the development of IEPs, participation of general education teachers on the IEP team, procedures for disciplining disabled students, the delivery of services to disabled students enrolled in charter and private schools, and state collection, analysis, reporting, and tracking requirements by race, gender, and placement.

Virginia

Pursuant to the Standards of Quality, the provision for early identification and appropriate instructional programs for disabled students is the responsibility of local school boards. Although there are differences in the law related to special education in Virginia, the state's statutes and regulations do conform to federal requirements. For example, in the Commonwealth, "children with disabilities" is defined as children between ages two and 21, inclusive, who are mentally retarded, physically disabled, seriously emotionally disturbed, speech impaired, hearing impaired, visually impaired, multiple disabled, other health impaired, including autistic, learning disabled, or otherwise disabled as defined by the Board of Education and who require specialized instruction due to these impairments. Under federal law, children with disabilities between the ages of three and 21, inclusive, must be served.

The Board of Education prepares and supervises the implementation of special education programs in each school division, prescribes assessment procedures and the opportunity for parental participation in the assessment process, oversees the educational programs for disabled students provided by other agencies, and ensures the identification, evaluation, and placement of such students. The board is also responsible for ensuring eligibility for federal funding and establishes procedures affording parents and students due process in resolving disputes with local school divisions, including the use of mediation. Class size and pupil-teacher ratios for special education are governed by board regulations. In 1999, the Board of Education released proposed revisions to the regulations governing special education in Virginia public schools, which are designed to comply with the new 1997 amendments to IDEA.

Case Law

A review of significant developments in special education arising from state and federal court decisions was presented by a professor of law at T. C. Williams Law School of the University of Richmond. Concepts and principles in special education law which frequently have been litigated concern whether a free and appropriate education requires only an educational benefit, tuition compensation, pupil placement, services in private schools, identification and evaluation, medically fragile children, discipline of disabled students, remedies, statute of limitations, and sexual harassment. To date, there has not been a decision pertaining to the issue of overrepresentation of racial and ethnic minority students in special education programs, although numerous complaints and inquiries have been made regarding the problem.

Of the hundreds of students represented by the law school, most have family backgrounds in which the parents are unaware of their children's legal rights, intimidated by the public school system, and do not understand the notices sent them by the school division. Within the school context, many of these students have had numerous suspensions and expulsions and have manifested certain learning difficulties and behaviors over long periods of time which should have been suspect to a discerning and trained eye. All too often, many of these children are overlooked, categorized as "trouble makers," or misidentified and inappropriately placed in special education programs. The majority of such students are African-American, Hispanic, and poor.

Among the professor's suggestions to remedy the situation are (i) acknowledgment of the stigmatization among other students upon being identified for special education, (ii) the need to encourage schools to consider other alternatives to suspension and expulsion under appropriate circumstances, (iii) the need to empower parents to advocate successfully for their children, (iv) the creation of services (e.g., hot lines) to afford parents access to school officials who can explain the numerous procedures, policies, and laws simply and respond to their questions in a manner affording them some dignity, (v) improved dissemination of information about special education programs and services and the rights of children and parents under federal and state laws, concisely written at a level that most adults can comprehend; (vi) training for general and special education teachers, and (vii) the recognition and eradication of discriminatory practices in some school divisions.

Current and Emerging Issues

A special assistant to the director for diversity affairs, Council of Exceptional Children, noted that the nation has known about the disproportionate representation of African-American students in special education for over 20 years and that the problem has been allowed to continue after confirmation by data from the U.S. Office for Civil Rights. She cited the following factors which contribute to the perpetuation of the problem.

• Legal and administrative requirements: Referral, identification, evaluation, and placement, all which may be accomplished by inadequately prepared persons who use inappropriate assessment tools and reach conclusions on insufficient data and information about the student.
• Funding of special education programs: School divisions sometimes place students in special education programs if there are no funds for other interventions or alternative programs.
• Bias in the assessment process: Sometimes there are biases in the assessment tool used, or the assessment tool is not used for the purpose for which it is designed, or the assessor is biased against certain racial and ethnic minorities and poor students, or all of the above.
• Home and family environment: Each student is a part of many systems—family, class, school, peer group, religious affiliation, extracurricular or recreational group, community, city or county, state, nation, global—and any change in one or more systems can negatively or positively affect the student. Without a holistic evaluation of the entire student (emotional, developmental, behavioral, cognitive) and the systems in which he is a part, a conclusive finding that a student is mentally retarded is premature.
• Historical and cultural context: The social environment, cumulative effects, and collective influences to which minorities have been and continue to be subjected in a dominant culture must be recognized and considered. Racism in all of its overt forms and subtleties must be acknowledged and confronted. Failure to focus on the needs of such persons and to deliver critical services must be addressed.
• Disproportionality: The disproportionate representation of African-American students in special education is not viewed as a problem by some, but merely a reflection of the inability of racial minority students to succeed in the regular instructional program.

Principles of Responsibility

An analysis of the 1982 study, "Placing Children in Special Education: A Strategy for Equity," conducted by the National Academy of Science, established six principles of responsibility in remedying the overrepresentation of racial and ethnic minority students in special education programs:

• Principle 1. It is the responsibility of teachers in the regular classroom to engage in multiple educational interventions and to note the effects of such interventions on children experiencing academic failure. It is the responsibility of school boards to ensure that needed alternative resources are available.
• Principle 2. It is the responsibility of assessment specialists to demonstrate that the measures employed validly assess the functional needs of the child who is evaluated.
• Principle 3. It is the responsibility of the placement team to demonstrate that any differential label used is related to a distinctive prescription for educational practices that are likely to lead to improved outcomes not achievable in the regular classroom.
• Principle 4. It is the responsibility of the special education and evaluation staff to demonstrate systematically that high quality, effective instruction is being provided and that the goals of the special education program could not be achieved as effectively within the regular classroom.
• Principle 5. It is the responsibility of the special education staff to demonstrate that a child should remain in the special education placement.
• Principle 6. It is the responsibility of administrators at the local, state, and national levels to monitor regularly the pattern of special education placements, the rates for particular groups of students or particular schools and school districts, and the types of instructional services offered to affirm that appropriate procedures are being followed or to redress inequities found in the system.

Current issues in special education include labeling, inclusion, mainstreaming, funding, and placement. On the horizon, however, to which all presenters agreed, is sexual harassment and how such incidents should be handled, particularly when such acts are committed by disabled students with behavioral disorders.

Additional Data

The Department of Education was asked to refine and clarify data submitted at the July 30th meeting and to respond to members' inquiries. The department reviewed data regarding student exit information by gender, race, reason, and school division; information on African-American and Hispanic students in special education by gender, disability, and school division; private in- and out-of-state special education placements by race, gender, and disability; private placements; students who are severely emotionally disturbed; and students with other health impairments. Other data requested by the joint subcommittee will be presented by the department at subsequent meetings.

Next Meeting

The joint subcommittee agreed to hold its future meetings in areas throughout the state that have substantial populations of racial and ethnic minority citizens, beginning in September 1999 in Northern Virginia, followed by an October meeting in Southside Virginia, and a work session/public hearing in Richmond in November.

The Honorable A. Donald McEachin, Chairman
Legislative Services contact: Brenda H. Edwards

THE RECORD