Disabled Education

In 2008, a parent I will call Marilyn filed a due process complaint against the St. Bernard-Elmwood Place City School District in Hamilton County, Ohio, on behalf of her son, Kevin, under the Individuals with Disabilities Education Act (IDEA).¹ Even though Marilyn received no legal help, she managed to navigate the special education system not merely to file a complaint but to request an expedited hearing.

The school district had identified Kevin as being emotionally disturbed and having attention deficit hyperactivity disorder (ADHD) when he was in the 6th grade. Kevin had been taking medication to help moderate his behavior and reduce his symptoms, but he had stopped taking it for a period of time when his mother could not afford it. He also had a behavioral intervention plan to help him maintain appropriate behavior in the classroom. When the school district suspended and then expelled Kevin for violating school policies in 8th grade, his mother filed a complaint with the Ohio Department of Education to pressure the school to recognize that his misbehavior was a result of his disability. If the complaint could not be resolved amicably, a hearing officer would render a decision after a hearing.

Marilyn wanted a more effective Individualized Education Program (IEP) that would address Kevin’s educational needs and keep him in school. She also argued that “the school and parent have such a poor or broken-down relationship that the student cannot succeed or learn in the current school setting or that the school has acted in a biased or discriminatory manner towards student and his family to such an extent that the child should be sent to a different school at the local school’s expense.” (The record does not disclose what type of bias Marilyn meantÑrace, class, disability, or other.)

The hearing officer ruled for the school district, deciding that the school was offering Kevin an adequate IEP and handling his behavioral problems appropriately. In ruling for the school district, the hearing officer noted that the mother “seemed exceptionally frustrated and intimidated by the due process hearing procedures.” Rather than write a brief following the hearing, Marilyn left long voicemail messages on the hearing officer’s telephone with the arguments she wanted to make. Then, after the deadline had passed for submitting a brief, she left further messages with statements such as “Just going to let you make decision . . . too stressful on me and my children and my unborn baby.” Despite these messages, the hearing officer had no obligation to try to get Marilyn free legal assistance. The hearing officerÑwho never received any kind of brief on behalf of KevinÑruled in favor of the school district.

The factors that caused Kevin to misbehave and what kind of IEP might provide him with an effective education were barely explored. As to the argument about “bias,” the hearing officer noted that one staff member had allegedly said that he did not enjoy working with “parents of her type.” But the hearing officer concluded that she had no legal authority to change the child’s placement merely because “the school does not particularly enjoy working with a certain family or parent.” Moreover, she concluded that she could see “in the faces and demeanor of these school officials that they want to continue working with this student and will not retaliate towards either the student or his family for having exercised their due process rights under IDEA.” Looking at complaints filed by parents in five states, however, helped me understand that Marilyn, and nearly all poor parents who try to proceed without an attorney, have little chance of success in getting more services for their children.

At about the same time as Marilyn was pursuing her complaint against her local school district on Kevin’s behalf, I was pursuing a complaint under the IDEA against my local school district on behalf of my own son.

Sam was born on Jan. 9, 1997. Soon after he was diagnosed as “developmentally delayed” in 2000, our school district enrolled him in an excellent special education program for preschoolers, where he made enormous progress.

Even with some extra help, Sam continued to face difficulties during grade school. Although he was a great reader, his writing was significantly below grade level, and he often seemed confused about assignments and directions. When Sam was in 5th grade, I learned he had a severe central auditory processing disorder (CAPD). He was not able to comprehend most verbal classroom instruction because he could not separate background noise from foreground speech. His audiologist explained that the consequences in the classroom for a child with severe CAPD are comparable to those for a deaf child because the child misses so much oral instruction. So it was not surprising that he would complain to me that he wished the teachers would not talk so much; they should put directions in writing. The audiologist recommended that the school district acquire a personal listening device (PLD) for Sam to use in the classroom, along with other accommodations. A PLD brings the sound directly to the child’s ear through an FM receiver and costs about $1,000.

The school district agreed that Sam was disabled and far behind his peers in some subjects, but refused to provide him with a PLD. After a year of being stonewalled, I filed a due process complaint against the district under the IDEA. Even though I was a lawyer who taught a course in special education advocacy, I hired a lawyer to help conduct the three-day hearing. I also retained two expert witnesses. On the Friday before school was to start, and two years after the audiologist recommended Sam have a PLD, the hearing officer ruled in Sam’s favor, concluding that the evidence demonstrated that he needed a PLD to access oral communication. She gave the school district 30 days to acquire a device and implement a revised IEP. The school district ultimately complied, and Sam’s performance in school began to improve dramatically. He is currently in 10th grade and earning good grades in the regular curriculum. Despite his earlier deficits in writing, he spends much of his free time writing science fiction stories.

Disparities in Access

The class-based difference in treatment that Sam and Kevin received is typical of the experience of families within the special education system. As a middle-class parent, I could afford to take Sam to an audiologist who diagnosed him with CAPD and helped him get a PLD. Even though my school district fought me over the PLD issue, they did give Sam lots of support to improve his performance and were patient when his behavior was sometimes socially awkward.

Kevin, who grew up in a poor household, by contrast, was labeled as having ADHD and being emotionally disturbed. Kevin did not get the academic support he needed and was both suspended and expelled when he violated school rules. Although I do not know Kevin’s race, that kind of labeling and treatment is typical for African American boys under the IDEA.

As a parent, I found the experience of fighting with the school district to meet Sam’s needs extremely stressful, but I was able to hire a lawyer and two expert witnesses. The phone messages left by Marilyn show her high level of stress in dealing with the process, but even though the hearing officer was aware of the problems that Marilyn faced, no system was in place to provide Kevin or his mother with a free advocate. While Sam eventually flourished in school, Kevin was suspended.

Why is the IDEA process so heavily biased against low-income parents like Marilyn, in comparison with a middle-class mother like me, who can afford to spend the time and money to advocate for my son? Why do families have to make advocacy a full-time job in order to support their children?

A Little History

Many of these problems were foreseeable. In 1974, when Congress held hearings to consider the proposed Education for All Handicapped Children Act (EAHCA, the precursor to the IDEA), Lloyd Dunn testified in opposition to the proposed statute because he predicted that “these bills, if enacted, would do more harm than good for the very children they are committed to serve better.” This testimony was especially troubling because it was Dunn’s work in the field of special education that had led to the creation of a federal special education law. He had argued in 1968 that the practice of segregating “slow” students into special education classes was a “sham of dreams” because it resulted in “poor and minority students” receiving inferior educations. Congress, unfortunately, failed to heed Dunn’s advice in fashioning the new federal law.

Thus, 30 years later, books such as Racial Inequality in Special Education, Why Are So Many Minority Students in Special Education?, and my own book, Disabled Education, ask: What is so special about special education for children whose parents are poor, children of color, children who are English language learners? Validating Dunn’s predictions, the authors argue that these children often receive “inadequate services, low-quality curriculum and instruction, and unnecessary isolation from their nondisabled peers” (Losen and Orfield).

Historically, the IDEA (and its precursor, the EAHCA) marked important steps forward in the treatment of children with disabilities. Since 1975, 90 percent fewer children with developmental disabilities are living in institutions. In 1975, more than 1 million children with disabilities were excluded from public school; today, virtually no child with a disability is excluded from public school.

Nonetheless, the enactment of the EAHCA may have also increased educational inequity by steering the most vulnerable children to the most stigmatized special education categories and then providing them with inadequate resources within the special education system. Congress has never fulfilled its promise to provide 40 percent of the dollars needed to educate children with disabilities; instead, federal underfunding of special education has exacerbated an inequitable allocation of education resources.

Disparities in Diagnosis

Racial disparities in disability classification have always plagued the special education system. As has been true since the early court cases in the 1970s, African Americans are overrepresented in the categories of intellectual disability (formerly called “mental retardation”) and emotional disturbance, and underrepresented in the categories of autism and other health impairments (typically ADHD). In 2010, African American children constituted about 14 percent of the school-age population and 21 percent of those classified as disabled; they represented 32 percent of the students identified as intellectually disabled but only about 14 percent of the students identified as autistic.

Latina/o children reflect a somewhat different pattern of disproportional representation. In 2010, they constituted about 22 percent of the school-age population but only 9.6 percent of the students in the category of “developmental delay,” which is used to get children extra assistance at ages 3 to 5, before they enter kindergarten.

White children, who represented 55 percent of the school-age population, were overrepresented in the categories of autism and other health impairments but underrepresented in the category of intellectual disability. They constituted 69.7 percent of students identified as autistic and 68.4 percent of students identified as other health impaired (typically ADHD).

From these numbers, one can predict that an African American boy who “acts up” in class because he has trouble sitting is likely to be classified as emotionally disturbed, whereas a white boy with similar characteristics is likely to be classified as having ADHD. Similarly, a very withdrawn African American boy is likely to be classified as emotionally disturbed whereas an equally shy white boy is likely to be classified as autistic. An African American preschooler who is having trouble keeping up with age-level expectations is likely to be classified as intellectually disabled; her white counterpart is likely to be classified as being developmentally delayed. And a Latina child who has missed developmental milestones is unlikely to receive early intervention services for the developmentally delayed.

Why are intellectual disability and emotional disturbance “black” categories while autism is a “white” category? As Tom Parrish, managing research scientist at the American Institutes for Research, asks: “Can Connecticut, Mississippi, North Carolina, Nebraska, and South Carolina be in compliance with special education and civil rights law when black students are over four times more likely than white students to be designated as mentally retarded? Those stark discrepancies strongly suggest racial bias in classification.”

Although these racial statistics are available on a broad level because the IDEA requires school districts to report disability classification by race to the federal government, the lack of information available on race and class disparities is actually quite frustrating. For instance, the broad data on disability classification does not track students on the basis of class or their status as English language learners. In Ohio, I often help students who live in rural counties and I suspect that many poor white children also face disability misclassification. But there is no data to support or refute my hypothesis.

While reading hearing officer decisions, I try to pay attention to evidence that students are English language learners. I have noticed that hearings for these students are rarely successful in getting more services for them, but the hearing officer is not required to report their status as English language learners. In addition, it is nearly impossible to follow race and class disparities through the stories found in individual hearing officer opinions because those opinions rarely mention a student’s race or class. Thus, we have some broad macro data on racial classification, none on class disparities or status as an English language learner, and no way to see the implications of that macro data through individual stories in hearing officer opinions.

Disparities in Services

In addition to being subject to disability misclassification, children of color and English language learners often receive far less effective special education services than white children. Examining data from California, Parrish found that white children are more likely to be mainstreamed than black children but, when black children do require more intensive services, they are less likely to receive speech, occupational therapy, and physical therapy than white students. And black children are more likely than white children to be placed in special education self-contained classrooms but less likely to be placed in the most costly special education programs and schools. (Again, one can speculate about class disparities, but the available data does not track services on the basis of class.

Special education has led to higher rates of segregation for black students than for white students. That is problematic, especially when one notes that black students in those segregated programs are not necessarily getting the services they need. But the situation is complicated by the fact that whites disproportionately gain access to the most segregated but also often the most desirable programsÑcostly special schools designed specifically for students with disabilities. The comparatively higher rate of autism classification for white children is a reflection of this placement pattern; many of the children in these expensive and segregated programs are autistic.

When I read decisions in which the hearing officer notes that a translator was present, I often find that the record is riddled with inconsistencies and apparent errors in relaying the facts. School districts have little legal responsibility to translate documents for parents or engage in effective communication in their native language. These communication problems make it nearly impossible for many parents to participate as equal partners in the IEP process.

The regional variation that is permitted under the IDEA is also problematic. I recently tried to help a family who moved from California to Ohio with their 3-year-old who is deaf. They were shocked to learn that Ohio would not provide them with the services that were considered routine in California. Another parent, who moved from California to Connecticut, told me that services that were unavailable in California were routinely provided in Connecticut. Parents should not have to worry that their children are sacrificial lambs in this regional variation when they move across state lines.

Looking Forward: So What Can We Do?

The flawed nature of the IDEA does not relieve each of us of responsibility to help as many children as possible. As a lawyer, I can act as a pro bono advocate for children. I can talk to parents, I can attend meetings, and I can train law students to act as advocates. And, even within the existing structure, I think teachers and school staff could do more to assist children. Clearly, we need a national dialogue on how to improve education for all children, including children with disabilities. This short piece cannot begin to describe all the possible solutions to this deeply entrenched problem. But the following three suggestions would be a useful starting point for such a conversation:

1. Make it easier for parents and others to be effective advocates for children.
2. Support teachers and other school staff to act more effectively as part of IEP teams.
3. Reconfigure special education law to help overcome the education system’s intrinsic race and class bias.

Support Parents and Other Advocates. The IDEA seeks to empower parents by giving them the right to attend a wide range of school-based special education meetings. On paper, it values their input as experts on their child. But it is also based on assumptions that reflect race, class, and language biases. It assumes that all children have parents who have the time, childcare, employment flexibility, and commitment to act as advocates (or money to hire someone to do so). It assumes that parents can understand the lengthy documents sent to them, even when their primary language is not English or they themselves have a disability. It assumes that parents won’t be afraid to participate in meetings at schools out of fear of deportation or other adverse consequences. It assumes that teachers have the job security and working conditions to enable them to attend and speak honestly at meetings. And, of course, it assumes that school districts have the resources to implement appropriate educational plans.

Ideally, we could educate parents and other childcare providers so that they can be better advocates on behalf of children. Each state has a pamphlet in a variety of languages titled something like Whose IDEA Is It? But those pamphlets often number 100 pages and are filled with dense descriptions of the special education process.

When states provide services to families with disabled preschoolers under what is called an Individualized Family Service Plan, the services come directly to the family in the home. Surveys suggest that parents are more satisfied with those services than the assistance that is provided to school-age children. One factor that appears to improve parents’ satisfaction is the opportunity to work with social workers who are sensitive to their cultural background. Perhaps more culturally sensitive home-to-school involvement would improve the ability of parents to work effectively with school districts.

Having attended IEP meetings for many years, though, I can report that virtually no parent can be an effective advocate at such meetings alone. I have attended meetings with 15 or 20 school personnel and one parent. The parent is lucky if he or she can even identify who was present, let alone describe the issues considered at the meeting. Parents need an advocate to assist them at meetings. The mere presence of an advocate often makes an enormous difference.

For example, a parent called me in tears because the school district refused to classify her son as learning disabled when he could barely read in 4th grade. The school district brought truancy charges against her when she could not convince her son to sit through a day of mind-numbing boredom caused by his inability to access the curriculum. Somehow, when I showed up, the school district “saw the light” and started giving him some individualized services.

Another parent patiently asked me whether her 7th-grade daughter, who was reading at a 1st-grade level, could receive technological support to hear her textbooks. After months of the school not returning the parent’s phone calls, my involvement led to numerous meetings and significant improvement in her daughter’s education, including the use of technology.

Another local school said it was suspending a child with emotional disturbance from the busÑbut not schoolÑto avoid triggering his procedural protections under the IDEA. When an advocate got involved in the case, his transportation magically reappeared.

Thus, all parents need access to a trained and culturally sensitive advocate. Of course, an advocate cannot be successful all the time. Nor can an advocate solve all types of problems. On a national level, numerous disability rights organizations have been fighting the use of seclusion and restraint on children, including children with disabilities. These practices typically exacerbate a child’s situation and make it more difficult to provide an appropriate education. Disability rights organizations have also been fighting highly segregated educational placements, overuse of suspension of children of color, attempts to move children out of special education through vouchers and online education, and a lack of appropriate procedural safeguards. We can rarely solve these kinds of systemic practices one child at a time, even with strong advocacy. To be successful, we need a movementÑa broad, collective effort by parents, teachers, lawyers, and community organizers.

Support Teachers and Other School Staff. I am not a public school teacher and I am reluctant to tell teachers how to do their jobs better. I welcome dialogue on this subject, including in the pages of Rethinking Schools. But I have a few ideas based on conversations and experiences with teachers.

Occasionally, I get phone calls from teachers who want to meet me in an obscure location to talk. They are being asked to sign documents they consider dishonest. They attend meetings where school district personnel try to convince parents to leave the public school system by accepting a “voucher” for a private school or having their child join a work program instead of continuing in the public education system to age 22. These teachers are afraid they will lose their jobs or find their working conditions unbearable if they speak up. They want me to promise to represent them if they get fired or mistreated. Unfortunately, I can’t promise to “save” them. I am not so naive as to think those problems don’t exist. Yet, I encourage them to speak up anyway out of a sense of moral responsibility.

When teachers are committed to supporting all children with special needs, what do they do? One teacher told me that she tries to sit with the parent at IEP meetings, sending the message that she is on the parent’s side, rather than sitting with the school personnel. She tries to talk to the parent privately before the meeting to get a fuller picture of the student at home and school.

Another teacher learned to read the psycho-educational reports presented at IEP meetings so she can better understand students’ learning strengths and challenges. Most teachers tell me that they walk into IEP meetings “cold” without having seen any of the supporting documentation beforehand. If documents were shared in advance, these teachers know they could be more effective.

When I attend IEP meetings as a stranger to the school district, I often wonder what would happen if the teachers organized more effectively as a community on behalf of the student. I usually get the sense that the teachers have not shared their observations about the child among themselves, that their days are so busy they cannot take the time to work as a team. Although in some schools teachers have a common planning period to enable this kind of discussion, I rarely see evidence that effective communication has occurred among the teachers in advance of the IEP meeting.

One of my biggest wishes is that teachers would see me as on the side of the student rather than as an adversary of the teacher or school. When I present data that a 7th grader is reading at a 1st-grade level, I am not trying to attack the teachers in the room. I am trying to get the student the resources she needs to make progress. I know that teachers often have day-to-day evidence that supports the data, yet they rarely share useful anecdotes at the meeting, perhaps out of fear of retribution. It would be so much more effective if teachers and advocates could work together.

Reconfigure Special Education Law. Special education law is a microcosm of the broader race and class inequities within our educational system. As long as we primarily fund schools through property tax revenue and Congress underfunds the IDEA, it is unlikely that special education resources will be equitably allocated in our society.

Fundamentally, effective special education can only unfold in a society where the basic needs of students and their families for health care, housing, food, shelter, and education are met through broad structural reform. Special education law is a conservative, individualistic approach that requires each of us to put forward enormous energy to help one child at a time in a resource-starved context. As we work together to help these children, one at a time, we should not lose sight of the need for structural reform. Only then will Kevin have the possibility of a truly meaningful education in a community of respect.

Endnotes

• ¹ This story is based on Parent O/B/O Student and St. Bernard-Elmwood Place City School District, No. 2125-2007E, September 8, 2008. The childÕs race is not indicated in the record and the names are pseudonyms.

References

• Colker, Ruth. Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act, NYU Press, 2013.
• Dunn, Lloyd. “Special Education for the Mildly RetardedÑIs Much of It Justifiable?” Exceptional Children 20, September 1968.
• Harry, Beth and Janette Klingner. Why Are So Many Minority Students in Special Education? Understanding Race and Disability in Schools, Teachers College Press, 2005.
• Losen, Daniel J. and Gary Orfield, eds. Racial Inequality in Special Education, Harvard University Press, 2002.
• Parrish, Tom. “Disparities in the Identification, Funding, and Provision of Special Education,” Harvard Civil Rights Project for the Conference on Minority Issues in Special Education in Public Schools, Nov. 6, 2000