Truth in Labeling: Disproportionality in Special Education

The NEA Education Policy and Practice Department is offering a new educators' guide, Truth in Labeling: Disproportionality in Special Education.

NEA views disproportionality -- when students of a particular population or demographic group are over- or underrepresented in special or gifted education programs relative to their group's presence in the overall student population -- as an important issue to address in local or state efforts to close the gaps in student achievement.

Parents, teachers, administrators, school board members, community decision-makers, education support professionals, and NEA local association leaders all have a stake in making certain that students who are culturally and linguistically diverse receive an excellent and appropriate education. 

Truth in Labeling is a collaborative effort of the NEA and the National Association of School Psychologists.  The guide provides educators with basic information about disproportionality -- what it is, what causes it, and what the implications are for students, schools, and the community. It offers recommendations on addressing disproportionality at the classroom, school, and community levels.  And, it includes helpful research references and resources.

The Truth in Labeling guide can be purchased from the NEA Professional Library at a special NEA member price of $9.95 (nonmember price is $12.95). You can also download a free copy here (PDF, 1.1 MB, 56 pages).

While you are online, you may also want to purchase copies of NEA's first educators' guide (The Puzzle of Autism ) or the second guide (The Twice-Exceptional Dilemma ) from the NEA Professional Library. 

Fact Sheet: Section 504, the ADA, and the IDEA

An Explanation of Overlapping Protections

(NOTE: The following is adapted from "Discussion of Section 504, the ADA, and the IDEA" by Pete and Pam Wright. A portion of this article is taken from a chapter in Wrightslaw: From Emotions to Advocacy—The Special Education Survival Guide by Pete and Pam Wright.)

The key portion of Section 504 of the Rehabilitation Act at 29 U. S. C. § 794 states:

Section 794. Nondiscrimination under Federal grants and programs
(a) Promulgation of nondiscriminatory rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in Sec. 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service . . .

The Americans with Disabilities Act, as it applies to public entities, is identical. Subchapter II, Part A, of the Americans with Disabilities Act at 42 U. S. C. § 12132 and § 12133 states:

Section 12132. Discrimination
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Section. 12133. Enforcement
The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

The language of ADA tracks Section 504 and explains that the remedies, procedures, and rights under the ADA are the same as under the Rehabilitation Act. Except for accessibility of buildings, and modifications and accommodations in testing, Section 504 and ADA provide few protections and limited benefits to children with disabilities.

Section 504 and ADA: Purposes

Section 504 is a civil rights law. The purpose of Section 504 is to protect individuals with disabilities from discrimination for reasons related to their disabilities. ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law.

Unlike IDEA, Section 504 and ADA do not ensure that a child with a disability will receive an individualized educational program that is designed to meet the child's unique needs and provide the child with educational benefit, so the child will be prepared for "for employment and independent living."

Eligibility

The child who has a disability or impairment does not automatically qualify for special education services under the IDEA. If the child has a disability but does not need special education services, the child will not qualify for special education and related services under the IDEA but may receive protections under Section 504 of the Rehabilitation Act.

To be eligible for protections under Section 504, the child must have a physical or mental impairment. This impairment must substantially limit at least one major life activity. Major life activities include walking, seeing, hearing, speaking, breathing, learning, reading, writing, performing math calculations, working, caring for oneself, and performing manual tasks. The key is whether the child has an "impairment" that "substantially limits . . . one or more . . . major life activities."

Section 504 requires an evaluation that draws information from a variety of sources. Section 504 does not require a meeting before a change in placement.

Confusion About Benefits and Rights

Some parents and educators believe that under IDEA, the child must be placed in special education classes but that if the child has a 504 plan, the child may remain in the regular classroom. For these reasons, parents often assume that Section 504 is more desirable. This is incorrect. "Special education" under IDEA is “specialized instruction” and is not a place or placement.

The child who receives Section 504 protections has fewer rights than the child who receives special education services under the IDEA. The child who receives special education services under the IDEA is automatically protected under Section 504.

Protection from Discrimination

Section 504 protects children with disabilities from discrimination. It is important to understand that if your child does not receive special education services under IDEA, your child does not have the procedural protections that are available under the IDEA statute.

Accommodations and Modifications

Under Section 504, the child with a disability may receive accommodations and modifications that are not available to children who are not disabled. These accommodations and modifications are also available under IDEA.

Access v. Educational Benefit

Change the facts to clarify the differences between these two laws. Assume that your special needs child is in a wheel chair. Under Section 504, your child shall not be discriminated against because of the disability. Your child shall be provided with access to an education, to and through the schoolhouse door. Modifications may be made to the building and other accommodations may be made for your child.

Under Section 504 regulations, a free appropriate public education is defined as "the provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met and . . . are based upon adherence to specified procedures." (34 C.F.R.§ 104.33(b)(1))

Now assume that your child in a wheelchair also has neurological problems that adversely affect the child's ability to learn. Under the IDEA, if your child has a disability that adversely affects educational performance, your child is entitled to an education that is designed to meet the child's unique needs and from which your child receives educational benefit. Section 504 includes no guarantee that your wheelchair-bound child will receive an education from which your child receives educational benefit. Your Section 504 child has access to the same free appropriate public education that is available to children who are not disabled.

Discipline

If the Section 504 child misbehaves and the school decides the child's behavior is not a manifestation of the disability, the child can be expelled from school permanently. The IDEA child has the right to FAPE, even if expelled from school. Section 504 and ADA do not provide these protections.

Procedural Safeguards

Section 504 does not include a clearly established "Prior Written Notice" requirement. In contrast, IDEA includes an elaborate system of procedural safeguards designed to protect the child and parents. These safeguards include written notice before any change of placement and the right to an independent educational evaluation at public expense. Section 504 does not include these protections.

Impartial Hearings

Section 504 and IDEA require school districts to conduct impartial hearings for parents who disagree with identification, evaluation, or placement. Under Section 504, the parent has an opportunity to participate and obtain representation by counsel, but other details are left to the discretion of the school district.

Summary

In this article, you learned that Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are responsible for accommodations and modifications in testing situations and programs, and improved building accessibility. You learned that these statutes do not require public schools to provide an educational program that is individualized to meet the unique needs of a child with the goal of enabling the child to become independent and self- sufficient. You learned that the child with a Section 504 plan does not have the protections available to the child who has an IEP under the IDEA.

International Convention Adopted

On December 13, 2006, the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities, the first legally binding instrument on human rights of the 21st century.

The Convention protects and promotes the rights and dignity of persons with disabilities by reaffirming "the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination."

The Convention does not create any new rights, but it does specifically prohibit discrimination against people with disabilities in all sectors of life. The Convention affirms equality of rights for people with disabilities, the principle of non-discrimination and equal recognition in law, the right to liberty and security, the right to personal mobility and an independent life, and the rights to health, work, education, and participation in political and cultural life.

The International Labour Organization (ILO) was closely involved in preparing the Convention, insisting on the principle of equality of opportunity and treatment and on non-discrimination. The ILO stated that the Convention's provisions on work will affect around 470 million disabled women and men of working age.

The Convention recognizes the right of persons with disabilities to work, and stipulates the obligation to protect against them all forms of exploitation, violence and abuse, including on the basis of gender. States must ensure that people with disabilities can freely exercise their trade union rights, must prohibit any employment discrimination, and must ensure a work environment that is "open, inclusive and accessible." Access to vocational training must also be guaranteed.

For more information, visit the United Nations Enable site. 

Disproportionality:
Inappropriate Identification of
Culturally and Linquistically Diverse Children

Download this policy brief ( PDF, 213KB, 4 pages).

-- NEA President Reg Weaver

Disproportionate representation of culturally and linguistically diverse (CLD) students in special education programs has been a concern for nearly four decades. [1] One of the most complex issues in the field of special education today, disproportionality refers to the "overrepresentation" and "under-representation" of a particular demographic group in special education programs relative to the presence of this group in the overall student population. Approximately 13.5 percent of all students in K-12 schools receive special education services. However, some subgroups of CLD populations receive special services at rates that are significantly higher or lower than the overall national rate. [2]

Disproportionality exists in various forms and at different levels. For example, overrepresentation can be present in any or all of these ways:

• National, state, and district level over-identification of CLD students as disabled;
• Higher incidence rates for certain CLD populations in specific special education categories, such as mental retardation or emotional disturbance;
• Significant differences in the proportion of CLD students who are receiving special education services in more restrictive or segregated programs;
• Excessive incidence, duration, and types of disciplinary actions, including suspensions and expulsions, experienced by CLD students.

Some CLD groups are under-represented because the proportions of these students who receive special services are notably less than the percentage of these same students in the overall school population. For example, Hispanics and Asian and Pacific Islanders are generally under-represented in special education programs while American Indians/Alaska Natives are under-represented in programs for the gifted.

Why is disproportionality a concern?

Research suggests that a child's race and ethnicity significantly influence the probability that he or she will be misidentified as needing special education and that disproportionality can have immediate and long term negative effects. [3] Labeling students as disabled when they really are not leads to unwarranted services and supports. Misidentified students are likely to encounter limited access to rigorous curricula and diminished expectations. And, more importantly, it creates a false impression of the child's intelligence and academic potential. Here's why:

• Once students are receiving special education services, they tend to remain in special education classes.
• Students are likely to encounter a limited, less rigorous curriculum.
• Lower expectations can lead to diminished academic and post-secondary opportunities.
• Students in special education programs can have less access to academically able peers.
• Disabled students are often stigmatized socially.
• Disproportionality can contribute to significant racial separation.

Discipline and segregated classes

Studies show that CLD students with disabilities are often educated in more segregated or restrictive environments than their white peers. For example, African-American, Hispanic, American Indian/Alaska Native, and ELL students with disabilities are more likely to be taught in separate classrooms or schools than students who are white or Asian and Pacific Islander. [3] In addition, CLD students have higher rates of office referrals, suspensions, and expulsions from school. Often, they receive more severe punishment than white students do for the same type of behavior. [4]

Contributing Policies and Procedures

A variety of policies, procedures, and practices exist at the national, state, district, school, or classroom levels that can lead to overrepresentation or under-representation of CLD populations in special education programs and under-representation in gifted and talented programs.

• the various disability categories assigned to students;
• the restrictiveness of class and school placements of all students with disabilities;
• the incidence, duration, and type of disciplinary actions, including suspensions and expulsions experienced by all students.

Researchers have found that some specific state policies and procedures contribute to disproportionality. For example, differences in how states define special education categories, such as specific learning disabilities and emotional disturbance, and state special education eligibility criteria can influence the procedures used to identify students as disabled. [5] When school polices or procedures strain needed supports or restrict options for students, disproportionality can be intensified. For instance, funding policies that create large general education class sizes or constrict the availability of early intervention programs and support services impede the ability of teachers to give students the personalized attention they need. Also, rigid discipline policies, such as zero tolerance rules, may inadvertently promote lower tolerance for cultural differences. This, in turn, can increase discipline-related referrals of CLD students.

Call to action

All stakeholders -- classroom teachers, parents, and community leaders, school and district decision makers, and state and federal policymakers -- have an important role in decreasing disproportionality. Working together, we can make changes in state, local, and classroom policies, procedures, and practices so that every child, no matter his or her cultural or linguistic background, receives an appropriate education in a great public school.

References:

1 Gamm, S., Disproportionality in Special Education: Identifying Where and Why Overidentification of Minority Students Occurs, (Bethesda, Md.: LRP Publications, in press).

2 U.S. Department of Education, Twenty-fourth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, (Washington, D.C.)

3 de Valenzuela, J.S., S.R. Copeland, C. Huaqing Qi, & M. Park,. Examining Educational Equity: Revisiting the Disproportionate Representation of Minority Students in Special Education. Exceptional Children 72, no. 4 (2006): 425-441; Keller-Allen, C., English Language Learners with Disabilities: Identification and Other State Policies and Issues, (Alexandria, Va.: Project Forum, National Association of State Directors of Special Education, 2006).

4 Cartledge, G., K.Y. Tam, S.A. Loe, A.H. Miranda, M.C. Lambert, C.D. Kea, & E. Simmons-Reed, Culturally and Linguistically Diverse Students with Behavioral Disorders, (Arlington, Va.: Council for Exceptional Children).

5 Harry, B., J.K. Klinger, K.M. Sturges, & R. Moore, "Of Rocks and Soft Places: Using Qualitative Methods to Investigate Disproportionality," in Racial inequity in special education, ed. D.J. Losen and G. Orfield, (Cambridge, Mass.: Harvard Education Press, 2002).

Hollins, E.R., Culture in School Learning, (New Jersey: Lawrence Erlbaum Associates, Inc., 1996).

Campbell-Whatley, G.D., & R. Gardner III, R., Strategies and Procedures for Designing Proactive Intervention with Culturally Diverse Population of Students with Emotional or Behavioral Disorders and Their Families/Caregivers, (Arlington, Va.: Council for Children with Behavioral Disorders, 2002).

Resources

Building the legacy: A training curriculum on IDEA, disproportionality and overrepresentation module . National Dissemination Center for Children with Disabilities (NICHCY). (2007). www.nichcy.org/training/contents.asp

C.A.R.E.: Strategies for closing the achievement gaps . National Education Association. Washington, DC. (2003).

The role of general education teachers in the Response-to-Intervention (RtI) process. National Education Association. Washington, DC (2006).

Truth in labeling: Disproportionality in Special Education . National Education Association. Washington, DC (2007).

Meeting the challenge: Special education tools that work for all kids . Ralabate, P. Washington, DC: NEA Professional Library. (2002).

A Purposeful Plan To Tackle Disproportionality

Rapides Parish, Louisiana, Reduces Referrals to Special Ed

When Rapides Parish in Louisiana was found to have serious disproportionality problems, they decided to tackle the issue in a proactive fashion. They established a steering committee that included representatives from regular education, special education, parent groups, and the community. The goals the school system set out to accomplish included:

• creating an awareness of the issue of disproportionality and culturally responsive practices in all areas;
• identifying target schools to implement early intervening services focusing on reading and math;
• appropriately identifying students with disabilities for special education through the use of Response-to-Intervention (RtI) and increased focus on culturally responsive assessment practices;
• implementing Positive Behavior Support (PBS) programs district-wide.

The Rapides Parish School District laid out a five-year action plan to address disproportionality, its correlates, and achievement and behavior gaps. The plan was presented at the National Center for Culturally Responsive Educational Systems' (NCCRESt) February 2007 conference, Leadership for Equity and Excellence: Transforming Education.

Early outcomes from Rapides Parish's disproportionality reduction efforts were encouraging; referrals for initial special education evaluations were way down and, more important, the percentage of Black students within the emotionally disturbed, mentally retarded, and specific learning disability categories was dropping.

Also of note was the increase in the percentage of Black students being identified as gifted and/or talented. Teachers, families, and students reported increased enthusiasm and support for the initiatives. For more information, contact: Rapides Parish School District  and the National Center for Culturally Responsive Educational Systems.

Excerpted from Truth in Labeling: Disproportionality in Special Education.  Source: Mary Beth Klotz, NASP.

More Case Studies Addressing Disproportionality:

• Systemwide Response-to-Intervention in Clark County, NV 
• Fairbanks School Board Committee Monitors Special Ed Placement
• Baltimore City Schools Reduce Suspension Rates