Students of color and students with disabilities face serious inequities in their school systems. Black students with disabilities in particular face many obstacles to getting access to a quality education, due to racial stereotypes, zero tolerance policies, and disproportionate discipline.
Now, a new study is introducing meaningful research about how school staff treat Black students with disabilities.
Black students with disabilities lose about 77 more days of instructional time due to suspensions compared to their white peers with disabilities, according to a report from the Charles Hamilton Houston Justice Institute at Harvard Law School and UCLA’s Center for Civil Rights Entities.
The racial discipline gap among students with disabilities also increased between Black and white students in at least 28 states, the report found using 2015-2016 federal data.
Researchers began working on this report in response to the Trump administration’s decision to move to delay a rule that was supposed to be implemented in the 2018-2019 school year that focused on “promoting equity in [the Individuals with Disabilities Education Act].” The so-called “significant disproportionatliy” rule sought to create a standard methodology for states to determine when disproportionate numbers of students of a particular race or ethnicity were put in special education classes.
The rule — which was was finalized in 2016 — would have also required states to address disproportionality in “incidence, duration, and type of disciplinary actions” for students with disabilities, which includes suspensions and expulsions.
Students with disabilities are more than twice as likely to receive an out-of-school suspension than peers without disabilities, and they represent a quarter of students arrested and referred to law enforcement, according to 2014 federal data. Black students represent 19 percent of students receiving IDEA services and 36 percent of students restrained at school through equipment that restricts their freedom of movement.
The Obama administration proposal came after a 2013 Government Accountability Office report that found the Education Department’s oversight of the overrepresentation of students of color in special education is “hampered by the flexibility states have to define significant disproportionality.” States have the discretion to define disproportionality, but education officials acknowledged that some states’ definitions may prevent them from identifying it.
Among the school districts that received IDEA funding in 2010-2011, only 2.4 percent were required to use that money for services related to significant disproportionality. That was a 12 percent decrease from the number of districts states required to appropriately use funding related to disproportionality in the previous school year. That’s why the GAO report suggested the department develop a standard approach for states to define what disproportionality is.
“Past experience shows that when decisions on data reporting are left up to states, racial disparities in education, including those for students of color with disabilities, are too often ignored,” said Halley Potter, a fellow at The Century Foundation who researches inequities in education.
Potter said the lack of a standard for disproportionality means that some students of color may be disciplined unfairly as well as misidentified as needing special education services and end up being separated from their peers. It can also mean that students of color who have disabilities may not end up receiving the services they need.
“Both over-identification and under-identification of students of color in special education are civil rights violations and need to be addressed,” Potter said. “Getting better data on these patterns is the first step towards creating more equitable opportunities and outcomes for students. We treasure what we measure, and until states are required to provide robust data, racial disparities in special education are not likely to get the attention they deserve.”
The department proposed to postpone compliance to July 1, 2020.
Office of Special Education and Rehabilitative Services (OSER) referred to comments that suggested the department didn’t have the authority to move forward with the regulations, that it went against the “foundation of IDEA,” and that it would result in quotas. OSER wrote in its notice, “We therefore propose to postpone by two years the compliance dates for the regulations so that we may review all of the issues raised. A number of commenters suggested, for example, that the Department lacks the statutory authority under IDEA to to require states to use a standard methodology.”
“Past experience shows that when decisions on data reporting are left up to states, racial disparities in education, including those for students of color with disabilities, are too often ignored.”
OSER also mentioned a comment that “the standard methodology looks at group outcomes through statistical measures rather than focusing on what is the foundation of IDEA, namely the needs of the individual child.” The notice pointed to a few comments that the regulations would “provide incentives for [local educational agencies] to establish numerical quotas on the number of children who can be identified as children with disabilities.”
Scott Sargrad, managing director of K-12 education policy at the Center for American Progress, told ThinkProgress that he doesn’t think the justifications stand up to scrutiny.
“Lawyers at the department would have litigated this over and over before they did the final rule,” Sargrad said about whether the department has authority to issue the regulations in the first place. “They clearly believed they had the authority and nothing would have changed since then.”
Sargrad added, referring to the department’s mention of group outcomes and quotas, “IDEA does have the focus on individualized education programs. But the whole reason the disportionality requirements are in there is because there was disproportionate identification of students based on race and that is about the individual students but it’s also about the overall picture. Saying that this is looking at group outcomes rather than needs of the child and this … well this is what the requirement in the law is intended to address, so I find that odd.”
Last year, the department’s Office for Civil Rights decided to narrow the scope of its civil rights investigations so that instead of broad systemic reviews, it focuses more on individual complaints. Education Secretary Betsy DeVos won’t answer basic questions from senators on federal policies on discrimination against students. After Sen. Chris Murphy (D-CT) asked DeVos last year whether she would maintain a requirement that schools submit civil rights data to the department, she would not commit to doing so. DeVos has also shown a lack of understanding of IDEA when questioned by lawmakers.
Last year, the department rescinded 72 documents relating to the rights of students with disabilities and justified their action by calling the documents “outdated.” The department may roll back guidance on school discipline that discouraged officers from disciplining students and pushed for more positive and less punitive responses to student behavior. That rollback would likely affect students with disabilities, who are disciplined at higher rates.
There are other indications that the department isn’t willing to address issues of racial disproportionality in student discipline and special education. Kenneth Marcus, tapped by the Trump administration for the head of the Office for Civil Rights, evaded questions about racially disparate school discipline in January.
Marcus said, “Senator, I believe disparities of that size are grounds for concern, but my experience says that one needs to approach each complaint and compliance review with an open mind and a sense of fairness to find what out what the answers are. I have seen what appeared to be inexcusable disparities that were the result of paperwork errors. They just got the numbers wrong.”