QUESTIONS & ANSWERS ON DISCRIMINATION IN SPECIAL EDUCATION

This section is made up of three basic areas: (a) Rights and Remedies, (b) Direct Action for Minority Parents, (c)
Guidance on Filing Complaints.

A. RIGHTS AND REMEDIES

1. What is Special Education?

"Special education" consists of support and services that are provided by schools to help students with disabilities learn to their full potential. In theory, and often in practice, students who are eligible for special education get important help such as tutoring, extra teacher attention, and specialized instruction by teachers with specific training. Special education means services for children; it is not a place where children are sent. Two laws in particular, the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504") give children and parents the right to services and provide legal protection against discrimination on account of disability.

2. Why is Special Education a Civil Rights Issue?

Unfortunately, special education has historically been used as a vehicle for discrimination against minorities. Soon after the Supreme Court's 1954 decision in Brown v. Board of Education, the nation witnessed an increase in placement of minority students in separate special education classrooms. Since 1954, special education has been used by some, in place of more blatant racial segregation, to segregate students of color. Furthermore, individuals with disabilities are often confronted with fear, prejudice, and stigmatization. Minority children with disabilities are in double jeopardy of being discriminated against, on the grounds of both race and disability. Fortunately, Title VI of the 1964 Civil Rights Act prohibits both blatant and subtle forms of ethnic and racial discrimination perpetrated by public schools and institutions receiving federal funds. Moreover, Section 504 and Title II of the Americans with Disabilities Act protects against discrimination on the basis of disability in public schools. A school system that fails to provide a free and appropriate public education to meet the needs of students with disabilities violates the civil rights of those students.

One especially grave concern in special education is the overrepresentation of African American males in disability categories such as "educationally mentally retarded" ("EMR") or "emotionally or behaviorally disordered" ("ED"). Some mislabeled students need no special education services whatsoever. In fact, numerous successful African America scholars report being labeled as educationally mentally retarded when they were children.

The misdiagnosis problem persists today, but there are additional concerns as well. Some minority children do need special education support, but are more likely than Whites to be removed from general education classrooms and put into resource rooms, substantially separate classes, or separate schools, where they commonly receive low quality services. The wrongful classification, segregation, and poor servicing of minorities through special education denies equality of opportunity and has devastating results in communities throughout the nation.

3. What Can Be Done?

There are two kinds of actions that concerned citizens can take:

First, minority parents can exercise their rights under disability law to stop misdiagnosis and gain high quality services for those children who need special education. For example, parents can challenge a decision to evaluate their child for special education by refusing to consent to the evaluation.

Second, parents and community groups can organize to fight systemic failures and discriminatory educational practices.

Parents have powerful legal rights under disability law. But, minority and economically disadvantaged parents have not, historically, taken full advantage of these rights compared with affluent White parents.

This guidance will help parents and community activists:

• Understand the problem, and the existing rights and legal protections;
• Identify problems in their school, district or state;
• Use parental rights under disability law to fight discrimination and generate effective school reform for all children;
• Gain access to the resources needed to combat systemic discriminatory policies and practices;
• Take action to improve special education services for minority children, teacher training, and general education teaching and instruction.

4. Why are Minorities Overrepresented in Special Education?

• Historical discrimination along race, ethnicity, and gender lines is reflected in the decisions of school authorities, in biased tests, and in the structure of the special education system;
• Learning problems are more prevalent among the poor;
• Poor quality "regular" instruction causes low achievement and misbehavior, triggering more referrals to special education;
• Badly trained teachers and diagnosticians do not account for cultural factors that may affect referrals and assessment; and
• Schools lacking adequate resources use special education as a form of discipline.

5. What Power Do Parents Really Have Against School Districts?

The Individuals with Disabilities Education Act (IDEA) and Section 504 of the 1973 Rehabilitation Act are critical tools, giving parents the legal rights and power to fight discrimination against their children on an individual basis.

IDEA was created to protect the rights of students with disabilities who have historically been excluded from mainstream society. The IDEA also combats the problem of overrepresentation -- particularly of African American males -- in special education, and explicitly identifies the under-servicing of minorities in education as an issue.

Section 504 provides similar protections, but also covers students who have disabilities that don't impair their ability to learn. For example, the law guarantees access to schooling for a student who must use a wheel chair. Section 504 can also be used to ensure that state and local education authorities do not adopt policies that violate the IDEA.

A) The IDEA is a Powerful Anti-segregation Tool: The IDEA requires that students with disabilities attend classes with general education students to the "maximum extent appropriate," according to the needs of the special education students. This ensures exposure to the same curriculum and the same high social and academic standards that the general education students access. The shorthand version of this concept is described by two acronyms used in special education law:

1. FAPE - Full Appropriate Public Education; and
2. LRE - Least Restrictive Environment.

This IDEA goal of desegregation is rooted in research showing that most students with disabilities learn more if they are held to high expectations and receive some services in a general education classroom rather than a special education-only environment. "FAPE" also means that schools are expected to teach students well. If children with disabilities do not make real achievement gains, they are not likely getting a Full Appropriate Public Education. Every state has its own set of regulations pursuant to IDEA, and some may have even stronger laws. But no state may weaken these protections.

B) IDEA Requires that All Students Be Treated As Individuals. IDEA stresses that schools must address the individual needs of each child eligible for special education. The identification of civil rights violations in special education is complicated by the fact many students do benefit from services, and some even benefit from separate placements. All placements should be made on an individual basis, and only after a comprehensive evaluation of a student's specific needs. The IDEA requires that important procedural and substantive steps be taken before a substantially separate placement is made - and yet these steps are too often skipped.

6. What About Laws that Prohibit Discrimination Based on Race and Ethnicity?

When minority students are inappropriately placed in special education and/or given inadequate services, such practices may violate the rights of students under Title VI of the 1964 Civil Rights Act. ("Title VI"). Title VI prohibits discrimination by public schools on the basis of students' race, color, or ethnic origin. Title IX of the 1964 Civil Rights Act, which prohibits discrimination based on gender, may also be important; the overrepresentation of boys, especially African American boys, may reflect unlawful gender discrimination as well as race discrimination.

A) How Does Title VI Protect Minority Children? Title VI prohibits treating minority students differently from White students. When a school appears to use a different set of criteria for making special education decisions about minority students compared to Whites, such a practice is called "different treatment." For example, putting African American boys in separate classrooms for special education, while providing White boys with similar disabilities services in the general education classroom, would be unlawful different treatment.

B) What If Minority Children Seem To Be Overrepresented In Special Education? Title VI also may prohibit a school from using a policy that uses identical criteria for Whites and minorities when that policy causes racial or ethnic segregation to increase significantly, or results in certain ethnic or racial groups receiving fewer benefits. For example, if an apparently fair evaluation process results in the placement of a disproportionate number of African American boys in classrooms for students with behavioral disorders, this practice may have a "disparate impact" on African Americans. Overrepresentation does not violate the law automatically, but it does signal a possible violation and the need for further investigation. See Part II of this action kit for a detailed overview.

7. Who Has The Right To Act?

Title VI, Title IX, and Section 504 each allow concerned citizens to challenge discrimination in education, wherever they suspect discrimination, by filing an administrative complaint with the U.S. Department of Education's Office for Civil Rights ("OCR"). As long as a complaint is rooted in specific facts about an identifiable school, school district, or state, one need not be a parent or guardian of a child attending school to take action. More stringent legal requirements apply to individuals wishing to file lawsuits in court. IDEA is structured differently and is most often used by parents of individual students to redress special education concerns with state authorities. Utilizing the rights afforded by IDEA, minority parents can prevent a good deal of misdiagnosis, and subsequent overrepresentation in substantially separate special education programs. Also, organizations with affected members in the defendant school district can file complaints on behalf of members.

8. How Can Citizens Identify Special Education Problems?

The following patterns of bad practices may indicate unlawful discrimination against students of color, and students with disabilities:

1) Skipping procedural steps required by IDEA, by, for instance:

• not sending parents a "rights brochure," detailing parental legal rights and time lines, in a language that parents understand;
• not telling parents about the right to an independent evaluation;
• not arranging a re-evaluation every three years;
• not holding a hearing within ten days of suspending a student with, or suspected of having, a disability;
• not reporting student progress to parents of special education students on a regular basis.

Other signs of bad special education practice are present where:

• "Individualized education plans" (IEPs) don't describe a student's specific progress from one year to the next;
• Frequent decisions by school personnel separate minority children from the mainstream without first trying other strategies in the general education classroom;
• School, district, or state policy ignores individual needs, and automatically places students in mental retardation or emotional or behavior disorder categories , without regard to individualized needs;
• Over reliance on IQ test scores to determine special education eligibility and placement.

This section is made up of three basic areas: (a) Rights and Remedies, (b) Direct Action for Minority Parents, (c)
Guidance on Filing Complaints.

B. DIRECT ACTION FOR MINORITY PARENTS

1. What Can Parents Do To Prevent Misdiagnosis?

The best way to prevent a potentially discriminatory diagnosis of special needs is by refusing to consent to the initial evaluation. Parents should first urge the school to try a variety of teaching strategies, and should attempt to work with their child's teachers to address misbehavior and boost achievement. In most cases, many alternative strategies should be tried before a child is tested for special education eligibility. Unfortunately, parents rarely know their rights, or are reluctant to challenge the opinion of school officials, and usually don't request the use of these "pre-referral strategies" in the classroom.

Parents should find out all they can about their rights under two federal laws, the Individuals with Disabilities Education Act, and Section 504 of the Rehabilitation Act of 1973. Parents may have even stronger rights under state law. See the Civil Rights Alert in this binder for where to find more information about your rights under both federal and state law.

2. Can Parents Get a Second Opinion?

Yes. When both parties want an evaluation, parents may choose their own independent evaluator. The school will often have to pay for this second opinion if the parents consented to a school evaluation and disagreed with the school's findings. In this case, the school must either agree to pay for the parent's independent evaluation or seek a denial of the parent's request through a hearing before a state authority. Finding a good independent evaluator is critical. Parents should seek recommendations from experienced advocates, attorneys, and health professionals. See Appendix IV for information on how to request an independent evaluation and how to find an independent evaluator.

3. Can a School Change a Child's Program Without Permission?

Parental permission is necessary in most circumstances. In general, a parent must give "informed consent" to an evaluation or change in placement before school authorities can move a child out of a general education class for all or part of the day. If the child has an individualized education plan ("IEP"), the plan can not be changed without such permission.

4. What If a School Changes My Child's Placement for Disciplinary Reasons?

A school may change a child's educational placement without parental consent in the following rare circumstances:
1) if the school officially determines that a child is an immediate danger to herself or others;
2) if the child was found bringing drugs or a weapon to school; or
3) if the school has prevailed at an administrative hearing presided over by a state-appointed hearing officer. Under the "stay put" doctrine, if a parent appeals the decision of a special education team, school official, or reviewing officer, the child "stays put" until the appeal process has been exhausted.

5. What If I Suspect A Child Has Already Been Misdiagnosed?

It is rarely too late to act. Parents who suspect a misdiagnosis, or seek higher quality services, may take back their consent at any time. The parents then have a right to a hearing. Even if the school does not agree to an immediate change, revoking consent will trigger a "due process" hearing with a state authority. At this hearing, parents may introduce any independent evaluations they have obtained, and may present expert testimony. Parents can use the state hearing system either to undo a misdiagnosis or require the school to provide services in the least restrictive environment ("LRE").

However, allegations of racial discrimination do not generally fall within the jurisdiction of such a hearing. Complaints of racial or ethnic discrimination should not be made in an IDEA complaint. Complaints of racial discrimination have strict time limits for filing. See Appendix IV for sample letters requesting a hearing, and Appendix I for detailed instructions on how to file a complaint of discrimination based on race or ethnicity. If the school system loses at the hearing, they may also be required to pay the parent's legal expenses. The specific procedures and requirements for hearings differ from state to state and should be carefully reviewed. See Appendix VIII for links to accessible parent organizations.

6. When Should Parents Consent To Special Education?

When a child is evaluated properly, special education can provide extremely important benefits. The clearest example is where the diagnosis of a biological disability, such as a hearing impairment, entitles a student to resources she needs to learn at the same rate as a general education student. In such cases, the issue is getting the school to provide the full services that the student is entitled to by law. Additionally, some minority students do have learning or behavior related disabilities. If assessed properly, they are entitled to receive highly effective special education support. For example, a student with dyslexia will benefit from specialized reading instruction. The same tools parents should use to prevent misdiagnosis will also help them ensure that their children get the right services if they need them. Parents of children with disabilities should pay careful attention to the quality of services provided by the school. Effective services usually result in demonstrated academic achievement gains.

7. What If My Child Attends a Charter School or Private School?

All the legal protections and rights to services in this guidance are available to students in public charter schools. The law is not clear about private schools -- even those that receive vouchers from public funds. Title II of the Americans with Disabilities Act ("ADA") protects children in any public school against disability discrimination regardless of whether the school receives public funding. Title VI only applies to schools receiving federal funding, but, depending on the facts, other civil rights statutes can apply. Furthermore, if a public school sends a child to a private school because the public school could not meet her special education needs, the IDEA still applies and the "sending" public school district can be held accountable.

8. How Can Parents Challenge Schools to Make Accurate Assessments and Provide Appropriate Services?

The IDEA and corresponding state regulations are filled with substantive and procedural processes. Filing complaints and lawsuits can be useful in challenging misdiagnosis and inadequate services. Also, schools will often change their recommendations if seriously challenged. Many complaints are settled to the parent's satisfaction without having to have a full hearing.

• Bring in Experts: Parents can bring an expert of their choosing to the team meeting where placement decisions are made. See Appendix IV on how to request an independent evaluation. The independent evaluator you select to give a second opinion can become an important expert at the team meeting.
• Question the credentials of the school's evaluators: Special education placements based on tests administered by school personnel can be challenged as invalid if the tester was unqualified to give the tests.
• Bring a Parent Advocate or Lawyer to Meetings About Your Child: Schools often do not respect parental input, and parents often do not understand their rights. By bringing an attorney or advocate, the parent can diminish pressure from the school to simply "trust the school experts."
• Use Parental Information Centers: There are information centers in every state that educate parents about the IDEA and state regulations.
• Ask Specific Questions: For example, if a child is struggling academically, ask whether the school has provided extra supports in the classroom. Who provided the help? How often? What result? Also, be sure to inquire about before and after-school supports.
• Insist on Detailed Progress Reports: Parents of students receiving special education services have the right to be well informed. If a child has been evaluated, and it has been determined that special education services would be helpful, parents can request more frequent progress reports and more regular communication about their child's progress. At any time during the year, parents are legally entitled to call a meeting with their child's teachers and special education instructors to discuss their child's progress, and the school must soon thereafter hold a meeting that includes the parents, teachers, and other relevant school personnel.

NOTE: The IDEA Aims at Reducing the Segregation of Students with Disabilities: When concerned parents get organized, they can exert a great deal of influence over school and district policies. Parents can assert their individual rights, but advocacy groups can also challenge a district or state failure to implement IDEA's FAPE and LRE requirements. Challenges can take the form of reports to board meetings, meetings with superintendents, and reporting to the media through press releases. Lawsuits have also been very effective. Advocates in a recent class action suit were successful against both the Board of Education for the City of Chicago, and the State of Illinois. On behalf of predominantly minority children, the plaintiffs argued that both defendants were systematically discriminating against all students with disabilities by not providing the "least restrictive environment" for each student.

This section is made up of three basic areas: (a) Rights and Remedies, (b) Direct Action for Minority Parents, (c)
Guidance on Filing Complaints.

C. GUIDANCE ON FILING COMPLAINTS ABOUT SPECIAL EDUCATION WITH THE U.S. DEPT. OF EDUCATION OFFICE FOR CIVIL RIGHTS

1. Who can file a complaint? What does it cost?

Anyone who believes there has been an act of discrimination on the basis or race, color or national origin, against any person or group, in a program or activity that receives federal education financial assistance. (Virtually all public schools receive this type of federal assistance.) You do not need to be a parent or guardian of a child in a school to file a complaint, and any person or organization can file on behalf of another person or group. Filing a complaint with OCR is free.

2. When can I file a complaint?

Generally, OCR complaints must be filed within 180 days of the date of the alleged discrimination. However, special education complaints may involve ongoing school policies; before filing a complaint, call OCR to see if the time limit applies.

3. How do I file a complaint?

Complaints can be made in writing or by telephone to the regional OCR office that serves your state. Appendix VIII contains a list of these offices. You can also find out how to contact your regional office by calling OCR's Customer Service Team at 1-800-421-3481. OCR also maintains a website, at http://www.ed.gov/offices/OCR

4. I've heard that OCR is ineffective. How can I get the agency to do a full investigation?

There is strength in numbers. For each complaint it receives, OCR decides whether to investigate at all, and how thorough an investigation it will conduct. The stronger your complaint, the more likely it is that OCR will begin a thorough investigation. The best way to trigger a full investigation is to join with others and gather as many similar complaints as you can.

5. What if the school retaliates against me or my student(s) because I file a complaint?

Once again, federal law prohibits school districts from retaliating against any person who has made a complaint, or testified, assisted, or participated in any manner in the resolution of a complaint filed with OCR. If you believe you have been retaliated against, you should contact OCR and file a second complaint about the acts of retaliation.

6. What do I put in a complaint?

There are sample letters that you can use as a model for your complaint in this action kit. See Appendix III. You should send your letter to the regional office serving your state, and make sure to keep a copy for yourself. You can also obtain complaint forms from the OCR regional office in your area, but you do not need to use this form. All complaints should provide the same basic information to start with:

• Your name and address (a telephone number where you may be reached during business hours is helpful, but not required);
• If you are writing for another person, that person's name;
• The name and location of the school/district that discriminated;
• A description of the action/policy you think is discriminatory;
• A description of what happened to the student/group of students;
• When (date) the discriminatory actions took place, and whether they are continuing.

A general description of the person(s) injured by the alleged discriminatory acts or policy (names of other injured persons are not required but should be included if you have them). Include the race and/or ethnicity of the person(s) injured.

7. How are Complaints Resolved?

If you don't like the manner in which OCR investigates your complaint, in many cases you can stop the OCR process and file a lawsuit in court. However, OCR generally tries to encourage a settlement. This means that even if OCR investigates it and seeks a remedy, your complaint will probably not go to a full hearing. It is a good idea to figure out what remedy you would settle for before negotiations begin.

8. Do I need to hire a lawyer?

You do not need a lawyer in order to contact OCR, but you will need a lawyer if you wish to sue in court. After you submit your complaint, OCR's work begins. However, you can and should stay involved. Keep asking OCR what is happening with your complaint. The OCR investigator should make an effort to keep you informed as well.

Remember though that when the investigation begins, OCR does not legally represent either the school system or you, the complainant. The school system will likely have its own lawyer; therefore, your chances of winning are generally better if you have a lawyer, too. If OCR determines that a violation has likely occurred, but the school district refuses to resolve the violation, OCR will initiate an administrative hearing and represent the federal government against the district or state.