ADVICE FOR ADVOCATES

Highlights strategies for mounting challenges, organizing parents, strengthening complaints, and creating key statistical comparisons.

Part A. Next Steps: Detailed Advocacy Information for Challenging the School System
Part B. Advice for Community Advocates: How to Strengthen OCR Complaints
Part C. Additional Information: What to Collect and How to Analyze It

PART A. NEXT STEPS: DETAILED ADVOCACY INFORMATION FOR CHALLENGING THE SCHOOL SYSTEM

1. What do you have to prove to win on complaints about discrimination?

a. Different treatment: Complainants who allege different treatment must compare the school or school district's special education policies and practices for minority students to the special education policies and practices in place for White students. To prevail, the complainant must show two basic things:

DIFFERENT TREATMENT: that minority students are evaluated for special education differently than White students are, or that -- even when the minority students are evaluated properly -- they receive inadequate or overly-restrictive services compared to White students; and INTENT TO DISCRIMINATE: that the school or school district intentionally discriminates against minority students in making these choices -- i.e. that students are purposefully treated in a different way because of their race, national origin, or color. Racial slurs by school employees, as well as other evidence of racial hostility or insensitivity, can help support this claim.
Different Treatment in the Special Education Context. A different treatment case can be based upon the experiences of one student or many students. For example, a different treatment claim may be made if a black student and a White student with identical test scores are labeled differently, or if only the black student is placed in a separate classroom environment. This single instance of different treatment may be an adequate basis for filing a claim. However, anecdotal information or reviews of school records might also suggest that a certain school official treats White and minority students differently on a routine basis, or that the school or district applies different criteria to certain racial or ethnic groups. Where many students are involved there may be a viable class action different treatment claim.

b. Disparate Impact: Disparate impact claims do not require proof of discriminatory intent. Instead, there must be a disparate impact caused by a policy or practice that harms one ethnic or racial group more than it harms another. The disparity is usually demonstrated by comparing statistics.

Disparate Impact in the Special Education context. A disparate impact claim would assert that a particular racial or ethnic group is disproportionately represented in special education. It is not necessary to show intentional discrimination. The claim is based on a statistical analysis comparing overall school enrollment with special education identification or placement. Once a disparity is established, the legal analysis proceeds as follows.

(1) The cause, or multiple causes of the disparity should be identified, if possible. For example, the use of an I.Q test, or another particular school policy or practice, might be linked to Black students being identified as having mental retardation at a rate that is substantially greater than could reasonably occur by chance. An exception to this linkage requirement exists where numerous factors contribute to overrepresentation. Research suggests that multiple factors often contribute to the overidentification of minority children for special education. In these cases, the complainant must show that there are many interdependent causes that cannot (or should not) be analyzed separately.

(2) The school may defend its policy or practice by claiming that it is justified by educational necessity. If this argument is accepted as valid, the school will prevail unless you can demonstrate that a less discriminatory alternative would achieve the same purpose as the challenged policy or practice.

A school system may be violating both disability law and Title VI. It is common to challenge a school on more than one legal basis. In some cases, school practices may also violate the United States Constitution, a state constitution, or state law. Plaintiffs should always consider making the state a plaintiff if they plan to sue the school district.

2. What Can Be Done To Challenge A Discriminatory Special Education System?

Action plans for the long and short term: Challenges to discriminatory special education policies and practices are often legal challenges (though there are other means available to you too). Class action lawsuits are usually long-term actions. Ideally, both legal and non-legal strategies can be orchestrated for maximum impact. Class actions against state governments for failing to implement the "least restrictive environment" (LRE) provisions and "free appropriate public education" (FAPE) standards in disability law can be successful, and should be considered along with more traditional civil rights litigation. In fact, it may be easier to win a Title VI action when there is also a clear violation of disability law by a school system or state. Another legal avenue that deserves attention is the possibility of suing under Title I, the federal law that virtually requires that all children be exposed to curriculum and instruction that enable them to meet the state's high standards. Class action plaintiffs should seek the advice of an experienced attorney, especially when considering filing a lawsuit in court.

Challenges in Court Versus Administrative Complaints: The decision whether to file an administrative complaint with the U.S. Department of Education's Office For Civil Rights or to file a lawsuit in state or federal court requires careful consideration of many factors. Extra-legal remedies should always be considered, especially since there is no guarantee that an OCR investigator or a judge will conduct a fair and comprehensive review of the complaint. See Part B of this Appendix for a chart comparing the advantages and disadvantages of these approaches.

Extra-legal actions are potentially as effective, are often less costly, and may get results faster. Studies show that children who have had ineffective reading instruction in the early grades are much more likely to be referred for special education later on. Therefore, advocates concerned about overrepresentation should fight hard for the policy improvements in schools that will reduce special education identification. You should demand that reading and math programs are proven effective, that experienced and effective teachers be hired, and that all teachers be well trained to teach in an "inclusion" model.

3. What if The School Is Under an Order to Desegregate?

Evidence of discriminatory special education practices should be used in court against schools that are seeking to end desegregation orders. In such cases, the school may have a long history of minority overrepresentation in substantially separate special education classrooms. Discrimination claims -- especially those based on overrepresentation -- against schools that are under court orders to desegregate may be easier to win. See Part B of this Appendix for more information.

4. What Else Can Be Done Without Filing a Lawsuit?

• Increase parent education about their rights under IDEA so that individual parents can better protect their child's right to FAPE and LRE.
• Organize community members to speak out at school board meetings. See Appendix II for advice on how to approach a school board.
• Arrange meetings with school superintendents, principals and special education directors. See Appendix II for guidance on setting up and conducting these meetings.
• Release strategic reports to the media detailing district and state problems. See Appendix VI for a sample press release including the latest research on the issue.
• File administrative complaints at the federal level. See Appendix III for forms you can use to file an administrative complaint with OCR.

5. Information Worth Gathering.

Whether you use a lawsuit, an administrative hearing, or non-legal means, attacking systemic discrimination requires that discriminatory patterns be documented. Privacy laws make it more difficult to access information needed to prove that individual students receive different treatment. Therefore, highlighting statistical disparities is a critical first step. Overrepresentation statistics are often dramatic evidence of discrimination. Publicizing such statistics can generate public outcry and have the potential to stimulate change.

Take a close look at how special education services are being financed: In some states, money for special education is awarded according to the kind of placement, with local districts allocated more funds for students placed in separate classrooms than those included in general education classrooms. If placement decisions that should be based on the learning needs of individual students are substituted with decisions based on the financial needs of the district, the students will likely lose out. For example, the district's financial concerns could be the driving force leading to overrepresentation of minorities in substantially separate, and unnecessarily restrictive, programs. This type of information may be valuable in a press release or a legal action.

Demand Closer Monitoring By State and Federal School Authorities: A recent study released by the National Council on Disability has revealed widespread noncompliance with LRE requirements on the state level. Failure to comply with LRE has been linked to minority overrepresentation, but has received little attention in the media. Typically non-compliant districts place children automatically, according to disability classification or as a matter of policy, or have few resources dedicated to pre-evaluation strategies for "inclusion." See Appendix III for sample letter.

6. How Should I decide whether to use OCR or file a lawsuit?

The following list highlights some of the advantages and disadvantages of pursuing an administrative remedy with OCR, as well as of going to court.

OCR Advantages:

• Minimal Cost for the complainant once the complaint is filed.
• OCR has broad investigative powers and can access information from schools and districts more easily than private individuals can.
• The option to go to court remains in some cases, even after you file with OCR.
• OCR may encourage a school to change a policy or practice even if it is unclear whether they have violated the law.
• OCR can require a school to collect certain kinds of statistical data.
• OCR has experience working to change school policies and practices.

OCR Disadvantages:

• The OCR track record is a mixed one.
• An appeal in court will be harder to win if OCR rules against you.
• Some damages and individual compensation, which can be won in court, are not recoverable in an administrative complaint.
• OCR investigators are subjected to political pressure and bureaucratic constraints; the depth and quality of investigation and negotiation can vary significantly because of this.
• OCR rarely invokes the strongest measure -- withdrawal of federal funds -- even against blatant violators.
• OCR does not always monitor its agreements well enough to ensure compliance.

Court Advantages:

• Court rulings carry more authority for future cases.
• Court rulings get more media attention and could generate more pressure on similar violators to change their ways.
• A lawsuit may put more pressure on the school to settle, because of the expense of going to court and the greater likelihood of a strong remedy.
• A plaintiff may have more say in influencing the depth of the investigation and a court's remedy and the ruling may be easier to enforce if the district does not comply.

Court Disadvantages:

• Cost and time involved in gathering school data is much greater.
• Different treatment cases are harder to investigate because individual plaintiffs cannot easily gain access to student records.
• Statistical information may be more difficult for a plaintiff to obtain than it is for OCR investigators.
• Judges often defer to the judgment of school officials, making these suits very difficult to win.
• Trials are much more expensive and usually take much longer.
• The law is unclear on whether individuals can sue public school districts or states in court under the Title VI regulations on "disparate impact" grounds. You should consult an experienced civil rights attorney for guidance in your state. Some courts may allow individual plaintiffs to use a federal civil rights statute called, "42 U.S.C. Section 1983" to go to court invoking the Title VI regulations on "disparate impact." However, other courts have not allowed individual plaintiffs this option. You can still claim disparate impact violations when you file a claim with the Department of Education's Office for Civil Rights (OCR).

NOTE: The right of a private party to enforce the Title VI "disparate impact" regulations in court under an "implied private right of action," which had been established by most lower courts, was rejected by the U.S. Supreme Court in a recent 5-4 decision. The Supreme Court, however, did not decide whether private parties could use the civil rights law Section 1983 to enforce these regulations. In a dissenting opinion, joined by three others, Justice Stevens asserted that private parties could still enforce the "disparate impact" regulations using Section 1983.

Part A. Next Steps: Detailed Advocacy Information for Challenging the School System
Part B. Advice for Community Advocates: How to Strengthen OCR Complaints
Part C. Additional Information: What to Collect and How to Analyze It

PART B. ADVICE FOR COMMUNITY ADVOCATES: HOW TO STRENGTHEN OCR COMPLAINTS

1. Organize!

Perhaps the most effective thing a parent or advocate can do is to organize parents who share concerns about special education. While one parent's complaint could trigger an investigation, the more parents involved, the more likely it is that OCR will respond. If four or five parents can join together, they should request an OCR investigator to meet with them even before they file a complaint, in order to discuss their concerns. This simple meeting can help attract OCR's attention to the problem and create a stronger complaint -- one that will more likely trigger a full-scale investigation.

2. What kind of additional information would strengthen a complaint? Is other information required?

The basic complaint is all that is required. However, the initial complaint is your best chance to convince the OCR investigator and the school that you have a strong case. These first impressions matter. The more individual stories of unfair treatment and useful enrollment information you can provide, the more likely it is that your complaint will be investigated thoroughly. If the information is sparse, the school district may be able to undermine the complaint and limit the investigation.

For example, imagine a minority parent alleges that her child was placed in special education classes, while a White child with similar problems was not. The school might provide the OCR investigator with evidence that they use very strict testing criteria to determine eligibility and that the minority student had weaker test scores.

But suppose, before filing, the parent learned that within the district a Latino student was three times as likely to be placed in special education as a White student. What if parents of all races stated that they believed school authorities were more likely to segregate minority children in special education classes? Furthermore, what if there was evidence that critical procedures required under IDEA were continually skipped when minority children were involved? This additional information might not prove that discrimination occurred, but it improves the chances that OCR would keep the case open for investigation. Moreover, if a disparate impact claim had also been raised, an OCR investigator would be more likely to look closely at the statistics.

3. How else can a basic complaint be made more persuasive?

At the filing stage, parents and advocates don't need to produce all the evidence they need to win their case; they only need enough information to spark an investigation. However, submitting statistical information that points to widespread discrimination will help prompt a full-scale investigation.

a. Find out about the experiences of other students. Any complaint can be made stronger by raising all claims for which there is a basis, providing a lot of supporting evidence, and preparing answers for the school's likely defenses ahead of time. For example, test data might reveal that minority students were placed in special education classes when similarly performing White students were not. Perhaps the parent of a misdiagnosed child would then become aware of other minority students who were improperly placed in special education classes. Such evidence would suggest that an evaluation defense was a pretext for discrimination and not a factor that was routinely considered in placement decisions.

b. Identify specific policies that could lead to discriminatory special education placements. The policies that schools use to place students in special education classes could trigger a disparate impact claim. If there is a basis for a claim against a policy, include information about the specific policies used by the school or district in your complaint. Adding a disparate impact allegation could trigger a more thorough OCR review of special education enrollment in the district. Information about placements that rely heavily on qualitative judgments of teachers, guidance counselors, and principals, such as judgments that a student is "disruptive" or "unmotivated," will be especially useful.

c. Seek expert testimony. There may be school psychologists who will testify that improperly placing students in special education can make the students feel defeated and have long-term educational consequences. This could cast doubt on the school's educational justification. Expert witnesses might be found in local universities.

d. Compare special education placement for schools within the same district. In some districts there may be some schools that use different criteria and/or have less disparity by race/ethnicity than other schools. In these districts, the defendant will be hard pressed to show that there are no less discriminatory alternatives available.

e. Investigate the many possible causes. Find out whether increases with special education identification might have happened just before students were supposed to take tests with high stake for students, teachers, administrators or schools. Research suggests that low achieving minority students may be mis-labeled and then not tested in some districts to boost test scores where scores are linked to high stakes. In other cases a handful of teachers in a school district, or the policy in a particular school within the district may be causing most of the problem. It is likely that there is more than one cause.

4. Should I add discrimination against others to my complaint?

It is perfectly reasonable to complain on behalf of others. If you believe that what happened to your child or a child you know is part of a larger pattern of discrimination, then you can complain on the behalf of others affected by this discrimination.

5. How can I gather more information to put in the complaint?

Information can be obtained either by talking to parents or by requesting statistics from the school district or from OCR. Parents and advocates can request this information through a Freedom of Information Act ("FOIA") request. If the government agency has the information requested in the FOIA, the agency must provide the information to the parent; however, agencies do not need to conduct new research or surveys to respond to FOIA requests. A sample FOIA is presented in Appendix V.

When you are requesting information from a school district or another government agency, it is helpful to remember that many states have their own Freedom of Information laws. The shorter, simpler FOIA request sample in the appendix can be adapted for use in any state, and is intended as a model FOIA request submitted to a government agency. The longer sample is intended as a more detailed example of the sort of information that a FOIA request can include, and serves as an example of a request submitted directly to a school district.

You can learn more about the U.S. Freedom of Information Act, as well as Freedom of Information laws in your own state, by visiting the National Freedom of Information Coalition's website. This site includes information and useful links to FOI sources in every state. The website's address is http://www.nfoic.org/web/index.htm.

Organizations can also help to coordinate efforts by parents with similar concerns. A newspaper article can help attract the attention of parents with similar concerns. A press release is the standard method of recruiting media attention. Appendix VI contains tips for writing a press release, and a sample press release.

6. How can I find out if the district is already under a court order or an OCR agreement that requires fair and non-discriminatory course placement practices?

Districts that are under a court order requiring desegregation of the schools may also be under specific court orders to reduce racial disparities in special education enrollment. To find out whether there is a desegregation court order in cases in which the United States is a party, you can contact the Department of Justice (DOJ), Civil Rights Division.

There may be faster ways to raise concerns about discriminatory special education practices if the district is already operating pursuant to a court order. To find out if your school district is operating pursuant to an OCR agreement (also called a 441(b) plan), you should contact the OCR office that serves your state. Private, non-governmental parties may also have obtained a court order covering your district, but there is no central place to find out about such orders, except by asking the school district itself.

The United States is a party to cases in some school districts in these states:

Finally, if you have already filed a lawsuit, you can contact the DOJ to find out if they have any interest in joining in the case. To contact the DOJ Educational Opportunities section call 202-514-4092.

Part A. Next Steps: Detailed Advocacy Information for Challenging the School System
Part B. Advice for Community Advocates: How to Strengthen OCR Complaints
Part C. Additional Information: What to Collect and How to Analyze It

PART C. ADDITIONAL INFORMATION: WHAT TO COLLECT AND HOW TO ANALYZE IT

1. Gather statistics on special education enrollment by race and ethnicity.

Consider filing a claim on behalf of other minority students if you believe that there is a larger pattern of discrimination; doing so may strengthen your child's specific complaint. Gather the following information and make the following comparisons, or ask OCR to do this for you. Try to get this information for the most current year, as well as for at least two prior years.

a) Student enrollment for each school in the district, broken down by gender and racial/ethnic categories.
b) Number of students at each school who were enrolled in special education broken down by school and race/ethnicity/gender.
c) For each group in b above, provide the number in each and every disability category. These should include the categories of specific learning disability, emotional disturbance and mental retardation.
d) Time in the regular classroom. For each group in b, and in c if possible, find out the average amount of time students spent with general education peers. Usually schools report this data to OCR as follows:

(1) Less than 21% (a day a week) outside the regular classroom (inclusion);
(2) Between 21% and 60% outside the regular classroom (resource room);
(3) More than 60% outside the regular classroom (substantially separate).

e) Any and all data the school has on grades, standardized test scores, guidance counselor referrals, and teacher placement recommendations. Ask for the data to be broken down by race/gender/ethnicity if possible.
f) Information on exactly how placement decisions and special education evaluations are made.
g) Information on what policies the school has about notifying the parents on the placement decisions and how they are made.

2. Calculate the percentages.

OCR should calculate and compare the percentages as part of their investigation of a disparate impact claim; but, whenever possible, try to make the following comparisons and examine the data for any disparities before you file:

a) Enrollment: Break down the school's overall enrollment by race and ethnicity. Calculate the percentage of each racial or ethnic group enrolled. Then calculate the percentage of each groups' enrollment in special education- including Whites. You might find for example, that Blacks are 10% or the school population, and 20% of all Blacks enrolled in the school receive some kind of special education services.

b) Percentage in special education pool: Calculate the proportion of each racial or ethnic group's members enrolled in special education as a percentage of the total number of students in the school. 20% of the Black students, for example, may receive services, but they may make up 40% of all the students enrolled in special education.

c) Percentage in the disability category: Where possible, also calculate the percentages for each racial/ethnic group by disability type and by type of placement. For example, you might find that 3% of all enrolled Black Students are "labeled mentally retarded," that they make over 50% of the "mentally retarded" students in the district and that 95% of Black students with "mental retardation" are placed in separate classrooms.

3. Compare the percentages.

The three types of comparisons that follow could suggest discrimination.

a) Compare the percentage of a minority group's overall special education enrollment to the percentage of that group's representation among the entire student body. For example, if African Americans make up 10% of the enrollment, but 20% of the students in special education, they are over-represented, and the disparity is significant. In this example, you would expect that African Americans would make up 10% of the students in special education, the same proportion as their enrollment in the school. In this example the disparity is extremely large (100% greater than what you would expect to find). Do the same comparison for White students to learn whether White students are under-represented.

b) Compute the number of minority students in special education as a percentage of their total enrollment. For example, 20% of the Hispanic students in one school might be placed in special education classes, while only 10% of the White students in the same school are so placed. Use the total enrollment percentage to compare the odds of Whites and other minority groups, and to see whether minorities face a substantially greater chance of being placed in special education than White students. In the example above, a Hispanic student has a 1 in 5 probability of assignment to special education, but a White student's chance of such assignment is 1 in 10.

c) Statistics that compare the odds of minority identification to that of Whites can be most persuasive. The "odds compared to White students" highlight the common trend where White students are under-identified in the most stygmatizing categories, like "mental retardation" while Blacks and some other minority groups tend to be over-identified. For example, if 1 out of every 100 Black Children are labeled "mentally retarded" but only 1 out of every 300 White children get the same label, then Black children are 3 times more likely than Whites to be labeled "mentally retarded."

4. Compare schools in the same district and across the state.

If two schools in the same district, serving the same general population, have very different statistics on minority special education enrollment, it suggests that one school is using a less discriminatory alternative than the other school.

Similarly, many minority students attend schools that have few white students. In these cases it is less likely that a racial disparity for the district will emerge. States, however, are responsible for investigating substantial minority over-identification and restrictive placements. A statewide comparison of districts may reveal problematic minority overrepresentation. For example, Latino students in mostly minority districts may be labeled as "emotionally disturbed" and then segregated at twice the rate of white students with special education needs in mostly white districts.

5. Assess the numbers for significant disparity.

There is no set formula to determine what constitutes a "significant disparity," but a disparity of just 15% should suffice to raise the issue. 50% disparities are common. Ideally, minority and White students should have the same odds of being placed in special education classes.

6. Overrepresentation within specific special education categories, i.e. learning disability, educationally mentally retarded, emotionally disordered, may be masked when all disability categories are lumped together.

Advocates should look beyond the numbers of students receiving special education services generally and examine the access these students have to the general educational curriculum. Whenever possible, the percentage of minority students in resource rooms and substantially separate programs should be compared with the percentage of non-minority students who receive special education services in the general education classroom.

7. Collect information to undermine the "Educational Necessity" defense.

What you collect will depend on the reasons that the school cites to justify their system of placing children in special education. Some basic issues to consider are the placement and evaluation procedures used by the school and alternative strategies that might be used.

8. How Can Statistical Evidence of Discrimination Be Obtained?

A disparate impact claim filed with The United States Department of Education Office for Civil Rights can start with factual information that simply suggests a statistical disparity. The disparate impact need not be proven to file a complaint. OCR is required to address any non-frivolous claim, and it may gather further statistical information in the course of addressing concerns that are raised.

• Court orders, OCR "compliance reviews," and OCR "resolution agreements" likely contain valuable statistics on disproportion in special education. OCR often collects data, not routinely collected by the state, to make sure that schools are obeying the law. Too often, the general public is unaware that OCR has investigated a school and reached an agreement to bring that school in line with the law. Members of the public can file a formal Freedom of Information Act ("FOIA") request with OCR to obtain a list of all compliance reviews and resolution agreements dealing with minorities and special education. When schools are under a court desegregation order, the court will likely collect race and ethnicity data to ensure compliance. These records are also public records and should be obtainable with a formal request to the court responsible for monitoring the order. See Appendix V for a FOIA form you can use for any OCR office. The OCR regional offices are listed in the Appendix VIII.
• State education departments have important statistical data on hand too. The IDEA requires every school district and state to collect statistical information on inclusion and disability, disaggregated by race and ethnicity. Most schools have only recently begun to comply with this requirement; but, citizens can request data from school districts, state governments, courts, and OCR regional offices. See Appendix V for sample "FOIA" requests that can be sent to a local or state school authority.

9. How Can The Media Be Useful In Stopping Abusive Practices?

The importance of the media can not be emphasized enough. Press releases aimed at generating wide public support should focus on the end goal of better education for all students, which results from getting special education students into general education classrooms whenever practicable. Press releases should provide explicit details of the extensive abuse suffered by minorities who are over-represented but under-served in special education programs.

• Statistics can be powerful: The most powerful statistics are those that are simple to understand. When possible, report your findings as direct comparisons to White students, and highlight the greatest disparities. If your calculations suggest many disturbing statistical trends, you should choose only the most important and compelling statistical comparisons for your press release.
• Numbers alone are not usually compelling. Press releases should tell a human story. The details of the overrepresentation calculus can be confusing. When possible, a focus on the injustice of misdiagnosis and inadequate service should be linked to the statistics that demonstrate minority overrepresentation in special education. Anecdotes of minority scholars misdiagnosed with mental retardation are especially powerful, as are descriptions of children who are poorly serviced in isolated classrooms. When writing about children, always protect their privacy. Avoid using names or descriptions that would identify children to outsiders. The best press releases include easily verifiable statistics, powerful personal anecdotes, and contact information for experts from whom the reporter can gain additional information. The more substantive information the media receives, the more likely it is they will get the story right. See Appendix VI for a sample press release.

10. What Research Is Available to Help Build a Case?

When challenging abusive special education practices, knowledge of the ill effects of overrepresentation and the benefits available from model programs is especially helpful. To locate effective programs in your region, contact local disability advocates and academic experts at colleges and universities in your state. Finding out about effective programs will be helpful whether your challenge is legal or extra-legal. It is important to raise awareness of effective special education methods that do not result in minority overrepresentation, misdiagnosis, or segregation.

Additional information on minority overrepresentation in dropouts and school discipline may help you to demonstrate the severity of the education crisis for minority youth. This type of information can sometimes be found in state reports to the U.S. Department of Education, reports from branches of the U.S. Department of Education to Congress, or in sources like the census, that compiles state statistics on a regular basis. Sometimes, statistical information is readily available on state department of education web pages; sometimes, it is available through the federal government; often, it is only obtainable directly from the school district with a FOIA request. The Civil Rights Project at Harvard University website will contain additional research and statistical information on every state.