The idea eligibility mess

Buffalo Law Review

Volumn 57, Issue 1, 2009, Pages 83-160

  Weber, Mark C ^a  

^a DEPAUL UNIVERSITY   (United States)

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EID: 64749111570     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (461)

1. 20 U.S.C.A. §§ 1400-1482 (West Supp. 2008). For ease of reference in light of the multitude of recent changes in the statutory provisions cited in this Article, the West unofficial United States Code Annotated, rather than the official United States Code, will be used throughout.
2. 20 U.S.C.A. § 1412(a)(l).
3. 20 U.S.C.A. § 1401(3).
4. Analysis of the results of a Westlaw search reveals the United States Courts of Appeals issued fifty-six opinions in special education disputes in 2007. Law schools are only beginning to appreciate the importance of special education law. See Perry A. Zirkel & Sheilah D. Vance, Education Law Course Offerings in Law Schools, 33 J.L. & EDUC. 327, 333 (2004) (reporting results of survey of 123 law school dean respondents) ("[A] general education law course is offered in the clear majority of the law schools, whereas special education law and higher education law are each offered in slightly less than a quarter of the law schools.");
5. Posting of Jim Gerl to Special Education Law Blog, http:// specialeducationlawblog.blogspot.com/search?updated-max=2008-02-21T15%3A59%3A00- 05%3A00&max-results=7 (Jan. 18, 2008 13:44 EST) (noting course offering course at DePaul);
6. see also postings of mjstowe, anonymous, and nick to https://www.blogger.com/comment.g?blogID=1691205078500083881&postID=42 98439780823762853 (Jan. 20 - Feb. 26, 2008) (discussing Special Education Law courses in law schools at Kansas, Southern California, and Pepperdine, among others).
7. Bd. of Educ. v. Tom F., 128 S. Ct. 1 (2007);
8. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994 (2007);
9. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006);
10. Schaffer v. Weast, 546 U.S. 49 (2005).
11. For example, the Supreme Court has ruled that hearing officers and courts may award reimbursement to parents who purchase educational services for their children who have been denied an appropriate education by the public schools, Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), although an unresolved controversy exists over whether the child must previously have been enrolled in public school for the remedy to apply, see Tom F., 128 S. Ct. at 1 (affirming reimbursement award by equally divided Court). Parents may sue pro se in actions under IDEA. Winkelman, 127 S.Ct. at 2006. Prevailing parents are not entitled to obtain expert witness fees as part of an attorneys' fees award. Murphy, 548 U.S. at 291. The burden of persuasion falls on the party, typically the parent, challenging the appropriateness of an educational program rather than on the school proposing the program. Schaffer, 546 U.S. at 57-58.
12. Compare Frank G. v. Bd. of Educ, 459 F.3d 356 (2d Cir. 2006) (awarding reimbursement to parent of child never enrolled in public school) with Greenland Sch. Dist. v. Amy N., 358 F.3d 150 (1st Cir. 2004) (denying reimbursement). Compare Weixel v. Bd. of Educ, 287 F.3d 138, 151 (2d Cir. 2002) (allowing damages claim under 42 U.S.C.A. § 1983 (West 2008) for violation of IDEA) with A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 803 (3d Cir. 2007) (disallowing claim).
13. See Robert A. Garda, Jr., Who Is Eligible Under the Individuals with Disabilities Education Improvement Act?, 35 J.L. & EDUC. 291, 332 (2006). Professor Garda, however, rejects many of the most restrictive judicial and administrative rulings concerning special education eligibility, and reads several of the statutory terms more broadly than some courts have done. See, e.g., id. at 306, 315.
14. See Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 497-98 (2004).
15. Wendy F. Hensel, Sharing the Short Bus: Eligibility and Identity Under the IDEA, 58 HASTINGS L.J. 1147, 1152 (2007).
16. See Lois A. Weithorn, Envisioning Second-Order Change in America's Responses to Troubled and Troublesome Youth, 33 HOFSTRA L. REV. 1305, 1357 (2005);
17. Michael L. Perlin, 'Simplify You, Classify You': Stigma Stereotypes and Civil Rights in Disability Classification Systems (Apr. 23, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=982226. Professors Weithorn and Perlin address numerous other issues touching on special education eligibility in the works cited.
18. The work of Professor Garda is a notable exception to this generalization about inadequately served populations and special education eligibility.
19. See Robert A. Garda, Jr., The New IDEA- Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 ALA. L. Rev. 1071 (2005). As indicated below, the prescriptions advanced here differ significantly from those of Professor Garda.
20. See infra text accompanying notes 297-314. A number of other sources discussing the particular problems of minorities in special education will be discussed passim.
21. See 20 U.S.C.A. § 1411(i) (West Supp. 2008) (authorizing appropriations). All states, the District of Columbia, and the outlying areas participate, as does the federal government's Bureau of Indian Affairs.
22. See 20 U.S.C.A. § 1401(26) (West Supp. 2008) (defining "related services").
23. 20 U.S.C.A. § 1412(a)(5).
24. See 20 U.S.C.A. § 1414(d) (West Supp. 2008) (requiring opportunity for parental participation in devising individualized education program).
25. 20 U.S.C.A. §§ 1415(f)-(i) (West Supp. 2008). States may create a hearing review procedure that must be exhausted before the matter goes to court. § 1415(g). The child remains in the existing placement during the pendency of proceedings. § 1415(j). Attorneys' fees are available to parents if they are successful. § 1415(i)(3)(B)-(F). The law also provides rights to challenge long-term suspensions, expulsions, or other removals from school imposed on children with disabilities. § 1415(k).
26. Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982).
27. Mills v. Bd. of Educ, 348 F. Supp. 866 (D.D.C. 1972);
28. Pa. Ass'n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972). The Supreme Court commented on the importance of these cases to the formation of the Education for All Handicapped Children Act in Rowley, 458 U.S. at 192-93.
29. See ROBERTA WEINER & MAGGIE HUME, ⋯ And Education for All 15-21 (2d ed. 1987).
30. H.R. Rep. No. 94-332, at 11-12 (1975).
31. Pub. L. No. 101-476, § 901(a), 104 Stat. 1103, 1141-42 (1990). The term "handicapped" had become disfavored, and many in the disabilities rights movement favored placing the noun "person" or "individual" first and the "with disabilities" modifier later, in order to emphasize that a person with a disability is a human being rather than a manifestation of an impairment. ILLINOIS ATTORNEY GENERAL, DISABILITY RIGHTS: MANUAL of STYLE for DEPICTING PEOPLE with DISABILITIES, http://www.ag.state.il.us/rights/manualstyle.html (last visited Aug. 4, 2008).
32. Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C.A. §§ 1400-1482 (West Supp. 2008)). See generally Mark C. Weber, Reflections on the New Individuals with Disabilities Education Improvement Act, 58 Fla. L. Rev. 7 (2006) (describing and commenting on 2004 Reauthorization).
33. Generally speaking, the age range is three through twenty-one. 20 U.S.C.A. § 1412(a)(l)(B) (West Supp. 2008). Children within the age range lose coverage if they have received a regular high school diploma. 34 C.F.R. § 300.102(a)(3)(i) (2008). Children who are in adult prisons are also subject to possible exclusion. § 1412(a)(l)(B)(ii). See generally Paul M. Secunda, Mediating the Special Education Front Lines in Mississippi, 76 UMKC L. Rev. (forthcoming 2008) (describing first-hand experience of mediating special education dispute in state detention facility for children adjudicated as adults).
34. 20 U.S.C.A. § 1401(3)(A)(i) (West Supp. 2008).
35. A child aged three through nine may be eligible on the basis of having "developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development." § 1401(3)(B)(i) (West Supp. 2008).
36. 20 U.S.C.A. § 1401(30)(A)-(B) (West Supp. 2008).
37. 34 C.F.R. § 300.8.
38. 20 U.S.C.A. § 1401(3)(A)(ii).
39. 29 U.S.C.A. § 705(20)(B) (West 1999), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3533;
40. 42 U.S.C.A. § 12102(2) (West 2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3533;
41. 34 C.F.R. § 104.3(j) (2008). Section 504 is found at 29 U.S.C.A. § 794 (West 1999); title II of the ADA, which covers state and local government, including public schools, is found at 42 U.S.C.A. §§ 12131-12150 (West 2000).
42. See 34 C.F.R. § 104.4(b)(l)(i)-(ii) (may not deny the opportunity to participate); § 104.4(b)(l)(iv) (may not provide separate benefits or services unless necessary to furnish equally effective benefits or services).
43. 34 C.F.E. § 104.33 (requiring provision of free, appropriate public education).
44. For a discussion of the interplay between the ADA and section 504, see Mark C. Weber, Disability Discrimination by State and Local Government: The Relationship Between Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, 36 Wm. & MAKY L. Rev. 1089 (1995).
45. Education Amendments of 1974, Pub. L. No. 93-380, § 101(a)(2)(E), 88 Stat. 484, 488-91 ("A State agency which is directly responsible for providing free public education for handicapped children (including mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, crippled, or other health impaired children who by reason thereof require special education), shall be eligible to receive a grant under this section for any fiscal year.") (repealed 1978);
46. Education of the Handicapped Act, Pub. L. No. 91-230, § 602(1), 84 Stat. 175 (1970) ("The term 'handicapped children' means mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, crippled, or other health impaired children who by reason thereof require special education and related services.") (repealed 2004);
47. Elementary and Secondary Education Amendments of 1966, Pub. L. No. 89-750, § 602, 80 Stat. 1191, 1204 (1966) ("As used in this title, the term 'handicapped chDdren' includes mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, crippled, or other health impaired children who by reason thereof require special education and related services.") (repealed 1970). State and local provisions also employed categorical definitions.
48. See Rudolf V. Womack, A Survey of Relevant Problems in Administering a Program of Special Education for the Cook County Argo-Evergreen Park, Reavis, Oak Lawn Special Education District 15-27 (June 1969) (unpublished master's thesis, DePaul University) (on file with Richardson Library, DePaul University) (describing categories then employed by state board of education and local school district pursuant to state law).
49. Professional sources display what from the present remove seems to be a near-obsession with definition and categorization.
50. See EXCEPTIONAL CHILDREN in the SCHOOLS 8 (Lloyd M. Dunn ed., 2d ed. 1973) ("By 1950, 12 types of exceptional children had been delineated: (1) gifted, (2) educable mentally retarded, (3) trainable mentally retarded, (4) emotionally disturbed, (5) socially maladjusted, (6) speech impaired, (7) deaf, (8) hard of hearing, (9) blind, (10) partially seeing, (11) crippled, and (12) chronic health cases.");
51. ROMAINE P. MACKIE, SPECIAL EDUCATION IN THE UNITED STATES: STATISTICS 1948-1966 (1969) (reporting statistics on children served in special education by disability category);
52. Womack, supra note 33. One prominent author traces this attitude to the movement at the beginning of the twentieth century to make schools more businesslike and the development of standardized testing during the same period.
53. David L. Kirp, Schools as Sorters: The Constitutional and Policy Implications of Student Classification, 121 U. Pa. L. Rev. 705, 714-15 (1973).
54. Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, § 4(a), 89 Stat. 773, 775 (1975) (repealed 2004).
55. Leslie Ward & Virginia Abernethy, Background, Enactment, and Implementation of P.L. 94-142, 60 Peabody J. EDUC. 1, 10-12 (1983).
56. Id. at 11-12.
57. Id. at 11.
58. Criticism may be made of existing accountability structures despite the legal requirement that money must be spent only on eligible children.
59. See Jeri D. Barclay, Fiscal Accountability Under the Individuals with Disabilities Education Act: How Do We Ensure the Money Is Spent on Handicapped Education and Related Services?, 28 J.L. & Educ. 327, 329 (1999) ("Because there are, in general, no accountability procedures in place for overseeing and checking the expenditures of school systems, it is possible that the money designated for handicapped students is often spent on other 'more important' things, like football goal posts, new lockers, televisions, and bonuses for school board members.").
60. Elementary and Secondary Education Amendments of 1966, Pub. L. No. 89-750, § 604(a), 80 Stat. 1191, 1205 (1966) (repealed 1970).
61. § 604(d), 80 Stat. at 1206.
62. See 20 U.S.C.A. § 1412(a)(17)(c) (West Supp. 2008) (prohibiting state-level supplanting of expenditures); 20 U.S.C.A. § 1413(a)(2)(a) (West Supp. 2008) (restricting local school district use of funding and prohibiting local-level supplanting of expenditures).
63. Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, § 5(a), 89 Stat. 773, 776 (1975) (repealed 2004).
64. 20 U.S.C.A. § 1411(d)(2)-(3) (West Supp. 2008). Other language pertaining to the additional funding guarantees against grant decreases and establishes maximum and minimum grants. § 1411(d)(3)(B). The contingency of decreased federal funding is also addressed. § 1411(d)(4). A limit on the count of children for federal special education funding to no more than 12% of the school-aged population in the state was repealed when Congress changed the funding formula. § 1411(a)(5) (repealed 1997).
65. § 1411(f)(2) (West 2008). Evidence suggesting that child disability category counts are inconsistent among states led the Department of Education to press for this change.
66. See The IDEA Improvement Act of 1997: Hearing on H.R. 5 Before the Subcomm. on Early Childhood, Youth and Families of the H. Comm. on Educ. and the Workforce, 105th Cong. 60 (1997) [hereinafter Hearings] (statement of Thomas R. Bloom, Inspector Gen., U.S. Dep't of Educ.) ("Representatives from all ten of the independent organizations with whom we spoke corroborated our conclusion that the states differed significantly in the proportion of children they counted in the various disability categories.")- The sponsors of the 1997 legislation made the change to eliminate incentives for identifying children with disabilities without sufficient justification.
67. See H. REP. NO. 105-95, at 88 (1997) ("The Committee developed the change in [funding] formula to address the problem of over-identification of children with disabilities.").
68. See Marcia C. Arceneaux, The System and Label of Special Educiation: Is It a Constitutional Issue?, 32 S.U. L. Rev. 225, 239 (2005) ("Federal law mandates that a child must qualify for special education services, thereby receiving this broad label, before receiving the second 'descriptive category" label (e.g., mildly mentally disabled). The descriptive categorical label is not a mandate by law. However, in practice, the categorical labeling is commonly used within the special education system for national consistency of data.");
69. see also 20 U.S.C.A. § 1418(a)(l)(A) (reporting requirements).
70. Some states use proxies for the count of identified children. These proxies include weighting formulas that allocate set amounts for the assumed extra cost of educating each child in a given disability category, as well as resource-based models, which allocate funding based on teacher and related service personnel count.
71. See generally THOMAS PARRISH ET AL., STATE SPECIAL EDUCATION FINANCE SYSTEMS, 1999-2000, at 3-11 (2003) (describing set types of state financing systems and compiling survey data on their prevalence).
72. See Thomas Parrish, Disparities in the Identification, Funding, and Provision of Special Education, in RACIAL INEQUITY IN SPECIAL EDUCATION 15,18 (Daniel J. Losen & Gary Orfield, eds. 2002) ("[M]ost ⋯ states have more generic systems providing funding based on the number of students receiving special education services or on general enrollment.");
73. id at 29 (identifying twenty-four of twenty-eight surveyed states as linking funding for local school districts to counts of chUdren with disabilities being served by district).
74. Moreover, the federal financial exposure is restricted by the statute and capped by appropriations. The maximum federal funding that may be awarded under IDEA is 40% of the average cost of educating a child without disabilities for each child receiving special education. 20 U.S.C.A. § 1411(a)(2) (West Supp. 2008). Congress has never actually appropriated enough funds to provide support for states and school districts at the maximum level under IDEA. Instead, allocations are ratably reduced to meet appropriations.
75. See § 1411(d)(2)-(3). The federal participation varies from year to year, but it tends to range just above 10%.
76. See Hearings, supra note 45, at 103 (testimony of George W. Severns, Jr., Superintendent, Dover Area Sch. Dist.). The definitional limit on which children may be claimed for the maximum amount of funding in the statute keeps the gap between aspiration and reality from being limitless. Full funding, i.e., funding to the maximum amount, is a perennial hope of many special education advocates and their congressional allies.
77. See, e.g., IDEA Full Funding Act, S. 2185, 109th Cong. (2006); Full Funding for IDEA Now Act of 2005, H.R. 1107, 109th Cong. (2005).
78. One authority testifying regarding the 1997 legislation opposed relaxing the standards for the category of developmental delay on the ground that it would raise the child count and increase costs. Hearings, supra note 45, at 83-84 (testimony of Lou Barela, Dir., Upper Solano County Special Educ. Local Plan Area).
79. See supra text accompanying notes 49-50.
80. See S. REP. No. 94-168, at 27 (1975) ("[Identification and labelling of ⋯ handicapping conditions ⋯ is a necessary tool for designing appropriate instruction.");
81. LAURA F. ROTHSTEIN, SPECIAL EDUCATION LAW 93 (1990) ("It is necessary to identify children who have special needs and to identify what type of programming is appropriate.").
82. See, e.g., NAT'L ASS'N OF SCH. PSYCHOLOGISTS, NASP POSITION STATEMENT ON RIGHTS WITHOUT LABELS 1 (2002), http://www. nasponline.org/about-nasp/ positionpapers/rwl.pdf [hereinafter NASP POSITION STATEMENT] ("Contrary to commonly held assumptions, research indicates that ⋯ [particularly among the more subjective, 'mild' disability categories of Specific Learning Disability, Mental Retardation, Emotional Disturbance, and Speech/Language Impairment, labeled students show significant overlap in skills and receive highly similar instruction.").
83. See H. REP. No. 108-77, at 78-80 (2003) (listing witnesses for various congressional proposals to amend IDEA from 2001-03). It should be noted, however, that a large number of witnesses in support of recent legislation have been academic experts, school district officials, and leaders of cross-disability organizations. Cf. Ward & Abernethy, supra note 36, at 10-11 (noting high degree of disability-category affiliation of supporters of 1975 special education legislation).
84. See Sharon Weitzman Soltman & Donald R. Moore, Ending Segregation of Chicago's Students with Disabilities: Implications of the Corey H. Lawsuit, in RACIAL INEQUITY IN SPECIAL EDUCATION, supra note 48, at 239, 250 (noting opposition to change by proponents of existing Illinois system of special education "tightly organized around specific disability categories based on the view that disabilities could be identified with precision and that each disability could best be 'treated' by a specialist in that disability working solely with students who 'had' that particular disability").
85. Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, § 602(3)(B)(i), 111 Stat. 37, 42-43 (1997) (codified at 20 U.S.C.A. § 1401(3)(B) (West Supp. 2008)).
86. 20 U.S.C.A. § 1401(3)(B)(i).
87. This reality led to opposition on the ground that too many children might obtain the classification and thus an entitlement to services.
88. See supra note 52 and accompanying text.
89. 20 U.S.C.A. § 1413(f).
90. PRESIDENT'S COMMISSION ON EXCELLENCE IN SPECIAL EDUCATION, A NEW ERA: REVITALIZING SPECIAL EDUCATION FOR CHILDREN AND THEIR FAMILIES 7 (2002).
91. 20 U.S.C.A. § 1414(b)(6)(A) (West Supp. 2008).
92. See Weber, supra note 23, at 26-27 (collecting sources).
93. See generally infra text accompanying notes 196-99 (exploring criticisms of learning disability designation).
94. 34 C.F.R. § 300.307(a)(2) (2008). The Notice of Proposed Rulemaking for the regulations contains language critical of the discrepancy-based model for learning disabilities determinations and praises the RTI alternative. Additional Procedures for Evaluating Children With Specific Disabilities, 70 Fed. Reg. 35,802 (June 21, 2005).
95. 29 U.S.C.A. § 794 (West 1999).
96. See 42 U.S.C.A. §§ 12131-12150 (West 2005) (covering state and local government services).
97. See generally Weber, supra note 32, at 1101-02 (discussing relationship between section 504 and ADA).
98. 29 U.S.C.A. § 794, 42 U.S.C.A. § 12132. These laws cover individuals whose condition meets the definition described in the text, as well as those with a record of such an impairment and those regarded as having such an impairment. 29 U.S.C.A. § 705(20)(B) (West 1999 & Supp. 2008) (definition applicable to section 504), 42 U.S.C.A. § 12102(2) (West 2005) (definition applicable to ADA title II).
99. See MAEK C. WEBER, RALPH MAWDSLEY & SARAH REDFIELD, SPECIAL EDUCATION LAW: CASES AND MATERIALS 59 (2D ED. 2007). An example would be a child with an orthopedic impairment who has completed the high school physical education requirement.
100. Compare Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099 (9th Cir. 2007) (affirming denial of IDEA eligibility for child receiving accommodations under section 504) with Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007) (overturning denial of IDEA eligibility for child afforded services under section 504).
101. See generally No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C.A. §§ 6301-6320, 7801-7803 (West Supp. 2008)); Perry A. Zirkel, NCLB: What Does It Mean for Students with Disabilities?, 185 Educ. L. Rep. 805, 805-12 (2004) (outlining NCLB collective goals for achievement by students). Some commentators are highly negative about NCLB, see, e.g., Thomas Rentschler, No Child Left Behind: Admirable Goals, Disastrous Outcomes, 12 WLDENER L. REV. 637 (2006), but others are at least guardedly optimistic, see, e.g., Weber, supra note 23, at 20-21, 51;
102. Chester E. Finn, Jr., 5 Myths About the Education Law Everyone Loves to Hate, Wash. POST, Mar. 30, 2008, at B3. The ultimate effect of NCLB on IDEA eligibility remains unpredictable, but there is some reason to believe that, for better or worse, it may diminish the number of children in special education. If successful, the NCLB program may lead to improvements in general education that decrease the need for children to be served by the special education system. Unfortunately, NCLB may also lead to school officials artificially limiting the number of children in special education so that their testing results are not viewed as statistically significant.
103. See Weber, supra, at 22 & n.76 (collecting sources);
104. see also Richard C. Herrera, Note, Policing State Testing Under No Child Left Behind: Encouraging Students with Disabilities to Blow the Whistle on Unscrupulous Educators, 80 S. Cal. L. Rev. 1433 (2007) (discussing various forms of educator misconduct with regard to testing of students with disabilities).
105. 20 U.S.C.A. § 6316(e) (West Supp. 2008).
106. See generally U.S. DEP'T OF EDUC, POLICY AND PROGRAM STUDIES SERVICE, REPORT HIGHLIGHTS, EARLY IMPLEMENTATION OF SUPPLEMENTAL EDUCATIONAL SERVICES UNDER THE NO CHILD LEFT BEHIND ACT (2002), http://www.ed.gov/rschstat/eval/disadv/ supplementalyearl/highlights. pdf.
107. See 20 U.S.C.A. § 6301 (West 2003) (statement of purpose); U.S. DEP'T OF EDUC, FACT SHEET ON TITLE I, PART A (Aug. 2002), http://www.ed.gov/rschstat/ eval/disadv/titlel- factsheet.pdf (providing statistical information on Title I program).
108. See generally STEPHANIE STULLICH ET AL., POLICY AND PROGRAM STUDIES SERV., OFFICE OF PLANNING, EVAL. AND POLICY DEV., NATIONAL ASSESSMENT OF TITLE I, FINAL REPORT (OCT. 2007), http://ies.ed.gov/ncee/pdf/20084012-rev.pdf (discussing title I program's longitudinal impact).
109. See 20 U.S.C.A. § 6311 (West 2003) (establishing conditions for funding). The impact of this use of the spending power on constitutional concerns has received scholarly attention. E.g., Rentschler, supra note 69, at 639-53 (noting federalism-based objections to NCLB);
110. Note, No Child Left Behind and the Political Safeguards of Federalism, 119 Harv. L. REV. 885, 897-900 (2006) (discussing constitutional concerns with regard to funding conditions in NCLB).
111. Weber, supra note 23, at 51.
112. Other observers detected convergence between general education and special education as early as the late 1980s and early 1990s.
113. See James A. Tucker & Jeffrey F. Champagne, Where's the War? A Response to Meredith and Underwood, 25 J.L. & EDUC. 447, 448 (1996) ("[T]here has been a steady movement toward the integration of special-education philosophy into the regular classrooms of America.");
114. see also id. at 451 ("As the field struggles toward reform for all students, terms such as inclusiveness and individualization are not just for special education any more. For reasons having little to do with disabilities, schools are experimenting with outcome-based and outcome-paced progressions that do not presume the existence of a mainstream.") (footnote omitted). Some sources note a potential for greater convergence but believe it has not yet been fulfilled.
115. See Arceneaux, supra note 46, at 245-46 (proposing that services for all children be provided within single system of education);
116. NASP POSITION STATEMENT, supra note 53, at 6 (proposing "noncategorical models of service delivery").
117. For an interesting discussion of this topic in connection with law regarding civil procedure, see Janice Toran, 'Tis a Gift to be Simple: Aesthetics and Procedural Reform, 89 MlCH. L. Rev. 352 (1990).
118. Garda, supra note 9, at 457-58.
119. 20 U.S.C.A. § 1401(3)(A)(i) (West Supp. 2008). Children aged three through nine with developmental delays are treated somewhat differently.
120. See 34 C.F.R. § 300.8(b) (2008).
121. 34 C.F.R. § 300.8(c)(l)-(13).
122. 20 U.S.C.A. § 1401(3)(A)(ii).
123. 458 U.S. 176 (1982).
124. The empirical research of Professor Zirkel suggests that relatively few special education disputes hinge on eligibility under the heading of specific learning disability, and that school districts prevail in the overwhelming majority of the cases, typically by showing that the discrepancy between ability and achievement is not severe enough. PERRY A. ZIEKEL, THE LEGAL MEANING OF SPECIFIC LEARNING DISABILITY FOR SPECIAL EDUCATION ELIGIBILITY 46-70 (rev. ed. 2006). The small number of cases contrasts with their mighty impact on the confusion over IDEA eligibility.
125. For a thoughtful discussion of Professor Zirkel's study, see Paul M. Secunda, "At Best an Inexact Science": Delimiting the Legal Contours of Specific Learning Disability Under IDEA, 36 J.L. & EDUC. 155 (2007) (book review) (footnote omitted in title).
126. 486 F.3d 1099 (9th Cir. 2007).
127. Id. at 1101.
128. Id. at 1101 & n.l. The child's scores on achievement tests put her above the median almost uniformly.
129. Id. at 1101.
130. Id. at 1101-02.
131. Id. at 1102.
132. Id. at 1103-04 (citing Cal. Educ. Code § 56337(c) (West 2003)).
133. Id. at 1106.
134. 458 U.S. 176, 203 (1982).
135. Hood, 486 F.3d at 1106-07 ("[I]t is true that the Rowley case dealt with the level of services that must be provided to a student already deemed eligible for special education, rather than special education eligibility itself. ⋯ ").
136. Id. at 1107.
137. Id. at 1108.
138. The court also rejected the contention that the child was a child with a disability under the category of other health impairment (OHI), saying that the child did not need special education when accommodations could be provided in the regular classroom, relying again on a state law provision.
139. Id. at 1108-09 (citing Cal. Educ. Code § 56026(b) (West 2003)).
140. 503 F.3d 378 (5th Cir. 2007).
141. Id. at 379-80.
142. Id. at 380.
143. Id.
144. Id.
145. Id. at 381, 384.
146. 20 U.S.C.A. § 1401(3)(A) (West 2000).
147. Given the unfortunate social dynamics that often appear in middle school, one may wonder whether the aggressive misconduct may have raised the child's social prestige.
148. Alvin, 503 F.3d at 384.
149. Id. A recent district court case with some similarities to Hood and A.D. is Ashli C. v. Hawaii, No. 05-00429 (HG-KSC), 2007 WL 247761 (D. Haw. Jan. 23, 2007), in which the court affirmed an administrative decision that a child with ADHD receiving differentiated instruction available to all children in the classroom failed to meet the IDEA eligibility standard because her condition did not meet the component of the OHI definition that the condition adversely affect educational performance. The court looked to Rowley and said that any adverse effect did not render the child unable to learn and perform in regular classroom without specially designed instruction.
150. Id. at 8-10.
151. 480 F.3d 1 (1st Cir. 2007).
152. Id. at 6.
153. Id.
154. Id. at 7.
155. Id. at 8.
156. Id.
157. Id. at 9.
158. Id. at 23.
159. It also affirmed a holding by the district court that the parents were not entitled to tuition reimbursement, because the private school they chose did not provide special education services, nor was the child entitled to compensatory education, because the district court in its discretion believed that prospective relief would be a sufficient remedy for past harm.
160. Id. at 23-26.
161. For a comprehensive discussion of reimbursement remedies, see Mitchell H. Rubinstein, Parents as Quasi-Therapists Under the Individuals with Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008);
162. Stephen C. Shannon, Note, The Individuals with Disabilities Education Act: Determining "Appropriate Relief in a Post-Gwinnett Era, 85 Va. L. Rev. 853 (1999).
163. See Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 19 (1st Cir. 2007). Precisely which statutory condition applied did not need to be resolved.
164. Id.
165. Id. at 11 (quoting 05-071-101 Me. Code R. § 2.7 (Weil 2006)).
166. Id. at 12-13.
167. Id. at 13-16.
168. The court rejected a floodgates argument, saying that a child would be excluded if she did not need special education by reason of the condition, or might be excluded by the disability conditions' definitions without reaching that question.
169. Id. at 13-14.
170. 224 P.3d 60 (2d Cir. 2000).
171. Mr. I., 480 F.3d at 16-17.
172. Id. at 20-21.
173. Id. at 21-23.
174. 20 U.S.C.A. § 1401(3)(A)(i) (West Supp. 2008). The statutory text notes that serious emotional disturbance is "referred to in this chapter as 'emotional disturbance."' Id. The terms will be used interchangeably here. The Supreme Court has pointed out the historical practice of excluding children with emotional disturbance from public school, and the importance of the federal special education law in covering these children. Honig v. Doe, 484 U.S. 305, 324 (1988) ("In drafting the law, Congress was largely guided by the recent decisions in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 ([D.D.C.] 1972), and PARC [v. Pennsylvania], 343 F. Supp. 279 ([E.D. Pa.] 1972), both of which involved the exclusion of hard-to-handle disabled students. Mills in particular demonstrated the extent to which schools used disciplinary measures to bar children from the classroom. There, school officials had labeled four of the seven minor plaintiffs "behavioral problems," and had excluded them from classes without providing any alternative education to them or any notice to their parents⋯ . Congress attacked such exclusionary practices in a variety of
175. 34 C.F.R. § 300.8(c)(4)(i) (2008).
176. 34 C.F.R. § 300.8(c)(4)(i)(A)-(E).
177. 34 C.F.R. § 300.8(c)(4)(ii).
178. See Weithorn, supra note 11, at 1357 ("Neither term was a diagnostic 'term of art' in the mental health or education fields prior to their use in the legislation and regulations, and studies have revealed that those applying the definition do not apply the term in a systematic or consistent matter from setting to setting or case to case.");
179. Moira O'Neill, Note, Delinquent or Disabled? Harmonizing the IDEA Definition of "Emotional Disturbance" with the Educational Needs of Incarcerated Youth, 57 HASTINGS L.J. 1189, 1203 (2006) (collecting sources indicating identical usage of terms "socially maladjusted" and "emotionally disturbed" in materials surrounding enactment of early federal special education legislation). A now-repealed Connecticut special education statute combined the terms, providing a definition for the category "socially and emotionally maladjusted" children. CONN. GEN. STAT. § 10-76a(i) (1958) (repealed 1996).
180. Paul S. Graubard, Children with Behavior Disabilities, in EXCEPTIONAL CHILDREN in THE SCHOOLS, supra note 34, at 243, 245. The Model Penal Code Contains a parallel provision in its language concerning the insanity defense: (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Model Penal Code § 4.01 (2001). Thanks to Michael Perlin for this insight.
181. Thus it makes more sense to speak of the '"socially maladjusted' exclusionary language" than the social maladjustment exclusion. O'Neill, supra note 124 at 1202 (using "exclusionary language" terminology).
182. 335 F. Supp. 2d 675 (D.S.C. 2004).
183. See id. at 688. As noted above, there is no necessary connection between the eligibility category under which the child qualifies and the services the child is entitled to receive, but the parties and the court operated under the assumption that there was.
184. Id.
185. Id. at 689.
186. 134 F.3d 659 (4th Cir. 1998).
187. See Tracy, 335 F. Supp. 2d at 688-89 (quoting Springer, 134 F.3d at 664-66).
188. Springer, 134 F.3d at 661.
189. Id.
190. Id.
191. Id.
192. Id.
193. Id. at 661-62.
194. Id. at 662.
195. Id. at 664 (quoting local hearing officer decision).
196. Id.
197. Id.
198. Id.
199. Id.
200. Id. at 664-65.
201. Id. at 665.
202. Other cases follow Springer's approach.
203. See, e.g., Bd. of Educ. v. JD, 232 F.3d 886 (4th Cir. 2000) (unpublished) (ruling that child's problems stemmed from social maladjustment, not educational disability that district overlooked);
204. Brendan K. ex rel. Lisa K. v. Easton Area Sch. Dist., No. 05-4179, 2007 WL 1160377, at *11 (E.D. Pa. Apr. 16, 2007) (finding child not eligible and quoting Springer regarding carving out social maladjustment from emotional disturbance); N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 546 (S.D.N.Y. 2007) (finding child not eligible and separating social maladjustment from emotional disturbance category). In other contexts, courts appear reluctant to afford IDEA remedies to children whose problems manifest themselves in delinquency.
205. See, e.g., Dale M. ex rel. Alice M. v. Bd. of Educ, 237 F.3d 813, 817 (7th Cir. 2001) (denying reimbursement for placement deemed to be "jail substitute" for child with psychological impairment who engaged in criminal conduct).
206. 258 F.3d 769 (8th Cir. 2001).
207. Id. at 771.
208. Id. at 773.
209. Id. at 775.
210. Id.
211. Id. at 775-76.
212. Id. at 777-79.
213. New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394 (N.D.N.Y. 2004).
214. Weithorn, supra note 11, at 1357. The article collects numerous sources critical of the "socially maladjusted" language of the regulation.
215. Id. at n.223.
216. 486 F.3d 1099, 1100 (9th Cir. 2007) (discussed supra text accompanying notes 84-95).
217. 224 F.3d 60, 67 (2d Cir. 2000) (discussed supra text accompanying notes 118-19).
218. See, e.g., Garda, supra note 8, at 299; Garda, supra note 9, at 465-67.
219. The one limited exception to this generalization demonstrates that when a delegation is intended, it is explicit and arises from a specific situation justifying delegation. Without giving any other authority to the states to define the term "special education," the federal regulations permit states to define what would otherwise he a "related service" as "special education" if they choose to do so. 34 C.F.R. § 300.39(a)(2)(i) (2008). This regulation responded to the situation in the years preceding the 1975 Act, when states varied as to whether a child who required only speech therapy or had similar needs for a very specific and limited form of intervention was be considered eligible for special education. The federal regulators decided to permit the states to retain then-existing modes of classification on this point. States that defined these services as outside of special education would not receive federal money to assist those children, but would continue to use state resources. The original version of the regulation said that special education "includes speech pathology, audiology, occupational therapy, and physical therapy, if the service is considered 'special education' rather than a 'related service' under State standards." 41 Fed. Reg. 56978 (proposed Dec. 30, 1976) (to be codified at 45 C.F.R. § 121a.4). The final version merely mentioned "speech pathology, or any other related service, if the service ... is considered 'special education' rather than a 'related service' under State standards." 45 C.F.R. § 121a.l4 (1978). Neither this history nor whatever autonomy states have over curriculum provides a basis for states to define out of existence the adverse effect of a child's physical or mental condition on educational performance, a test that is part of a clinical standard in a federal law term regarding federal statutory protection.
220. Compare 20 U.S.C.A. § 1401(9)(B) (West Supp. 2008) (defining free, appropriate public education to include meeting the standards of the state educational agency) with § 1401(3) (allowing discretion to states in defining eligible children only with regard to adoption of disability category of children aged three through nine experiencing developmental delay).
221. See Garda, supra note 8, at 300 (collecting federal guidance regarding states' ability to define educational performance). But see Garda, supra note 9, at 465 n. 128 (noting that guidance from the relevant federal office "is less than clear on the subject").
222. 20 U.S.C.A. § 1406(e)(l) (West Supp. 2008).
223. Cf. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that equal protection does not require equality of educational expenditures among school districts in state, citing local autonomy concerns).
224. See 20 U.S.C.A. § 1400(c)(2), (d) (West 2000) (reciting original findings about unserved children with disabilities and noting continuing purposes of IDEA to guarantee that children have appropriate education).
225. See U.S. Const., art. VI, § 1, cl. 2.
226. 397 U.S. 397 (1970).
227. Id. at 416-17.
228. Id. at 417-18.
229. See id. at 421-22.
230. Id. at 423 (quoting Helvering v. Davis, 301 U.S. 619, 645 (1937)) (alteration in original). Many cases that overturn state definitional restrictions on federal entitlements in federal-state cooperative programs are in the public welfare field.
231. See, e.g., Townsend v. Swank, 404 U.S. 282 (1971) (overturning state definition of "dependent child" that excluded college students from welfare eligibility under federal-state program);
232. King v. Smith, 392 U.S. 309 (1968) (overturning state definition of "parent" that operated to exclude families from welfare eligibility under federal-state program). Like IDEA, these programs are forms of "cooperative federalism." Compare Schaffer v. Weast, 546 U.S. 49, 52 (2005) (quoting Little Rock Sch. Dist. v. Mauney, 183 F.3d 816, 830 (8th Cir. 1999) referring to IDEA as "cooperative federalism"), with King, 392 U.S. at 316 (1968) (referring to Aid to Families with Dependent Children program as "cooperative federalism").
233. Garda, supra note 9, at 509. Professor Garda goes on to use Rowley's approach to support the proposition that children passing, yet performing poorly, need special education under the statute.
234. Id. at 509-11.
235. Cf. Note, Enforcing the Right to an "Appropriate" Education: The Education for All Handicapped Children Act of 1975, 92 Harv. L. Rev. 1103 (1979) (suggesting use of common-law development to inform meaning of appropriate education term of statute).
236. See Weithorn, supra note 11, at 1357;
237. O'Neill, supra note 124, at 1203-07;
238. see also Theresa Glennon, Disabling Ambiguities: Confronting Barriers to the Education of Students with Emotional Disabilities, 60 TENN. L. Rev. 295, 334-35 (1993) (describing social maladjustment provision as source of confusion and underidentification of children as emotionally disturbed).
239. Hensel, supra note 10, at 1180-87.
240. Id. at 1184 (referring to 42 U.S.C.A. § 12102(2)(A) (West 2005)). It was entirely predictable that this type of thinking would emerge. Many of the lawyers defending disability discrimination actions by arguing the limited coverage of the ADA are from firms that practice school-side special education law. School administrators who long had lawyers looking after their interests in labor-management issues turned to the same firms for representation in special education matters when they encountered legal disputes of this type. There is, of course, nothing sinister in any of this, but it should be no surprise that legal approaches would migrate from one area to the other. An additional source drawing comparisons between restrictions on special education eligibility and narrow views about who is protected under the ADA is Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 CREIGHTON L. REV. 229, 266-67 (2007). Congress has recently corrected the courts' narrow definition of ADA coverage. ADA Amendments Act of 2008, Pub. L. No. 110-326, 122 Stat. 3553.
241. Hensel, supra note 10, at 1185.
242. Id. at 1187-96;
243. see also Perlin, supra note 11, at 42 (discussing "sanist myths" about persons with mental disabilities that isolate these individuals and confer stigma on them, such as the myth that people with mental disabilities are faking their condition or simply need to try harder).
244. See Hensel, supra note 10, at 1196-97.
245. See id. at 1200 (making point in context of discussion of overidentification of children with disabilities).
246. Other recent changes to IDEA may also affect eligibility determinations, but at the moment they do not appear significant enough to warrant extended treatment. For example, the 2004 Reauthorization of IDEA demands that children with disabilities be included in state and district assessment programs, including those for the No Child Left Behind initiative. 20 U.S.C.A. § 1412(a)(16)(A) (West 2005). Students with disabilities need to be given appropriate accommodations and alternative assessments when necessary and as indicated in their individualized education programs; the state or district conducting the assessment program has to develop guidelines for furnishing accommodations. § 1412(a)(16)(B)-(C). The alternate assessments have to be aligned with the challenging academic content standards and achievement standards of the state. § 1412(a)(16)(C)(ii)(I). If the state has adopted alternate achievement standards, the alternate assessment has to measure student achievement against the standards. § 1412(a)(16)(C)(ii)(II). The proliferation of detail and the increase in emphasis regarding the achievement testing of children with disabilities may create incentives for administrators to initiate or resist special education identification for the children in their schools. See Weber, supra note 23, at 20-21 (collecting reports of manipulation of testing cohorts of students with disabilities). Another change in the new law that may affect eligibility is the adoption of a default timeline (that is, unless the state has a different one) of sixty days maximum from receipt of parental consent for evaluation to completion of evaluation. 20 U.S.C.A. § 1414(a)(l)(C) (West Supp. 2008).
247. Frank M. Gresham, Responsiveness to Intervention: An Alternative Approach to Identification of Learning Disabilities, in IDENTIFICATION of LEARNING DISABILITIES: RESEARCH to PRACTICE (Renee Bradley, et. al. ed.,2002), available at, http://nrcld.org/resources/ldsummit/gresham4.pdf.
248. See U.S. Dep't of Educ, Data Tables for OSEP State Reported Data, https://www.ideadata.org/tables30th/ar-l-3.xls (last visited Aug. 4, 2008). The count is as of Fall 2006, and includes schoolchildren ages six through twenty-one.
249. See Terry Jean Seligmann, An IDEA Schools Can Use: Lessons from Special Education Legislation, 29 Fordham Urb. L.J. 759, 770 & n.67 (2001) (collecting sources and attributing rise in SLD identification to recognition of lower stigma and other factors).
250. See supra note 180 (reporting criticism of standardized testing implementation).
251. Louise Spear-Swerling, Response to Intervention and Teacher Preparation, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND 273, 276 (Elena L. Grigorenko ed. 2008).
252. Id. at 276-77.
253. See Gresham, supra note 181.
254. See Jack M. Fletcher et al., Alternative Approaches to the Definition and Identification of Learning Disabilities: Some Questions and Answers, BNET (2004), http://findarticles.com/p/articles/mi-qa3809/ is-200412/ai-n9471603/pg-l?tag=artBody;coll.
255. Daniel J. Reschly & John L. Hosp, State SLD Identification Policies and Practices, 27 LEARNING DISABILITIES Q. 197, 208-10 (2004).
256. Daniel J. Reschly, What if LD Changed to Reflect Research Findings'? (Dec. 2003), http://www.nrcld.org/symposium2003/reschly/reschly2. html.
257. Kenneth A. Kavale et al., The Feasibility of a Responsiveness to Intervention Approach for the Identification of Specific Learning Disability: A Psychometric Alternative (Dec. 2003), http://www.nrcld.org/symposium2003/ kavale/kavale.pdf ("The value of discrepancy lies in its ability to document the unexpected nature of the learning problem. Everything else being equal, there was little reason to believe that the particular student would experience learning difficulties. Since the underachievement dimension is integral to the SLD construct, it may represent a better 'first gate to learning disabilities identification' ⋯ than the proposed RTI model.") (citation omitted);
258. see Jack A. Naglieri & Alan S. Kaufman, IDEM and Specific Learning Disabilities, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra note 185, at 165 (defending specific cognitive testing and criticizing RTI).
259. Tom Scruggs, Alternatives to RTI in the Assessment of Learning Disabilities (Dec. 2003), http://www.nrcld.org/symposium2003/scruggs/scruggs5. html (proposing that RTI operate as part of general education and that low achievers in one or more areas demonstrate IQ-achievement discrepancy to be considered LD).
260. Reschly, supra note 190 ("LD prevalence ⋯ varies by a factor of 3 times in the U.S. (KY=2.76% vs. RI at 9.46%)⋯ . Moreover, LD prevalence within states varies markedly ⋯.");
261. see Kavale et al., supra note 191 ("Besides over-identification, another problem is found in the very different numbers of students with LD identified across settings. The significant variability is seen, for example, across states where prevalence rates have been found to range from 2% to 7% ⋯. There is little rhyme or reason for these different rates, and it appears that they may primarily reflect a lack of consistency in identification procedures ⋯ .") (citations omitted). Professor Kavale attributes the variability to insufficiently rigorous and uniform application of discrepancy methodology, rather than reliance on discrepancy approaches per se. Id.
262. See, e.g., Robert J. Sternberg & Elena L. Grigorenko, Which Queue?, 97 MICH. L. REV. 1928 (1999) (declaring learning disability concept invalid in practice) (book review);
263. see also Scruggs, supra note 192 (collecting and criticizing sources that "manifest⋯ hostility to the entire category of learning disabilities").
264. See MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE: AN INQUIRY INTO THE LEGAL TREATMENT OF STUDENTS WITH LEARNING DISABILITIES (1997). For criticisms of Kelman and Lester, see Andrew Weis, Jumping to Conclusions in "Jumping the Queue,"'51 STAN. L. REV. 183 (1998) (book review).
265. Spear-Swerling, supra note 185, at 273 (further noting that despite recognition of genuine cases of LD, "some investigators have argued that the LD category helps to excuse schools from the responsibility of teaching all children successfully").
266. See SALLY SHAYWITZ, OVERCOMING DYSLEXIA 82, 85 (2003); Michael M. Gerber, Teachers Are Still the Test: Limitations of Response to Instruction Strategies for Identifying Children with Learning Disabilities (Dec. 2003), http://www.nrcld.org/symposium2003/gerber/ gerber.pdf ("[T]here is rapidly accumulating evidence that at least some learning disabilities-the same associated with phonological processing deficiencies in behavioral testing-are associated with a clear ⋯ and modifiable ⋯ neurological substrate. Therefore, ⋯ there is strong reason to suppose that, in principal [sic], students displaying this condition can be reliably identified independent of instructional trials.") (citations omitted);
267. see Margaret Semrud-Clikeman, Neuropsychological Aspects for Evaluating Learning Disabilities (Dec. 2003), http://www.nrcld.org/ symposium2003/clikeman/clikeman3.html. Authorities discussing the physiological basis of dyslexia are nonetheless skeptical about the effectiveness of IQ testing in determining the presence of the condition.
268. See LILIANE SPRENGER-CHAROLLES ET AL., READING ACQUISITION AND DEVELOPMENTAL DYSLEXIA 72-73 (2006);
269. see also SHAYWITZ, supra, at 139 ("There is an emerging consensus among researchers and clinicians that the dependence on a discrepancy between IQ and reading achievement for a diagnosis of dyslexia has outlived its usefulness except in very limited circumstances.").
270. Reschly, supra note 190 ("[A]ll studies that I have read or conducted on children and youth with LD confirms virtually without any exceptions that all have significant achievement problems ⋯ . There is no 'fraud' in LD. On that I believe most will agree.").
271. SHAYWITZ, supra note 197, at 164.
272. See id. ("I am puzzled by the often-repeated notion that some students pretend to be dyslexic. When asked about this, I always respond by asking in turn, 'Do you know this for a fact? Are you personally aware of such a case?' Invariably the person shakes her head and replies, 'Oh no, it's just something I've heard.' Such notions are nonsense.").
273. Gresham, supra note 181 ("Ostensibly, 'verbal' learners should learn more efficiently and effectively under verbal instruction and 'visual' learners should learn more efficiently and effectively under visual instruction. Unfortunately, there is little empirical support for the differential prescription of treatments based on different abilities or aptitudes ⋯ .");
274. Reschly, supra note 190, (stating that no empirical support exists for methods that match cognitive strengths of students with LD to teaching modalities).
275. Some authorities appear reluctant to embrace RTI because of the perceived threat it poses to existing constructs of a distinct learning disability category. See, e.g., Scruggs, supra note 192. For purposes of educational policy and legislation, however, what matters is not whether a distinct "learning disabilities" category survives, but what is the best means to educate students who have difficulties learning when exposed to ordinary instruction and who could be learning more with appropriate education.
276. Gresham, supra note 181. State education departments have adopted their own definitions of RTI. For example, Virginia defines RTI (using the abbreviation "RtI") as "primarily an instructional framework and philosophy, the goals and objectives of which include early intervention for students who struggle to attain or maintain grade level performance." DIV OF SPECIAL EDUC. & STUDENT SERVS., COMMONWEALTH OF VA. DEP'T OF EDUC, RESPONSIVE INSTRUCTION: REFINING OUR WORK OF TEACHING ALL CHILDREN 6 (October 2007), http://www.doe.vir ginia.gov/VDOE/studentsrvcs/rti-guidance-document.pdf [hereinafter VA. DEP'T OF EDUC.]. The document describes RTI as involving "universal screening; multiple layers or 'tiers' of instruction, intervention, and support, and progress monitoring (an integrated data collection and assessment system to inform decision making)." Id. at 7.
277. Lynn S. Fuchs et al., Response to Intervention: A Strategy for the Prevention and Identification of Learning Disabilities, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra note 185, at 115, 116 ("The premise behind RTI is that students are identified as having LD when their response to validated intervention is dramatically inferior to that of their peers. The inference is that these children who respond poorly to generally effective interventions have a disability that requires specialized treatment to produce successful learning outcomes.") (citation omitted).
278. See id. at 115-23 (describing three-tiered model).
279. Learning Disabilities Ass'n of America, The Role of Parents/Family in Responsiveness to Intervention (2004), http://www.ldaamerica.org/news/print- role-parents.asp;
280. see Gresham, supra note 181 (describing monitoring at this phase). Classwide screening ties into NCLB. NCLB's Reading First initiative gives funding for reading programs for children in kindergarten through grade three, and one of the required uses of the money is "administering screening, diagnostic, and classroom-based instructional reading assessments." 20 U.S.C.A. § 6362(c)(7)(A)(i) (West 2003). Thanks to Suzanne Whitney for this insight.
281. Gresham, supra note 181.
282. Id. One source describes the intervention as about thirty minutes of supplemental instruction a day, with progress monitored twice a month; the phase, under this model, may last ten to twenty weeks. Douglas Marston, Tiers of Intervention in Responsiveness to Intervention: Prevention Outcomes and Learning Disabilities Identification Patterns, 38 J. LEAENING DISABILITIES 539, 540 (2005).
283. Gresham, supra note 181. ("Essentially, this phase represents a special-education diagnostic trial period ⋯ ."). Some models incorporate a fourth tier of even more specialized instruction, but as with the composite model Gresham describes, the latter phases might be designated special education. See Council for Exceptional Children, Response-to- intervention-The Promise and the Peril, http://www.cec.sped.org/AM/Template.cfm? Section=Home&TEMPLATE=/ CM/ContentDisplay.cfm&CONTENTID=8427 (last visited Aug. 4, 2008) ("Special education teachers may help develop interventions and/or plan assessments for students receiving instruction and interventions in Tiers 1 and 2. They may not provide instruction to students until Tier 3 or 4, when the student could be referred and identified for special education.").
284. See Council for Exceptional Children, supra note 209 ("Students who do not respond to intervention are referred to special education. This step is taken after intensive intervention has not helped."). There is disagreement about how much weight should be placed on the simple fact of failure to make adequate progress following the interventions in the determination of learning disability, and how many additional assessments should be undertaken.
285. See id. (collecting educational research sources).
286. 20 U.S.C.A. § 1414(b)(6)(A) (West Supp. 2008). The statute specifically permits school districts to "use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures" in ascertaining whether the child has specific learning disabilities. § 1414(b)(6)(B). The Department of Education has interpreted the Act as permitting state educational agencies to require local school districts to use RTI. U.S. Dep't of Educ, Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS), Question C-4 (Jan. 2007), http://idea.ed.gOv/explore/view/p/ %2Croot%2Cdynamic%2CQaCorner%2C8%2C.
287. 20 U.S.C.A. § 1413(f) (West Supp. 2008).
288. See § 1413(f)(l), (2)(B).
289. 20 U.S.C.A. § 1414(b)(5)(A)-(B).
290. See Fuchs et al., supra note 204, at 116 ("[I]f an at-risk student responds well to intervention, then their low achievement can be attributed to lack of appropriate instruction, not a learning disability.").
291. See Additional Procedures for Evaluating Children with Specific Learning Disabilities, 70 Fed. Reg. 35,802, 35,864, (June 21, 2005).
292. 34 C.F.R. § 300.307(a) (2008);
293. see also 34 C.F.R. § 300.309(a)(2)(i) (2008).
294. 34 C.F.R. § 300.541(a)(2) (2007) (superseded).
295. 34 C.F.R. § 300.309(a)(l). The regulations appear to allow for the use of some discrepancy-based methods by permitting eligibility when the child "exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined ⋯ to be relevant to the identification of a specific learning disability, using appropriate assessments" otherwise consistent with the regulations. § 300.309(a)(2)(ii).
296. § 300.309(b); see also 34 C.F.R. § 300.310 (2008) (requiring class observation of the child prior to determination); 34 C.F.R. § 300.311 (2008) (requiring additional documentation on various topics related to specific learning disability determination).
297. Nat'l Joint Comm. on Learning Disabilities, Responsiveness to Intervention and Learning Disabilities, 28 LEARNING DISABILITY Q. 249, 252 (2005). The use of objective criteria for intervention in the form of classwide assessments has the related advantage of not requiring the child to wait for a referral to special education (something typically initiated by the classroom teacher) before receiving help.
298. See Fletcher et al., supra note 188 ("Teacher referral has been demonstrated to be biased, yielding disproportionate numbers of boys and African Americans, likely reflecting behavior management difficulties that make many referred students difficult to manage in the classroom.") (citation omitted).
299. See Nat'l Joint Comm. on Learning Disabilities, supra note 221, at 252.
300. Fletcher et al., supra note 188 (discussing "instructional casualties" to be provided accelerated instruction under RTI methodology);
301. Spear-Swerling, supra note 185, at 277 ("In their emphases on high-quality Tier 1 instruction and timely, research-based interventions, RTI approaches have the potential to benefit a broad range of children, not only those with genuine LD.").
302. Referral practices are the key, because most children referred by their teachers are determined to be eligible.
303. See Reschly, supra note 190 ("Findings indicate that 90% of students referred by teachers are evaluated for special education and 70% are found eligible.") (citation omitted).
304. See, e.g., Nat'l Joint Comm. on Learning Disabilities, supra note 221, at 252.
305. See, e.g., Fletcher et al., supra note 188 (citing studies from California and Connecticut).
306. An example of this is the Virginia RTI plan, which states that "[o]nly after several ⋯ systematic and research-grounded interventions have been implemented and evaluated, and a child has consistently failed to make adequate progress, may s/he be considered for special education evaluation." VA. DEP'T OF EDUC, supra note 203, at 2. In fact, the relevant federal regulation simply states that the group determining the existence of a child's learning disability "must consider, as part of the evaluation ⋯ data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel." 34 C.F.R. § 300.309(b)(l) (2008). This provision creates a standard for the process of finding eligibility, not a standard for when a child may be considered for eligibility.
307. See Michael Alison Chandler, Waiting Too Late to Test?, WASH. POST, Dec. 31, 2007, at B6, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/12/30/ AR2007123002447-pf.html ("For many school systems, RTI-influenced strategies have led to a significant drop in the number of special education students ⋯ . The new approach has led to a backlash among parents who say their children aren't getting the help they need. A parent-led advisory committee told the Loudoun School Board in the fall that the school system appeared to be under-identifying students who should qualify for special education.").
308. Id.
309. SHAYWITZ, supra note 197, at 82.
310. Tonya R. Moon et al., Twice-Exceptional Students, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra note 185, at 295, 296-97.
311. Id. at 298.
312. See 34 C.F.R. § 300.541(a) (2007) (superseded).
313. Letter to Anonymous, 41 Individuals with Disabilities Educ. L. Rep. 212 (U.S. Dep't of Educ. 2004). The duty to identify, locate, and evaluate all children suspected of being children with disabilities applies "even though they are advancing from grade to grade." 34 C.F.R. § 300.111(c)(l) (2008). Programs such as Advanced Placement and International Baccalaureate must not discriminate against qualified students with learning or other disabilities. STEPHANE MONROE, OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF EDUC, ACCESS BY STUDENTS WITH D ISABILITIES TO ACCELERATED PROGRAMS (2007), http://www.ed.gov/about/offices/list/ocr/letters/colleague-20071226.html.
314. Kavale et al., supra note 191 ("What is also clear is that eliminating IQ-achievement discrepancy would result in a significant number of students with SLD not being identified when using only a relative discrepancy or low achievement criterion for determining eligibility.");
315. see Townsend, supra note 175, at 264 ("[The RTI] approach becomes a ceiling on the ability of students with high potential, who can achieve scores in the average range in spite of their learning disability, preventing them from getting the help they need to realize their full potential.").
316. See Nat'l Joint Comm. on Learning Disabilities, supra note 221, at 253 ("These students, by compensating with their intellectual strengths and making good use of support services, often manage to achieve within the normal range and, therefore, are unlikely to receive the early individualized instruction that would enable them to make academic progress consistent with their abilities.").
317. But see Moon et al., supra note 231, at 302 (suggesting use of RTI in combination with other strategies in identifying gifted children with LD). The authors do not explain how bright children who compensate for their weaknesses with skilled guesswork or other mechanisms to perform at an average level will be identified and provided assistance to become better learners.
318. Even the most rigorous program does not eliminate individual judgment. See Gerber, supra note 197 ("Even teachers of small intervention groups make decisions to continue or adjust instruction based on evaluation of quality (e.g., automaticity or fluency) as well as accuracy of students' responses. Such decisions and the choices that follow cannot be fully programmed in advance without ignoring potentially meaningful individual differences among students."). One source, however, comments that fidelity to protocol is a problem with non-RTI evaluation mechanisms as well.
319. See Reschly, supra note 190 ("Implementation fidelity,
320. Yelling, for example. Professor Gerber politely notes, "Teachers differ as individuals despite the quality of their professional preparation ⋯ like their students, they cannot be made identical." Gerber, supra note 197.
321. See Gresham, supra note 181 ("[F]ailure to find significant treatment effects might be explained by poor component integrity over time, by poor daily or session integrity, or both.").
322. In re the Educ. Assign, of S.K., a Student in the Upper Darby Sch. Dist, 106 LRP 60495, (Pa. Dep't of Educ. Sept. 2006), Special Educ. Op. No. 1769 (Sept. 2006).
323. Council for Exceptional Children, supra note 209 ("Implementing RTI is a substantial undertaking. Staff may need professional development in the RTI process as well as in research-based instruction and progress monitoring. To assist teachers, some schools provide training and manuals on acceptable interventions. In addition, schools may bring in outside support, such as a university, to help teachers learn and teach curriculum."). One source cites indicates that twenty hours of training plus weekly followup sessions will be required for tutors, and forty hours of baseline training for classroom teachers. Gerber, supra note 197 (collecting studies).
324. See Gresham, supra note 181 (discussing cost-benefit comparison).
325. BETH C. GAMSE, ET AL., NAT'L CTR. FOR EDUC. EVALUATION & REG'L ASSISTANCE, INST. OF EDUC. SCIS., READING FIRST IMPACT STUDY: INTERIM REPORT, at xiv (Apr. 2008), available at http://ies.ed.gov/ncee/pdf/20084016.pdf ("On average, Reading First did not improve students' reading comprehension. The program did not increase the percentages of students in grades one, two, or three, whose reading comprehension scores were at or above grade level. In each of the three grades, fewer than half of the students in the Reading First schools were reading at or above grade level.");
326. see Sam Dillon, An Initiative on Reading Is Rated Ineffective, N.Y. TIMES, May 2, 2008, at A12, available at http://www.nytimes.com/2008/05/02/education/02reading.html?pagewanted=pri nt (summarizing and discussing findings of Interim Report). The Reading First program, which is the principal innovation in reading instruction associated with the No Child Left Behind Initiative, has been criticized for cronyism, among other things.
327. See Kathleen Conn, The Evolution of K-12 Educational Malpractice Claims: Will the "Reading First" Scandals Influence Statutory Causes of Action Under NCLBA and IDEIA?, 221 EDUC. L. REP. 21 (2007).
328. For a compilation of favorable results in trials of math intervention, see Lynn S. Fuchs et al., Response to Intervention, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 and Beyond, supra note 185, at 115, 125-27. The authors note that validation of protocols for written language and science remains to be accomplished. Id. at 124. Some other experts regard math ETI as a work in progress. David Chard et al., Systems of Instruction and Assessment to Improve Mathematics Achievement for Students with Disabilities: The Potential and Promise of RTI, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra, at 225, 228 ("Most research and development in RTI implementation and evaluation have taken place in early reading education. Our interest is in promoting similar efforts in mathematics. However, developing RTI models in mathematics education will be a formidable challenge."). Other authorities are more skeptical about the scientific support for RTI processes in general.
329. See Jack A. Naglieri & Alan S. Kaufman, IDEIA and Specific Learning Disabilities, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra, at 163, 189 ('The evidence examined by Fuchs et al. (2003) and Naglieri and Crockett (2005) suggest that there is little evidence to demonstrate the utility of RTI.");
330. see also Kavale et al., supra note 191 (describing support for use of RTI with regard to anything but phonemic awareness in young children as inadequate).
331. Spear-Swerling, supra note 185, at 271 ("[O]ver 90% of children classified as LD prior to fifth grade are identified based primarily on problems in reading.") (citing 1992 data).
332. Scruggs, supra note 192 ("[I]ntensive instruction can improve reading skills, but this does not 'cure' the learning disability, which may have a number of other manifestations. That is, deficits in sustained attention, semantic memory, organizational skills, perceptual motor skills, or social interactions could lead to problems in a number of other school tasks ⋯ .").
333. Spear-Swerling, supra note 185, at 287;
334. see Scruggs, supra note 192 ("Presently, the model addresses primarily reading in primary grades, and tells us little about how learning disabilities might be evaluated at higher grade levels, and when the problems emerge primarily as failures in content area learning.");
335. Semrud-Clikeman, supra note 197 ("Most of the research has centered on children in kindergarten and first grade classrooms. There is very little empirical evidence that this program is appropriate for children at older ages. Prior to implementation of this program for all children it would be very appropriate to conduct studies with children in middle school and high school.").
336. See Michele Goyette-Ewing & Sherin Stahl, New Individuals with Disabilities Improvement Act and Psychological Assessment, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 and Beyond, supra note 185, at 421, 432 ("Will we be using a wait-to-fail approach with these older children, if we depend on RTI as the primary tool for determining a learning disability?"). Others are more sanguine.
337. See Saylor Heidmann, Reading Assessment and IDEIA, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 and Beyond, supra, at 435, 447-50 (relying on anecdotal information).
338. See Jennifer H. Lindstrom et al., Assessment and Eligibility of Students with Disabilities, in EDUCATING INDIVIDUALS WITH DISABILITIES: IDEIA 2004 AND BEYOND, supra note 185, at 197, 204.
339. 34 C.F.R. § 300.304(a) (2008);
340. see § 300.509.
341. See 34 C.F.R. §§ 300.301-.311.
342. See 34 C.F.R. § 300.302. (covering screening for instructional purposes).
343. See 34 C.F.R. § 300.301(b).
344. NAT'L RES. CTR. ON LEARNING DISABILITIES, RESPONSIVENESS TO INTERVENTION IN CONJUNCTION WITH LEARNING DISABILITY DETERMINATION (Winter 2007), http://www.nrcld.org/ resource-kit/general/RTIbrief2007.pdf.
345. 34 C.F.R. § 300.502 (2008). The independent evaluation must be at public expense unless the school district requests a hearing and demonstrates that its evaluation is appropriate. § 300.502(b).
346. Another mystery is how to apply RTI to determine eligibility for private school students. School districts have the obligation to identify, locate, and evaluate those students by undertaking activities similar to those undertaken for public school students, 20 U.S.C.A. § 1412(a)(10)(A)(ii) (West Supp. 2008), but lack the ability to modify the private schools' general education to embrace RTI methods.
347. U.S. Dep't of Educ, supra note 211, at C-6 ("[A]n RTI process does not replace the need for a comprehensive evaluation."); see 20 U.S.C.A. § 1414(b)(2) (West Supp. 2008) ("In conducting the evaluation, the local educational agency shall ⋯ use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information ⋯ [and] not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability ⋯ .").
348. See NAT'L RESEARCH CTR. ON LEARNING DISABILITIES, supra note 254 ("RTI is introduced into the statute as one part of the evaluation, eligibility determination, individualized education program, and educational placement procedures, not as the only evaluation procedure. The inference is that SLD determination is not based on a sole criterion of a child's response to an intervention.").
349. 34 C.F.R. § 300.301(c)(l)(i) (2008). States may enact different time limits. § 300.301(c)(l)(ii).
350. 34 C.F.R. § 300.309(c).
351. 478 F.3d 307, 316 (6th Cir. 2007).
352. Id. at 313 (quoting Clay T. v. Walton County Sch. Dist., 952 F. Supp. 817, 823 (M.D. Ga. 1997)).
353. 447 F.3d 828 (D.C. Cir. 2006).
354. The same problem, of course, arises for children who are ultimately not found eligible for special education if their needs are remediated during the RTI process.
355. 20 U.S.C.A. § 1412(a)(l)(A) (West Supp. 2008).
356. 34 C.F.R. § 300.530(d)(l)(i) (2008).
357. § 300.530(d)(l)(ii).
358. § 300.530(e).
359. Id.
360. § 300.530(f)-(g).
361. § 300.530(g) (2008).
362. 34 C.F.R. § 300.532.
363. See 34 C.F.R. § 300.534.
364. U.S. Dep't of Educ, supra note 211, at F-3.
365. Even if only the most important protections were afforded, such as the right to continued services in an alternative setting during periods of suspension, children would benefit and parental pressure for rapid eligibility determinations would diminish. No warranties are made regarding the political palatability of this proposal, but it may be noted that after significant agitation to eliminate disciplinary protections for children with disabilities in the debates leading up to the 2004 Reauthorization, the changes made were fairly modest and the legislation even contains a provision expressing disapproval of zero-tolerance policies.
366. See Weber, supra note 23, at 34-39 (discussing, inter alia, 20 U.S.C.A. § 1415(k)(l)(A) (West Supp. 2008), which calls for consideration of unique circumstances on case-by-case basis when disciplining students with disabilities).
367. U.S. DEP'T OF EDUC., 1 TWENTY- SEVENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABIUTIES EDUCATION ACT 38 (2005), available at http://www.ed.gov/about/reports/ annual/osep/2005/parts-b-c/27th-vol-l.pdf (discussing data for students ages 6-21).
368. Id. at 40. There is disproportional representation of other ethnic groups as well, but the pattern is more geographically scattered and indicates statistical underrepresentation as well. Daniel J. Losen & Kevin G. Welner, Disabling Discrimination in Our Public Schools: Comprehensive Legal Challenges to Inappropriate and Inadequate Special Education Services for Minority Children, 36 HAEV. C.R.-C.L. L. REV. 407, 412 (2001) ("Although African Americans appear to bear the brunt of overidentification, the evidence indicates that all minority groups are vulnerable to discrimination in identification for special education. For example, Hispanics, Native Americans, and Asian Pacific Americans are each overrepresented in mental retardation classifications at more than three times the rate of whites in at least one state. In most states, however, Hispanics and Asian Pacific Americans are more likely to be underrepresented.") (relying on data compiled by Thomas Parrish).
369. Daniel J. Losen & Gary Orfield, Racial Inequity in Special Education, in RACIAL INEQUITY IN SPECIAL EDUCATION supra note 48, at xv, xxiii. Other disparities appear even when these particular disparities vanish. California eliminated overrepresentation of African-Americans classed as students with mild mental retardation over the period from 1980 to 1994, but overrepresentation of African-Americans identified as having learning disabilities increased substantially. Donald P. Oswald et al., Community and School Predictors of Overrepresentation of Minority Children in Special Education, in RACIAL INEQUITY IN SPECIAL EDUCATION supra note 48, at 1, 3.
370. 20 U.S.C.A. § 1412(a)(24) (West Supp. 2008).
371. 20 U.S.C.A. § 1418(d)(l).
372. § 1418(d)(2)(A). The revision of policies has to be publicly reported. § 1418(d)(2)(C).
373. § 1418(d)(2)(B). See generally supra text accompanying notes 61-62, 214-15 (discussing early intervening services).
374. Losen & Orfield, supra note 278, at xxiii.
375. Id.
376. Id. at xxiv.
377. See supra text accompanying note 223 (discussing "instructional casualties").
378. Losen & Welner, supra note 277, at 415-16 (relying on data compiled by Donald P. Oswald).
379. U.S. DEP'T OF EDUC, supra note 276, at 48.
380. Id.
381. Id.
382. David Osher et al., Schools Make a Difference: The Overrepresentation of African American Youth in Special Education and the Juvenile Justice System, in RACIAL INEQUITY IN SPECIAL EDUCATION, supra note 48, at 93, 96.
383. Losen & Welner, supra note 277, at 407 ("[A]s a result of misdiagnosis and inappropriate labeling, special education is far too often a vehicle for the segregation and degradation of minority children.").
384. One prominent expert on disability law has challenged the legal presumption favoring educational settings in which children with disabilities are integrated with those who do not have disabilities. Ruth Colker, The Disability Integration Presumption: Thirty Years Later, 154 U. PA. L. REV. 789 (2006).
385. For a response, see Mark C. Weber, A Nuanced Approach to the Disability Integration Presumption, 156 U. PA. L. REV. PENNUMBEA 174 (2007), http://www.pennumbra.com/responses,10-2007/Weber. pdf.
386. Edward Garcia Fierros & James W. Conroy, Double Jeopardy: An Exploration of Restrictiveness and Race in Special Education, in RACIAL INEQUITY IN SPECIAL EDUCATION, supra note 48, at 39, 40.
387. Garda, supra note 12, at 1074 ("[W]ithout fundamental changes to, and a proper understanding of, the "needs special education" eligibility criteria, the educational paradigm adopted in the [2004 Reauthorization] cannot take root, and the eligibility problems will persist.").
388. Id. Professor Garda would further rule out a student's eligibility for special education "until all available accommodations and regular education interventions have proven ineffective." Id. at 1074-75. Though intended to force general education to take responsibility for students of all cultures and ethnicities by individualizing instruction, this suggestion, will, I fear, take to an extreme the wait-to-fail approach that has been so severely criticized regarding learning disabilities evaluation.
389. See supra text accompanying note 60 (criticizing wait-to-fail approach). Professor Garda would use a below-average performance standard, rather than a standard of failing, see Garda, supra note 12, at 1129;
390. supra note 11, at 491-512, but so many children are below average (half, except in Lake Woebegone) that in practice the standard will likely become that of failing or nearly so.
391. See Garda, supra note 12, at 1082-83.
392. See Losen & Welner, supra note 277, at 411.
393. See David M. Engel, Law, Culture, and Children with Disabilities: Educational Rights and the Construction of Difference, 1991 DUKE L.J. 166, 184 (discussing imposition of stigma on persons with disabilities).
394. See generally Mark C. Weber, Disability Harassment in the Public Schools, 43 WM. & MAEY L. REV. 1079, 1155-58 (2002) (discussing steps to prevent and remedy harassment on the basis of disability).
395. If the student is not found eligible for special education, some of the legal remedies for harassment will not be available, because they are furnished under IDEA. See id. at 1110-19 (discussing IDEA remedies).
396. See Arceneaux, supra note 46, at 244 ("Although the term stigma or stigmatization is often used to describe an outcome of special education, particularly for minorities, there is a lack of empirical data to support this finding separate from consolidated studies with other variables.").
397. Some personal narrative may support this point. I attended Catholic grade schools in the Milwaukee area in the 1960s. There were no special education classes in the schools I attended and no children identified as special education eligible or given disability classifications. Nevertheless, it was obvious to everyone which children were struggling to learn. They were ruthlessly stigmatized and frequently became the victims of harassment. It is hard to imagine that the mistreatment would have been any worse had they been given a formal disability designation, and their prospects certainly would have improved had they been afforded support in their schooling as a matter of entitlement. There are, of course, limits to the value of this observation. In any given case, an official designation may still have a harmful effect. But much depends on what the consequences of the designation will be, and if the consequence is an entitlement to effective services rather than isolation, the designation is worth the disadvantage, particularly if the school aggressively corrects any peer and teacher mistreatment of children who are so designated as well as those who are not.
398. Losen and Welner note that "Special education can provide tremendous benefits to children who need supports and services." Losen & Welner, supra note 277, at 407.
399. As Losen and Welner acknowledge, Alexander v. Sandoval, 532 U.S. 275 (2001), places out of reach individual litigation under the disparate impact regulations enforcing title VI of the Civil Rights Act.
400. See id. at 409. Their suggested alternative, litigation under 42 U.S.C. § 1983 to enforce the regulations, see id. at 449-51, seems less than promising in light of recent cases restricting the applicability of that cause of action, notably Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), and City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005).
401. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 570 (5th ed. 2007) ("Together, ⋯ the Supreme Court's two most recent decisions-City of Rancho Palos Verdes v. Abrams and Gonzaga University v. Doe-reveal a Court very much seeking to narrow the ability to use §1983 to enforce federal statutes.").
402. Oswald et al., supra note 278, at 3.
403. See Floyd D. Weatherspoon, Racial Justice and Equity for African-American Males in the American Educational System: A Dream Forever Deferred, 29 N.C. CENT. L.J. 1, 29 (2006) ("Unfortunately, the IDEA has been at times a double-edged sword. ⋯ [I]t has been overly used to label and disproportionately place African-American males in special education programs and out of mainstream educational instruction. At the same time, African-American males with mental disabilities have been suspended and expelled from school in lieu of receiving services required by the IDEA.") (footnotes omitted).
404. See Reschly, supra note 190 ("The most vulnerable feature in modern special education for persons with high incidence disabilities is insufficient documentation of positive benefits to children and youth ⋯ . Moreover, when positive outcomes are documented in LD, the magnitude is modest.");
405. see also Beth Harry et al., Of Rocks and Soft Places: Using Qualitative Methods to Investigate Disproportionality, in RACIAL INEQUITY IN SPECIAL EDUCATION, supra note 48, at 71, 72 (noting that disproportionate special education identification by race "is problematic ⋯ . [in] that there continues to be doubt that placement in special education programs results in beneficial outcomes for many students"). Positive outcomes appear to vary by race. The Department of Education reports that 59.1% of white children with disabilities graduate from high school with a regular diploma, while only 36.2% of African-American children with disabilities do so. The respective dropout rates are 29.9% and 41.7%. U.S. DEP'T OF EDUC, supra note 276, at 53;
406. Osher et al., supra note 291, at 94 ("While academic outcomes are poor for all youth with [emotional and behavioral disorders], they are particularly dismal for African Americans.").
407. Garda, supra note 12, at 1083. Professor Garda further notes that "[o]ne final explanation for African-American students' poor outcomes from special education is that eligible African-American children are more likely than their white counterparts to be placed in restrictive, segregated settings apart from general education students and the general curriculum." Id. at 1085.
408. Parrish, supra note 48, at 16.
409. See generally supra text accompanying notes 279-81 (describing recent statutory initiatives addressing disparities). Garda remains skeptical.
410. See Garda, supra note 12, at 1100-01.
411. Thomas Hehir, IDEA and Disproportionality: Federal Enforcement, Effective Advocacy, and Strategies for Change, in RACIAL INEQUITY IN SPECIAL EDUCATION 219, 235 (Daniel J. Losen & Gary Orfield eds. 2002).
412. 20 U.S.C .A. § 1401(3)(A)(i) (West Supp. 2008); 34 C .F.R. § 300.8(c) (2008).
413. 34 C.F.R. § 300.8(c).
414. 20 U.S.C.A. § 1401(3)(A)(ii);
415. 34 C.F.R. § 300.8(a).
416. As noted, the original title of the federal statute was the Education for All Handicapped Children Act. Even now, the first statement of purposes in the legislation reads: "The purposes of this [title] are-to ensure that all children with disabilities have available to them a free appropriate public education . ⋯ " 20 U.S.C.A. § 1400(d)(l)(A).
417. See 20 U.S.C.A. § 1401(29) ("The term 'special education' means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including-(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings;
418. and (B) instruction in physical education.");
419. 34 C.F.R. § 300.39(a) (2008) ("Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability ⋯ .").
420. 20 U.S.C.A. § 1412(a)(5)(A) ("[Sjpecial classes, separate schooling, or other removal of children with disabilities from the regular educational environment [may] occurQ only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.").
421. 20 U.S.C.A. § 1401(29).
422. 20 U.S.C.A.§ 1401(33). This extends to "aids, services, and supports that are provided in regular education classes or other education-related settings." Id.
423. See Hensel, supra note 10, at 1180 (discussed supra text accompanying notes 175-79); see also supra text accompanying note 316 (emphasizing need to serve "all children").
424. Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099 (9th Cir. 2007).
425. Alvin Indep. Sch. Dist. v. A.D., 503 F.3d 378 (5th Cir. 2007).
426. Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007).
427. See generally supra text accompanying notes 47-48 (discussing state special education funding).
428. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
429. The Department of Education proposed dropping the term in 1982, but the change never made it into the final regulation.
430. See O'Neill, supra note 124, at 1202 (citing 47 Fed. Reg. 33,836 (Aug. 4, 1982)).
431. 20 U.S.C.A. §§ 1414(b)(2)(A) (West 2008) (requiring school district to "use a variety of assessment tools and strategies"), 1414(b)(2)(B) (forbidding school district to "use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability");
432. 34 C.F.R. § 300.306(c)(i) (2008) (requiring school district to "[d]raw upon information from a variety of sources, including aptitude and achievement tests").
433. In addition, state funding formulas that create financial incentives to over-identify should be changed.
434. See supra text accompanying note 45 (discussing incentives in funding formulas).
435. 379 F.3d 966 (10th Cir. 2004).
436. Id. at 978.
437. Id. at 971.
438. See id. at 977-78.
439. See, e.g., Katharine T. Bartlett, The Role of Cost in Educational Decisionmaking for the Handicapped Child, LAW & CONTEMP. PROBS., Spring 1985, at 7, 47;
440. Bonnie Poitras Tucker, Board of Education of the Hendrick Hudson Central School District v. Rowley: Utter Chaos, 12 J.L. & EDUC. 235 (1983).
441. See, e.g., Scott F. Johnson, Reexamining Rowley; A New Focus in Special Education Law, 2003 B.Y.U. EDUC. & L.J. 561, 574-75;
442. Tara L. Eyer, Comment, Greater Expectations: How the 1997 IDEA Amendments Raise the Basic Floor of Opportunity for Children with Disabilities, 126 EDUC. L. REP. 1, 4-6 (1998).
443. See Julie F. Mead & Mark A. Paige, Board of Education of Hendrick Hudson v. Rowley: An Examination of Its Precedential Impact, 37 J.L. & EDUC. 329, 329 (2008) (collecting cases) ("Rowley stands firm as the primary precedent whenever the educational rights of children with disabilities are considered.").
444. See Mark C. Weber, The Least Restrictive Environment Obligation as an Entitlement to Educational Services: A Commentary, 5 U.C. DAVIS J. JUV. L. & POL'Y 147 (2001).
445. See 20 U.S.C.A. § 1400(c)(5)(C) (West 2008);
446. Weber, supra note 23, at 16-21. One new IDEA requirement, drawn from NCLB, is that a child's statement of educational services and aids be "based on peer-reviewed research to the extent practicable" 20 U.S.C.A. § 1414(d)(1)(A)(i)(1V);
447. 34 C.F.R. § 300.320(a)(4) (2008). This measure is designed to force school districts to use educational methodology that is proven to succeed, and should affect the standard for appropriate education.
448. See Jean B. Crockett & Mitchell L. Yell, Without Data All We Have Are Assumptions: Revisiting the Meaning of a Free Appropriate Public Education, 37 J.L. & EDUC. 381, 388 (2008) ("The inclusion of this terminology may prove to be significant to future courts when interpreting the [free, appropriate public education] mandate because the law directs IEP teams, when developing a student's IEP, to base the special education services to be provided on reliable evidence that the program or service works.").
449. See 20 U.S.C.A. § 6311(a)(2)(F) (West Supp. 2008).
450. See Philip T.K. Daniel, "Some Benefit" or "Maximum Benefit": Does the No Child Left Behind Act Render Greater Educational Entitlement to Students with Disabilities, 37 J.L. & EDUC. 347, 353 (2008) ("NCLB makes it clear that, under federal law, students with disabilities are entitled to and expected to meet the same high academic standards as non-disabled children. The standards movement assumes that all students can achieve high levels of learning if they receive high expectations, clearly defined standards, and effective teaching to support achievement. These high expectations in state education standards, however, are at odds with the core holding in Rowley that school districts only need to meet the minimalist 'some educational benefit' standard. The shift from process to outcome, which is at the heart of the standards-based movement, also contradicts the Rowley finding that the purpose of the IDEA is to provide access to education. The movement's emphasis on content and proficiency focuses on what students actually learn, ⋯ .");
451. see also Dixie Snow Huefner, Updating the FAPE Standard Under IDEA, 37 J.L. & EDUC. 367, 378 (2008) ("Under IDEA '04 the purpose of IDEA is no longer merely to provide 'a basic floor of opportunity.' The expectation of academic and functional progress calls for more than a floor.").
452. But see Mr. C. v. Me. Sch. Admin. Dist. No. 6, 538 F. Supp. 2d 298, 300-01 (D. Me. 2008) (rejecting argument that amendments to IDEA in 2004 altered appropriate education standard).
453. See 20 U.S.C.A. § 1401(9)(B). Children with severe cognitive disabilities will not be able to meet grade-level standards, particularly in the upper grades, but NCLB allows for this by allowing a small percentage of children to count towards the total of children meeting proficiency standards based on alternate educational assessments. 34 C.F.R. § 200.13(c)(ii) (2008).
454. See generally Michelle Croft, Note, Modified Assessments and No Child Left Behind: Beneficial to Students with Disabilities but Potential Problems in Implementation, 11 J. Gender RACE & JUST. 513 (2008) (discussing alternate educational assessments).
455. 20 U.S.C.A. § 6311(a)(2)(C)(v)(II) (West 2005).
456. See Weber, supra note 23, at 19-21 (noting criticisms of NCLB testing regimen, particularly regarding children with disabilities).
457. NCLB requires that certain subgroups of children, including children with disabilities, show adequate yearly progress in meeting proficiency standards, just as the progress must be shown by the group of children in the school as a whole and the children in each school. 20 U.S.C.A. § 6311(a)(2)(C)(v)(II) (cc).
458. See Weber, supra note 300, at 1155 & n.382 (listing voluntary action that school districts should take to combat harassment of students with disabilities);
459. see also Paul M. Secunda, At the Crossroads of Title IX and a New "IDEA": Why Bullying Need Not Be "A Normal Part of Growing Up" for Special Education Children, 12 DUKE J. GENDER L. & POL'Y 1 (2005) (discussing legal remedies for bullying of children with disabilities).
460. Some have suggested that the entitlements to an appropriate education should apply to all children.
461. See, e.g., Terry Jean Seligmann, supra note 183, at 761 ("A focus on the individual child's needs, parental involvement, enforceable rights, and a range of services should be part of every school child's life, not only those designated as 'special'.").