Disabling discrimination in our public schools: Somprehensive legal challenges to inappropriate and inadequate special education services for minority children

Harvard Civil Rights-Civil Liberties Law Review

Volumn 36, Issue 2, 2001, Pages

  Losen, Daniel J ^a,b,c   Welner, Kevin G ^d,e  

^a HARVARD UNIVERSITY   (United States)

^b LESLEY UNIVERSITY   (United States)

^c GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^d UNIVERSITY OF COLORADO   (United States)

^e UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 7444265970     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (325)

1. See, e.g., U.S. DEP'T OF EDUC., TO ASSURE THE FREE APPROPRIATE PUBLIC EDUCATION OF ALL CHILDREN WITH DISABILITIES: TWENTY-SECOND ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT, at v-vii (2000), available at http://www.ed.gov/offices/OSERS/OSEP/OSEP2000AnlRpt; see also Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).
2. The Merrow Report: What's So Special About Special Education? (PBS television broadcast, May 10, 1996) [hereinafter The Merrow Report], transcript available at http://www.pbs.org/merrow/tv/transcripts/index.html.
3. The Merrow Report: What's So Special About Special Education? (PBS television broadcast, May 10, 1996) [hereinafter The Merrow Report], transcript available at http://www.pbs.org/merrow/tv/transcripts/index.html.
4. 42 U.S.C. §§ 2000d to 2000d-4 (1994). Title VI provides, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Id. § 2000d.
5. See Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972); Pa. Ass'n. for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972).
6. Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. §§ 1400-1487 (1994 & Supp. V 1999) (originally enacted as the Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773).
7. In addition to IDEA, federal legislation protecting students and others with disabilities includes Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994), discussed infra Part II.A.
8. See JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM (1997); JEANNIE OAKES, KEEPING TRACK: HOW SCHOOLS STRUCTURE INEQUALITY (1985); Linda Darling-Hammond, Inequality and Access to Knowledge, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 465 (James A. Banks & Cherry A. McGee Banks eds., 1995).
9. See JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM (1997); JEANNIE OAKES, KEEPING TRACK: HOW SCHOOLS STRUCTURE INEQUALITY (1985); Linda Darling-Hammond, Inequality and Access to Knowledge, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 465 (James A. Banks & Cherry A. McGee Banks eds., 1995).
10. See JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM (1997); JEANNIE OAKES, KEEPING TRACK: HOW SCHOOLS STRUCTURE INEQUALITY (1985); Linda Darling-Hammond, Inequality and Access to Knowledge, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 465 (James A. Banks & Cherry A. McGee Banks eds., 1995).
11. The findings of the Individuals with Disabilities Education Act Amendments of 1997 state that "[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities." 20 U.S.C. § 1400(c)(8)(A); see also Jeremy D. Finn, Patterns in Special Education Placement as Revealed by the OCR Surveys, in PLACING CHILDREN IN SPECIAL EDUCATION: A STRATEGY FOR EQUITY 322 (Kirby A. Heller et al. eds., 1982); Theresa Glennon, Race, Education, and the Construction of a Disabled Class, 1995 WIS. L. REV. 1237; Tom Parrish, Disparities in the Identification, Funding, and Provision of Special Education, in MINORITY ISSUES IN SPECIAL EDUCATION (Daniel J. Losen, Carolyn C. Peele & Gary Orfield eds., forthcoming Feb. 2002), available at http://www.law.harvard.edu/civilrights/ conferences/SpecEd/parrishpaper2.html.
12. The findings of the Individuals with Disabilities Education Act Amendments of 1997 state that "[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities." 20 U.S.C. § 1400(c)(8)(A); see also Jeremy D. Finn, Patterns in Special Education Placement as Revealed by the OCR Surveys, in PLACING CHILDREN IN SPECIAL EDUCATION: A STRATEGY FOR EQUITY 322 (Kirby A. Heller et al. eds., 1982); Theresa Glennon, Race, Education, and the Construction of a Disabled Class, 1995 WIS. L. REV. 1237; Tom Parrish, Disparities in the Identification, Funding, and Provision of Special Education, in MINORITY ISSUES IN SPECIAL EDUCATION (Daniel J. Losen, Carolyn C. Peele & Gary Orfield eds., forthcoming Feb. 2002), available at http://www.law.harvard.edu/civilrights/ conferences/SpecEd/parrishpaper2.html.
13. The findings of the Individuals with Disabilities Education Act Amendments of 1997 state that "[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities." 20 U.S.C. § 1400(c)(8)(A); see also Jeremy D. Finn, Patterns in Special Education Placement as Revealed by the OCR Surveys, in PLACING CHILDREN IN SPECIAL EDUCATION: A STRATEGY FOR EQUITY 322 (Kirby A. Heller et al. eds., 1982); Theresa Glennon, Race, Education, and the Construction of a Disabled Class, 1995 WIS. L. REV. 1237; Tom Parrish, Disparities in the Identification, Funding, and Provision of Special Education, in MINORITY ISSUES IN SPECIAL EDUCATION (Daniel J. Losen, Carolyn C. Peele & Gary Orfield eds., forthcoming Feb. 2002), available at http://www.law.harvard.edu/civilrights/ conferences/SpecEd/parrishpaper2.html.
14. 121 S. Ct. 1511 (2001).
15. Id. at 1517.
16. 42 U.S.C. § 1983 (1994).
17. Sandoval, 121 S. Ct. at 1527 (Stevens, J., dissenting); see S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., No. CIV. A. 01-702, 2001 WL 491965, at *36-*39 (D.N.J. May 10, 2001) (holding that it is consistent with Sandoval to permit the plaintiffs to rely on § 1983 to enforce the EPA's disparate impact regulations promulgated under section 602 of Title VI and denying the defendant's motion to vacate the court's prior order); see also Powell v. Ridge, 189 F.3d 387, 400-03 (3d Cir. 1999); Bradford C. Mank, Using § 1983 to Enforce Title VI's Section 602 Regulations, 49 U. KAN. L. REV. 321 (2001). For a contrary argument, to the effect that federal regulations should not be treated as "laws" pursuant to § 1983 (notwithstanding the weight of precedent), see Todd E. Pettys, The Intended Relationship Between Administrative Regulations and Section 1983's "Laws," 67 GEO. WASH. L. REV. 51 (1998).
18. Sandoval, 121 S. Ct. at 1527 (Stevens, J., dissenting); see S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., No. CIV. A. 01-702, 2001 WL 491965, at *36-*39 (D.N.J. May 10, 2001) (holding that it is consistent with Sandoval to permit the plaintiffs to rely on § 1983 to enforce the EPA's disparate impact regulations promulgated under section 602 of Title VI and denying the defendant's motion to vacate the court's prior order); see also Powell v. Ridge, 189 F.3d 387, 400-03 (3d Cir. 1999); Bradford C. Mank, Using § 1983 to Enforce Title VI's Section 602 Regulations, 49 U. KAN. L. REV. 321 (2001). For a contrary argument, to the effect that federal regulations should not be treated as "laws" pursuant to § 1983 (notwithstanding the weight of precedent), see Todd E. Pettys, The Intended Relationship Between Administrative Regulations and Section 1983's "Laws," 67 GEO. WASH. L. REV. 51 (1998).
19. We also recognize the possibility that Congress may enact legislation returning Title VI jurisprudence to its pre-Sandoval state, as was done with the Civil Rights Act of 1991, Pub. L. No. 102-66, § 105(a), 105 Stat. 1071, 1074-75, following the Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). However, we prefer to address the law as it presently stands.
20. The Court did not address the validity of the disparate impact regulations themselves: "we must assume for purposes of deciding this case that regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601." Sandoval, 121 S. Ct. at 1517.
21. See 20 U.S.C. § 6311(b) (1994).
22. The authors offer no opinion here about the merits of using standards-based reform assessments for school system accountability. Such systemic assessment and accountability are what we mean whenever we refer to "standards-based reforms." However, given the widespread failure by schools to ensure that students have equitable opportunities to learn, we do reject the educationally unsound practice of using high-stakes tests that can result in diploma denial and retention. For recent research on high-stakes testing, see RAISING STANDARDS OR RAISING BARRIERS? INEQUALITY AND HIGH-STAKES TESTING IN PUBLIC EDUCATION (Gary Orfield & Mindy L. Kornhaber eds., 2001). See also DIANE MASSELL ET AL., PERSISTENCE AND CHANGE: STANDARDS-BASED SYSTEMIC REFORM IN NINE STATES (1997); MILBREY W. MCLAUGHLIN & LORRIE A. SHEPARD, IMPROVING EDUCATION THROUGH STANDARDS-BASED REFORM: A REPORT BY THE NATIONAL ACADEMY OF EDUCATION PANEL ON STANDARDS-BASED EDUCATION REFORM (1995); ANNE WHEELOCK, SAFE TO BE SMART: BUILDING A CULTURE FOR STANDARDS-BASED REFORM IN THE MIDDLE GRADES (1998).
23. The authors offer no opinion here about the merits of using standards-based reform assessments for school system accountability. Such systemic assessment and accountability are what we mean whenever we refer to "standards-based reforms." However, given the widespread failure by schools to ensure that students have equitable opportunities to learn, we do reject the educationally unsound practice of using high-stakes tests that can result in diploma denial and retention. For recent research on high-stakes testing, see RAISING STANDARDS OR RAISING BARRIERS? INEQUALITY AND HIGH-STAKES TESTING IN PUBLIC EDUCATION (Gary Orfield & Mindy L. Kornhaber eds., 2001). See also DIANE MASSELL ET AL., PERSISTENCE AND CHANGE: STANDARDS-BASED SYSTEMIC REFORM IN NINE STATES (1997); MILBREY W. MCLAUGHLIN & LORRIE A. SHEPARD, IMPROVING EDUCATION THROUGH STANDARDS-BASED REFORM: A REPORT BY THE NATIONAL ACADEMY OF EDUCATION PANEL ON STANDARDS-BASED EDUCATION REFORM (1995); ANNE WHEELOCK, SAFE TO BE SMART: BUILDING A CULTURE FOR STANDARDS-BASED REFORM IN THE MIDDLE GRADES (1998).
24. The authors offer no opinion here about the merits of using standards-based reform assessments for school system accountability. Such systemic assessment and accountability are what we mean whenever we refer to "standards-based reforms." However, given the widespread failure by schools to ensure that students have equitable opportunities to learn, we do reject the educationally unsound practice of using high-stakes tests that can result in diploma denial and retention. For recent research on high-stakes testing, see RAISING STANDARDS OR RAISING BARRIERS? INEQUALITY AND HIGH-STAKES TESTING IN PUBLIC EDUCATION (Gary Orfield & Mindy L. Kornhaber eds., 2001). See also DIANE MASSELL ET AL., PERSISTENCE AND CHANGE: STANDARDS-BASED SYSTEMIC REFORM IN NINE STATES (1997); MILBREY W. MCLAUGHLIN & LORRIE A. SHEPARD, IMPROVING EDUCATION THROUGH STANDARDS-BASED REFORM: A REPORT BY THE NATIONAL ACADEMY OF EDUCATION PANEL ON STANDARDS-BASED EDUCATION REFORM (1995); ANNE WHEELOCK, SAFE TO BE SMART: BUILDING A CULTURE FOR STANDARDS-BASED REFORM IN THE MIDDLE GRADES (1998).
25. The authors offer no opinion here about the merits of using standards-based reform assessments for school system accountability. Such systemic assessment and accountability are what we mean whenever we refer to "standards-based reforms." However, given the widespread failure by schools to ensure that students have equitable opportunities to learn, we do reject the educationally unsound practice of using high-stakes tests that can result in diploma denial and retention. For recent research on high-stakes testing, see RAISING STANDARDS OR RAISING BARRIERS? INEQUALITY AND HIGH-STAKES TESTING IN PUBLIC EDUCATION (Gary Orfield & Mindy L. Kornhaber eds., 2001). See also DIANE MASSELL ET AL., PERSISTENCE AND CHANGE: STANDARDS-BASED SYSTEMIC REFORM IN NINE STATES (1997); MILBREY W. MCLAUGHLIN & LORRIE A. SHEPARD, IMPROVING EDUCATION THROUGH STANDARDS-BASED REFORM: A REPORT BY THE NATIONAL ACADEMY OF EDUCATION PANEL ON STANDARDS-BASED EDUCATION REFORM (1995); ANNE WHEELOCK, SAFE TO BE SMART: BUILDING A CULTURE FOR STANDARDS-BASED REFORM IN THE MIDDLE GRADES (1998).
26. See ABC World News Tonight with Peter Jennings (ABC television broadcast, Mar. 2, 2001).
27. Id.
28. Asa G. Hilliard, III, The Predictive Validity of Norm-Referenced Standardized Tests: Piaget or Binet? 28 NEGRO EDUC. REV. 189 (1977). In this critique of the use of IQ tests as never having worked, Hilliard points out that "among a sample of the Afro-American doctoral population from 1866 to 1962, nearly . . . 10 percent would, by these measures, actually be called 'retarded.'" Id. at 199; see also The Merrow Report, supra note 2 (reporting statement of Thomas Hehir that three African American colleagues with Ph.D.s have told him about being mislabeled retarded as children).
29. Asa G. Hilliard, III, The Predictive Validity of Norm-Referenced Standardized Tests: Piaget or Binet? 28 NEGRO EDUC. REV. 189 (1977). In this critique of the use of IQ tests as never having worked, Hilliard points out that "among a sample of the Afro-American doctoral population from 1866 to 1962, nearly . . . 10 percent would, by these measures, actually be called 'retarded.'" Id. at 199; see also The Merrow Report, supra note 2 (reporting statement of Thomas Hehir that three African American colleagues with Ph.D.s have told him about being mislabeled retarded as children).
30. See Finn, supra note 8.
31. Overrepresentation is defined for the purposes of this Article generically as minority representation in a certain category of disability that is so high as compared to whites that it is extremely unlikely to occur by chance (i.e., with likelihoods of less than five percent).
32. See generally Finn, supra note 8.
33. See, e.g., Theresa Glennon & Megan Whiteside Shafer, OCR and the Misplacement of African American Students in Special Education: Conceptual, Structural, Strategic and Administrative Barriers to Effective Enforcement, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8. See generally Glennon, supra note 8.
34. See Finn, supra note 8 (demonstrating through evidence from the 1982 National Academy of Sciences study that this disproportionality is not new to education researchers); see also Lloyd M. Dunn, Special Education for the Mildly Retarded - Is Much of It Justifiable?, 35 EXCEPTIONAL CHILD. 5 (1968).
35. See, e.g., Jay Gottlieb et al., Special Education in Urban America: It's Not Justifiable for Many, 27 J. SPECIAL EDUC. 453, 459 (1994). For an extensive review of earlier statistics as they pertain to African American students, see Glennon, supra note 8. See also Pamela J. Smith, Our Children's Burden: The Many-Headed Hydra of the Educational Disenfranchisement of Black Children, 42 HOW. L.J. 133 (1999).
36. See, e.g., Jay Gottlieb et al., Special Education in Urban America: It's Not Justifiable for Many, 27 J. SPECIAL EDUC. 453, 459 (1994). For an extensive review of earlier statistics as they pertain to African American students, see Glennon, supra note 8. See also Pamela J. Smith, Our Children's Burden: The Many-Headed Hydra of the Educational Disenfranchisement of Black Children, 42 HOW. L.J. 133 (1999).
37. Although not the primary focus of this Article, pervasive and substantial underrepresentation, especially for Hispanics and Asian Pacific Americans as compared to whites, suggests that large segments of these minority groups are not getting enough special education supports and services. Moreover, in a few states like Alabama, overrepresentation of African Americans in Mental Retardation (3.89 times the representation of whites), combined with underrepresentation in the category of specific learning disabilities (0.97 times that of whites), suggests that African Americans with specific learning disabilities are being misclassified and therefore inappropriately placed and served. See Parrish, supra note 8, at tbl.2.
38. Id.
39. Id.
40. Hispanics are significantly overrepresented in the category of emotional disturbance in New York, Connecticut, and Pennsylvania. Native Americans are identified at nearly five times the rate of whites in Nebraska, and are between two and five times as likely to be classified as emotionally disturbed in nine states. Id.
41. In nine states, for example, African American children are more than twice as likely as white children to be found to have a learning disability. In Hawaii, Asian Pacific Americans are identified at nearly twice the rate of whites. In six states, Native American children are identified at more than twice the rate of whites. Id.
42. Donald P. Oswald et al., Community and School Predictors of Over Representation of Minority Children in Special Education 7, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8.
43. Parrish similarly finds that minorities are substantially underrepresented when they have a placement rate at half the rate of white students. Parrish, supra note 8. Both benchmarks were created by the researcher to highlight the severity of the problem and are not intended to replace the theoretical base for determining when disproportionality is significant from either a statistical or legal perspective. See id. at 5-6. For some suggested statistical tests, see Patrick Pauken & Philip T.K. Daniel, Race Discrimination and Disability Discrimination in School Discipline: A Legal and Statistical Analysis, 139 EDUC. L. REP. 759 (2000). See also Beth Harry & Mary G. Anderson, The Disproportionate Placement of African American Males in Special Education Programs: A Critique of the Process, 63 J. NEGRO EDUC. 602 (1995).
44. Parrish similarly finds that minorities are substantially underrepresented when they have a placement rate at half the rate of white students. Parrish, supra note 8. Both benchmarks were created by the researcher to highlight the severity of the problem and are not intended to replace the theoretical base for determining when disproportionality is significant from either a statistical or legal perspective. See id. at 5-6. For some suggested statistical tests, see Patrick Pauken & Philip T.K. Daniel, Race Discrimination and Disability Discrimination in School Discipline: A Legal and Statistical Analysis, 139 EDUC. L. REP. 759 (2000). See also Beth Harry & Mary G. Anderson, The Disproportionate Placement of African American Males in Special Education Programs: A Critique of the Process, 63 J. NEGRO EDUC. 602 (1995).
45. See Parrish, supra note 8, at tbl.2. This study is discussed in detail below. See infra note 46 and accompanying text.
46. Cf. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (discussing the racial bias in high-stakes tests); Parrish, supra note 8, at 5-6 (disclaiming the use of the extraordinarily large benchmark as useful for any other purpose beyond the research analysis presented); see also 1 U.S. COMM'N ON CIVIL RIGHTS, EQUAL EDUCATIONAL OPPORTUNITY PROJECT SERIES 157 (1996) [hereinafter EEOP VOL. I].
47. Cf. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (discussing the racial bias in high-stakes tests); Parrish, supra note 8, at 5-6 (disclaiming the use of the extraordinarily large benchmark as useful for any other purpose beyond the research analysis presented); see also 1 U.S. COMM'N ON CIVIL RIGHTS, EQUAL EDUCATIONAL OPPORTUNITY PROJECT SERIES 157 (1996) [hereinafter EEOP VOL. I].
48. For example, courts have generally regarded much smaller disparities, such as a deviation of twenty percent from an expected representation (based on representation in the general population), to be legally significant because such deviations are very unlikely to occur by chance. See Watson, 487 U.S. at 995 n.3; see also Parrish, supra note 8.
49. These districts themselves exhibit such a high degree of racial isolation (e.g., a ninety percent minority district) that one cannot meaningfully discuss racial disparities within the mostly minority districts.
50. Parrish, supra note 8. The 1982 study of national data by Jeremy Finn also found the highest levels of overrepresentation of African American children in "mental retardation" in the southern states. See Finn, supra note 8; cf. John U. Ogbu, Castelike Stratification as a Risk Factor for Mental Retardation in the United States, in RISK IN INTELLECTUAL AND PSYCHOSOCIAL DEVELOPMENT 94 (Dale C. Farran & James D. McKinney eds., 1986) (demonstrating that jobs and education are directly related to the issue of IQ test scores and mental retardation of blacks, and connecting lower IQ scores to castelike stratification in both the South and the North).
51. Parrish, supra note 8, at tbl.2.
52. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
53. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
54. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
55. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
56. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
57. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
58. Cf. id. at 5. Beginning with the Coleman study in 1966, some educational scholars have repeated the counterintuitive argument that children's learning is largely beyond the control of schools. See, e.g., JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION (1990), JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1966); David Armor, Why is Black Education Achievement Rising?. PUB. INT., Summer 1992, at 65. Accordingly, they ascribe a variety of educational ills to students' differing socioeconomic statuses ("SES"), as opposed to their stratified educational opportunities. Id.; Lloyd G. Humphries, Trends in Levels of Academic Achievement of Blacks and Other Minorities, 12 INTELLIGENCE 231 (1988). Similarly, different studies spot different trends in levels of academic achievement among minorities. Id.; Herbert J. Walberg, Improving the Productivity of America's Schools, 41 EDUC. LEADERSHIP 19 (1984). Because race and SES substantially overlap, defendants in desegregation cases tended to argue that discrimination was the result of non-remediable SES difference. Racial differences, they contended, were merely coincidental or derivative. See, e.g., Coalition to Save our Children v. State Bd. of Educ., 901 F. Supp. 784, 818-19 (D. Del. 1995). However, these analyses can take us only so far. Traditional measures of SES account (in a statistical sense) for no more than a third of the black-white test score gap. See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP 103 (Christopher Jencks & Meredith Phillips eds., 1998). Another third of the gap also relates to factors associated with SES: grandparents' educational attainment, mothers' household size, mothers' high school quality, mothers' perceived self-efficacy, children's birth weight, and children's household size. Id. at 138. The remaining third is presumably attributable to factors such as formal schooling, although the racist explanation of genetic differences still has its followers. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994). But what should be obvious from this list is that most (if not all) of these factors are confounded by race and with racial discrimination.
59. See, e.g., Donald MacMillan & Daniel J. Reschly, Overrepresentation of Minority Students: The Case for Greater Specificity or Reconsideration of the Variables Examined, 32 J. SPECIAL EDUC. 15 (1998); Loretta A. Serna et al., Intervention Versus Affirmation: Proposed Solutions to the Problem of Disproportionate Minority Representation in Special Education, 32 J. SPECIAL EDUC. 48 (1998) (suggesting that there is not enough information to conclude that bias is a major cause of disproportionate representation). According to the U.S. Department of Education's 1996 report to Congress, which relied on National Longitudinal Transition Study of Special Education Students data on secondary school students, poverty - and not race or ethnicity - is the most important factor influencing the disproportionality. U.S. DEP'T OF EDUC., TO ASSURE THE FREE APPROPRIATE PUBLIC EDUCATION OF ALL CHILDREN WITH DISABILITIES: EIGHTEENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 86 (1996), available at http://www.ed.gov/pubs/OSEP96AnlRpt. The report concedes that a 1995 study formed this conclusion despite the fact that statistically significant disproportionate representation remains in three categories, including mental retardation, when income is accounted for. Id. But see Alfredo Artiles et al., Learning Disabilities Empirical Research on Ethnic Minority Students: An Analysis of 22 Years of Studies Published in Selected Refereed Journals, 12 LEARNING DISABILITIES: RES. & PRAC. 82 (1997).
60. See, e.g., Donald MacMillan & Daniel J. Reschly, Overrepresentation of Minority Students: The Case for Greater Specificity or Reconsideration of the Variables Examined, 32 J. SPECIAL EDUC. 15 (1998); Loretta A. Serna et al., Intervention Versus Affirmation: Proposed Solutions to the Problem of Disproportionate Minority Representation in Special Education, 32 J. SPECIAL EDUC. 48 (1998) (suggesting that there is not enough information to conclude that bias is a major cause of disproportionate representation). According to the U.S. Department of Education's 1996 report to Congress, which relied on National Longitudinal Transition Study of Special Education Students data on secondary school students, poverty - and not race or ethnicity - is the most important factor influencing the disproportionality. U.S. DEP'T OF EDUC., TO ASSURE THE FREE APPROPRIATE PUBLIC EDUCATION OF ALL CHILDREN WITH DISABILITIES: EIGHTEENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 86 (1996), available at http://www.ed.gov/pubs/OSEP96AnlRpt. The report concedes that a 1995 study formed this conclusion despite the fact that statistically significant disproportionate representation remains in three categories, including mental retardation, when income is accounted for. Id. But see Alfredo Artiles et al., Learning Disabilities Empirical Research on Ethnic Minority Students: An Analysis of 22 Years of Studies Published in Selected Refereed Journals, 12 LEARNING DISABILITIES: RES. & PRAC. 82 (1997).
61. See, e.g., Donald MacMillan & Daniel J. Reschly, Overrepresentation of Minority Students: The Case for Greater Specificity or Reconsideration of the Variables Examined, 32 J. SPECIAL EDUC. 15 (1998); Loretta A. Serna et al., Intervention Versus Affirmation: Proposed Solutions to the Problem of Disproportionate Minority Representation in Special Education, 32 J. SPECIAL EDUC. 48 (1998) (suggesting that there is not enough information to conclude that bias is a major cause of disproportionate representation). According to the U.S. Department of Education's 1996 report to Congress, which relied on National Longitudinal Transition Study of Special Education Students data on secondary school students, poverty - and not race or ethnicity - is the most important factor influencing the disproportionality. U.S. DEP'T OF EDUC., TO ASSURE THE FREE APPROPRIATE PUBLIC EDUCATION OF ALL CHILDREN WITH DISABILITIES: EIGHTEENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 86 (1996), available at http://www.ed.gov/pubs/OSEP96AnlRpt. The report concedes that a 1995 study formed this conclusion despite the fact that statistically significant disproportionate representation remains in three categories, including mental retardation, when income is accounted for. Id. But see Alfredo Artiles et al., Learning Disabilities Empirical Research on Ethnic Minority Students: An Analysis of 22 Years of Studies Published in Selected Refereed Journals, 12 LEARNING DISABILITIES: RES. & PRAC. 82 (1997).
62. See, e.g., Donald MacMillan & Daniel J. Reschly, Overrepresentation of Minority Students: The Case for Greater Specificity or Reconsideration of the Variables Examined, 32 J. SPECIAL EDUC. 15 (1998); Loretta A. Serna et al., Intervention Versus Affirmation: Proposed Solutions to the Problem of Disproportionate Minority Representation in Special Education, 32 J. SPECIAL EDUC. 48 (1998) (suggesting that there is not enough information to conclude that bias is a major cause of disproportionate representation). According to the U.S. Department of Education's 1996 report to Congress, which relied on National Longitudinal Transition Study of Special Education Students data on secondary school students, poverty - and not race or ethnicity - is the most important factor influencing the disproportionality. U.S. DEP'T OF EDUC., TO ASSURE THE FREE APPROPRIATE PUBLIC EDUCATION OF ALL CHILDREN WITH DISABILITIES: EIGHTEENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 86 (1996), available at http://www.ed.gov/pubs/OSEP96AnlRpt. The report concedes that a 1995 study formed this conclusion despite the fact that statistically significant disproportionate representation remains in three categories, including mental retardation, when income is accounted for. Id. But see Alfredo Artiles et al., Learning Disabilities Empirical Research on Ethnic Minority Students: An Analysis of 22 Years of Studies Published in Selected Refereed Journals, 12 LEARNING DISABILITIES: RES. & PRAC. 82 (1997).
63. Tom Parrish, Statement at the American Youth Policy Forum Congressional Briefing (Mar. 2, 2001) (transcript on file with authors).
64. Oswald et al., supra note 31, at 6. Further, the impact of socio-demographic factors was different for each of the various gender/ethnicity groups. Id. at 7.
65. Id. at 8.
66. Id. at 14 tbl.1.
67. See id. at 8; Glennon, supra note 8, at 1242, 1252.
68. See, e.g., Edward Garcia Fierros, An Examination of Restrictiveness in Special Education, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8; Finn, supra note 8; Oswald et al., supra note 31; Parrish supra note 8. Fierros used OCR data from the 1998 compliance report. Finn relied on 1982 OCR data. Oswald and his co-authors relied on OCR data from the compliance report for school year 1994-1995, and the Parrish study is based on National Center for Education Statistics data from fiscal year 1997-1998 and other sources. See also Glennon, supra note 8, at 1250-60.
69. Parrish, supra note 8, at 9 tbl.3.
70. Id.
71. See supra notes 39-40 and accompanying text.
72. "Hard" disabilities include physical disabilities that are generally discernable through a medical examination and are rarely disputed.
73. Parrish uses the benchmark of twice the rate of whites to define gross overrepresentation. Parrish, supra note 8, at 7 tbl.1. Table 1 in Parrish's study shows that blacks are substantially overidentified (more than twice as likely as whites) for mental retardation and emotional disturbance in thirty-eight and twenty-nine states respectively, yet overrepresented to a similar degree in hearing impairments and orthopedic impairments in only five and four states respectively. Id.
74. Tom Parrish, Black Children - Identification Rates by Disability by State (unpublished table, on file with authors).
75. The number of states ranges from two to twenty-four, depending on the category. Id.
76. Parrish, supra note 8, at tbl.2; see also id. at 7 tbl.1.
77. The categories and rates in Connecticut, expressed as odds compared to whites, are as follows: Hearing Impairment (1.22); Visual Impairment (1.60); Traumatic Brain Injury (1.10); Orthopedic Impairment (0.72); and Deaf-Blind (0.52). Parrish, supra note 51.
78. U.S. DEP'T OF EDUC., supra note 40.
79. Parrish, supra note 8, at tbl.2.
80. Id.
81. Fierros, supra note 46, at 1 tbl.B.
82. Id.
83. See U.S. DEP'T OF EDUC., supra note 40.
84. See infra notes 116-117 and accompanying text.
85. See NAT'L COUNCIL ON DISABILITY, BACK TO SCHOOL ON CIVIL RIGHTS: ADVANCING THE FEDERAL COMMITMENT TO LEAVE NO CHILD BEHIND 95 (2000), available at http://www.ncd.gov/newsroom/publications/backtoschool_2.html [hereinafter NCD REPORT].
86. See, e.g., Fierros, supra note 46; James W. Conroy, Connecticut's Special Education Labeling and Placement Practices: Analyses of the ISSIS Data Base (Sept. 1999) (unpublished manuscript, on file with authors).
87. See, e.g., Fierros, supra note 46; James W. Conroy, Connecticut's Special Education Labeling and Placement Practices: Analyses of the ISSIS Data Base (Sept. 1999) (unpublished manuscript, on file with authors).
88. Glennon, supra note 8, at 1255 n.69.
89. Id. at 1252.
90. 20 U.S.C. § 1400(c)(8)(A) (1994 & Supp. V 1999).
91. See The Merrow Report, supra note 2.
92. James M. Patton, The Disproportionate Representation of African Americans in Special Education: Looking Behind the Curtain for Understanding and Solutions, 32 J. SPECIAL EDUC. 25 (1998).
93. David Osher et al., Exploring Relationships between Inappropriate and Ineffective Special Education Services for African American Children and Youth and their Overrepresentation in the Juvenile Justice System 1, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8 (citations omitted). The authors also point out that high quality and less restrictive early special education interventions may be needed for many students who are inadequately served. Id. at 2.
94. Oswald et al., supra note 31, at 3.
95. Thomas Hehir, Statement at the American Youth Policy Forum Congressional Briefing (Mar. 2, 2001) (transcript on file with authors).
96. Of course, these differences are neither universal nor absolute. Many white students are isolated and many minority students gain resource and other advantages. Yet the distinct trends are troubling.
97. Jim Ysseldyke, for example, discusses the importance of considering the opportunities to learn available to the student, rather than simply focusing on a deficit that lies within the student, when students' cognitive abilities are assessed. The clear implication is that what we assess as a cognitive disability may actually be a failure to provide a student with an adequate opportunity to learn. See Jim Ysseldyke, Reflections on a Research Career: Generalizations from 25 Years of Research on Assessment and Instructional Decision Making, 67 EXCEPTIONAL CHILD. 295, 304 (2001).
98. Beth Harry et al., Of Rocks and Soft Places: Using Qualitative Methods to Investigate the Processes that Result in Disproportionality, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8; see also Ysseldyke, supra note 74, at 296.
99. Beth Harry et al., Of Rocks and Soft Places: Using Qualitative Methods to Investigate the Processes that Result in Disproportionality, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8; see also Ysseldyke, supra note 74, at 296.
100. Harry et al., supra note 75, at 6.
101. Id.; see also Ysseldyke, supra note 74, at 303 ("Once a classroom teacher or parent refers a student [for an evaluation] it is likely that the student will be found eligible for special education services . . . . We have demonstrated repeatedly that teachers refer students who bother them.").
102. Ysseldyke, supra note 74, at 304 ("[T]here are no reliable psychometric differences between those labeled learning disabled (LD) and low-achieving students . . . but most have chosen simply to ignore [these findings]."); Harry et al., supra note 75.
103. Ysseldyke, supra note 74, at 303.
104. Harry & Anderson, supra note 32, at 607.
105. See id.; Parrish, supra note 8.
106. See KEVIN G. WELNER, LEGAL RIGHTS, LOCAL WRONGS: WHEN COMMUNITY CONTROL COLLIDES WITH EDUCATIONAL EQUITY (forthcoming Oct. 2001).
107. For a review of the research about teacher quality and service of minority students, see the work of Linda Darling-Hammond - in particular, Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n1, and Linda Darling-Hammond, supra note 7. See also Richard Ingersoll, The Problem of Underqualified Teachers in American Secondary Schools, 28 EDUC. RESEARCHER 26 (1999); Deborah L. Voltz, Challenges and Choices in Urban Teaching: The Perspectives of General and Special Educators, in MULTIPLE VOICES FOR ETHNICALLY DIVERSE EXCEPTIONAL LEARNERS 41 (2001). For a discussion of the use of special education placement to segregate children racially, see KENNETH J. MEIER ET AL., RACE, CLASS, AND EDUCATION: THE POLITICS OF SECOND-GENERATION DISCRIMINATION (1989). For a discussion of its use as a disciplinary tool, see Osher et al., supra note 70.
108. For a review of the research about teacher quality and service of minority students, see the work of Linda Darling-Hammond - in particular, Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n1, and Linda Darling-Hammond, supra note 7. See also Richard Ingersoll, The Problem of Underqualified Teachers in American Secondary Schools, 28 EDUC. RESEARCHER 26 (1999); Deborah L. Voltz, Challenges and Choices in Urban Teaching: The Perspectives of General and Special Educators, in MULTIPLE VOICES FOR ETHNICALLY DIVERSE EXCEPTIONAL LEARNERS 41 (2001). For a discussion of the use of special education placement to segregate children racially, see KENNETH J. MEIER ET AL., RACE, CLASS, AND EDUCATION: THE POLITICS OF SECOND-GENERATION DISCRIMINATION (1989). For a discussion of its use as a disciplinary tool, see Osher et al., supra note 70.
109. For a review of the research about teacher quality and service of minority students, see the work of Linda Darling-Hammond - in particular, Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n1, and Linda Darling-Hammond, supra note 7. See also Richard Ingersoll, The Problem of Underqualified Teachers in American Secondary Schools, 28 EDUC. RESEARCHER 26 (1999); Deborah L. Voltz, Challenges and Choices in Urban Teaching: The Perspectives of General and Special Educators, in MULTIPLE VOICES FOR ETHNICALLY DIVERSE EXCEPTIONAL LEARNERS 41 (2001). For a discussion of the use of special education placement to segregate children racially, see KENNETH J. MEIER ET AL., RACE, CLASS, AND EDUCATION: THE POLITICS OF SECOND-GENERATION DISCRIMINATION (1989). For a discussion of its use as a disciplinary tool, see Osher et al., supra note 70.
110. For a review of the research about teacher quality and service of minority students, see the work of Linda Darling-Hammond - in particular, Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n1, and Linda Darling-Hammond, supra note 7. See also Richard Ingersoll, The Problem of Underqualified Teachers in American Secondary Schools, 28 EDUC. RESEARCHER 26 (1999); Deborah L. Voltz, Challenges and Choices in Urban Teaching: The Perspectives of General and Special Educators, in MULTIPLE VOICES FOR ETHNICALLY DIVERSE EXCEPTIONAL LEARNERS 41 (2001). For a discussion of the use of special education placement to segregate children racially, see KENNETH J. MEIER ET AL., RACE, CLASS, AND EDUCATION: THE POLITICS OF SECOND-GENERATION DISCRIMINATION (1989). For a discussion of its use as a disciplinary tool, see Osher et al., supra note 70.
111. For a review of the research about teacher quality and service of minority students, see the work of Linda Darling-Hammond - in particular, Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n1, and Linda Darling-Hammond, supra note 7. See also Richard Ingersoll, The Problem of Underqualified Teachers in American Secondary Schools, 28 EDUC. RESEARCHER 26 (1999); Deborah L. Voltz, Challenges and Choices in Urban Teaching: The Perspectives of General and Special Educators, in MULTIPLE VOICES FOR ETHNICALLY DIVERSE EXCEPTIONAL LEARNERS 41 (2001). For a discussion of the use of special education placement to segregate children racially, see KENNETH J. MEIER ET AL., RACE, CLASS, AND EDUCATION: THE POLITICS OF SECOND-GENERATION DISCRIMINATION (1989). For a discussion of its use as a disciplinary tool, see Osher et al., supra note 70.
112. These other resources include textbooks, library books, science laboratories, the schools' physical plants and repair records, class size, field trips, enriched courses, college counseling, and computer equipment. See Richard Rothstein, Equalizing Educational Resources on Behalf of Disadvantaged Children, in A NOTION AT RISK: PRESERVING PUBLIC EDUCATION AS AN ENGINE FOR SOCIAL MOBILITY 31 (Richard Kahlenburg ed., 2000); see also Williams v. State, No.
113. These other resources include textbooks, library books, science laboratories, the schools' physical plants and repair records, class size, field trips, enriched courses, college counseling, and computer equipment. See Richard Rothstein, Equalizing Educational Resources on Behalf of Disadvantaged Children, in A NOTION AT RISK: PRESERVING PUBLIC EDUCATION AS AN ENGINE FOR SOCIAL MOBILITY 31 (Richard Kahlenburg ed., 2000); see also Williams v. State, No. 312236 (Cal. Super. Ct. filed May 17, 2000). The Williams plaintiffs hope to hold the state liable for substandard learning conditions in many California schools pursuant to the state constitution's education clause, CAL. CONST. art. IX, § 1, equal protection clauses, CAL. CONST. art. I, § 7(a); art. IV, § 16(a), and due process clauses, CAL. CONST. art. I, §§ 7(a), 15. Daniels v. State, No. BC214156 (Cal. Super. Ct. filed July 27, 1999), filed in Los Angeles Superior Court, challenged the denial of equal and adequate access to Advanced Placement courses by the State of California and by the Inglewood Unified School District, again alleging violations of the equal protection clauses and the education clause of the California Constitution, as well as California educational statutes. Both Williams and Daniels are based on Butt v. State, 842 P.2d 1240 (Cal. 1992) (holding the state ultimately responsible for providing the constitutionally guaranteed education).
114. See PAULINE LIPMAN, RACE, CLASS AND POWER IN SCHOOL RESTRUCTURING (1998); see also MICHELLE FINE, FRAMING DROPOUTS: NOTES ON THE POLITICS OF AN URBAN PUBLIC HIGH SCHOOL (1991).
115. See PAULINE LIPMAN, RACE, CLASS AND POWER IN SCHOOL RESTRUCTURING (1998); see also MICHELLE FINE, FRAMING DROPOUTS: NOTES ON THE POLITICS OF AN URBAN PUBLIC HIGH SCHOOL (1991).
116. FINE, supra note 85; see also ANYON, supra note 7.
117. For example, the American Association of University Women's How Schools Shortchange Girls cites research on student-teacher interaction on the basis of gender, race, ethnicity, and/or social class. The studies indicate that white males receive more attention than males from various racial and ethnic minority groups; that black males are perceived less favorably by their teachers and seen as less able than other students; and that black females receive less reinforcement from teachers than do other students. AM. ASS'N OF UNIV. WOMEN, HOW SCHOOLS SHORTCHANGE GIRLS 122-23 (1992); see also Harry & Anderson, supra note 32, at 610.
118. For example, the American Association of University Women's How Schools Shortchange Girls cites research on student-teacher interaction on the basis of gender, race, ethnicity, and/or social class. The studies indicate that white males receive more attention than males from various racial and ethnic minority groups; that black males are perceived less favorably by their teachers and seen as less able than other students; and that black females receive less reinforcement from teachers than do other students. AM. ASS'N OF UNIV. WOMEN, HOW SCHOOLS SHORTCHANGE GIRLS 122-23 (1992); see also Harry & Anderson, supra note 32, at 610.
119. Brenda L. Townsend, Disproportionate Discipline of African American Learners: Reducing School Suspensions and Expulsions, 66 EXCEPTIONAL CHILD. 381 (2000). African American males are expelled, suspended, and otherwise punished at much higher rates than black females and white males. See James F. Gregory, Three Strikes and They're Out: African American Boys and American Schools' Responses to Misbehavior, 7 INT'L J. ADOLESCENCE & YOUTH 25 (1997); James F. Gregory, The Crime of Punishment: Racial and Gender Disparities in the Use of Corporal Punishment in the U.S. Public Schools, 64 J. NEGRO EDUC. 454 (1996); Maurice C. Taylor & Gerald A. Foster, Bad Boys and School Suspensions: Public Policy Implications for Black Males, 56 SOC. INQUIRY 498 (1986).
120. Brenda L. Townsend, Disproportionate Discipline of African American Learners: Reducing School Suspensions and Expulsions, 66 EXCEPTIONAL CHILD. 381 (2000). African American males are expelled, suspended, and otherwise punished at much higher rates than black females and white males. See James F. Gregory, Three Strikes and They're Out: African American Boys and American Schools' Responses to Misbehavior, 7 INT'L J. ADOLESCENCE & YOUTH 25 (1997); James F. Gregory, The Crime of Punishment: Racial and Gender Disparities in the Use of Corporal Punishment in the U.S. Public Schools, 64 J. NEGRO EDUC. 454 (1996); Maurice C. Taylor & Gerald A. Foster, Bad Boys and School Suspensions: Public Policy Implications for Black Males, 56 SOC. INQUIRY 498 (1986).
121. Brenda L. Townsend, Disproportionate Discipline of African American Learners: Reducing School Suspensions and Expulsions, 66 EXCEPTIONAL CHILD. 381 (2000). African American males are expelled, suspended, and otherwise punished at much higher rates than black females and white males. See James F. Gregory, Three Strikes and They're Out: African American Boys and American Schools' Responses to Misbehavior, 7 INT'L J. ADOLESCENCE & YOUTH 25 (1997); James F. Gregory, The Crime of Punishment: Racial and Gender Disparities in the Use of Corporal Punishment in the U.S. Public Schools, 64 J. NEGRO EDUC. 454 (1996); Maurice C. Taylor & Gerald A. Foster, Bad Boys and School Suspensions: Public Policy Implications for Black Males, 56 SOC. INQUIRY 498 (1986).
122. Brenda L. Townsend, Disproportionate Discipline of African American Learners: Reducing School Suspensions and Expulsions, 66 EXCEPTIONAL CHILD. 381 (2000). African American males are expelled, suspended, and otherwise punished at much higher rates than black females and white males. See James F. Gregory, Three Strikes and They're Out: African American Boys and American Schools' Responses to Misbehavior, 7 INT'L J. ADOLESCENCE & YOUTH 25 (1997); James F. Gregory, The Crime of Punishment: Racial and Gender Disparities in the Use of Corporal Punishment in the U.S. Public Schools, 64 J. NEGRO EDUC. 454 (1996); Maurice C. Taylor & Gerald A. Foster, Bad Boys and School Suspensions: Public Policy Implications for Black Males, 56 SOC. INQUIRY 498 (1986).
123. E.g., Campaign for Fiscal Equity, Inc. v. State, 719 N.Y.S.2d 475, 538 (Sup. Ct. 2001); see also JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS (1991).
124. E.g., Campaign for Fiscal Equity, Inc. v. State, 719 N.Y.S.2d 475, 538 (Sup. Ct. 2001); see also JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS (1991).
125. ALFIE KOHN, THE CASE AGAINST STANDARDIZED TESTS: RAISING THE SCORES, RUINING THE SCHOOLS 35-41 (2000); Walt Haney, The Myth of the Texas Miracle in Education, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n41; Linda McNeil & Angela Valenzuela, The Harmful Impact of the TAAS System of Testing in Texas: Beneath the Accountability Rhetoric (Jan. 6, 2000) (unpublished manuscript, on file with authors), available at http://www.law.harvard.edu/groups/civilrights/conferences/ testing98/drafts/mcneil_valenzuela.html; see also NOE MEDINA & MONTY NEILL, FALLOUT FROM THE TESTING EXPLOSION: HOW 100 MILLION STANDARDIZED EXAMS UNDERMINE EQUITY AND EXCELLENCE IN AMERICA'S PUBLIC SCHOOLS (3d ed. 1990); Jay Heubert, High Stakes Testing: Opportunities and Risks for Students of Color, English-Language Learners, and Students with Disabilities, in THE CONTINUING CHALLENGE: MOVING THE YOUTH AGENDA FORWARD (M. Pines ed., forthcoming 2001) (manuscript at 5, on file with authors).
126. ALFIE KOHN, THE CASE AGAINST STANDARDIZED TESTS: RAISING THE SCORES, RUINING THE SCHOOLS 35-41 (2000); Walt Haney, The Myth of the Texas Miracle in Education, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n41; Linda McNeil & Angela Valenzuela, The Harmful Impact of the TAAS System of Testing in Texas: Beneath the Accountability Rhetoric (Jan. 6, 2000) (unpublished manuscript, on file with authors), available at http://www.law.harvard.edu/groups/civilrights/conferences/ testing98/drafts/mcneil_valenzuela.html; see also NOE MEDINA & MONTY NEILL, FALLOUT FROM THE TESTING EXPLOSION: HOW 100 MILLION STANDARDIZED EXAMS UNDERMINE EQUITY AND EXCELLENCE IN AMERICA'S PUBLIC SCHOOLS (3d ed. 1990); Jay Heubert, High Stakes Testing: Opportunities and Risks for Students of Color, English-Language Learners, and Students with Disabilities, in THE CONTINUING CHALLENGE: MOVING THE YOUTH AGENDA FORWARD (M. Pines ed., forthcoming 2001) (manuscript at 5, on file with authors).
127. ALFIE KOHN, THE CASE AGAINST STANDARDIZED TESTS: RAISING THE SCORES, RUINING THE SCHOOLS 35-41 (2000); Walt Haney, The Myth of the Texas Miracle in Education, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n41; Linda McNeil & Angela Valenzuela, The Harmful Impact of the TAAS System of Testing in Texas: Beneath the Accountability Rhetoric (Jan. 6, 2000) (unpublished manuscript, on file with authors), available at http://www.law.harvard.edu/groups/civilrights/conferences/ testing98/drafts/mcneil_valenzuela.html; see also NOE MEDINA & MONTY NEILL, FALLOUT FROM THE TESTING EXPLOSION: HOW 100 MILLION STANDARDIZED EXAMS UNDERMINE EQUITY AND EXCELLENCE IN AMERICA'S PUBLIC SCHOOLS (3d ed. 1990); Jay Heubert, High Stakes Testing: Opportunities and Risks for Students of Color, English-Language Learners, and Students with Disabilities, in THE CONTINUING CHALLENGE: MOVING THE YOUTH AGENDA FORWARD (M. Pines ed., forthcoming 2001) (manuscript at 5, on file with authors).
128. ALFIE KOHN, THE CASE AGAINST STANDARDIZED TESTS: RAISING THE SCORES, RUINING THE SCHOOLS 35-41 (2000); Walt Haney, The Myth of the Texas Miracle in Education, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n41; Linda McNeil & Angela Valenzuela, The Harmful Impact of the TAAS System of Testing in Texas: Beneath the Accountability Rhetoric (Jan. 6, 2000) (unpublished manuscript, on file with authors), available at http://www.law.harvard.edu/groups/civilrights/conferences/ testing98/drafts/mcneil_valenzuela.html; see also NOE MEDINA & MONTY NEILL, FALLOUT FROM THE TESTING EXPLOSION: HOW 100 MILLION STANDARDIZED EXAMS UNDERMINE EQUITY AND EXCELLENCE IN AMERICA'S PUBLIC SCHOOLS (3d ed. 1990); Jay Heubert, High Stakes Testing: Opportunities and Risks for Students of Color, English-Language Learners, and Students with Disabilities, in THE CONTINUING CHALLENGE: MOVING THE YOUTH AGENDA FORWARD (M. Pines ed., forthcoming 2001) (manuscript at 5, on file with authors).
129. ALFIE KOHN, THE CASE AGAINST STANDARDIZED TESTS: RAISING THE SCORES, RUINING THE SCHOOLS 35-41 (2000); Walt Haney, The Myth of the Texas Miracle in Education, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n41; Linda McNeil & Angela Valenzuela, The Harmful Impact of the TAAS System of Testing in Texas: Beneath the Accountability Rhetoric (Jan. 6, 2000) (unpublished manuscript, on file with authors), available at http://www.law.harvard.edu/groups/civilrights/conferences/ testing98/drafts/mcneil_valenzuela.html; see also NOE MEDINA & MONTY NEILL, FALLOUT FROM THE TESTING EXPLOSION: HOW 100 MILLION STANDARDIZED EXAMS UNDERMINE EQUITY AND EXCELLENCE IN AMERICA'S PUBLIC SCHOOLS (3d ed. 1990); Jay Heubert, High Stakes Testing: Opportunities and Risks for Students of Color, English-Language Learners, and Students with Disabilities, in THE CONTINUING CHALLENGE: MOVING THE YOUTH AGENDA FORWARD (M. Pines ed., forthcoming 2001) (manuscript at 5, on file with authors).
130. Ysseldyke, supra note 74, at 304.
131. See Heubert, supra note 90 (manuscript at 5).
132. A parallel phenomenon occurs with regard to tracking and gifted placements. See Amy S. Wells & Irene Serna, The Politics of Culture: Understanding Local Political Resistance to Detracking in Racially Mixed Schools, 66 HARV. EDUC. REV. 93 (1996); Daniel J. Losen, Note, Silent Segregation in Our Nation's Schools, 34 HARV. C.R.-C.L. L. REV. 517, 525 (1999); WELNER, supra note 82. For a discussion of social capital, see Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241 (John G. Richardson ed., 1985).
133. A parallel phenomenon occurs with regard to tracking and gifted placements. See Amy S. Wells & Irene Serna, The Politics of Culture: Understanding Local Political Resistance to Detracking in Racially Mixed Schools, 66 HARV. EDUC. REV. 93 (1996); Daniel J. Losen, Note, Silent Segregation in Our Nation's Schools, 34 HARV. C.R.-C.L. L. REV. 517, 525 (1999); WELNER, supra note 82. For a discussion of social capital, see Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241 (John G. Richardson ed., 1985).
134. A parallel phenomenon occurs with regard to tracking and gifted placements. See Amy S. Wells & Irene Serna, The Politics of Culture: Understanding Local Political Resistance to Detracking in Racially Mixed Schools, 66 HARV. EDUC. REV. 93 (1996); Daniel J. Losen, Note, Silent Segregation in Our Nation's Schools, 34 HARV. C.R.-C.L. L. REV. 517, 525 (1999); WELNER, supra note 82. For a discussion of social capital, see Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241 (John G. Richardson ed., 1985).
135. A parallel phenomenon occurs with regard to tracking and gifted placements. See Amy S. Wells & Irene Serna, The Politics of Culture: Understanding Local Political Resistance to Detracking in Racially Mixed Schools, 66 HARV. EDUC. REV. 93 (1996); Daniel J. Losen, Note, Silent Segregation in Our Nation's Schools, 34 HARV. C.R.-C.L. L. REV. 517, 525 (1999); WELNER, supra note 82. For a discussion of social capital, see Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241 (John G. Richardson ed., 1985).
136. Voltz, supra note 83; Harry & Anderson, supra note 32, at 612.
137. 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).
138. Consent decree entered in C-70-37 RFP (N.D. Cal. June 18, 1973) (containing state agreement to stop English-language intelligence testing of Mexican American students whose home language was Spanish and to eliminate the overrepresentation of Spanish-speaking students in classes for the educably mentally retarded ("EMR")).
139. 793 F.2d 969 (9th Cir. 1984) (holding that California school districts over-relied on IQ tests to identify African American students in EMR classes, in violation of Title VI, IDEA, and Section 504 of the Rehabilitation Act of 1973).
140. Culminating this year in Alexander v. Sandoval, 121 S. Ct. 1511 (2001).
141. For desegregation cases, see Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); and Board of Education v. Dowell, 498 U.S. 237 (1991). For Title VI cases, see Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999); Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999); and GI Forum v. Texas Education Agency, 87 F. Supp. 2d 667 (W.D. Tex. 2000).
142. 29 U.S.C. § 794 (1994).
143. 42 U.S.C. §§ 12101-12213 (1994). Title II of the ADA prohibits discrimination because of a person's disability in all services, programs, and activities provided or made available by any public entity. Id. § 12132.
144. 20 U.S.C. §§ 1400-1487 (1994 & Supp. V 1999). For a full discussion of required procedures and procedural safeguards under IDEA, see EILEEN ORDOVER, OVERVIEW: EDUCATION RIGHTS OF CHILDREN WITH DISABILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND SECTION 504 OF THE REHABILITATION ACT OF 1973 (1999). See also BAZELON CTR. FOR MENTAL HEALTH, A NEW IDEA: A PARENT'S GUIDE TO THE CHANGES IN SPECIAL EDUCATION LAW FOR CHILDREN WITH DISABILITIES (1998).
145. 20 U.S.C. §§ 1400-1487 (1994 & Supp. V 1999). For a full discussion of required procedures and procedural safeguards under IDEA, see EILEEN ORDOVER, OVERVIEW: EDUCATION RIGHTS OF CHILDREN WITH DISABILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND SECTION 504 OF THE REHABILITATION ACT OF 1973 (1999). See also BAZELON CTR. FOR MENTAL HEALTH, A NEW IDEA: A PARENT'S GUIDE TO THE CHANGES IN SPECIAL EDUCATION LAW FOR CHILDREN WITH DISABILITIES (1998).
146. Important differences do exist, but they are not relevant to this discussion. See, e.g., 2 U.S. COMM'N ON CIVIL RIGHTS, EQUAL EDUCATIONAL OPPORTUNITY PROJECT SERIES, EQUAL EDUCATIONAL OPPORTUNITY AND NONDISCRIMINATION FOR STUDENTS WITH DISABILITIES: FEDERAL ENFORCEMENT OF SECTION 504, at 89-90 (1997) [hereinafter EEOP VOL. II].
147. Most notable was Congress's bipartisan reauthorization and amendment of the Elementary and Secondary Education Act, calling it the "Improving America's Schools Act of 1994." Pub. L. No. 103-382, 108 Stat. 3518 (codified as amended in scattered sections of 20 U.S.C., 29 U.S.C., and 42 U.S.C.). This 1994 Act emphasized maximum access to regular education for all students. 20 U.S.C. § 6301(c)(4) (1994). It required that states align their curriculum and assessment with high academic standards, id. § 6301(a), and test all children practicable. See id. § 6311(b). Title I of this Act also stressed that economically disadvantaged students, English-language learners, and students with disabilities be included in these assessments. Id. Most importantly. Title I required states to report data to the public, disaggregated by race, ethnicity, and gender, and compare the achievement of students with disabilities with their non-disabled peers. Id. § 6311(b)(3)(I).
148. 20 U.S.C. § 1412(a)(22) (Supp. V 1999); 34 C.F.R. § 300.146 (2000).
149. 20 U.S.C. § 1412(a)(16); 34 C.F.R. § 300.755.
150. 20 U.S.C. § 1418(c); 34 C.F.R. § 300.755.
151. 20 U.S.C. § 1412(a)(5)(A).
152. Id.
153. Id. § 1401(c)(4).
154. Id. § 1401(c)(5).
155. See Ceasar v. Pataki, No. 98 CIV. 8532 (LMM), 2000 WL 1154318 (S.D.N.Y. Aug. 14, 2000). Dismissing defendants' motion for summary judgment, the Ceasar court upheld the legal theory that a state's failure to act in accordance with legal enforcement mandates is an actionable offense under Title VI regulations if such inaction has a disparate impact on minorities. Id. at *4. "The Complaint adequately alleges that defendants have adopted a policy of nonenforcement of legal mandates evident in five specified areas: certified teachers, remedial instruction, school facilities and grounds, libraries, and regents courses and diplomas." Id. This decision has been called into doubt by the Supreme Court's decision in Alexander v. Sandoval, 121 S. Ct. 1511 (2001). Sandoval left open the question of whether plaintiffs can rely on disparate impact theory and still file suit against the state using § 1983; but without a § 1983 claim as the basis for using the regulations, such claims will be dismissed. See supra notes 11-12 and accompanying text.
156. 20 U.S.C. § 1412 (Supp. V 1999).
157. See, e.g., id. §§ 1401(8), 1414(b)-(d); 34 C.F.R. §§ 300.26(b)(3), .344(a)(2), .344(a)(4)(ii), .347, .532(b), .533(a)(2)(ii) (2000); see also id. §§ 300.550-.554; Devries v. Fairfax County Sch. Bd., 882 F.2d 876, 878 (4th Cir. 1989).
158. 20 U.S.C. § 1412(a)(1).
159. Id. § 1412(a)(5).
160. There is some disagreement as to whether the LRE entitlement is a right wholly subsumed by FAPE or a separate right when tensions arise over how restrictive an environment is appropriate. See Telephone Interview with Kathleen Boundy, Director, Center for Law and Education (Nov. 10, 2000). Courts tend to seek a balance when the two are in tension. E.g., Oberti v. Bd. of Educ., 995 F.2d 1204 (3d Cir. 1993); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989).
161. Oberti, 995 F.2d at 1206 (quoting 20 U.S.C. § 1412(5)(B) (1988)). In Oberti, the Third Circuit held that the school district has the burden of proving compliance with the LRE requirement, regardless of which party brought the claim in court. See id. at 1223.
162. Memorandum from Norma Cantu, Assistant Secretary for the Office of Civil Rights, U.S. Department of Education (July 6, 1995) (on file with authors); see also EEOP VOL. II, supra note 103.
163. See 3 U.S. COMM'N ON CIVIL RIGHTS, EQUAL EDUCATIONAL OPPORTUNITY PROJECT SERIES: EQUAL EDUCATIONAL OPPORTUNITY AND NONDISCRIMINATION FOR STUDENTS WITH LIMITED ENGLISH PROFICIENCY: FEDERAL ENFORCEMENT OF TITLE VI AND LAU V. NICHOLS 98-109 (1997).
164. 20 U.S.C. § 1411(b)(2)(C) (Supp. V 1999).
165. See, e.g., Bd. of Educ. v. Rowley, 458 U.S. 176, 200-02 (1982) (interpreting the IDEA requirement of a free appropriate public education).
166. 20 U.S.C. § 1412(a)(5).
167. While black students are consistently overrepresented, the data are less consistent for Hispanic students, often indicating underrepresentation for non-black minority students. However, data from California show that the percentage of every minority subgroup that received services in a mainstreamed regular education classroom was lower than the percentage for white students. See Parrish, supra note 8; see also Fierros, supra note 46; Conroy, supra note 64.
168. FINE, supra note 85.
169. OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF EDUC., ELEMENTARY AND SECONDARY SCHOOL CIVIL RIGHTS COMPLIANCE REPORTS (1998).
170. For a full description of legal challenges to tracking, see Losen, supra note 93, and Kevin G. Welner & Jeannie Oakes, (Li)Ability Grouping: The New Susceptibility of School Tracking Systems to Legal Challenges, 66 HARV. EDUC. REV. 451 (1996).
171. For a full description of legal challenges to tracking, see Losen, supra note 93, and Kevin G. Welner & Jeannie Oakes, (Li)Ability Grouping: The New Susceptibility of School Tracking Systems to Legal Challenges, 66 HARV. EDUC. REV. 451 (1996).
172. BUILDING BLOCKS FOR YOUTH, AND JUSTICE FOR SOME (2000); HOWARD N. SNYDER & MELISSA SICKMUND, NAT'L CTR. FOR JUVENILE JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 1999 NATIONAL REPORT (1999); see also Parrish, supra note 8, at 17 tbl.8.
173. BUILDING BLOCKS FOR YOUTH, AND JUSTICE FOR SOME (2000); HOWARD N. SNYDER & MELISSA SICKMUND, NAT'L CTR. FOR JUVENILE JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 1999 NATIONAL REPORT (1999); see also Parrish, supra note 8, at 17 tbl.8.
174. BUILDING BLOCKS FOR YOUTH, AND JUSTICE FOR SOME (2000); HOWARD N. SNYDER & MELISSA SICKMUND, NAT'L CTR. FOR JUVENILE JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 1999 NATIONAL REPORT (1999); see also Parrish, supra note 8, at 17 tbl.8.
175. MARA SAPON-SHEVIN, PLAYING FAVORITES: GIFTED EDUCATION AND THE DISRUPTION OF COMMUNITY 32-33 (1994); WELNER, supra note 82.
176. MARA SAPON-SHEVIN, PLAYING FAVORITES: GIFTED EDUCATION AND THE DISRUPTION OF COMMUNITY 32-33 (1994); WELNER, supra note 82.
177. WELNER. supra note 82.
178. Alfredo J. Artiles & Stanley C. Trent, Overepresentation of Minority Students in Special Education: A Continuing Debate, 27 J. SPECIAL EDUC. 410 (1994).
179. Individuals with Disabilities Act Amendments of 1997 § 602(3)(A)-(B), 20 U.S.C. § 1401(3)(A)-(B) (Supp. V 1999) (listing eligible categories of disability).
180. 29 U.S.C. § 705(20)(1994).
181. Id.; id. § 794(a); 34 C.F.R. § 104.3(j) (2000).
182. 29 U.S.C. § 794. Courts, however, have been split with regard to legal claims based on FAPE. Telephone Interview with Kathleen Boundy, supra note 117.
183. Certain procedural protections would still apply, however. Moreover, IDEA requires districts to ensure the use of assessments that are neither racially nor culturally biased. 20 U.S.C. § 1414(b)(3)(A)(i) (Supp. V 1999). Failure to do so could conceivably provide a cause of action in some cases.
184. Imagine a misidentified student who suffered psychological harm and was denied access to the regular education curriculum for years in an inappropriate isolated placement. In some cases these new needs may qualify thus harmed students for FAPE under the broader, non-categorical Section 504 disability definition "otherwise health impaired." For more information on the differences, see EEOP VOL. II, supra note 103, at 98.
185. 34 C.F.R. § 104.3(j)(2)(iii) (emphasis added).
186. Id. § 104.3(j).
187. 20 U.S.C. § 1412(a) (Supp. V 1999); see infra notes 174-178 (describing the recent consent decree in Alabama); Kathleen Boundy, Including Students with Disabilities in Standards-Based Education Reform, Center for Law and Education, at http;//www.cleweb. org/nta.htm (last visited Apr. 10, 2001). Poor minority students, regardless of disability status, could conceivably have some entitlement to the benefits of standards-based reform under Title I of the Improving America's Schools Act. Legal action to enforce Title I's requirements may be beneficial as a shield to prevent overrepresentation and a sword to require higher quality education, but remains a nearly vacant area of litigation, in comparison with FAPE entitlement.
188. 34 C.F.R. § 104.33(b)(1) (2000).
189. NCD REPORT, supra note 63.
190. Id.
191. Schools can dispute this refusal and seek an administrative remedy. See 20 U.S.C. § 1414(a)(1)(C)(ii) (Supp. V 1999). Notwithstanding the legal requirements, advocates tell of many instances in which students have been transferred to special education classrooms without parental consent, and poorly informed or misinformed parents have agreed to sign papers based on grossly inadequate information.
192. A complainant dissatisfied with the state's disposition may request review of the state's decision by the United States Secretary of Education, who is authorized to withhold federal funding from a state found to be in noncompliance with the IDEA. 34 C.F.R. § 76.401(d) (2000). Furthermore, if the cause of action turns on the state's adoption of a policy or practice of general applicability that is contrary to the law, or seeks structural or systemic reforms, plaintiffs may file suit against the state in court. See, e.g., Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1093-95 (1st Cir. 1989).
193. See SASHA POLAKOW-SURANSKY, ACCESS DENIED: MANDATORY EXPULSION REQUIREMENTS AND THE EROSION OF EDUCATIONAL OPPORTUNITY IN MICHIGAN (1999).
194. 20 U.S.C. § 1415(f), (g), (l) (Supp. V 1999).
195. Smith v. Robinson, 468 U.S. 992, 1009-13 (1984). However, individual Section 504 claims that could not also be filed under the IDEA do not require plaintiffs to exhaust administrative remedies.
196. For example, parents need not exhaust IDEA'S administrative remedies where the state or local agency's procedures would be inadequate or futile. "Administrative remedies are generally inadequate where structural, systemic reforms are sought . . . . Exhaustion may also be excused because of inadequacy of administrative remedies where the plaintiffs' substantive claims themselves concern the adequacy of the administrative process." Learning Disabilities Ass'n of Md., Inc. v. Bd. of Educ., 837 F. Supp. 717, 722-23 n.14 (D. Md. 1993) (quoting Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1309 (9th Cir. 1992)).
197. For example, in Doe v. Rockingham County School Board, the district court held that the student was not required to exhaust administrative proceedings because the district had failed to provide a prompt hearing and notice and sought to maintain the disciplinary suspension during the pendency of the hearing. Doe v. Rockingham County Sch. Bd., 658 F. Supp. 403 (W.D. Va. 1987).
198. The theories are outlined under the discussion of race discrimination and Title VI. See infra Part III. These theories are not directly available under the IDEA.
199. Disparate treatment and adverse impact claims are typically raised under Section 504, which prohibits discrimination on the basis of disability by recipients of federal funding. Exclusion and denial of benefit theories can constitute separate causes of action. See Judith Welch Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap Under Section 504 of the Rehabilitation Act of 1973, 69 CORNELL L. REV. 401, 515-16 (1984). They differ from disparate impact and different treatment theories because a policy or practice that violates the requirements of IDEA or Section 504 is itself considered a form of discrimination against students with disabilities. See 29 U.S.C. § 794(a) (1994).
200. See Corey H. v. Bd. of Educ., 27 Individuals with Disabilities Educ. L. Rptr. 688 (N.D. Ill. 1998) (approving a settlement with the school district). The plaintiffs settled with the Chicago Board, and continued to judgment against the state.
201. For a full description of this case and its implications for improved educational opportunities, see Sharon Weitzman Soltman & Donald R. Moore, Ending Illegal Segregation of Chicago's Students with Disabilities: Strategy, Implementation and the Implications of the Corey H. Lawsuit, in MINORITY ISSUES IN SPECIAL EDUCATION, supra note 8.
202. Corey H. v. Bd. of Educ., 27 Individuals with Disabilities Educ. L. Rptr. 713 (N.D. Ill. 1998).
203. Corey H. v. Bd. of Educ., No. 92 C 3409 (N.D. Ill. June 18, 1999) (settlement agreement) (on file with authors).
204. The above compilation greatly abbreviates the two agreements.
205. Prior to the litigation, the Chicago Board, as part of the implementation of a desegregation order, reassessed minority students labeled as EMR. It de-classified 3000 students previously classified as such, although according to anecdotal reports many were subsequently re-classified in other disability categories. The fact that many of the Corey H. plaintiffs were represented in that previous class action explains, in part, why a Title VI challenge was not added to the Corey H. lawsuit. The original consent decree was approved by the Northern District of Illinois on September 24, 1980. United States v. Bd. of Educ., 567 F. Supp. 272, 274 (N.D. Ill. 1983).
206. Vaughn G. v. Mayor of Balt., Civil Action No. 84-1911(MJG) (D. Md. May 1, 2000) (calling for monitoring to reduce disparity in achievement, an annual school report regarding "significant progress" defined in terms of specific narrowing of the test score gap, increases in the rates of high school completion, and increases in the percentage of students receiving diplomas).
207. Wendy Parker, The Future of School Desegregation, 94 NW. U. L. REV. 1157, 1159 (2000).
208. There are over two hundred school districts where the Department of Justice was party to a case that has not been declared unitary and dismissed outright. U.S. Dep't of Justice, Educational Opportunities Litigation Section Caseload List (Apr. 1998) (on file with authors) [hereinafter DOJ Caseload List]. According to Gary Orfield, there are additionally hundreds of other dormant court cases and administrative agreements with the United States Department of Education that retain some kind of monitoring status or permanent injunction that could be re-activated, but there has been no official count. Interview with Gary Orfield, Co-Director, The Civil Rights Project at Harvard University, in Cambridge, Mass. (Mar. 24, 2001).
209. 402 U.S. 1 (1971) (approving the school desegregation plan in the Charlotte-Mecklenburg school system).
210. See MEIER ET AL., supra note 83; MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW 24 (1990) (noting attempts to circumvent Brown as particularly prevalent in the southern states).
211. Hobsen v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) (holding that when minority children are relegated to lower tracks based on intelligence tests largely standardized to white middle class children, and then given reduced education, children are denied equal education opportunity); United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1453-62 (S.D.N.Y. 1985) (holding that "the historically discriminatory operation of the Special Education program continued to have discriminatory effects").
212. There appears to be a confluence of unconscious racism and ableism. Despite the intended benefits of special education, it is not surprising that well-meaning educators disproportionately identify minority children, whom they may subconsciously believe are both less intelligent than whites and less worthy of the same education, as having disabilities. At the same time, people with disabilities are often regarded as having intractable problems in need of fixing. The gross disproportionalities, especially with regard to labeling children as educably mentally retarded, fit within the constructs for "unconscious racism" described by Professor Charles Lawrence. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 319-24, 366-67 (1987); see also Losen, supra note 93, at 526-27.
213. MEIER ET AL., supra note 83.
214. See Finn, supra note 8, at 349-51. Outstanding desegregation orders remained in all but twelve states and the District of Columbia, including seventeen in California and nine in Connecticut. The eleven southern states accounted for most desegregation orders. DOJ Caseload List, supra note 161.
215. See Finn, supra note 8, at 336.
216. See, e.g., Yonkers, 624 F. Supp. at 1276.
217. See Parrish, supra note 8, at tbl.2.
218. These states are Alabama, Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Michigan, Mississippi, Missouri, New York, North Carolina, South Carolina, Tennessee, and Texas. DOJ Caseload List, supra note 161.
219. See, e.g., Keyes v. Denver Sch. Dist. No. 1, 413 U.S. 189 (1973) (finding intentional segregation upon district gerrymandering and schools being sited in racially isolated neighborhoods, even without explicit statutes requiring de jure segregation).
220. See, e.g., Green v. County Sch. Bd., 391 U.S. 430 (1968). The Green Court required that desegregation be achieved with regard to facilities, extracurricular activities, staff, faculty, and transportation. Since Green, courts have expanded the "root and branch" rationale to include such practices as tracking, overrepresentation in special education, and school discipline. E.g., United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir. 1985); Evans v. Buchanan, 582 F.2d 750, 772 (3d Cir. 1978); see also People Who Care v. Rockford Bd. of Educ., 851 F. Supp. 905 (N.D. Ill. 1994) (identifying discrimination in discipline, tracking, and special education as part of original Fourteenth Amendment violation).
221. Keyes, 413 U.S. at 208. The burden on the defendant school district is especially heavy if the original consent decree addresses the issue of minority overrepresentation in special education. If not, challengers may nonetheless prevail by establishing that the overrepresentation is a vestige of the prior intentional segregation. Once plaintiffs establish such a link to the dual system of old, courts may regard a statistical disparity as a proxy for intent and place the burden on defendant school districts to rebut the presumption. When statistical evidence suffices as evidence of intent, advocates may also be successful by claiming a violation of the Equal Protection Clause of the United States Constitution. Some challenges have been silent on the blatant segregation of special education students and the gross inadequacies of special education services in segregated special education classrooms and programs. See, e.g., Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985). If no desegregation order exists, or if a court rules that the disparity is not a vestige of prior segregation, challengers may nonetheless establish a claim of intentionally discriminatory overrepresentation through direct evidence of a discriminatory purpose. However, this course of action would be extremely difficult, given the great discretion that courts would likely grant to school districts in matters of special education.
222. Judges engaged in such reviews seek to determine whether a state or school district has fulfilled its duty to eradicate vestiges of prior intentional segregation. Judges may review these cases without action by either party, but requests from plaintiffs to revisit a desegregation order/consent decree for failure to comply are not uncommon. Even more common are district-initiated motions to dissolve a court order. E.g., Bd. of Educ. v. Dowell, 498 U.S. 237 (1991).
223. 267 F. Supp. 458 (M.D. Ala. 1967).
224. Lee v. Phoenix City Bd. of Educ., C.A. No. 70-T-854 (M.D. Ala. Aug. 30, 2000). The consent decrees consist of two documents in each case: an order approving the consent decree on statewide special education issues and the consent decree itself.
225. Id.
226. Finn, supra note 8, at 358.
227. The reforms included in the consent decree can be summarized as follows: A. To conduct awareness and prereferral training. Teachers will be made aware of the tendency to refer minority students disproportionately, and receive training in how to use certain teaching and behavior management techniques that will improve learning for all students and diminish overreliance on special education to reach children that may pose challenges in the classroom. B. To monitor the agreement, including yearly status conferences. The state will collect data for its own evaluation as well as report this data to the parties. C. To make certain changes to the Alabama Code. The IDEA encourages, but does not require prereferral intervention. The Alabama Code will go much further and require prereferral intervention for six weeks, in most cases, before a child can be referred for special education. D. To revamp the assessment. The new code also revises criteria for determining specific learning disabilities, emotionally conflicted, as well as MR. It also requires that home behavior assessments be attempted for students suspected of MR. Other contextual factors must be considered for all three categories to rule out other causes of low achievement that are not actually rooted in a disability. E. To provide culturally sensitive psychometrics and training. New measures of aptitude that are culturally sensitive will be used in determining eligibility for minority students. Psychologists and school personnel will be trained in their proper administration. F. To allocate funds to accomplish the Decree's goals using a state improvement grant. The funds are not for the changes in the decree except for the piloting of a mentoring program. Many of the changes in the decree will be funded through a state improvement grant. G. To require reevaluation of all borderline MR students. Minority students who were borderline MR (IQ of 65 or above, or not assessed with an adaptive behavior measure) will be retested and others will be given the option to be retested. Students who were wholly misidentified will be provided with support and services to aid them in their transition back into regular education classrooms. Students who no longer meet the new code's criteria for MR or are deemed no longer eligible under the terms of the new agreement will be evaluated for possible placement if they are subsequently deemed eligible in another disability category. See Lee, C.A. No. 70-T-854.
228. Vaughns v. Bd. of Educ., 574 F. Supp. 1280 (D. Md. 1983).
229. Id. at 1307. Even after the Fourth Circuit overturned this decision, for failure to shift the burden of disproving discrimination to the defendant, Vaughns v. Bd. of Educ., 758 F.2d 983 (4th Cir. 1985), the district court found no discrimination. Vaughns v. Bd. of Educ., 627 F. Supp. 837, 839 (D. Md. 1986).
230. Plaintiffs bringing race-based challenges to questionable school practices have recently encountered a federal bench hesitant to acknowledge vestiges of prior segregation or justiciable disparate impact. See Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985) (holding that grouping students by achievement levels offered better educational opportunities and, thus, did not violate equal protection); GI Forum v. Tex. Educ. Agency, 87 F. Supp. 2d 667 (W.D. Tex. 2000) (finding that the use of academic skills test as requisite for high school graduation did not violate Title VI regulations); see also supra notes 9-14 and accompanying text. But cf. People Who Care v. Rockford Bd. of Educ., 851 F. Supp. 905 (N.D. Ill. 1994) (holding that acts of school district caused, in substantial part, the current racial segregation of students in the district).
231. 34 C.F.R. § 100.3(b)(2) (2000). Title VI, section 602, "authorize[s] and direct[s]" federal departments and agencies that extend federal financial assistance to particular programs or activities "to effectuate the provisions of section 601 . . . by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1 (1994).
232. 34 C.F.R. § 104.4(b)(4).
233. Id. § 106.1.
234. Title IX, for instance, could be implicated where males of a certain race are disparately impacted by a school district's referral, evaluation, and placement policy.
235. E.g., Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993).
236. E.g., Elston, 997 F.2d at 1407.
237. E.g., GI Forum v. Tex. Educ. Agency, 87 F. Supp. 2d 667, 677 (W.D. Tex. 2000).
238. E.g., id.
239. Telephone Interview with Barbra Shannon, Senior Counsel, Office for Civil Rights, U.S. Department of Education (Apr. 13, 2001).
240. As discussed above, judges expressed such reluctance even before Sandoval. See supra note 99 and accompanying text. We expect that similar or greater reluctance will be encountered by those using § 1983 to enforce the disparate impact regulations.
241. Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1421-22 (11th Cir. 1985). In particular, the Georgia State Conference court cites only Title VII cases in describing what burden the plaintiffs must prove to establish a prima facie disparate impact case and then quotes an employment law treatise as justification for rejecting the plaintiff's statistical analysis. Id.
242. Id. at 1422. But see Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984), wherein the Ninth Circuit applied a discriminatory effects test to analyze the Title VI claims of a class of African American school children who were placed in special classes for the educably mentally retarded on the basis of non-validated IQ tests. The Ninth Circuit, arguably applying a more liberal particularity standard than that used in Georgia State Conference, upheld the district court's finding that the use of these IQ tests for placement in EMR classes constituted a violation of Title VI. Id. at 983.
243. Georgia State Conference, 775 F.2d at 1421-22.
244. According to the court, the plaintiffs failed to establish their prima facie case. The court held that the plaintiffs should have compared statistics for the African American EMR students who had been misidentified due to particular faulty processes to misidentified whites whose files also indicated that they had been subjected to the violative process. Id.
245. Larry P., 793 F.2d at 969.
246. For a complete analysis of the many inextricable factors that cause overrepresentation, see Harry et al., supra note 75.
247. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
248. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
249. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
250. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
251. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues
252. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
253. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
254. On the issue of poverty, see the discussion in Marshalyn Yeargin-Allsopp et al., Mild Mental Retardation in Black and White Children in Metropolitan Atlanta: A Case-Control Study, 85 AM. J. PUB. HEALTH, 324, 324-28 (1995). For a discussion of issues affecting second-language learners, see PATRICIA T. CEGELKA ET AL., EDUCATIONAL SERVICES TO HANDICAPPED STUDENTS WITH LIMITED ENGLISH PROFICIENCY: A CALIFORNIA STATEWIDE STUDY (1986), noting that teachers unfamiliar with the effect of language development on student achievement may refer students for special education assessment. See also Richard A. Figueroa, Psychological Testing of Linguistic-Minority Students: Knowledge Gaps and Regulations, 56 EXCEPTIONAL CHILD. 145 (1989) (finding that diagnostic testing of limited English-proficient students is often performed primarily in English). For a discussion of cultural issues (bias) in IQ testing, see JIM CUMMINS, BILINGUALISM AND SPECIAL EDUCATION: ISSUES IN ASSESSMENT AND PEDAGOGY (1984); and Asa G. Hilliard, III, Behavioral Style, Culture, and Teaching and Learning, 61 J. NEGRO EDUC. 370 (1992). For an examination of resource and funding issues and their impact on schooling opportunities, see DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995); and KOZOL, supra note 89. For a study linking lower parent education levels to late identification, see Judith Palfrey et al., Early Identification of Children's Special Needs: A Study in Five Metropolitan Communities, 111 J. PEDIATRICS 651 (1987). Concerning the lack of prereferral interventions, see Osher et al., supra note 70. Finally, for a more general discussion of many of these factors and how they all drive achievement, see THE BLACK-WHITE TEST SCORE GAP, supra note 39.
255. Linking overrepresentation to a singular school practice would also be ill-advised for several other reasons. First, an "inseparable system" is more common in a school system that has a broad responsibility to educate children than in the case of a private employer that has no similar duty toward a job applicant. Second, disproportionalities exist across all states, notwithstanding differences in such areas as funding mechanisms and evaluation tools. Third, such linking of overrepresentation to a singular school practice might inappropriately limit the remedies available to a plaintiff. As a matter of statutory interpretation, applying Title VII case law and statutory interpretation to a Title VI Department of Education regulation is also highly questionable in many contexts. The doctrine of in para materia is arguably the lynchpin of this statutory interpretation. But Title VI regulations were developed separately and do not borrow much language from Title VII, apart from the term disparate impact. The Guardians case, on which courts have relied to uphold the "no intent" requirement in the Title VI regulations, should aptly be limited to Title VI and not provide the basis to apply all employment disparate impact cases to education law. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983).
256. Although the disparate impact approach has been the subject of considerable Title VI case law, in analyzing disparate impact theory under Title VI, courts have often reflected on Title VII legislative history and jurisprudence. E.g., Young v. Montgomery County Bd. of Educ., 922 F. Supp. 544, 549 (M.D. Ala. 1996) ("The elements of a Title VI disparate impact claim under 34 C.F.R. § 100.3(b)(2) derive from cases decided under Title VII."); Campaign for Fiscal Equity, Inc. v. State, 719 N.Y.S.2d 475, 541 (Sup. Ct. 2001).
257. 42 U.S.C. § 2000e-2(k)(1)(B)(i) (1994).
258. 137 CONG. REC. S15,276 (daily ed. Oct. 25, 1991).
259. See, e.g., Campaign for Fiscal Equity, 719 N.Y.S.2d at 540-42 (finding that the New York state finance scheme violated Title VI, the court stated that a similar case that failed to establish causal connection between attendance-based funding and the "hold harmless" provisions and a racially disparate impact were irrelevant in part because, "[h]ere plaintiffs challenge the operation of the entire system"); African Am. Def. Fund v. N.Y. State Educ. Dep't, 8 F. Supp. 2d 330, 338 (S.D.N.Y. 1998).
260. See McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 275 (E.D. Tex. 1999) (treating various components of an employer's system of administration, including hiring, promotion, and demotion as one employment practice due to the subjective decisionmaking involved in the initial hiring and placement of the employee, which the court found had an inextricable rippling effect on the employee's career); Slender v. Lucky Stores, Inc., 803 F. Supp. 259, 335 (N.D. Cal. 1992) (finding "that the elements of [the employer's] subjective and ambiguous decision making processes are not separable for the purposes of analysis, and therefore may be analyzed as one employment practice"); see also Graffam v. Scott Paper Co., 870 F. Supp. 389, 395 (D. Me. 1994) (drawing support from the 1991 amendments, the court, in an age discrimination suit, held that a disparate impact challenge to an employer's selection process for terminating employees would be scrutinized as one practice over employer's claim that the selection process comprised separately identifiable components). The 1991 amendments arguably revived the value of precedents limited or vacated by Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). Prior cases allowed disparate impact challenges even where plaintiffs could not identify which component of a process caused the discriminatory effect. See, e.g., Green v. USX Corp., 843 F.2d 1511 (3d Cir. 1988), vacated and remanded, 490 U.S. 110 (1989); see also Griffin v. Carlin, 755 F.2d 1516, 1523 (11th Cir. 1985).
261. The regulations interpreting Title VI provide: The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.
262. C.F.R. § 42.102(f) (2000) (emphasis added).
263. One would not want to hold an employer responsible when "even if we assume that the figures show that the employer must be doing something wrong, there is nothing to show that the wrong is [the employer's practice]." LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 74.41 (2d ed. 1994).
264. 20 U.S.C. § 6311 (1994); id. § 6317(d)(5), (6).
265. Id. § 6317(d)(6).
266. Better Education for Students and Teachers Act, S. 1, 107th Cong. § 111 (2001).
267. Pursuant to a Freedom of Information Act request, OCR furnished the following details regarding its handling of minority/special education cases. From 1996-2000 the Agency received 130 complaints - just over 40 per year. Letter from Rebekah Tosado, Attorney, Office of the Assistant Secretary for Civil Rights, U.S. Department of Education, to Daniel J. Losen, Staff Attorney, The Harvard Civil Rights Project app. (Oct. 11, 2000) (on file with authors). During that same period of time, the Agency initiated 110 compliance reviews, only 8 of which are currently outstanding. Id.; see also EEOP VOL. II, supra note 103, at 72. From 1993-1995 only two complaints and no OCR-initiated reviews raised multiple jurisdictional categories. Id. at tbl.3.10.
268. Unlike the Title VI analysis, OCR's Section 504 analysis is typically not a disparate impact analysis, in part, because failures to follow numerous legal procedures delineated in disability law are considered per se discrimination and are relatively easy to establish. EEOP VOL. II, supra note 103, 162-63.
269. EEOP VOL. I, supra note 34, at 209-13.
270. Memorandum from Norma Cantu, supra note 119.
271. Id. at 19
272. Telephone Interview with Timothy Blanchard, Co-Facilitator, Office of Civil Rights National Minorities and Special Education Network (Sept. 25, 2000).
273. Memorandum from Norma Cantu, supra note 119, at 19.
274. For more on inequitable resource distribution, see William N. Evans et al., Schoolhouses, Courthouses, and Statehouses after Serrano, 16 J. POL'Y ANALYSIS & MGMT. 10 (1997); and Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465 (1991). See also Powell v. Ridge, 189 F.3d 387 (3d Cir 1999); Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997); Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1376 (N.H. 1993); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 211 (Ky. 1989); Bd. of Educ. v. Nyquist, 439 N.E.2d 359, 368-69 (N.Y. 1982).
275. Special education students may suffer doubly from resource shortfalls. Like others in underfunded schools, these students are directly impacted. Unlike regular education students, however, they may also be indirectly impacted in that such schools are more poorly equipped for inclusion. Meaningful access for special education students is jeopardized when general education classrooms are overcrowded and taught by inexperienced and sometimes uncertified teachers who lack classroom supports and special education training. As a result, unsupported and ill-prepared teachers may resort to non-mainstreamed special education in a desperate attempt to teach. Finally, one may allege inequity in the provision of resources in special education programs as simply one area of inequality when bringing a broader Title VI resource comparability challenge. See generally OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF EDUC., INTRADISTRICT RESOURCE COMPARABILITY: INVESTIGATIVE RESOURCES (2000).
276. See Glennon, supra note 8.
277. Telephone Interview with Timothy Blanchard, supra note 217.
278. See Memorandum from Norma Cantu, supra note 119.
279. Id. at 19. Norma Cantu suggests using disability law in conjunction with Title VI disparate impact theory as follows: "A district violates Title VI and Section 504 where it places a disproportionate number of minority students into special education programs in which they do not receive a benefit from the district's education program." Id.
280. In many districts, such students represent one third or more of all suspensions. KIM BROOKS ET AL., SCHOOL HOUSE HYPE: TWO YEARS LATER 19 (2000), available at http://www.jjic.org/pdf/shh2.pdf.
281. See Robert C. Johnston, Federal Data Highlight Disparities in Discipline, EDUC. WEEK, June 21, 2000, at 3, available at http://www.edweek.org/ew/ewstory.cfm?slug= 41Zero.h19.
282. Nancy Zollers, Schools Need Rules When It Comes to Students with Disabilities, EDUC. WEEK, Mar. 1, 2000, at 46, available at http://www.edweek.org/ew/ewstory.cfm? slug=25Zollers.h19; see also Kevin G. Welner & Kenneth R. Howe, Steering Toward Separation: The Evidence and Implications of Special Education Students' Exclusion from Choice Schools, in SCHOOL CHOICE AND DIVERSITY (Janelle Scott ed., forthcoming 2002).
283. Nancy Zollers, Schools Need Rules When It Comes to Students with Disabilities, EDUC. WEEK, Mar. 1, 2000, at 46, available at http://www.edweek.org/ew/ewstory.cfm? slug=25Zollers.h19; see also Kevin G. Welner & Kenneth R. Howe, Steering Toward Separation: The Evidence and Implications of Special Education Students' Exclusion from Choice Schools, in SCHOOL CHOICE AND DIVERSITY (Janelle Scott ed., forthcoming 2002).
284. Sch. Bd. of Palm Beach County, Order No. DOE-99-440-FOF (Fla. Dep't of Educ. Sept. 27, 1999).
285. Id.
286. Letter from Gary S. Walker, Director, Atlanta Office, Southern Division, Office for Civil Rights, Department of Education, to Dr. Joan Kowal, Superintendent, Palm Beach County School District (Aug. 13, 1999) (on file with authors). Despite this agreement, another complaint was filed against the district alleging similar violations. This complaint resulted in a new resolution agreement signed by a new interim superintendent for the district. Palm Beach County Sch. Dist., No. 04-99-1285 (Office for Civil Rights, Dep't of Educ. Sept. 7, 2000) (resolution agreement).
287. Letter from Gary S. Walker, Director, Atlanta Office, Southern Division, Office for Civil Rights, Department of Education, to Barbara Burch, Esq. (Sept. 7, 2000) (on file with authors). OCR's investigation also revealed that the district had disciplined one student with disabilities despite finding that the IEP and current placement were inappropriate, and that the district neglected to conduct a manifestation hearing for another student with disabilities who was suspended for thirteen cumulative days. See id.
288. For example, OCR sampling questionnaires ask what percent of the school week special education students are with their regular education peers. They request this data disaggregated for each disability category, but do not request further disaggregation by race/ethnicity or gender within the disability groups. Advocates could seek such information to monitor LRE violations in the placement of MR students, where overly restrictive placements have had a disparate impact on African American students overrepresented among students deemed mentally retarded.
289. The report by the National Council on Disability, for example, highlights widespread noncompliance in every state, but only mentions racial disparities briefly. See NCD REPORT, supra note 63.
290. See 34 C.F.R. § 104.33(a)-(b)(1) (2000) ("[F]ree appropriate public education [may consist of] regular or special education and related aids and services.").
291. Once again, this assumes a starting point of either a Title VI court challenge invoking § 1983 or an OCR complaint, each seeking to enforce the disparate impact regulations.
292. 87 F. Supp. 2d 667 (W.D. Tex. 2000).
293. Id. at 673, 676.
294. Id. at 675.
295. Id.
296. See Haney, supra note 90. It has also been reported that large numbers of English-language learners were likewise exempted. Although NAEP scores have gone up in Texas, it is likely that exemption from the TAAS also resulted in NAEP exemption. Stephen P. Klein et al., What Do Test Scores in Texas Tell Us, 8 EDUC. POL'Y ANALYSIS ARCHIVES (2000), at http://epaa.asu.edu/epaa/v8n49.
297. More than 12% of all Texas children were eligible for special education services in 1999-2000. This percentage represents a significant increase of 141,580 students between 1991-1992 and 1999-2000, representing a change from 9.9% to 12.1% of all those enrolled in Texas schools. During this same period the bilingual student enrollment rose from 307,818 to 492,222. Although total enrollment grew over the same period by 531,405 students (15%), the growth of bilingual program enrollment (60%) and special education enrollment (41%) depicts a significant change in the placement of students. See TEX. EDUC. AGENCY, TEXAS PUBLIC SCHOOL STATISTICS, at http://www.tea.state.tx.us/perfreport/pocked (last visited June 28, 2001).
298. A recent University of Texas analysis concluded that those schools that climbed highest in the state's accountability ratings in 1999 had substantially larger increases in TAAS exemptions for special education students than did other schools. TAAS Exemptions May Be Lifting Schools' Ratings, HOUSTON CHRON., Nov. 13, 2000, at A17.
299. Moreover, adding a cause of action based in disability law might have helped enjoin the test until it was established that FAPE was being provided to test-takers with disabilities.
300. GI Forum, 87 F. Supp. 2d at 676.
301. Texas is no stranger to minority overrepresentation, as nearly one-third of its students with disabilities are minority students - just under twice their overall representation in the population - and black students are more than three times as likely as white students to be labeled "mentally retarded." Parrish, supra note 8, at tbl.2. The Texas statistics show a clear pattern whereby large numbers of students deemed eligible for special education were first identified and then exempted from the TAAS. This dramatic increase in the ranks of exempted students with disabilities is highly problematic, especially in light of IDEA's mandate that all students with disabilities be given the same tests, with accommodations if necessary, or be given alternative assessments if the test would be inappropriate. 20 U.S.C. § 1412(a)(16)-(17) (Supp. V 1999).
302. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). Rowley was brought by the parents of a deaf girl who was performing above average in a regular education class. Notwithstanding her acceptable academic performance, the plaintiff was not achieving up to her full potential, and the school refused to provide her with a full-time interpreter. Id. at 185.
303. Id. at 200.
304. Id. at 202.
305. Id. at 203.
306. Id. at 203-04.
307. Id. at 204.
308. See, e.g., Martha Groves, Suit Claims High School Exit Exam Is Biased, L.A. TIMES, May 9, 2001, § 2, at 1 (describing education suit on behalf of students with disabilities in California claiming lack of adequate accommodations for California's high school exit exam).
309. This definition was also included in IDEA at the time of the Rowley decision. 20 U.S.C. § 1401(18)(B) (1982). Since then, many state standards have changed.
310. Rowley, 458 U.S. at 214 (White, J., dissenting).
311. Boundy, supra note 140.
312. 719 N.Y.S.2d 475, 484-88 (Sup. Ct. 2001) (holding that the "sound basic education" provision of the state constitution requires that students need to be capable of civic engagement and sustaining competitive employment, rather than merely prepared to serve on a jury or vote).
313. See id. at 484.
314. Id. at 486-88.
315. Id. at 475, 537-38. This challenge to resource inequities was brought on state constitutional and Title VI grounds. According to the evidence accepted by the court, "58% of the City's special education children are in restrictive placements." Id. at 538.
316. "The evidence demonstrates that the primary cause[ ] of New York City's overreferral and overplacement in restrictive settings [is] a lack of support services in general education . . . ." Id. at 538.
317. The recent Baltimore settlement discussed briefly above, see supra note 159, is a third example of a comprehensive systemic remedy, but it does not appear to be as comprehensive as these two. The section on federal enforcement recommendations was excerpted from DANIEL J. LOSEN, NEW RESEARCH ON SPECIAL EDUCATION AND MINORITY STUDENTS WITH IMPLICATIONS FOR FEDERAL EDUCATION POLICY AND ENFORCEMENT (forthcoming 2001).
318. See DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995).
319. See The Merrow Report, supra note 2.
320. Currently, overrepresentation data evidence egregious disparities for most states. This crucial information, however, is not readily accessible. Federal oversight can ensure that uniform and quality data on identification and placement by race and ethnicity, already required for state collection and analysis by IDEA, are actually collected and reviewed rigorously each year. Part of the problem may lie in the fact that school districts are either unaware of, or allowed to remain unconcerned about, these disproportionalities. See Glennon & Shafer, supra note 23. Therefore, in addition to vigorous enforcement in districts where disproportionalities are most pronounced, compliance reports specific to these issues should be disseminated to all school districts, along with guidance about the best practices to use in addressing significant overrepresentation. Another problem may result if oversight focuses only on district disproportionality without considering statewide disproportionality. Racially isolated school districts may not look internally disproportionate by race, because of the simple fact that there is little diversity within the district. But if high-minority districts identify high numbers of minority students as eligible for special education as compared to white districts, the statewide disproportionality in labeling minority children as "mentally retarded" (for example) will not be reflected as a significant disproportionality on the district level, due to the absence of comparable white students. The IDEA should also require that these data be accessible to the general public, in the same way that Title I requires comprehensive reporting on student achievement.
321. For example, statistical analysis in a district like Hartford, Connecticut, which has very few white students, would not necessarily yield signs of racial disproportionality. But if minority children in the majority-minority Hartford schools are far more often classified as having "mental retardation" than are white children in mostly white suburban schools, the state of Connecticut is still required to address the problem of racial disproportionality.
322. Boundy, supra note 140. Note also that effective instruction involves engaging students, as opposed to managing them. See ALFIE KOHN, BEYOND DISCIPLINE: FROM COMPLIANCE TO COMMUNITY (1996).
323. See HARD WORK FOR GOOD SCHOOLS (Gary Orfield & Elizabeth H. DeBray eds., forthcoming 2001).
324. See Soltman & Moore, supra note 154.
325. Texas, for example, uses accountability benchmarks based on assessments, dropout rates, and diploma rates disaggregated by race, gender, disability status, socioeconomic status, and English-language learner status. See GI Forum v. Tex. Educ. Agency, 87 F. Supp. 2d 667 (W.D. Tex. 2000); Klein, supra note 240. IDEA and Title I have reporting requirements that have some of these characteristics. See 20 U.S.C. § 1412(a) (1994) (IDEA); Id. § 6314(b) (Title I).