Introduction I. Poor Outcomes for Students with Social, Emotional and Behavioral Challenges A. Low Achievement B. Suspensions and Expulsions C. School Dropout D. Involvement in the Juvenile Justice System E. Psychiatric Hospitalization and Institutionalization in Residential Treatment Centers II. Mapping Implementation Failures of IDEA'S Key Provisions A. Child Find and Evaluation 1. Key Child Find and Evaluation Provisions 2. Implementation Failures of Child Find and Evaluation Provisions B. The IEP Process 1. Key IEP Process Provisions 2. Implementation Failures of the IEP Process Provisions C. Related Services 1. Key Related Services Provisions 2. Implementation Failures of Related Services Provisions D. Behavior-Related Provisions 1. Key Behavior-Related Provisions. 2. Implementation Failures of Behavior-Related Provisions III. Prioritizing Implementation of Key IDEA Provisions A. Suggestions for Improving Implementation 1. Increased Teacher Training, Awareness of Disabilities and Related Social, Emotional, and Behavioral Challenges, and the Need for Ongoing Professional Development 2. Ensuring Clarity and Timeliness in the Referral Process. 3. Securing Comprehensive Evaluations that Include All Relevant Parties 4. Collaboration with Parents Prior to the IEP Meeting 5. Guaranteeing the Necessary and Relevant Parties Attend the IEP Meeting. 6. Ensuring Interpretation and Translation Are Available to Parents and Students 7. More Creative Use of Related Services 8. Empowering Parents through Meaningful Training and Information. 9. Improved Understanding and Implementation of Behavior-Related Provisions B. Addressing Some Critiques of Special Education and of IDEA 1. The Problem of Stigma 2. Overrepresentation of Minority Students 3. Low-Quality Programs.. 4. Cost Conclusion Introduction
Anthony, (1) a nine-year-old African-American boy, was asked by his teacher to write an essay about his family. In addition to the frustration he felt because of his difficulty spelling and writing in complete sentences, this assignment also triggered flashbacks to an event that had occurred a year earlier--he started picturing his father viciously beating his mother and leaving her lying on the floor helpless. Anthony remembered walking over to his mother after his father left the house and finding her unresponsive. He also recalled waiting for the paramedics after he dialed 911 and the chilling feeling he had after they arrived and pronounced her dead. As these events flashed through his mind, Anthony flew into a rage. He began yelling and cursing at the teacher. He flipped a desk over. Immediately, the teacher told the students to leave the classroom and called the school resource officer. Anthony was arrested and taken to Juvenile Hall. After remaining there for several days, he was admitted to a mental health institution for a few weeks, and then released to the group home where he had been living for the previous three months. As a result of this incident, Anthony faced exclusion from school and a delinquency case that could remove him from his community for up to a year.
The desk incident was not an isolated one for Anthony. On numerous occasions, he had outbursts in the classroom where he threw books, pencils or other small objects. He was routinely suspended for fights with other students or for talking back to teachers and staff. Shortly after he witnessed his mother's death, he was placed in the foster care system. In one year, he lived in four different foster homes. Through the services of the dependency system, he was diagnosed with Post-Traumatic Stress Disorder, Bipolar Disorder, and a learning disability, but these disabilities were never identified or addressed by his school. He still dreamed of being an engineer, a career in which he could put his superior math skills to use, but his impending school expulsion and incarceration only moved him further from that dream.
Sadly, in urban, low-income, minority communities, stories like Anthony's are not uncommon. Our work as clinical law teachers (2) who--alongside our law students--provide direct representation to families in the special education system gives us the opportunity to see up close how institutional failures in the implementation of the Individuals with Disabilities Education Act (IDEA3) play a major contributing role in poor outcomes for many students with social, emotional and behavioral challenges. (4) As we near the time when Congress is expected to begin work on reauthorizing the IDEA (5), the voices of students like Anthony and their families must be front and center. We must learn from their experiences if we truly hope to close the achievement gap for students with disabilities.
It is easy enough to look at the research and see that something is amiss. Students with social, emotional and behavioral challenges--particularly low-income students and students of color--are overrepresented in a host of adverse outcomes. For example, social, emotional and behavioral challenges in school are associated with lower academic achievement and reduced participation in positive post-school experiences such as employment, secondary education and independent living. (6) While still in school, evidence shows that these students are also more likely to be suspended or expelled than their classmates. (7) A combination of lower achievement and frequent disciplinary removals sets the stage for these students to drop out of school at rates that are significantly higher than the general student population. (8) Both during school and after they leave, these students are at increased risk for involvement with the juvenile justice system. (9) For those students with the most severe social, emotional and behavioral problems, studies show that admission to inpatient psychiatric hospitals and other institutional settings is also alarmingly common. (10) The picture painted by these poor outcomes is not a subtle one, but it is incomplete. While a look at the relevant social scientific studies is enough to establish that there is a problem, the much more difficult task is figuring out exactly how and why things are going awry for these particular students.
Of course, the great irony in the statistics--and in stories like Anthony's--is that a robust system of substantive and procedural entitlements already exists to help these students avoid poor outcomes. (11) The IDEA provides every "child with a disability" (12) an extraordinarily rich, if somewhat ambiguously defined, right to a free appropriate public education (FAPE). (13) This right includes an individualized education program (IEP) that outlines all of the specialized instruction, (14) related services, (15) and accommodations (16) the student is supposed to receive, along with individualized and measurable annual goals (17) to monitor progress. When parents or students disagree with an IEP the school district proposes, they are entitled to access a system of procedural mechanisms designed to help them resolve the dispute. (18) Congress has required states to offer mediation, (19) to maintain a state complaint system, (20) and to provide full due process hearings (21) to settle disputes in special education. Families that remain aggrieved can pursue their claims in state and federal court. (22) Clearly, the problem is not that public policy has ignored this population--as it largely did, regrettably, until 1975. (23) Rather, the problem is that somehow the promise of this powerful federal-state legal regime remains unrealized for certain students.
A substantial body of literature attempts to grapple with the challenges facing students with disabilities and advances various critiques of the IDEA, such as confusion surrounding determinations of eligibility for special education, (24) disappointment with changes made in the 2004 reauthorization, (25) difficulties with enforcement, (26) over-representation of minority students in special education overall and in certain eligibility categories, (27) unequal access to special education and enforcement mechanisms for low-income students and families, (28) and the failure of IDEA to keep students with disabilities out of the juvenile justice system. (29) While critiques and proposals to remedy the law abound, what has been missing from the conversation is a more granular exploration of how the system of substantive and procedural entitlements created by the existing law is actually working (or not) for low-income families with children who experience social, emotional and behavioral challenges. (30) As Professor Ruth Colker has acknowledged, the stories of low-income and minority children and families in the special education system are "with rare exceptions, invisible" in reported case law, and yet their stories must inform the ongoing evolution of the IDEA and of special education practice. (31)
This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in our cases will advance this understanding--at least with respect to the particular population of students for whom we advocate--and will help guide the development of public policy. Second, this Article will assert that fixing these common implementation failures is a critical reform and a worthwhile investment of public time, money and attention. While proposing specific legislative remedies or strategies is beyond the scope of this Article, we will suggest some...