A new 'IDEA': ending racial disparity in the identification of students with emotional disturbance.

• Author: Oelrich, Nicole M.

The Individuals with Disabilities Education Act (IDEA) represented a gallant effort by Congress to decrease discrimination against students with physical and developmental disabilities and to create an inclusionary school environment for all students. To facilitate IDEA's purposes, Congress created two unique mandates. First, the free and appropriate public education (FAPE) mandate requires schools to provide students with disabilities an education tailored to their needs. Second, the least restrictive environment (LRE) mandate requires schools to educate students with disabilities in classrooms with their non-disabled peers to the greatest extent possible. Currently, African-American students, particularly African-American male students, are disproportionately identified as having emotional disturbance. Due to this disparity, these students are increasingly segregated from their non-disabled peers, violating the FAPE and LRE mandates. The current definition of emotional disturbance, codified at 34 C.F.R. [section] 300.8(4)(ii), contributes to this over-identification problem and, therefore, needs revision. This Article traces the history of the Department of Education's emotional disturbance definition, the policy and legal issues that the current definition creates, and the effects of over-identification on students and society. The Article then analyzes why current IDEA enforcement mechanisms do not correct the problem. Finally, this Article presents a definition of emotional disturbance that addresses the need for culturally-sensitive assessments, proposes definitions of key terms, and provides guidelines for courts to utilize when reviewing a challenge to a student's identification of emotional disturbance.

1. INTRODUCTION

   In an interview, Jessie, (1) a high school African-American male student diagnosed with emotional disturbance, stated that in his special education class he did:

   Basically nothin' ... We did worksheets, that's it ... it was really boring.... The only reason I was really there is because I challenged my teachers.... [T]hose teachers make you feel as though a Black man is not supposed to challenge their teachers.... I was always taught to not be afraid to challenge.... The kids that are in special education ain't gettin' an education. White kids get the better education ... they get a better chance in life. (2) When asked what color he would use to describe the special education room, Jessie replied, "Black ... because it's predominantly Black. All you see is Black faces." (3)

   The Individuals with Disabilities Education Act (IDEA) (4) requires school districts to follow certain procedures in identifying a student with a disability and creating an individual education plan for that student. (5) Pursuant to IDEA's procedures, (6) Jessie's school incorrectly identified him as a child with emotional disturbance and placed him in a self-contained classroom for students with disabilities, completely isolated from his non-disabled peers. (7) Jessie's situation (and that of others'), though created by IDEA, contravenes IDEA's purposes.

   IDEA "represented a gallant and determined effort" to eliminate discrimination against students with disabilities. (8) Notwithstanding the significant progress made in decreasing discrimination for students with disabilities, African-American students are often incorrectly identified with emotional disturbance and segregated from their non-disabled peers.

   African-American students are more than twice as likely as all other ethnic groups to be identified as having emotional disturbance. (9) Leading theories for this disparity include a cultural misunderstanding between African-American students and their predominantly white teachers and administrators, and the conscious and subconscious biases of teachers and administrators. (10) Due to these cultural misunderstandings and biases, teachers overly refer African-American students for special education evaluations. (11) The current emotional disturbance definition does not adequately address these cultural misunderstandings and biases, and, thus, does not adequately filter between students who actually have emotional disturbance and students are who are inappropriately identified as having emotional disturbance. Too many African-American students fall into the latter category, which violates IDEA and leads to numerous educational policy problems. (12)

   In IDEA, Congress created mechanisms for the federal government to overview the states' implementation of IDEA and judicial avenues to challenge a child's identification of "emotionally disturbed." (13) These legal remedies, however, have failed to correct the over-identification of African-American students with emotional disturbance because statutory enforcement mechanisms are weak, (14) and courts usually defer to school officials when reviewing a child's disability determination. (15) Even if the court finds for the child, it awards an individual remedy for that child, which cannot create systemic change. (16) Only by revamping IDEA's definition of "emotional disturbance" can the over-identification of African-American students with emotional disturbance cease.

   This Article argues that the current emotional disturbance definition fails to protect African-American students from being incorrectly identified with emotional disturbance due to culturally-insensitive procedures and that Congress or the Department of Education (DOE) should create a culturally-sensitive definition to remedy this situation. There are two intended consequences of changing the definition. One, a new definition will prevent schools from labeling a child with emotional disturbance simply because his culture differs from that of his school administrators. Two, the definition would provide a standard, which does not solely rely on the school official's opinions, for courts to use in determining whether the school correctly identified the child with emotional disturbance.

   Section Two of this Article traces IDEA's development and the current emotional disturbance definition. Section Three describes the problems associated with the definition, including statistics on the over-identification of African-American students with emotional disturbance. Section Four explains how the disparity results from cultural misunderstandings and biases, and the resulting educational policy problems. Section Five describes how current enforcement mechanisms fail to remedy the problem. Section Six suggests a framework for an alternative, culturally-sensitive definition.

2. HISTORY AND MANDATES

   1. IDEA'S HISTORY

      Before delving into the problems with the current emotional disturbance definition, it is necessary to understand why Congress created IDEA and what its key provisions require. (17) As America developed from a rural, colonial society into a modern, industrial nation, adults and children with disabilities were often segregated from the non-disabled population by being placed in mental institutions. (18) Beginning in the 1940s, society determined that it was better for people with disabilities to be in mainstream communities and public schools. (19) To facilitate this new mainstream movement, federal and state government agencies deinstitutionalized the old, isolated mental health system and moved people with disabilities into mainstream society. (20)

      Students, however, continued to face severe segregation and discrimination. (21) Before IDEA, the "number of children excluded from the public education system was massive." (22) In 1974, public schools excluded approximately one million children on the basis of disability. (23) Of the six million children with disabilities who did attend school, nearly half of them received no special education services. (24)

      Congress responded to discrimination in the public schools by enacting the Education for All Handicapped Children Act in 1975, (25) which was amended and renamed the Individuals with Disabilities Education Act in 1991. (26) Congress amended and reauthorized IDEA in 1997. (27) In 2004, Congress again amended and reauthorized IDEA as the Individuals with Disabilities Education Improvement Act. (28)

      Senator Robert Stafford, an IDEA sponsor, explained that Congress found the legal underpinnings for IDEA in cases such as Brown v. Board of Education and Pennsylvania Association for Retarded Children v. Pennsylvania (PARC). (29) In Brown, the Supreme Court reasoned that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (30) While Brown dealt with equal education in terms of race, subsequent courts extended its principles to disability in cases such as PARC, a court-inspired predecessor to IDEA. (31)

      In PARC, parents of students with mental retardation brought a class action civil rights lawsuit against Pennsylvania seeking numerous forms of relief, including a ruling that certain state statutes exempting the state from educating students with disabilities were unconstitutional. (32) After an initial hearing and appeal, the parties reached a partial court-approved settlement "that no child who is mentally retarded or thought to be mentally retarded could be assigned initially (or re-assigned) to either a regular or special educational status, or excluded from a public education without a prior recorded hearing before a special hearing officer." (33) PARC's holding was one of the first court decisions to recognize that students with disabilities deserve a public education on par with their non-disabled peers. (34) PARC and Brown paved the way for Congress to create IDEA and mandate that all students, regardless of ability, receive an educationally-beneficial education.

   2. IDEA'S MANDATES

      1. The Individualized Education Plan

         IDEA's key component is the...