SPECIAL EDUCATION, OVERREPRESENTATION, AND END-RUNNING EDUCATION FEDERALISM: THEORIZING TOWARDS A FEDERALLY PROTECTED RIGHT TO EDUCATION FOR BLACK STUDENTS.

• Author: Nelson, Steven L.

TABLE OF CONTENTS INTRODUCTION AND STATEMENT OF POSITIONALITY I. Summarizing the Fight for a Federal Right to Education II. A Critical Race Perspective on the Foundations of Overrepresentation of Black Students in Special Education Programs A. Examining the Racial Roots of Racial Disproportionality in Special Education B. Implementing Special Education in Urban Environments: (Mis)Perceptions, (Under)funding, and Issues of Concentration C. There is some there there: Disproportionate Representation and Disproportionate Outcomes D. A Forked Tongue or ADouble-Edged Sword? Assessing the Impact of Special Education and School Reform on Marginalized Communities III. A Call for Intentional Overrepresentation of Black Students in Special Education Programs: Finland, Endrews v. Douglas County, and a Possible Band-Aid for Educational Racism IV. Reframing the All-Black Versus Desegregated School Argument CONCLUSION INTRODUCTION AND STATEMENT OF POSITIONALITY

It is possible that both the scholarly literature and the public perception of the overrepresentation of Black American students, especially those in special education programs, is both incomplete and self-defeating. From a practical standpoint, special education programs in the United States have the potential to offer Black American students specific legal rights to education, and these rights would be enforceable in federal courts. When I joined the legal department of a large legal non-profit with an interest in educational equity, I boldly stated that I would disrupt the disproportionate representation of Black male students in special education programs. Ironically, I typically argued in favor of special education identification when faced with the likely long-term removal of Black students from public schools during my tenure as an educate advocate. As an education advocate with graduate degrees in law and education, the majority of my daily tasks involved representing clients at meetings focused on the attainment of special education services for my clients as a method of thwarting disparate use and application of disciplinary policies. It was at this point that I realized the manner in which the judicial system, the legislative system, and the educational systems in the United States had conspired to fail Black schoolchildren. The most efficient and least risky path to disrupting the school-to-prison pipeline was to encourage the placement of Black students in special education programs. Surely, Black students in special education would live with the stigma of having been identified as disabled, but the students would, in fact, remain enrolled in public schools.

It was a particularly dangerous time for youth in the city of New Orleans during my times as an educator in the city's public schools and as an education advocate. The city had recently celebrated its ranking as the third most murderous city in the country, a fall from its usual position as most murderous. The joy of the city's reduction in murders hid a much more heart-wrenching truth: nearly two of every three people killed in the city were Black males under the age of thirty. Moreover, one in every five people killed in the city were under the age of eighteen. (1) Thus, one-fifth of all people killed in the city were (or should have been) students in New Orleans' public schools. Immediately, I knew that it was dangerous for these students to be removed from schools, to be roaming the streets--unsupervised--for hours. Even having these students enrolled in special education programs with a host of stigmas and perhaps being underserved was better than having them on the streets to potentially meet their fates. I, therefore, write this article with the intent of protecting Black lives, be that via graduation or the avoidance of fates that await Black children when they are pushed out, shut out, or snatched out of schools. (2) I write this article not solely to argue for the overidentification of Black students in special education programs but to consider whether such overidentification could lead to a federal right, even if temporary, to education for Black students, a right that has been denied countless times by the Supreme Court. Admittedly, this argument is dangerous in that runs the risk of causing further harm while not resolving educational racism in the short- or long-term. Therein lies my connection to the framework for this study--Critical Race Theory--which has argued since its founding that Black peoples in the United States face permanent and shape-shifting oppression. In this article, I will also use antiblackness as an intervention into Critical Race Theory. (3) I target the intentionality of racial oppression in educational institutions, or educational racism, through this intervention.

This article will proceed in several sections. After this introduction, the next section of this article will discuss education federalism. I introduce and explain educational federalism to detail the constitutional mechanisms by which inequitable educational opportunities and outcomes are developed and maintained in the United States. The section that follows the section on education federalism discusses and reframes the discussion of special education. In particular, I include the section on special education reform to highlight how race and special education have interacted to racialize disability status in our public schools. (4) The section that follows the section special education reform and race uses a recent case Endrews v. Douglas County to articulate a potential pathway to using the overrepresentation of Black students in special education programs to achieve a federal right to education for Black students. I dedicate the section that follows the section arguing for the overrepresentation of Black students in special education students to retelling the story of all-Black schools. In essence, I challenge the notion that all-Black schools are, in and of themselves, evil by design. Moreover, I attack the integration-or-bust argument head-on in arguing that Brown and its progeny have contributed to antiblack narratives about Black peoples and Black schools. I follow this section by providing concluding thoughts. In my concluding thoughts I discuss how my argument --admittedly, desperate--is the crux of what Critical Race Theorists are discussed for many decades. Additionally, I use my intervention into Critical Race Theory, antiblackness, to shed light on how the notion of choosing between marginalizations in public schools in, in fact, intentionally designed.

1. SUMMARIZING THE FIGHT FOR A FEDERAL RIGHT TO EDUCATION

   The benefits and disadvantages of the United States' system of dual governance, federalism, are best displayed in the area of education policy. Kimberly Jenkins Robinson argues that education federalism provides states and localities with unique opportunities for experimentation, creativity, and local input in determining the proper way to educate their respective communities. (5) Still, she counters that education federalism places many students at risk of marginalization, disenfranchisement, and oppression because education federalism tolerates inequitable education opportunities and outcomes both within and between states. (6) For instance, the United States has historically viewed its public schools as an assurer of equal opportunity''; yet consistent and persistent inequities in public education now cost the country billions of dollars annually due to losses in tax and income revenues, increased social welfare costs (8), and ballooning incarceration costs. (9)

   Educational federalism was a key theme in San Antonio Independent School District v. Rodriguez. (10) In Rodriguez, the Supreme Court rejected plaintiffs' arguments that unequal and inequitable school financing in Texas unconstitutionally violated the Fourteenth Amendment's Equal Protection Clause. (11) In rejecting the plaintiffs challenge to Texas' school financing scheme, a majority of the Court found that there was no textual support for evaluating education as a fundamental right. (12) As such, the Supreme Court could uphold Texas' funding structure if there were any rational reason for the state to enact the formula as policy. (13) Local control of public schools was among the various reasons the Court found as adequate and rational. (14)

   If there were any hopes that access to an equitable education would become a fundamental right, those hopes were quashed after Rodriguez. (15) In addition to the financial costs to greater society, Rodriguez as well as other Supreme Court precedent (16) (especially, Milliken v. Bradley (17)) have created other barriers to effective education policies that could potentially serve to advance equitable educational outcomes and opportunities. For historically and contemporaneously marginalized and disenfranchised communities, these precedents have served as amorphous boogeymen, often haunting and disrupting efforts at racial and ethnic justice, equity, and equality.

   As previously noted, education federalism has dashed efforts, especially those originating in federal court, towards equitable educational funding. (18) Post-Rodriguez, plaintiffs seeking equitable educational funding could only call upon state-based protections for equitable educational funding lawsuits. State-based lawsuits seeking equal educational funding initially appeared promising since every state has a constitutional provision addressing education, and a near supermajority of those states constitutions contain a provision assuring a "minimally adequate education". (19) Moreover, plaintiffs have historically been successful in obtaining equitable educational funding through challenges based in state law. (20) Unfortunately, state courts have begun to retreat from an era of judicial intervention in favor of deference to state legislators' preferences in the policy arena of state educational funding...