MEMO: OSEP Memo 07-09 Disproportionality of Racial and Ethnic Groups in Special Education (April 24, 2007)

UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES APR 2 4 2007 MEMORANDUM TO : State Directors of Special Education FROM : Alexa Posny Director Office of Special Education Programs SUBJECT : Disproportionality of Racial and Ethnic Groups in Special Education As you know, the disproportionate representation of children from divers e racial and ethnic backgrounds in special education is a longstanding national issue and co ntinues to concern the public . The phenomenon of disproportionality is particularly troubling when on e considers that the proportion of minority students in the population of school-age chil dren has risen dramatically-to 35% as of 2000-increasing the diversity of students in m any public schools throughout the nation . As minority children continue to comprise an increasing percentage of public school students, the Federal government must be responsive to the growing needs of an increasingly diverse society . Excerpts from findings in the Individuals with Disabilities Education Ac t (IDEA) 2004's statute note that : (1) greater efforts are needed to prevent the intensification of pro blems connected with mislabeling minority children with disabilities ; (2) African-American children are identified as having mental retardation and emotional disturbance at rates greater tha n their white counterparts ; (3) more minority children continue to be served in special educatio n than would be expected from the percentage of minority students in the general scho ol population ; (4) in the 1998-1999 school year, African-American children represented 14 .8% of the population aged 6 through 21, yet comprised 20 .2% of all children with disabilities served in our schools ; and (5) studies have found that schools with predominately white students and te achers have placed disproportionately high numbers of their minority students into special education . The Department understands the complexities States are facing in fully a ddressing disproportionate representation . The IDEA requires States and local educational agencies (LEAs) to take steps to address disproportionate representation in spe cial education . The statute 400 MARYLAND AVE .,S .W .,WASHINGTON, D .C. 20202 www . ed. gov Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation . Contact Persons Name : Ruth Ryder Telephone : (202)245-7513 Name : Perry Williams Telephone : (202)245-7575 OSEP 07- 09 Page 2 - State Directors of Special Education and regulations for IDEA-Part B include important changes in how States and LEAs now must address disproportionate representation in special education . Changes in Part B include a more extensive examination of disproportionality and more extensive remedies where findings of disproportionality occur . In order to properly implement these changes, it is critical for State s to understand the differences between the requirements in the monitoring pr iority indicators (Indicators 9 and 10) that address disproportionality that is the resu lt of inappropriate identification [20 U .S.C . 1416(a)(3)(C) ; 34 CFR §§300 .173 and 300 .600(d)(3)] and the requirements concerning significant disproportionality identified throug h the collection and examination of data [20 U .S.C . § 1418(d) ; 34 CFR §300 .646(b)] . Disproportionality as a Monitoring Priority Area States are required to address disproportionality that is the result of inappropriate identification in the State Performance Plan (SPP) Indicators 9 and 10 . Under these indicators, which are based on statutory language at 20 U .S.C . 1416(a)(3)(C), States are required to review the LEAs in the State to determine the extent to which the disproportionate repre sentation of racial and ethnic groups in special education is the result of inappropriate identi fication . Failure to conduct this analysis will be cited as noncompliance with the requirements of 34 CFR §300 .600(d)(3), which requires that States monitor LEAs with regard to disproportionate representation of racial and ethnic groups in special education and related services, to the exte nt the representation is the result of inappropriate identification . We believe that the inclusion of disproportionality that is the result o f inappropriate identification in the State monitoring and enforcement component of the law clearly reflects the seriousness with which Congress viewed this issue . The focus of monitoring priority indicators 9 and 10 of the SPP is on disproportionate representation that is the re sult of inappropriate identification . This language signals that more than just an examination of numerical information is required to respond to and appropriately address the moni toring indicators . After reviewing the numerical information, States need to probe instances in w hich they identify disproportionality to determine whether it is the result of inappropriat e identification . States must report annually to the Secretary on the performance of the S tate on these indicators . States also must report to the public on the performance of each LEA in the State on an annual basis . This annual report must include the State's findings regarding disprop ortionality in the LEAs in the State resulting from inappropriate identification related to representation of racial and ethnic groups in special education and the representation of racial and ethnic groups in specific disability categories . Significant Disproportionality States have a separate obligation, under 20 U .S.C . 1418(d) and 34 CFR §300 .646, to collect and examine data to determine whether significant disproportionality based o n race or ethnicity is occurring in the State and LEAs of the State with respect to the identif ication of children as children with disabilities, including identification as children with pa rticular impairments ; the placement of children in particular educational settings ; and the incidence, duration, and type of disciplinary actions, including suspensions and expulsions . States must make this determination on an annual basis . When the State educational agency (SEA) identifies LEAs with signifi cant Page 3 - State Directors of Special Education disproportionality in one or more of these areas based on the collection and examination of their data, States must : 1) provide for the review (and, if appropriate) revision of policie s, procedures, and practices ; 2) require the LEA to reserve the maximum amount of funds to be used for early intervening services ; and 3) require the LEA to publicly report on the revision of policies , procedures, and practices . With one important caveat, each State has the discretion to define what constitutes significant disproportionality for the LEAs in the State and for the State in genera l . The caveat is that a State's definition of significant disproportionality needs to be based o n an analysis of numerical information, and may not include consideration of the State's or LEA's p olicies, procedures or practices . This is because section 618(d)(2) of the Act is clear that a revie w of policies, practices and procedures is a consequence of, rather than a part of, a determinati on of significant disproportionality by race or ethnicity . Therefore, in identifying significant disproportionality, a State may determine statistically significant levels of disproportionali ty . There are multiple factors at the State level to consider in making such determinations . For example, States may want to consider the population size, the size of individual LEAs, and t he composition of the State population . When States make determinations of significant disproportionality based on race or ethnicity with respect to the identification of children as children with disabili ties, the placement in particular educational settings of these children, or the incidence, dur ation, and type of disciplinary actions (including suspensions and expulsions), three imp ortant provisions are triggered . First, the State must provide for the review and, if appropriate, revisi on of the policies, procedures, and practices used in the identification, placement, or disc ipline of children with disabilities, to ensure that the policies, procedures, and practices com ply with the requirements of the Act . [34 CFR §300 .646(b)(1)] The review of LEAs' policies, practices, and procedures for identifying, placing, and disciplining children with disabilities would occur for LEAs that, based on the numerical analysis, were identified as having significant disprop ortionality in identification, placement, or discipline . The purpose of this review is to determine if the policies, practices, and procedures are consistent with the requirements of the IDEA . Second, in the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, the placement in particular educational settings of such children, or disciplinary actions, the SEA must require the LEA to reserve the maximum amount (15%) of the flow-through funds it receives under Part B of IDEA to provide comprehensive coordinated early intervening services (EIS) to serve ch ildren who have not been identified as children with disabilities in the LEA, particularly, but n ot exclusively, children in those groups that were significantly overidentified . [34 CFR §300 .646(b)(2)] The Department interprets the phrase "reserve the maximum amount of funds" as meaning t o use the funds for early intervening services . The statute does not authorize LEAs to use these funds for any other purpose . It is important to note that the obligation to use 15% of the LEA's ID EA funds for EIS is triggered solely on a determination of significant disproportionality . In other words, the obligation to reserve funds for EIS occurs independent of any analysis o f whether that disproportionality is the result of inappropriate identification . Page 4 - State Directors of Special Education The third provision at 34 CFR §300 .646(b)(3) requires the LEA to publicly report on the results of its revision of policies, practices, and procedures used in identific ation, placement or discipline of children with disabilities (described under 34 CFR §30 0 .646(b)(1)) . Conclusion The disproportionate representation of minority students in special educ ation is an important issue for States to address . The Department believes that States and LEAs are making a concerted effort to reduce racial and ethnic disproportionality in ident ification, placement, and disciplinary actions . This memorandum references the key provisions under Part B of IDEA regarding the responsibilities of States and LEAs in addressing dispropo rtionality . It is critical for States to understand the differences in the requirements between the monitoring priority indicators that address disproportionality that is the result of inappro priate identification [20 U.S.C . 1416(a)(3)(C) ; 34 CFR §300 .600(d)(3)] and the separate and distinct obligation to collect and examine numerical data to determine if significant disproportionalit y is occurring . [20 U.S.C . §1418(d) ; 34 CFR §300 .646(b)] See the attached chart that clearly presents these two distinct requirements . We understand the complexities associated with fully addressing racial a nd ethnicdisproportionality and encourage States and LEAs to utilize the resource s provided by the National Center for Culturally Responsive Educational Systems (NCCRESt) . This information can be located at :www .nccrest .or g If you have any questions about implementing the IDEA requirements relat ed to disproportionality, please contact your Part B State contact in OSEP . Attachment cc : Regional Resource Centers Federal Resource Center NCCRESt Attachment Disproportionate Representation and Significant Disproportionality : Requirements in IDEA 2004 Disproportionate Representation Significant Disproportionality 300 .173 : State must have policies and procedures designed to prevent inappropri ate overidentification and disproportionate representation by race and ethni city of children with disabilities including children with disabilities with particular impair ments . 300 .600 : State must monitor LEAS in the priority areas : Disproportionate representation of racial and ethnic groups in special education and related services to the extent the representation is the result of inappropriate identification . 300 .646 : Collect and examine data to determine if significant disproportionality based on race and ethnicity is occurring in the State and LEAs with respect to identification of children with disabilities, including children with disabilities in accordance with particular impairments, placement in particular educational settings and incidence, duration and type of disciplinary actions, including suspensions and expulsions . Collect and examine data Identify LEAs with disproportionate representation, and of those, the number where the disproportionate representation is the result of inappropriate identification of children with disabilities (Indicator 9), including children with disabilities with particular impairments (Indicator 10) . Require LEAs with significant disproportionality to reserve 15% for EIS . Identifying inappropriate identification could include a review of policies, procedures and practices related to identification of children with disabilities (Indicator 9), including children with disabilities with particular impairments (Indicator 10) . Review policies, procedures and practices related to : Identification of children with disabilities, including children with disabilities with particular impairments, placement in education settings and incidence and duration of disciplinary actions . If disproportionality is due to inappropriate identification, require the LEA to correct the noncompliance, including revising deficient policies, procedures and practices . If policies, procedures or practices are deficient, require the LEA to revise to comply with the requirements . SEA must report in APR as follows : (# due to inappropriate identification)/all LEAs) and in next APR report on correction . Require the LEA to publicly report on the revision of policies, procedures and practices .