A New "IDEA": Ending Racial Disparity in the Identification of Students with Emotional Disturbance
Oelrich, Nicole M., South Dakota Law Review
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.
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. …