by Diane Smith
Disability Advocacy Specialist
Protection & Advocacy systems (P&As) are best known for their
special education casework, but there are many other forms of advocacy
which are just as important in order to truly protect the rights of students
with disabilities. The casework itself must address every aspect of the
students school experience, not just the content of his or her Individualized
Education Plan (IEP), or the type of services provided (although these
issues remain extremely important).
P&A staff:
• Comment on regulations and policies proposed by government agencies.
• Form coalitions of disability groups and national working groups of
special education advocates and attorneys in order to strategize or to
solve a particularly difficult problem.
Amendments have been proposed to the Individuals with Disabilities
Education Act (IDEA) which would allow school districts to cut off special
education services for students who are long term suspended or expelled
for bringing a weapon, gun, firearm or illegal drugs to school, or possession
at school or a school function. This is an important issue not only for
the very small percentage of special education students who face this type
of discipline, but also as a precedent-- allowing for the first time, the
complete cessation of services for special education students. These amendments,
if they become law, will have a significant impact on students with disabilities.
Staff of the Advocacy Center Training and Technical Assistance Center of
the National Association of Protection & Advocacy Systems, Inc. (ATTAC/NAPAS)
has information regarding the potential impact of these proposed amendments
as well as other possible solutions to school safety problems. Staff is
working with other disability groups around this issue.
• Serve on the steering committee of state self assessment teams which
prepare the reports that the Department of Education (DOE), Office of Special
Education Programs (OSEP) uses when monitoring states to see if they are
complying with IDEA and Section 504.
• Meet with federal agency and legislative staff to educate them about
practical issues and access barriers that P&A staff encounter in the
field.
Enforcement of Section 504 and the IDEA by the federal government
is an important issue, since a statute is only as strong as it is enforced.
NAPAS staff meet with US Department of Education, Office of Civil Rights
(OCR) staff, which enforce Section 504, to discuss ways to make its enforcement
more effective. P&A and NAPAS staff also meet with a coalition of education
related disability groups to discuss monitoring and enforcement by the
US Department of Education OSEPs, which enforces the IDEA.
The P&As casework demonstrates a broad view of the role of education
in the life of a child with a disability. For school age children, school
is more than just a place to learn the specific skills necessary for a
life in the adult work force. It is also the location of recreation, athletics,
health, nutrition, social and ethical training. It is, in essence, a reflection
of all aspects of the childs life. Here are some examples of work the P&As
have done in other areas of a childs school day:
§ J.A., a young student in Northern Marianas, required a power
wheelchair to get around at school. The school district refused to provide
the expensive device, and the case went to a due process hearing. J.A.
won his hearing, and the hearing officers fifty page decision ordered that
the district provide:
1) an evaluation of how he would actually use the chair in his day to day life, both at home and at school;
2) a training program on the use of the wheelchair, including if necessary, one-to-one aides to provide the training;
3) a physical therapist to create the professional physical therapy goals, objectives, and services he needs to operate the chair;
4) any other services he needs to meet his communication and independent mobility needs, so that he can be included in the regular classroom; and
5) one full year of compensatory education.
• In a California case, students access to social time with peers and
extracurricular activities was a key issue. One student had been "included"
in the regular education classroom but could not get physically close to
the other students because her wheelchair would not fit all the way down
the aisle. Students with disabilities were also excluded from field trips
and school assemblies. The county department of education agreed to integrate
students more completely, as part of the settlement of the case.
• In a Michigan case, students with learning disabilities in an all
day high school resource room were prevented from using the schools brand
new $50,000 computer lab, and were expected to make do with one very outdated
terminal located within the resource room itself. The principal said "those
students will never need to use a computer in their jobs." and that it
would be too time consuming for the person who supervised the lab to help
them. Knowing that the use of a personal computer was an essential part
of work, school and recreation, the exclusion from the computer lab frustrated
one student and he sought help from the P&A. As a result of P&A
intervention, the students in the resource room received computer training
by an LD certified teacher, and the same access to the lab as the other
students.
The number of cases regarding access to all of a schools programs, including its extracurriculars, may increase because the IDEA regulations released in March 1999 specifically address the need for inclusion in these areas.
The 8th Circuit Court of Appeals which handles appeals
from federal district courts in Iowa, Missouri, Minnesota, Nebraska, North
and South Dakota, and Arkansas recently held that Section 504 could not
be enforced against state governments, and the IDEA could only be enforced
when the state gave its permission to be sued (i.e. has waived its right
to immunity). This is a very important and concerning decision because
the states hold a great deal of responsibility under both statutes. The
decision set a legal precedent in the 8th Circuit states, and
could have implications for the rest of the nation as well. On September
29, 1999, NAPAS and P&A attorneys are meeting with representatives
from the US Department of Justice (DOJ) to collaborate around this issue.
Federal
Government Reports on Race and Gender In Special Education*
The U.S. Department of Education (DOE), Office of Special Education
Programs (OSEP) is the federal agency which monitors states to ensure that
they are complying with the IDEA and its regulations. OSEPs most recent
annual report to Congress includes national inforation about race, ethnicity,
and gender in special education. This article is only a summary of the
OSEP report - the original report (at http://www.ed.gov/offices/OSERS/OSEP/OSEP98AnlRpt.)
provides more detailed information.
RACE
Identification and Placement
According to the OSEP report, African American students nationally make
up 16% of the elementary and secondary school enrollments, but 21% of the
total enrollments in special education. Poor African American students
are 2.3 times more likely to be identified by their teacher as having mental
retardation than their white counterparts. Children categorized as eligible
for special education because of emotional disturbance are more likely
to be African American, male, economically disadvantaged, and living in
a single parent home, foster home or other alternative living arrangement
(as defined by the study). Research suggests that some of the reasons for
the high identification of African Americans as emotionally disturbed may
be (culturally based) teacher expectations about behavior, and tests which
are not culturally sensitive.
Both minority students in general, and students identified as emotionally
disturbed, are more likely than other students to receive special education
services in less inclusive and/or segregated settings, such as special
education classrooms or schools. In fact, the majority of students with
emotional disturbance receive most of their services in (disability) segregated
environments The report suggests that reasons for this segregation include
the failure to provide the supports the student needs to succeed in a regular
education setting, a decline in the use of resource rooms, and rising academic
and behavioral standards.
Since very poor students are overwhelmingly represented in special education
and a student may be both a minority student and be very poor, it is not
always possible to pinpoint the exact cause of the disproportionate representation
of minority students in special education. However, research completed
for the U.S. House of Representatives in 1997 suggests that the special
education identification process is often reactive, subjective, limited
by a local lack of culturally and linguistically appropriate assessment
tools, driven by institutional needs, and constrained by parental concerns
about negative labels.
Outcomes
Males, African Americans, and students with an annual family income
under $12,000 are more likely to be placed in restrictive settings, less
likely to receive counseling at school, less likely to graduate, and more
likely to drop out than their female, White, and more affluent counterparts.
In fact, more than 50% of minority special education students in large
cities drop out of school. The drop out rate for minority special education
students is 68% higher than it is for White special education students.
A study tracking students categorized as emotionally disturbed, a special
education category which is disproportionately populated by African American
students, found that within 3-5 years of leaving school, 48% of the female
students were mothers as compared to 28% of female students with other
types of disabilities. Also, 58% of the former students had been arrested,
as compared to 19% for students with other disabilities.
The 1997 Amendments to the IDEA require that local education agencies
(school districts) use tests and other evaluation materials which do not
discriminate racially or culturally to identify students as eligible for
special education. All states are required to collect and examine data
to see if a "significant disproportionality based on race" is occurring
in the identification or placement of students with disabilities. If a
state sees that a significant disproportionality exists, it must review
and revise the state policies, procedures,and practices that are used to
identify or place students.
GENDER
Identification
Two thirds of all students in special education are male, although they
make up about half of all students. In secondary school, the percentage
of males is much higher in the general special education categories of
learning disabilities (LD), emotional disturbance (ED), and multiple disabilities,
and is somewhat higher in mental retardation and speech impairment (SI).
There is a more proportionate number of female students in the categories
of visual impairment, hearing impairment, deafness, orthopedic impairment
and other health impairment. In general, girls in special education may
have more severe disabilities than boys.
The report suggests that some reasons for the greater representation
of boys in special education are: 1) Girls mature earlier than boys; 2)
Boys behavior may predispose them to identification for special education;
3) Teachers may react differently to boys than to girls; 4) The methods
used to identify students with LD, ED and SI may be biased in favor of
girls; 5) There may be physiological differences, such as girls are believed
to have fewer birth defects than boys; 6) Although they are equally likely
to have LDs, Attention Deficit Disorder (ADD) is more prevalent in males
and ADD can make it more difficult for a student to overcome LDs, causing
more boys to be categorized.
In one study, students who were given a test for reading disability,
and did not meet the criteria for a reading disability based on the test
results, but who had difficulties with behavior, attention, fine motor
skills, and language were more likely to be identified as having a reading
disability. Students who did meet the criteria for a reading disability
based on test results, but were identified as having a reading disability
were likely to have no behavior problems. The report also suggests that
one reason girls are less often identified as ED, is that the evaluations
used to identify ED students do not pick up on such ED symptoms as depression,
suicidal ideation, and suicide attempts symptoms as easily as they do the
types of acting out (externalizing) behaviors that boys more often display.
More adolescent girls experience depression than boys. Those girls who
do get identified as ED tend to show externalizing behaviors.
Outcomes
Girls in special education tend to do better than boys in school environments,
e.g. they receive better grades, graduate at higher rates. However, once
they are out of school, boys are more likely to be employed, have higher
wages, work more hours, and are more likely to enroll in post secondary
education or training.
THE ADVOCATES ROLE
Advocates can correct individual cases, for example, by ensuring that
a student is receiving the supports he or she requires to remain in the
regular education classroom -- to prevent placement in a segregated setting.
Advocates can also assist states and districts by pointing out policies
that appear to result in the inappropriate identification, and/or placement
of minority students with disabilities into segregated or less inclusive
settings.
Advocates can also point out cases where gender seems to be a factor,
e.g. female students with emotional impairments who are overlooked, or
male students with behavior problems who have been wrongly identified as
having learning disabilities. Often behavior problems can be solved successfully
outside of special education with the right interventions. Advocates can
also point out policies which appear to result in gender discrimination.
All civil rights violations should be reported to the appropriate state
and federal civil rights enforcement agencies.
*The information in this article is based solely on the OSEP report,
the IDEA statute and its regulations, except for the section on the advocates
role.
WORK BEING DONE IN THIS AREA
The Native American P&A was involved in a class action lawsuit alleging
that students received different levels and quality of special education
services because of their race. In California, one of the nations largest
school districts, Los Angeles Unified School District, was sued in a class
action law suit regarding the over-identification of African American students
as mentally retarded. As part of the resolution of that case, Los Angles
stopped using IQ tests to determine eligibility for special education.
SPECIAL EDUCATION LINKS
U.S. Department of Education, Office of Special Education and Rehabilitation
Services, Office of Special Education Programs (OSEP): www.ed.gov/offices/OSERS/OSEP/index.htmlContains
the annual reports to Congress as referenced in this issue, information
about the IDEA 97 and the new regulations, copies of state monitoring reports
and other useful information.
Other Links Which May Be Of Interest
To The Special Education
Advocacy Community
The ARC of the US: www.thearc.org/
Council of Parent Advocates and Attorneys: www.copaa.net
Family & Advocates Partnership for Education (FAPE), of the PACER Center: www.fape.org
National Center for Youth Law: www.youthlaw.org/contact.htm
National Parent Network on Disabilities (NPND): www.npnd.org
Rehabilitation Engineering and Assistive Technology Society of North America: www.resna.org
TASH: www.tash.org/misc/index.htm
United Cerebral Palsy Association: www.ucpa.org
* These links are provided as a public service only. NAPAS does not review the material on these sites on a regular basis, and does not verify any of the information they contain. Nor do we mean anything by the omission of a site. If we have overlooked an important site, please let us know so our list can be as complete as possible.