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Presenters: Cynthia D. Vargas, Esq., Fagen, Friedman & Fulfrost;

Zhanna Preston, Executive Director Murrieta Valley USD;

and

Jon Eyler, Ed. D, CEO, Collaborative Learning Solutions

With the assistance of: Caryl Miller. Ed. D, Financial &

Program Analyst

Let’s Avoid Disproportionality

www.f3law.com

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Agenda

What is disproportionality in general?Why does it matter?

What is “significant disproportionality”?Why does it matter?

What are the causes? How to determine if your district is at

risk? How to minimize the risks?

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Disproportionality in Special Education Disproportionality is when the

percentage of students with a specific characteristic (e.g., race or ethnicity) enrolled in, and eligible for, special education is higher or lower than their proportion in the general population

It generally results in the over-identification of a particular group in special education

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An Example

In California, during the 2008-2009 school year: African-American students comprised

7.5% of the general population, but 10.92% of special education students

Asian students comprised 12.2% of the general population, but 6.84% of special education students.

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Disproportionality in Discipline

Those school districts with a significant discrepancy from the state rate with regard to the suspension and/or expulsion of students for a period greater than 10 days in a school year

CDE calculated a statewide rate (based upon previous school year) and added a 2 percent variation The current state rate was .54% + the 2 %

variance This year’s state bar is 2.54 %

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An Example The USDOE estimates that

By Disability: In 2009-2010, 13% students with disabilities were suspended at least once, compared to 7% for non-disabled students

By Race: In 2011-2012, black students represented 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once

By Race: In 2011-2012, English learners make up 5% of high school enrollment but 11% of high school students held back each year

(Expansive Survey of America's Public Schools Reveals Troubling Racial Disparities; USDOE (March 2014).)

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IDEA Mandate The IDEA mandates that states and

LEAs address disproportionality in special education and student discipline Define, calculate and report disproportionality Monitor compliance Provide for the review of policies, procedures and

practices Identify those school districts that are

“significantly disproportionate”

(CDE Guidance on Disproportionality, Critical values and beliefs, background, goals, data, and improvement strategies related to disproportionality (May

2014).)

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Why Does Over-identification Matter? Less likely to receive access to rigorous

and full curriculum Experience higher drop out rates Limited post-secondary opportunities Separation from non-disabled peers Increased sense of social

stigmatization

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Why Does Disproportionality Matter? Tracking of disproportionality is

required under the IDEA States must collect and examine data and

monitor the LEAs located in the state, using quantifiable indicators in each of the following priority areas:

Disproportionate representation of racial and ethnic groups in special education, to the extent the representation is the result of inappropriate identification.

(20 U.S.C. 1416 (a) & 1418 (d); 34 C.F.R. 300.600(d) and 300.646(b).)

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Why Does Disproportionality Matter? Discrimination claims?

IDEA violations, including evidence of disproportionality in special education programs does not necessarily result in per se race discrimination

Race discrimination requires discriminatory intent

However, if a district knows that a particular race or ethnicity is overrepresented in special education programs, it must review identification, evaluation and placement procedures to address deficiencies

Blunt v. Lower Merion School District (E.D. Pa. 2011) 826 F.Supp.2d 749, 111 LRP 67652

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Why Does Disproportionality Matter? Inappropriate use of special education

funds for children who should not qualify

Inefficient use of special education funds, which must be devoted to address issues of disproportionality

State mandate to identify and monitor “significant disproportionality”

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How is a LEA Identified as Being “Disproportionate”

First, a LEA will be identified as “disproportionate” if within the current year it does not meet the rigorous target rates related to key indicators tracked by the state More on the indicators later

The LEA is not yet “significantly disproportionate” at this point, but it may be at risk

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What is “Significant Disproportionality” and how it is identified? A calculation of race or ethnicity related to the

identification of children in special education, including specific categories; and the incidence, duration, and type of disciplinary actions, calculated over a period of time

It is determined as follows: The LEA is identified as disproportionate during

the current year; AND The LEA has had disproportionate representation

in 2 out of the prior 3 years in the same cells for each of the key indicators tracked by CDE

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What Are the Key Indicators?

Indicator 4a – Suspension and expulsions overall Indicator 4b – Suspensions and expulsions by

Ethnicity Indicator 5b – Students in general education less

than 40% Indicator 5c – Students served in NPS, RTC and HHI Indicator 9 – Disproportionality in special education

overall Indicator 10 – Disproportionality in special

education, by eligibility categories

(Calculation Methodologies; CDE, Assessment, Evaluation, and Support Unit (Feb. 2012).)

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Once a LEA Is Identified as Significantly Disproportionate, Then What? The state must monitor to ensure that the

LEAs policies, procedures, and practices are compliant, and that they do not lead to inappropriate identification

The state must monitor to ensure that the LEAs policies, procedures, and practices with regard to suspensions and expulsions are compliant

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Once a LEA is Identified as Significantly Disproportionate, Then What? The LEA will be required to complete a self-

review of their policies, procedures, and practices With some exceptions if the LEA is already under

a corrective action plan

and Reserve 15% of its federal IDEA allotment for

“Coordinated Early Intervention Services” (CEIS)

(20 U.S.C. 1418(d); 34 C.F.R. 300.646(b); Special Education Resource Center, Keenan & Associates.)

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Once a LEA Is Identified as Significantly Disproportionate, Then What? For a 27 month period LEAs identified

as significantly disproportionate must report on: The number of students receiving “SD-CEIS”

supports; and The number of students who received early

intervention services and who subsequently received special education within two years after receiving CEIS

(CDE Guidelines on Disproportionality (May 2014).)

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Causes of Disproportional Representation This is a complex issue At least four key reasons:

Lack of effective pre-referral instruction and intervention services

Bias in the/incomplete assessment process Teacher inexperience with classroom

management and cultural behavior differences

Underlying cultural ignorance in staff and school processes

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Is Your School District at Risk?

Each year the state monitors the key indicators

The state compares each school district with the benchmarks of the state

If not meeting the benchmarks, then identified as “disproportionate”

This information is reported to the various SELPAs

SELPAs then distribute the information to the individual LEAs

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Can We Monitor Ourselves?

Absolutely, I am so glad you asked that question!

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Self Monitoring The specific key indicators are on CDE’s website

http://www.cde.ca.gov/sp/se/ds/leadatarpts.asp Also, verify whether you are meeting your target

goals http://www.cde.ca.gov/sp/se/qa/

Student reporting systems have the capability of gathering more specific data CASEMIS Enrollment Discipline

Contract with outside organizations to track data

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How Do We Prevent It?

Understand the causes Develop a self-monitoring process Implement preventative measures Keep an open dialogue Work with the CDE if there is a finding

of disproportionality

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Pre-Referral Practices Examine the quality of instruction and

classroom management of the referring general education teacher What pre-referral strategies have been

implemented? Are referrals primarily behavior-based?

Rigorously rule out ELL status Have efforts been made to reach out

to minority parents prior to referral? Community services? Parent-Teacher conferences to address behavior?

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Pre-Referral Practices

Is parental-rights information pursuant to the IDEA being provided appropriately to language minority parents?

Are we fully examining environmental factors:

Screening for hearing and vision or environmental risk factors in the home (e.g., lead levels);

Excessive absences, displacement (family mobility);

Lack of consistent access to technology or supplies

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Assessment Policies and Practices The IDEA requires that all assessments be

administered in a “non-discriminatory” manner

However, the National Council on Disability finds a higher level of over-identification in areas where assessment is "judgmental" (i.e., based on subjective observation rather than actual tests): Emotional Disturbances; Other Health Impairments; Autism; and Intellectual Disabilities.

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Assessment Policies and Practices Use multiple measures and modalities,

including non-verbal assessments where appropriate. Evaluations should be individualized Evaluations should be completed by appropriate

personnel

Must be “administered so as not to be racially, culturally, or sexually discriminatory” (Ed. Code § 56320(a).)

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Assessment Policies and Practices “Shall be provided in the pupil’s native

language or mode of communication, unless it is clearly not feasible to do so.” (Ed. Code § 56320(a).)

“Provided and administered in the language and form most likely to yield accurate information on what the pupil knows and can do academically, developmentally, and functionally….” (Ed. Code § 56320(b)(1).)

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Assessment Policies and Practices Observations “in an appropriate setting” should

include both measurable (numeric) and observable data as well as a narrative ruling out possible cultural reasons for identified behaviors. (Ed. Code § 56327(c).)

Examine the quality of the general education instruction and classroom management techniques.

Evaluators should gather, include and consider information about the student’s home and family culture. What about attendance/truancy?

Family members should be included throughout the evaluation process (as appropriate).

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Assessment Policies and Practices Rule out environmental or socio-

economic factors (including life stressors)

Document this discussion in both the assessment and during any IEP team meetings

Report on “educationally relevant health and development, and medical findings, if any.” (Ed. Code § 56327(e).)

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Assessment Policies and Practices Examine a student’s previous

instruction in math and reading to determine if this is the primary reason for learning or behavior difficulties

Allow for ample time for assessment

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Early Intervention

Is the student’s behavior impeding his or her learning (or the learning of others)?

If so, consider: Strategies to respond to behavior; Behavior supports; and Behavior interventions

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Early Intervention

Intervention strategies can include: Supporting teachers to implement

classroom management programs and accommodations

Educating general education teachers as to the truth about mental health disabilities (ending the stigma)

Encouraging collaboration between general and special education teachers, as well as support staff (e.g. counselors, nurses), administration, and (perhaps) private providers to establish a consistent approach

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Early Intervention

Individual Supports and Services: Classroom accommodations or

modifications Sensory breaks or objects Time outs Preferential seating Token economies Creative strategies

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Supporting Teachers Examine whether this is racial disparity among

teacher referrals By race? By experience of teacher?

Examine whether referrals come from teachers with classroom management issues. Provide support in classroom management

techniques Provide on-going training and supervision

Ensure all teachers have been trained to effectively participate in pre-referral intervention strategies. Response to Intervention (RTI)—Academics and

Behavior

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Supporting Teachers Allocate time for general education and

special education teachers to collaborate on a routine basis

Ensure that teachers are making a consistent effort to communicate with parents Are teachers given the time and opportunity to

do so? Are they encouraged to do so? Do they know how?

Ensure that all students are given access to enrichment opportunities, technology and supplies

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Understanding Biases

Ensure administrators and teachers are trained in sensitivity to racial and cultural bias in instruction and assessment

Cultivate a diverse culture through curriculum and student expectations

Include both special and general education teachers in discussion and review of data

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Understanding Biases

Understand that behavioral standards may be culture-bound

Behavioral incidents may occur as a result of “cultural mismatch” – Address these accordingly.

What are the differences between a student’s culture and the school’s culture? What are the expectations?

What if the child is from another country?

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Keeping an Open Dialogue

Issues of race can be sensitive

Keep an open, nonjudgmental dialogue to address biases and solutions

Get “ahead of the game” and pinpoint where any disproportionality may exist. Are certain programs racially unbalanced? Do certain administrators or teachers express a

bias?

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .