6
The Legal Context and the Referral Process

The assessment of students for the purpose of determining eligibility for special education or gifted and talented services is complex and often controversial. The complexities and controversies multiply when the students considered for special education come from disadvantaged minority populations or non-English-speaking families. Indeed, some have asserted that the principal reason for disproportionate placement in special and gifted and talented education is inappropriate and biased referral, assessment, and eligibility determination processes. In this chapter we first discuss the legal context for referral, assessment, and eligibility determination. We then turn to an analysis of the literature on referrals for consideration of eligibility for special education.

LEGAL CONTEXT

Determination of eligibility for special education is a complex process that is governed by extensive legal requirements at the federal and state levels. Eligibility for gifted and talented programs is less regulated, especially at the federal level; we therefore discuss the legal context for the two domains.

Federal Disability Legal Requirements

In special education, legal requirements exist at the federal level in the form of statute and regulation (Individuals with Disabilities Education Act



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Minority Students in Special and Gifted Education 6 The Legal Context and the Referral Process The assessment of students for the purpose of determining eligibility for special education or gifted and talented services is complex and often controversial. The complexities and controversies multiply when the students considered for special education come from disadvantaged minority populations or non-English-speaking families. Indeed, some have asserted that the principal reason for disproportionate placement in special and gifted and talented education is inappropriate and biased referral, assessment, and eligibility determination processes. In this chapter we first discuss the legal context for referral, assessment, and eligibility determination. We then turn to an analysis of the literature on referrals for consideration of eligibility for special education. LEGAL CONTEXT Determination of eligibility for special education is a complex process that is governed by extensive legal requirements at the federal and state levels. Eligibility for gifted and talented programs is less regulated, especially at the federal level; we therefore discuss the legal context for the two domains. Federal Disability Legal Requirements In special education, legal requirements exist at the federal level in the form of statute and regulation (Individuals with Disabilities Education Act

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Minority Students in Special and Gifted Education 1997, 1999). All of the major principles in the Education of All Handicapped Children Act (EHA) (1975, 1977), the forerunner of the Individuals with Disabilities Education Act (IDEA), have significant implications for assessment activities related to the determination of eligibility and the development of appropriate educational programs. For example, the most basic of the EHA/IDEA principles, access to appropriate educational services at public expense, vastly increased the number, complexity, and severity of students with disabilities in public school settings. Other principles, such as least restrictive environment, due process procedural protections, individualized educational programs, and confidentiality and parental access to records have similar vast implications for assessment that are beyond the discussion here (Reschly, 2000). The greatest legal influences on the determination of special education need and eligibility for disability status are the regulations governing assessment and decision making with children and youth with disabilities, first promulgated on August 23, 1977, as the Protection in Evaluation Procedures Provisions (PEP) (Education of All Handicapped Children Act, 1975, 1977). Specific features of these regulations were derived, often verbatim, from the previous consent decrees that settled class action court cases (Diana v. State Board of Education [Diana], 1970; Guadalupe Organization v. Tempe Elementary School District No. 3 [Guadalupe], 1972; Mills v. Board of Education [Mills], 1972; Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania [PARC], 1972). Incorporated into the PEP from these cases were regulations that required: (1) a comprehensive, individualized evaluation; (2) nondiscrimination regarding ethnic and cultural minorities; (3) consideration of multiple domains of behavior and not just a single measure such as IQ; and (4) decision making by a team of professionals with the participation of parents. The dual purposes of the PEP regulations were to ensure that all students with genuine disabilities were considered for special education and, conversely, those students with learning patterns and behaviors that appeared to be disabilities but were, in fact, due to cultural differences were not determined to be eligible for special education due to a disability. Not surprisingly untangling the differences between individual factors and cultural influences has been nearly impossible. The PEP regulations were not changed from 1977 until March 12, 1999, when the regulations for IDEA 1997 were published as the Procedures for Evaluation and Determination of Eligibility (PEDE) (34 CFR 300.530 to 34 CFR 300.543 (see Appendix 6-A at the end of this chapter). The change in title was accompanied by expansion from approximately 1,100 to approximately 1,900 words. The section of the regulations devoted to Additional Procedures for Evaluating Children with Specific Learning Disabilities (34 CFR 300.541 through 300.543) did not change and has

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Minority Students in Special and Gifted Education not changed since first published in 1977. All of the PEP regulations were incorporated into PEDE, along with several new regulations that reflect increasing concerns with the quality and usefulness of the information gathered during the full and individual evaluation related to eligibility determination and program development. In Appendix 6-A, the changes and additions that are new in the 1999 PEDE regulations appear in bold type. All of the regulations represent important decisions by Congress regarding the characteristics of the evaluation and decision making provided by schools to children and youth with disabilities. All have the force of law. Moreover, the boldface content represents recent efforts to improve the nature of the evaluation and decision making provided to students considered for disability classification and special education services. Continuing Regulations In this section, the IDEA PEDE regulations that were continued from the EHA (1977) regulations are discussed. Like EHA, IDEA 1997 continues to place responsibility on states to ensure that the PEDE regulations are implemented by local educational agencies. Full and Individual Evaluation The EHA regulations regarding assessment, eligibility, and placement provide the essential background for consideration of the new IDEA PEDE regulations. Perhaps the most important provision is the continuing requirement that every child must receive a full and individual evaluation prior to the provision of special education and related services (for a description of related services, see 34 CFR 300.24). The implication of this regulation continues to be that a thorough evaluation, tailored to the individual child, is needed prior to decisions about determination of disability or the development of an individualized education program (IEP). Best practice requires the individualization of the evaluation, which involves matching it carefully and precisely to referral concerns and the student’s learning and behavior patterns. These requirements imply the avoidance of standard batteries of tests or the use of a common set of procedures for all children, such as an IQ test, a test of visual-motor perception, and a brief screening test of achievement. Recent survey data suggest that a standard battery is still prominent in schools, although perhaps less common in the 1990s than in previous decades (Hosp and Reschly, 2002a). Such standard evaluation approaches do not adequately implement the ideas of a full and individualized evaluation.

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Minority Students in Special and Gifted Education Multiple Domains Other regulations continued in IDEA 1997 from the EHA regulations include the requirements that multiple domains of behavior be considered and, if appropriate, assessed thoroughly (34 CFR 300.532). The domains mentioned in this regulation are health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. This regulation, as well as many other parts of IDEA, requires professional judgments and individualization. The regulation does not require that every domain of functioning—intelligence, vision, health—be assessed with every child; rather, that all relevant domains be considered. Team Decision Making In addition to individualization and multiple domains of behavior, the IDEA continues the EHA requirements that a team, including professionals, parents, and, if appropriate, the child, is involved in the full and individual evaluation (34 CFR 300.533). Eligibility and placement decisions are viewed in the law as being too complex and important to allow reliance on a single specialty, such as school psychology, or on professionals generally without the involvement of parents. A continuing challenge is to adopt strategies that fully capitalize on the expertise of different professional specialties and the insights of parents in special education eligibility and intervention decisions. IDEA 1997 also continues the EHA regulations that (a) tests must be valid for the specific purpose for which they are used, (b) tests and evaluation procedures must be nondiscriminatory and administered in the child’s native language unless it is clearly not feasible to do so (see below), (c) no single test or procedure can be the sole basis for eligibility or placement, (d) tests are administered by trained and knowledgeable persons consistent with the instructions of the test publisher, (e) an IEP must be developed that meets extensive requirements if the child is eligible for special education, and (f) annual reviews of progress and triennial reviews of eligibility and program placements must be conducted. It is important to note that these regulations have been in place without any changes since 1977. New Regulations IDEA 1997 added several important regulations regarding assessment and decision making. Study of these regulations provides insight into areas seen by Congress as problematic in the implementation of mandatory special education legislation.

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Minority Students in Special and Gifted Education Disproportionality and Nondiscrimination Nondiscrimination and consideration of the child’s native language clearly receive greater emphasis in IDEA 1997, requiring additional practitioner efforts to avoid discriminatory practices or unwise decisions with children with limited English-speaking ability. The nondiscrimination clause has been and continues to be problematic. There is no consensus in the law or in the professional literature on a definition of discrimination or on criteria to judge specific practices as discriminatory (Reschly and Bersoff, 1999; Reynolds et al., 1999; special issue of the Journal of Special Education, 1998, vol. 32, no. 1). A subtle form of further direction to the states regarding nondiscrimination is provided in IDEA 1997 through a set of regulations dealing with disproportionality (34 CFR 300.755), signaling that disproportionate minority enrollment in special education should be investigated to determine if discriminatory practices exist (e.g., MacMillan and Reschly, 1998; Patton, 1998). The new regulation is also ambiguous. States are required to investigate “significant disproportion,” but no guidance is given about the degree of difference that is considered significant. Concerns about inappropriate decisions are reflected in 34 CFR 300.534, in which the “determinant factor” for eligibility cannot be the absence of instruction in basic academic skills or limited English proficiency. The latter provision undoubtedly reflects the concern that children and youth with limited English-speaking ability are penalized on tests due to language differences that can result in inappropriate eligibility and placement decisions. Greater scrutiny of the “fairness” of assessment, eligibility determination, and placement is likely over the next decade. Special education is not seen positively by many professionals, who view disability status and special education placement as continuations of historical patterns of racial discrimination. Strident criticism is often directed at special educators suggesting that eligibility is determined by discriminatory tests and that the programs are stigmatizing and ineffective (Patton, 1998). Minority overrepresentation in special education is seen increasingly as a symptom that provokes additional scrutiny by state and federal agencies. That scrutiny is taking the form of questioning traditional assessment practices, especially those tied to standardized intelligence and achievement tests, along with demands that the effectiveness of special education programs be documented for individuals and groups. Several subsequent regulations appear to be directed specifically to the concerns about fairness of assessment and effectiveness of programs. Generally, assessment procedures that do not rely on IQ tests and instead focus directly on educational needs and intervention design may be more acceptable to critics of current special education practices.

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Minority Students in Special and Gifted Education Functional Assessment and IEP Relevance Part b of Regulation 532 (see Appendix 6-A) is new and significant. First, a clear emphasis is placed on functional and developmental information gathered from a variety of sources, including parents. The functional requirement implies greater emphasis on gathering information in the natural setting that is directly relevant to the problem behavior and to interventions addressing the problem behavior. The requirement that the evaluation procedures address progress in the general education curriculum further solidifies the emphasis on natural setting and interventions. Although the term “functional” has varied meanings (see Tilly et al., 2000), all of the meanings in the literature have important implications for the implementation of the law. Practitioners are challenged to develop and tailor assessment procedures to more clearly reflect the problem behavior in the classroom, other school, and home settings. Behavior assessment and curriculum-based measurement methodologies typically provide information from the natural setting that is directly relevant to problem definition, special education need, and the design and evaluation of interventions. This section of the regulations, along with other sections discussed shortly, push the field toward problem-solving approaches featuring behavioral and curriculum-based assessment with less emphasis on standardized tests (Reschly, 1988b; Reschly and Tilly, 1999; Reschly and Ysseldyke, 1995; Tilly et al., 1999). These approaches have the advantages of being more acceptable to critics of special education and more closely related to ensuring effective programs. The three new regulations at the end of this section, 532 (h), (i), and (j), are directed toward ensuring that the assessment procedures are closely related to the development of the special education program. Emphasis is placed on identifying all of the child’s special education needs, assessment of the relative contribution of cognitive and behavioral factors and, most important, the collection of “relevant information that directly assists persons in determining the educational needs of the child.” Clearly, IDEA 1997 places significant emphasis on determining educational needs, not just disability classification and eligibility determination. Determination of Eligibility Several new regulations stress the procedures by which children may be diagnosed as having a disability. First, according to 34 CFR 300.534, the diagnosis has to be made by a “group of qualified professionals and the parent of the child.” Second, the school or other public agency must share with parents an evaluation report and the documentation regarding eligibil-

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Minority Students in Special and Gifted Education ity determination (whether or not the child is eligible). The reporting requirement was regarded as best professional practice for many years, although the kinds and amounts of information that are shared with parents are sometimes disputed. Integration of PEDE with Other IDEA Regulations The PEDE regulations do not stand alone. A good illustration of the interconnectedness of all of the IDEA (1997, 1999) regulations is apparent from studying the PEDE regulations in conjunction with the IEP regulations (34 CFR 300.340 to 300.350). First, the IEP regulations require the participation of someone on the IEP team who can interpret the instructional implications of the evaluation results. That person typically is a related services professional, such as a school psychologist. The IEP must include a statement of the child or youth’s present levels of educational performance, including how the disability affects involvement with and progress in the general education curriculum. The IEP also must address the student’s participation in the state and district-wide assessment programs, including any modifications of the assessment procedures to accommodate the needs of a student with a disability. Finally, the IEP must include information on the annual goals, short-term objectives, and measurement of progress toward these goals and objectives. IDEA 1997 suggests that all of the IEP requirements should be addressed in the full and individual evaluation governed by the PEDE regulations. Although all states are obligated to comply with federal regulations regarding assessment, broad discretion to states is permitted in the implementation of the regulations (see later discussion). For example, all states must implement a full and individual evaluation, but whether a test of general intellectual functioning is part of that evaluation is a matter of state discretion. The principal influences on what domains of behavior are assessed and how they are assessed reside not in the general assessment regulations, but in the conceptual definitions and classification criteria for specific categories of disabilities. Legal Requirements for Disability Classification Definitions in the federal regulations for the 13 disability categories have changed only slightly since the 1991 revisions to IDEA when two categories were added, traumatic brain injury and autism. Conceptual definitions are provided for each of the categories in the regulations; however, specific classification criteria are not provided (34 CFR 300.7). In fact, the federal definitions do not constitute a national classification system, since the states are permitted wide discretion in the names and numbers of dis-

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Minority Students in Special and Gifted Education ability categories, conceptual definitions, and classification criteria (Denning et al., 2000; Frankenberger and Fronzaglio, 1991; Mercer et al., 1996; Patrick and Reschly, 1982). The identification of a child as needing special education is a two-pronged determination: (a) a disability in obtaining an education must be documented and (b) need for special education must be established. Meeting one prong without meeting the other renders the child not eligible for special education and related services. The federal definitions generally include the phrase “adversely affects educational performance” to communicate the latter requirement as well as the language “. . . and who by reason thereof, needs special education and related services” [See Table 6-1, 34 CFR 300.7(a)(1)]. Future practices are likely to place additional emphasis on the special education need component of eligibility. This may be done by (1) strengthening interventions prior to referral and (2) determining empirically that well-designed and properly implemented interventions in general education are not sufficient to enable the student to receive an appropriate education. Social System and Medical Models The current disability classification system involves a mixture of underlying conceptual frameworks described by Jane Mercer as the social system and medical models (Mercer, 1979a; Reschly, 1996). Neither model is pure—that is, some students with social system disabilities show subtle biological disorders, and social system factors influence the expression and treatment of disabilities regarded as medical. Medical model disabilities include the nine disabilities that are regarded as low incidence, all with prevalence rates of well under 1 percent of the overall student population (e.g., multiple disabilities, hearing impaired). For virtually all of the students in these categories, there are clearly identifiable disorders of the central nervous system, sensory status, or neuromotor capabilities that can be said to cause the disability. Medical personnel identify most persons with medical model disorders prior to school entrance (see referral discussion in this chapter). The medical model disabilities recognized in IDEA are autism, deafness, deaf-blindness, hearing impairment, multiple disabilities, orthopedic disability, other health impairment, traumatic brain injury, and vision. The vast majority of students classified with disabilities, however, are in 4 of the 13 categories that are generally described as social system model disabilities. A special problem exists with mental retardation (MR), in that the mild level is typically a social system disability, while the more severe levels of MR are more consistent with a medical model (see the discussion of MR in the next chapter). Social system disabilities typically involve

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Minority Students in Special and Gifted Education TABLE 6-1 Distribution of Disabilities by Category: 1998 Category Age 6-17 Number Age 6-17 % of Enrollment Age 6-17 % of SWD State: Lowest Percent State: Highest Percent Factor High Incidence Learning Disability 2,536,359 5.53 51.07 GA 2.94 RI 9.09 3.09 Emotional Disturbance 421,701 0.92 8.49 MS 0.06 MN 1.98 33.00 Mental Retardation 530,116 1.16 10.67 NJ 0.31 AL 2.85 9.19 Speech/Language Impairment 1,044,616 2.28 21.03 HI 1.25 NJ 3.86 3.09 Total High Incidence 4,532,792 9.89 91.26       Low Incidence Autism 31,456 0.07 0.63 CO/OH 0.02 OR 0.24 12 Hearing Impairment 64,042 0.14 1.29 ND 0.08 WA 0.21 2.63 Visual Impairment 23,938 0.05 0.48 7 AT 0.03 TN 0.09 3 Orthopedic Impairment 62,110 0.14 1.25 AR/UT 0.03 MI 0.51 17 Other Health Impairment 155,249 0.34 3.13 4 AT 0.00 WA 1.44 144 Multiple Disabilities 86,946 0.19 1.75 9 AT 0.00 NJ 0.99 99 Deaf-Blindness 1,077 0.00 0.02 40 AT 0.00 ND 0.04 4 Traumatic Brain Injury 9,166 0.02 0.18 3 AT 0.00 PA/WY 0.07 7 Total Low Incidence 433,984 0.95 8.73       Grand Totals 4,966,776 10.84 99.99 HI 7.94 RI 15.09   NOTE: The categories of deaf and hearing impaired are combined for reporting purposes. SOURCE: U.S. Department of Education, Office of Special Education Programs (1998).

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Minority Students in Special and Gifted Education students for whom there are no underlying identifiable biological structures or functions that can reasonably be said to cause the disability. These disabilities are subtler and typically are not diagnosed until after school entrance. The disabilities that fit best into the social system model are specific learning disability (LD), mild mental retardation (MMR), emotional disturbance (ED), and speech and language impairments (SLI). The issue of disproportionality is acute in two of the four social system model disabilities, MMR and ED. Disproportionality is much less of an issue with LD and SLI (see Chapter 2). Disability Classification Policy Contrary to the interpretation of many professionals, IDEA does not now, nor arguably has it ever required the use of the federal definitions or even a disability classification scheme using traditional categories. In a policy clarification letter from the Office of Special Education Programs, Hehir (1996) noted the following as federal interpretation of the regulations regarding disability identification (23 IDELR 341) (emphasis added): Part B does not require States to label children. The definitions of “children with disabilities” at 34 CFR §300.7 must be used by States to prepare annual data reports for the U.S. Department of Education regarding the number of children in the State receiving “special education” and “related services” under the Part B program requirements. The Department has no objection to a State’s use of categories which differ from those specified in Part B or, if it elects, the use of a noncategorical approach so long as those children eligible under Part B are appropriately identified and served. Requirements regarding the categorical designation of students eligible for special education were made even more explicit in the following new regulation in IDEA (1999): “Nothing in the Act requires that children be classified by their disability so long as each child who has a disability listed in §300.7 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act” (34 CFR 300.125). States and local districts must serve all children with disabilities who are in need of special education, but they do not have to use disability labels or categories. System change to a noncategorical approach to special education eligibility along with other reforms is made more feasible by recent clarifications of federal legal requirements (Graden et al., 1988; Reschly, 1988b; Reschly et al., 1999; Reschly and Ysseldyke, 1995).

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Minority Students in Special and Gifted Education State Discretion As mentioned earlier in this report, states do, in fact, use broad discretion in the disability category names, definitions, and classification criteria. Some states do not use disability categories at all, only the broad designation that the child is eligible for special education based on educational need and very low performance in relevant domains of behavior (Tilly et al., 1999). As noted in Chapter 2, further evidence of state variations in the use of disability categories is apparent from a review of prevalence data reported by the states to the U.S. Department of Education (see Tables 2-10 to 2-15, Figures 2-5 to 2-8). In 1998 there were 33 times as many children eligible under the category of ED in Minnesota as in Mississippi (U.S. Department of Education, 1998). There were about nine times as many children reported under the category of MR in Alabama as in New Jersey, although that pattern is likely to change dramatically due to an Office for Civil Rights agreement with Alabama that changes substantially the identification of students as MR in that state. These huge variations in prevalence show definitively that the categories are used differently and inconsistently by the states (also see Chapter 2 on patterns of disproportionality). These differences occur due to idiosyncratic state funding mechanisms, variations in state classification criteria for the various disabilities, and other local, poorly understood influences. The classification criteria beyond the category name or the conceptual definition for the disability also are important influences. For example, some states require a discrepancy of 15 standard score points between intellectual ability and achievement as part of their LD classification criteria, while other states use discrepancy criteria such as 12 or 22 points (Mercer et al., 1996). The maximum IQ score used by states for determination of MR varies from 69 to 80. Other state variations of this kind exist, leading to large differences in the prevalence of different categories. Clearly, it is possible for a student to be classified as eligible for special education in one state and not in another or (which is more likely) for the disability category to change with a move across state lines (Denning et al., 2000; Frankenberger and Fronzaglio, 1991; Mercer et al., 1996; Patrick and Reschly, 1982). Although less well documented, in-state variability in the prevalence of different categories of disabilities also exists. Some of the variations may reflect different levels of performance in urban and suburban districts (Gottlieb et al., 1994, 1999), while others may be explained by the degree of rigor in applying state classification criteria in decisions about eligibility. Some of the intrastate variations are likely to reflect real differences in district student populations, while others cannot be easily explained.

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Minority Students in Special and Gifted Education capable of. This prompts the parent to request an assessment and seek assistance for their child. In urban districts, a greater percentage of referrals are hypothesized to be initiated by teachers, who tend to refer on the basis of absolute, not relative, level of achievement (i.e., discrepant low achievement). This difference in rate of referral by parents from differing socioeconomic circumstances may also reflect different perceptions of the value of special education and differences in the type of peers a child will have in the special education program at a specific school site. When Gottlieb et al. (1991) examined the source of referral and reason for referral as related to the ultimate special education classification, their findings were dramatic for those ultimately classified ED. While the schools classified 25 percent of the Hispanic children referred by their parents as ED, only 8.7 percent of those referred by teachers were classified as ED. A very different pattern was found for referred black students. Only 6.9 percent of black children referred by parents, but 29.5 percent of those referred by teachers, were ultimately classified as ED. Finally, 9.5 percent of parents’ referrals of white students and 5.9 percent of teachers’ referrals were classified as ED. Gottlieb et al. (1991) addressed the racial/ethnic disparities in ED enrollments as follows: “They are due in part to the fact that black children are more than three times as likely as white or Hispanic children referred by teachers to be labeled as emotionally handicapped” (p. 166). Referred and Not Referred Students Since referral is a necessary if insufficient step for receiving special education services, one question that arises is whether those students referred differ from those who go unreferred. Stated differently, are there students in the regular class with similar levels of achievement or behavior problems who do not get referred (false-negatives)? If so, how, if at all, do they differ from those referred? Gottlieb and Weinberg (1999) conducted a prospective study on this issue by asking teachers to complete two questionnaires for up to eight students who had never been in special education in their classes who were the lowest-functioning, either academically or behaviorally. Identification numbers for 376 students on whom ratings were completed were given to the chair of the multidisciplinary team at each school site, who notified the investigators within two days of referral of any problem student. A structured interview was then conducted with referring teachers after referral, but prior to the disposition of the child’s eligibility. A total of 36 (of the original 376 on whom ratings were completed) were referred for special education evaluation. Each of the 36 was paired with the child rated most similar on academic and behavior ratings completed at the beginning of the project. Referred students differed from not

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Minority Students in Special and Gifted Education referred (but at risk) on reading achievement, mobility (number of times a family moved prior to referral), and the number of times the child was late to school. The narrative interview data revealed that teachers agreed that the two groups of students performed similarly at the beginning of the school year and that the problem children were on their “watch” list for possible referral. Teachers described one group of referred students in terms of their having “given up and not making an attempt to learn,” while those they did not refer still seemed motivated to learn. Finally, students whose behavioral problems prompted referral were characterized as having a history of misbehavior, but a single episode (“the last straw”), a critical event, precipitated the referral. It should be noted that one-eighth of the teachers made two-thirds of the referrals, suggesting differences among teachers in their tolerance for low achievement or misbehavior. What has been clear for many years is that the public schools do not screen with tests to “catch” children with disabilities. We have long recognized that many children presenting similar psychometric profiles (IQ scores below a cutoff score, IQ-achievement discrepancies) are never referred by classroom teachers or parents and are never at risk for special education identification. Few datasets illustrate this more clearly than that of Mercer (1970) in the Riverside Desegregation Study. In addition to her description of the stages that children went through at that time on the way to being labeled mentally retarded, she also surveyed classrooms from which referred students came. Individual tests of intelligence (WISC) were administered to all Spanish-surname (n = 509) and black (n = 289) children in three segregated elementary schools and a random sample of white (n = 500) students in predominantly white schools. None of the students assessed was identified as having a disability or referred for evaluation. At the time of this study, the upper cutoff score used in California for MR was 80. The percentage of each racial/ethnic group scoring below IQ 80 in these samples was as follows: white, 1.2 percent; black, 12.2 percent, and Spanish-surname, 15.3 percent. Were the schools to have screened with IQ tests, very few additional white students would be “caught,” but had IQ alone defined MR, substantially more black and Hispanic students would have been identified as mentally retarded, but were not. While Judge Peckham opined in his famous trial opinion (Larry P., 1979) that IQ was “primary and determinative” in the identification process for MR, clearly professional judgment of teachers in deciding which children to refer reduced the number of minority group children formally considered for eligibility, even at a time when minority overrepresentation was much higher than it is today.

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Minority Students in Special and Gifted Education Summary Referral for a full and individual evaluation to determine educational needs and special education eligibility determination is a crucial influence in disproportionate minority representation. The available evidence suggests that referrals occur because of significant problems with school achievement, often complicated by social skills and behavior difficulties in the classroom. There is no evidence to support the idea that some of the children referred to special education are normal achievers who have no classroom learning or behavior problems. APPENDIX 6-A IDEA Procedures for Evaluation and Determination of Eligibility §300.530 General. Each SEA shall ensure that each public agency establishes and implements procedures that meet the requirements of §§300.531-300.536. §300.531 Initial evaluation. Each public agency shall conduct a full and individual initial evaluation, in accordance with §§300.532 and 300.533, before the initial provision of special education and related services to a child with a disability under Part B of the Act. (Authority: 20 U.S.C. 1414(a)(1)) §300.532 Evaluation procedures. Each public agency shall ensure, at a minimum, that the following requirements are met: (a)(1) Tests and other evaluation materials used to assess a child under Part B of the Act— (i) Are selected and administered so as not to be discriminatory on a racial or cultural basis; and (ii) Are provided and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so; and (2) Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child’s English language skills. (b) A variety of assessment tools and strategies are used to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a

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Minority Students in Special and Gifted Education preschool child, to participate in appropriate activities), that may assist in determining— (1) Whether the child is a child with a disability under §300.7; and (2) The content of the child’s IEP. (c)(1) Any standardized tests that are given to a child— (i) Have been validated for the specific purpose for which they are used; and (ii) Are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests. (2) If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report. (d) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient. (e) Tests are selected and administered so as best to ensure that if a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). (f) No single procedure is used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child. (g) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. (h) In evaluating each child with a disability under §§300.531-300.536, the evaluation is sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. (i) The public agency uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (j) The public agency uses assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child. (Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3)) §300.533 Determination of needed evaluation data. (a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under Part B of the Act, a

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Minority Students in Special and Gifted Education group that includes the individuals described in §300.344, and other qualified professionals, as appropriate, shall— (1) Review existing evaluation data on the child, including— (i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based assessments and observations; and (iii) Observations by teachers and related services providers; and (2) On the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine— (i) Whether the child has a particular category of disability, as described in §300.7, or, in case of a reevaluation of a child, whether the child continues to have such a disability; (ii) The present levels of performance and educational needs of the child; (iii) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and (iv) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum. (b) Conduct of review. The group described in paragraph (a) of this section may conduct its review without a meeting. (c) Need for additional data. The public agency shall administer tests and other evaluation materials as may be needed to produce the data identified under paragraph (a) of this section. (d) Requirements if additional data are not needed. (1) If the determination under paragraph (a) of this section is that no additional data are needed to determine whether the child continues to be a child with a disability, the public agency shall notify the child’s parents— (i) Of that determination and the reasons for it; and (ii) Of the right of the parents to request an assessment to determine whether, for purposes of services under this part, the child continues to be a child with a disability. (2) The public agency is not required to conduct the assessment described in paragraph (d)(1)(ii) of this section unless requested to do so by the child’s parents. (Authority: 20 U.S.C. 1414(c)(1), (2), and (4)) §300.534 Determination of eligibility. (a) Upon completing the administration of tests and other evaluation materials— (1) A group of qualified professionals and the parent of the child must determine whether the child is a child with a disability, as defined in §300.7; and

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Minority Students in Special and Gifted Education (2) The public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent. (b) A child may not be determined to be eligible under this part if— (1) The determinant factor for that eligibility determination is— (i) Lack of instruction in reading or math; or (ii) Limited English proficiency; and (2) The child does not otherwise meet the eligibility criteria under §300.7(a). (c)(1) A public agency must evaluate a child with a disability in accordance with §§300.532 and 300.533 before determining that the child is no longer a child with a disability. (2) The evaluation described in paragraph (c)(1) of this section is not required before the termination of a student’s eligibility under Part B of the Act due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under State law. (Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5)) §300.535 Procedures for determining eligibility and placement. (a) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under §300.7, and the educational needs of the child, each public agency shall— (1) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and (2) Ensure that information obtained from all of these sources is documented and carefully considered. (b) If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with §§300.340-300.350. (Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4)) §300.536 Reevaluation. Each public agency shall ensure— (a) That the IEP of each child with a disability is reviewed in accordance with §§300.340-300.350; and (b) That a reevaluation of each child, in accordance with §§300.532-300.535, is conducted if conditions warrant a reevaluation, or if the child’s parent or teacher requests a reevaluation, but at least once every three years. (Authority: 20 U.S.C. 1414(a)(2))

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Minority Students in Special and Gifted Education Additional Procedures for Evaluating Children with Specific Learning Disabilities §300.540 Additional team members. The determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in §300.7, must be made by the child’s parents and a team of qualified professionals which must include— (a)(1) The child’s regular teacher; or (2) If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or (3) For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and (b) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher. §300.541 Criteria for determining the existence of a specific learning disability. (a) A team may determine that a child has a specific learning disability if— (1) The child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in paragraph (a)(2) of this section, if provided with learning experiences appropriate for the child’s age and ability levels; and (2) The team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of the following areas: (i) Oral expression. (ii) Listening comprehension. (iii) Written expression. (iv) Basic reading skill. (v) Reading comprehension. (vi) Mathematics calculation. (vii) Mathematics reasoning. (b) The team may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of— (1) A visual, hearing, or motor impairment; (2) Mental retardation; (3) Emotional disturbance; or (4) Environmental, cultural, or economic disadvantage.

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Minority Students in Special and Gifted Education §300.542 Observation. (a) At least one team member other than the child’s regular teacher shall observe the child’s academic performance in the regular classroom setting. (b) In the case of a child of less than school age or out of school, a team member shall observe the child in an environment appropriate for a child of that age. (Authority: Sec. 5(b), P.L. 94-142) §300.543 Written report. (a) For a child suspected of having a specific learning disability, the documentation of the team’s determination of eligibility, as required by §300.534(a)(2), must include a statement of— (1) Whether the child has a specific learning disability; (2) The basis for making the determination; (3) The relevant behavior noted during the observation of the child; (4) The relationship of that behavior to the child’s academic functioning; (5) The educationally relevant medical findings, if any; (6) Whether there is a severe discrepancy between achievement and ability that is not correctable without special education and related services; and (7) The determination of the team concerning the effects of environmental, cultural, or economic disadvantage. (b) Each team member shall certify in writing whether the report reflects his or her conclusion. If it does not reflect his or her conclusion, the team member must submit a separate statement presenting his or her conclusions.     NOTES: The Procedures for Evaluation and Determination of Eligibility regulations (PEDE) first appeared on March 12, 1999, in the Federal Register, 64(48). The forerunner to PEDE was the Protection in Evaluation Procedures (PEP) Provisions, which first appeared on August 23, 1977, in the Federal Register, 42(163) as part of the regulations implementing the Education for All Handicapped Children Act of 1975 (P.L. 94-142). The PEP regulations were not changed from 1977 to 1999. The Procedures for Evaluating Specific Learning Disabilities, section 300.540 through 300.543, first appeared in the Federal Register, 1977, December 29, 42(250), pp. 65082-65085. These provisions remain the same in the IDEA (1997) Regulations (Federal Register, 1999, March 12, 1999, vol. 64 (48)).

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Minority Students in Special and Gifted Education APPENDIX 6-B IDEA Definitions of Disabilities §300.7 Child with a disability. (a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with §§300.530-300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, another health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.530-300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part. (ii) If, consistent with §300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section. (b) Children aged 3 through 9 experiencing developmental delays. The term child with a disability for children aged 3 through 9 may, at the discretion of the State and LEA and in accordance with §300.313, include a child— (1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (2) Who, by reason thereof, needs special education and related services. (c) Definitions of disability terms. The terms used in this definition are defined as follows: (1)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section.

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Minority Students in Special and Gifted Education (ii) A child who manifests the characteristics of “autism” after age 3 could be diagnosed as having “autism” if the criteria in paragraph (c)(1)(i) of this section are satisfied. (2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. (3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance. (4) Emotional disturbance is defined as follows: (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance. (5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section. (6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance. (7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness. (8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone

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Minority Students in Special and Gifted Education tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). (9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment, that— (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and (ii) Adversely affects a child’s educational performance. (10) Specific learning disability is defined as follows: (i) General. The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. (11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance. (12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. (13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness. (Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))