In 2004, when Congress reauthorized the Individuals with Disabilities Education Act (IDEA), it reported a disturbing trend in its findings: an "intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities."
• "More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.
• African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their white counterparts.
• In the 1998-99 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.
• Studies have found that schools with predominately white students and teachers have placed disproportionately high numbers of their minority students into special education."
The Public Interest Law Center of Philadelphia is addressing a local manifestation of this issue in three federal cases against the Lower Merion School District that are wending their way through the federal courts. Each is based on a different legal theory but presents the same general fact pattern: White students make up a large majority of the district, a disproportionate number of black students are placed into lower-level and special-education courses and students are misidentified, leading to wrongful placement in special-education classes. In each case, the student and parents discovered that the student was misidentified through independent evaluations that found the processes used for placement were subjective and failed to apply nationally recognized standards. And, in each case, the district court has dismissed the claim, leading to three separate appeals that are now pending before the U.S. Court of Appeals for the Third Circuit.
In the first case, Blunt v. Lower Merion School District, No. 11-4200, seven students, their parents and an organizational plaintiff, Concerned Black Parents, challenged these practices under Title VI of the Civil Rights Act of 1964. Under Title VI, federally funded programs cannot discriminate on grounds of race, and, to establish a violation, plaintiffs must prove intentional discrimination. In response to a summary judgment motion filed by the school district, the plaintiffs produced evidence that five of the seven plaintiffs were misidentified as having disabilities. The plaintiffs' expert found that the procedure used for this determination was subjective and inconsistent with national standards. As a result, students were placed in classes with coursework beneath their grade levels, including "Instructional Support Labs," which not only do not count toward GPA, but restricted them from enrolling in science, social studies and foreign-language courses. The special-education classes were composed mainly of other African-American students. The plaintiffs also produced a range of other evidence, including admissions by school district agents and a presentation suggesting racial stereotyping including the notion that African-Americans "react intensely to being praised or criticized" and "avert their eyes while being confronted about their behavior."
The district court granted the school district's motion for summary judgment, holding that the evidence was insufficient to establish racial intent on the part of the school district. The case is currently on appeal and the Third Circuit heard oral argument June 11.
In the second case, Durrell v. Lower Merion School District, No. 12-3264, the plaintiff, S.H., invoked the administrative hearing process under the IDEA. The district had placed S.H. in special education in fifth grade, over her objection and despite the fact that her test scores showed that she had average intelligence. S.H. remained in special education until 10th grade when, during the course of the administrative hearing process, a neutral evaluator determined that she did not have a disability, and never did. With that information, the administrative hearing officer dismissed the proceeding, holding that no remedies are available under the IDEA, given that the IDEA is for children with disabilities. The hearing officer so ruled even though S.H. had in fact been in special education — incorrectly — for six school years. The district court agreed, and that case also is on appeal. The Third Circuit held oral argument May 23.
In the final case, A.G. v. Lower Merion School District, No. 12-4029, the school district erroneously viewed the student, A.G., as having a disability and placed her in special-education classes. Each time it evaluated A.G., the school district failed to follow the procedures mandated by the IDEA and identified A.G. as having a different disability each time, starting with a speech and language disorder, then a specific learning disability, and finally an unspecified "other health impairment." On the basis of these supposed disabilities, the district segregated A.G. from the regular education environment for significant portions of her school day, causing her to miss core classes like science, social studies and history.
A.G.'s family initially sought relief under the IDEA's administrative process, alleging that the school district had misidentified her. A.G.'s parents also sought an independent evaluation and asked the school district to pay for it. The hearing officer, following the ruling in Durrell, dismissed the administrative case, holding that a hearing officer does not have jurisdiction to hear claims from students who are not disabled.
In the district court, A.G. and her family pursued another legal theory, this one under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. These federal laws prohibit discrimination on the basis of disability; the definition of a person with a "disability" includes a person who is regarded as having a disability. In A.G.'s case, she alleged that the school district "regarded" her as a student with a disability, that it repeatedly misidentified her as having a succession of disabilities she did not actually have, and that it wrongly segregated her from the regular education classroom into special-education classes, thus depriving her of access to regular education programming.
Here, too, the district court granted summary judgment in favor of the school district. It held that A.G., in order to recover damages against the school district, needed to prove that the district intentionally discriminated against her. While acknowledging that the school district may have violated the IDEA in regarding A.G. as having a disability, the district court determined that A.G. had not adduced evidence that the school district "intentionally" discriminated against her when it placed her in, and kept her in, special education. The A.G. case, the third in this trilogy, has been fully briefed and is awaiting a date for oral argument.
In the coming months, we will learn whether any of these three legal theories is a sufficient tool to address this problem that Congress so powerfully described in its findings. •
Jennifer R. Clarke is the executive director of the Public Interest Law Center of Philadelphia. She can be reached at 267-546-1302.
Samuel Rudovsky is a rising sophomore at Wesleyan University and a summer intern at the Law Center. He can be reached at 215-837-1906.