Are Minorities Over-identified for Special Ed? Or Under-identified? As DeVos Implements Obama-Era Regulation, Research Suggests a Third Answer: ‘It’s Complicated’

Updated Nov. 7

The court was straightforward.

In March, a federal judge ordered the Education Department to implement Obama-era regulations designed to address a troubling notion: Students of color, especially those who are black, are disproportionately identified as having disabilities and placed in segregated classrooms. Though the department appealed the decision, a federal circuit court dismissed the case in September at the government’s request.

The topic has been at the center of a heated debate for years, but a new wave of research points to a more nuanced picture of race and disability in America. In some schools, researchers suggest, students of color are over-identified, but in others, they are actually under-identified.

Or as Rachel Fish, assistant professor of special education at New York University, puts it: It’s complicated.

“Nobody likes that answer, that it’s complicated. I hate it. It’s hard to explain,” she said. But her research suggests that special education identification is influenced by “who you are and where you are and what disability category we’re talking about.”

Part of the issue may come down to school segregation, with several recent papers finding that “racial distinctiveness” — pertaining, for example, to a black student attending a predominantly white school — may exacerbate the odds that a student will end up in special education.

For decades, federal special education law has homed in chiefly on over-identification. In 1997, Congress amended the Individuals with Disabilities Education Act (IDEA) to address concerns that some minority children were being incorrectly labeled as having disabilities. The amendment requires states to identify districts where students from one racial or ethnic group are placed in special education at markedly higher rates than their peers from other backgrounds. Since 2004, IDEA has required those districts to use 15 percent of their federal special education funds to remedy disproportionate identification.

But few states actually took action to address the disproportionality, according to a 2013 Government Accountability Office report. Others set mechanisms in place that made it unlikely a district would ever be flagged. In Nebraska, for example, districts were singled out if students of one racial or ethnic group were identified for special education at a rate three times as high as those of other groups for two years in a row.

The Obama administration responded with the 2016 regulations, called Equity in IDEA, which required a standardized approach to identify disproportionality, a change that many expect will cause an upswing in districts being flagged.

The regulation was set to go into effect in July 2018, but the Trump administration announced a plan to delay the rules. Education Secretary Betsy DeVos said her administration would hold off two years to study the issue further and ensure they didn’t promote a kind of racial quota, in which a denial of services would result when a group is disproportionately identified for special education. A lawsuit by the Council of Parent Attorneys and Advocates challenged the delay and won: In March, a federal judge in Washington, D.C., ruled that the delay was “arbitrary and capricious.” With the rules in effect, the government filed a motion to dismiss its appeal in September. A department spokesperson declined to comment for this story.

Denise Marshall, the council’s executive director, said she was encouraged by the court’s decision, noting that her group has observed the problem firsthand. Students of color who are wrongly identified for special education, her group argues, are often placed in restrictive classrooms, lose access to challenging coursework and can be subjected to harsh discipline. But she said it will likely take time for the Equity in IDEA regulations to make a difference.

“It’s not a magic wand. It’s not an immediate fix,” she said. “But we’re hoping that it moves districts forward.”

A fraught debate

But as the issue of over-identification worked its way through the courts, a parallel debate has been playing out in academia.

Researchers have engaged for years in fraught exchanges over the rate at which students of color are identified for special education, with some arguing that educators’ implicit bias could result in inappropriate over-identification. But Paul Morgan, an education professor at Penn State University, challenges the notion that bias is leading to over-identification.

It’s not the bias part of the equation that he questions — it’s the claims of over-identification. The evidence, he said, “seems to be pointing the other way” — toward under-identification.

“Historical and ongoing racial segregation,” Morgan argues, heightens the risk for disabilities among students of color. “Children of color are more likely to be born with low birth weight or experience fetal alcohol syndrome or be exposed to lead,” he said, leading to an unequal distribution in disability across racial groups.

His most recent study on the topic finds that black students in 11 Southern states are less likely than their white peers to be identified for special education when factoring for family income levels and academic achievement.

Meanwhile, a slew of research from NYU’s Fish and others is adding some much-needed nuance to the debate.

“The big controversy is: Is it overrepresentation or underrepresentation?” Fish said. But what if the answer is actually “Both”? Her research points to students who “stand out racially,” as in the example of the black student in a mostly white school, suggesting that such students are “more likely to end up in certain categories of disability.”

As the proportion of white students in a school increases, students of color are more likely to be identified with disability categories that exclude them from the general education classroom and are more socially stigmatizing, such as intellectual disabilities and emotional disturbances, Fish found. But in more racially diverse schools, white students were more likely to be identified with disabilities that generally result in services being provided within the general education classroom, and therefore access to grade-level content and typically developing peers. These students were less likely to be viewed as simply low-performing or unmotivated.

In schools where students of color stand out racially, implicit bias among educators could be a factor, Fish said, influencing the rate at which they’re labeled for disabilities in which identification is more subjective. Identification for emotional disturbances, for example, could be influenced by stereotypes in which black students are viewed as more “behaviorally problematic,” Fish said.

But “opportunity hoarding” among white families could also be at play, she said. When white students attend more racially diverse campuses, their families may be more successful in securing special education services for their children.

A team of researchers reached similar conclusions in a study published this year by the National Bureau of Economic Research. Overall, the researchers found that after controlling for a host of factors such as birth weight, black and Hispanic students were less likely to be identified for special education than their white peers. But a school’s racial composition was key. In predominantly white schools, they found, black and Hispanic students were over-identified as having disabilities. The opposite was true in schools with larger shares of students of color.

When it comes to addressing racial disparities in special education identification, Fish argues that a more complex analysis is required than the one laid out by federal rules. The current strategy, she said, doesn’t consider how environmental or health factors contribute to the prevalence of disabilities among different groups. Raw data on special education identification by race “is not helpful for actually figuring out what to do” if it doesn’t factor in elements that historically have increased the odds that children of color will be identified with disabilities.

Seth Galanter, senior director of legal advocacy at the National Center for Youth Law, is sympathetic to Fish’s argument. Galanter’s organization represented the Council of Parent Attorneys and Advocates in its lawsuit against the Trump administration. Even if students of color are underrepresented in some districts, he said, that doesn’t cancel out the need to address over-identification.

“We see patterns where the racial composition of the school, the racial composition of the teachers, the racial composition of a particular type of disability … are all kind of resulting from racial decision-making at an individual level,” he said. And though it may not always be the result of bias, he said, “we do know that the race of the kid influences whether they’re going to be identified as a kid with a disability.”

Clarification: This story has been updated to more clearly describe research by Rachel Fish, assistant professor of special education at New York University, on the differences in the ways white students and students of color are identified for special education.

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