July 28, 2014 Via Electronic Submission
Michael K. Yudin, Acting Assistant Secretary for OSERS
Larry Ringer, Associate Division Director, OSEP
U.S. Department of Education
400 Maryland Avenue SW
Room 4032, Potomac Center Plaza
Washington, D.C. 20202-2600
Re: DREDF Comments on OSERS RFI on Significant Disproportionality and CEIS,
Docket No. ED-2014-OSERS-0058
Dear Assistant Secretary Yudin:
The Disability Rights Education & Defense Fund (DREDF) appreciates the opportunity to comment on the U.S. Department of Education (“Department”) Office of Special Education and Rehabilitative Services (OSERS) request for information (RFI) on significant disproportionality and coordinated early intervening services (CEIS). We applaud the Department for its ongoing commitment to address significant disproportionality based on race and ethnicity in the identification, placement, and discipline of children with disabilities.
Founded in 1979 by people with disabilities and parents of children with disabilities, DREDF is a national law and policy center dedicated to advancing and protecting the civil rights of people with disabilities. DREDF operates a demonstrably successful federal Parent Training and Information Center (PTI) that has served three Bay Area counties for 25 years. DREDF’s Education Advocates (who are also parents of children with disabilities) are in daily contact with California families in the disproportionately low-income and of-color communities in Alameda, Contra Costa and Yolo counties. Among the most underserved are African American and Latino students with disabilities, for whom the intervention of choice by school districts is often suspension and expulsion.
In addition to our recommendations on the definition of significant disproportionality, we address the interconnection between the lack of compliance with IDEA and the discipline crisis. From our experience, we know that minority students are too often over-looked until there is a discipline issue. In 1997 and again in 2004, when Congress amended the Individuals with Disabilities Education Act (IDEA) to set forth procedures for discipline, it also emphasized the need to develop positive behavioral supports and services to address problem behaviors before disciplinary issues arise. Unfortunately, the disciplinary provisions have overshadowed the evaluation and services provisions which are the crux of the IDEA mandate of a Free and Appropriate Public Education (FAPE). We urge the Department to use the shameful disparities in discipline for IDEA students as a wake up call for scrutinizing IDEA compliance with FAPE guarantees. The fact that students who are guaranteed FAPE are being suspended at many times the rate of their non-disabled peers means that the IDEA implementation is in critical condition and in need of emergency interventions.
Background and Framework
The statistical picture of the state of special education is dim. Special education students have worse outcomes, are disproportionately segregated and are suspended more than their non-disabled peers. These dire statistics are even worse for students of color with disabilities. Too often minority students are identified for special education in order to remove them from the general education classroom. This view is further exacerbated by the segregation of students of color. It is easy to see why “special education” is often viewed as a place (and a segregated place, at that), rather than an array of services and supports. If a student of color is found eligible for IDEA services, immediately segregated and then disciplined, major red flags should be raised. This scenario implicates the very reason for the ban on disproportionate identification – that the IDEA would be used to further segregate minority children and provide no educational benefit. Unfortunately, the statistics on over-identification, segregation and disproportionate removals demonstrate that this bleak reality of IDEA implementation (or lack thereof) persists.
At the same time, we know, based on 35 years of experience serving thousands of students and their families, that the IDEA can and should benefit students who are properly referred and served. Moreover, we also know that minority students are not reaping the benefits of decades of educational advancements under the IDEA. It is not possible to address disproportionality issues in isolation from IDEA and Response to Intervention (RTI) implementation. Many students who are struggling academically or behaviorally are not disabled and could be helped by robust RTI services. For students with disabilities, prompt identification and targeted evaluations and services, including competent behavioral plans and interventions, would result in better outcomes and less discipline. Unfortunately, our minority clients are often rebuffed at every stage of the IDEA process, from evaluations, to identification, to delivery of services in the least restrictive environment. This non-compliance with IDEA is most evident in the area of discipline. We know that punitive discipline is educationally unsound and that behavioral issues can be addressed educationally. The disproportionate use of discipline for special education students defies the very premise of the IDEA and should be admonished in every possible way by OSERS.
While we urge the most robust monitoring of both RTI and IDEA service delivery, we also know that even with good implementation, issues of racial inequity will persist unless racial bias is addressed head-on. Since students of color, both disabled and non-disabled, experience disproportionate suspensions and expulsions, we urge the Department to utilize every possible funding source to study the root causes of racial disparities. Since the smoking guns of explicit bias are difficult to detect, we urge the Department to encourage the investigation of the touchstones of implicit bias and the development of effective interventions.
I. Question 1: Standard Approach to Significant Disproportionality
In Question 1 of the RFI, the Department asked:
Should the Department issue proposed regulations requiring States to use a standard approach to determine which LEAs have significant disproportionality? If so, how might a standard approach properly account for State differences (e.g., population size)? If so, what should be included in such a standard approach?
Components of a Standard Definition
DREDF supports the GAO’s recommendation for a standard approach that allows flexibility to account for State differences. A standard definition should include the following components:
Model Definition Should Not Focus on Relative Disparities. DREDF supports the Center for Civil Rights Remedies’ suggestion that the model definition should not focus primarily on relative disparities. Relative disparities are particularly problematic for identifying trends, as decreased disparities between multiple years can hide increased risk across all races and ethnicities. The chart below illustrates a common scenario we have come across. This Northern California district narrowed its relative disparity between the 2009-2010 and 2011-2012 Civil Rights Data Collection (CRDC) surveys, but a closer look shows this result was due to a substantial increase in the rate of suspension of white students with disabilities. The suspension risk for African American students with disabilities also increased, but at a smaller rate.
Risk Ratio Comparison Between 2009 and 2011 CRDC Surveys, Northern California LEA
|CRDC Survey Year||African American IDEA Student Suspension Risk||White IDEA Student Suspension Risk||Risk Ratio|
Risk Level Floor. We similarly support the Center for Civil Rights Remedies call for a risk level floor. We too believe this will prevent the chance that districts with high relative ratios but low suspension use would be identified, and agree that the floor should be below the national average for all students and lowered over time.
Significant Disproportionality Determinations for Disciplinary Actions Must Include Data on Suspensions of Fewer Than 10 Days
With regard to significant disproportionality in disciplinary actions, we believe that the very small number of LEAs identified as significantly disproportionate is due, at least in part, to the fact that many State definitions of significant disproportionality only account for suspensions of greater than 10 days. This failure to account for suspensions of fewer than 10 days is an unintended consequence of Indicator 4 being so limited. The Department should prohibit States from only reporting data on Indicator 4 (suspensions of greater than 10 days), as this approach is inconsistent with the framework of IDEA Sec. 618(d) and fails to address racial and ethnic disparities in total suspensions identified by sources such as the CRDC.
IDEA Framework and OSEP Guidance. Sec. 618(d)(1)(C) requires SEAs to collect and examine data to determine if significant disproportionality based on race or ethnicity is occurring with respect to the incidence, duration, and type of disciplinary action, including suspensions and expulsions. OSEP has interpreted this provision to require a review of multiple sets of disciplinary data:
In order to determine if significant disproportionality exists for discipline, a State must consider all three areas (incidence, duration, and [type of] disciplinary actions) when examining its data. For example, a State could meet this requirement by determining whether significant disproportionality based on race or ethnicity is occurring in: the number of out-of-school suspensions of 10 days or less; the number of out-of-school suspensions (including expulsions) of greater than 10 days; the number of in-school suspensions of 10 days or less; the number of in-school suspensions of greater than 10 days; and the total number of disciplinary removals.
Consistent with this guidance, some States, such as New Mexico and Michigan, analyze disciplinary actions of various length and type. Others, like California and Arkansas, rely solely on Indicator 4B data, which measures the percent of districts that have a significant discrepancy, by race or ethnicity, in the rate of suspensions and expulsions of greater than 10 days for children with IEPs, and policies, procedures or practices that contribute to the significant discrepancy.
State definitions of significant disproportionality that rely solely on Indicator 4B data are inconsistent with both the Sec. 618(d) mandate to consider the “incidence, duration, and type of disciplinary action” and the aforementioned OSEP guidance. Moreover, these definitions improperly merge two separate analyses. Indicator 4B considers whether the LEA’s policies, procedures or practices contribute to the significant discrepancy, whereas State definitions of significant disproportionality under Sec. 618 “may not include consideration of the State’s or LEA’s policies, procedures or practices.” Under Sec. 618, a review of policies, practices and procedures is a consequence of, rather than a part of, a determination of significant disproportionality by race or ethnicity.
Failure to Address Racial and Ethnic Disparities in Total Suspensions. Definitions of significant disproportionality that do not account for suspensions of fewer than 10 days also mask existing racial and ethnic disparities in total suspensions. For example, in 2011-2012, the Pittsburg Unified School District reported suspending zero African American students with disabilities more than 10 days, while simultaneously reporting to the CRDC that 42.4% of African American students with disabilities received at least one out-of-school suspension. This anomaly shows California’s significant disproportionality definition does little to reduce racial and ethnic disparities.
For the above reasons, we urge the Department to prohibit States from using suspensions of greater than 10 days as the sole measure of significant disproportionality. Instead, the Department should require States to analyze multiple data sources in a manner consistent with Sec. 618(d) and OSEP Memorandum 08-09. This data should be readily available, as IDEA Section 618(a)(1)(D) requires SEAs to compile data on “incidence and duration of disciplinary actions by race, ethnicity, limited English proficiency status, gender, and disability category, of children with disabilities, including suspensions of 1 day or more” (emphasis added).
II. Question 2: Other Actions to Address Significant Disproportionality
In Question 2 of the RFI, the Department asked:
What actions, apart from requiring a standard approach, should the Department take to address the very small number of LEAs identified with significant disproportionality, despite data (including the data the Department collects under section 618 of the IDEA, data collected by the Department’s Office for Civil Rights, and the information in the GAO report) showing significant disparities, based on race and ethnicity, in the identification of children for special education including by disability category, educational placements, and disciplinary actions?
Addressing Both the Over and Under Inclusion of Minorities in Access to Special Education Supports and Services
DREDF believes in the promise of the IDEA to ensure disabled children a FAPE. Unfortunately, that promise has been tainted by rampant non-compliance. This is evident in the continued misidentification of African American and other students of color that too often leads to segregation and to disproportionate suspensions and expulsions. Too often, special education is viewed as the problem, rather than a critical part of the solution to disability and racial inequities. The Department needs to revive the reputation and promise of the IDEA for all students with disabilities, including racial and ethnic minorities, by ensuring IDEA compliance. DREDF does not believe that disproportionality concerns can be properly remedied without strict monitoring of IDEA compliance.
First and foremost, special education is not a place, and segregation is virtually never justified. If students of color are over-identified in certain categories (e.g., emotional disturbance (ED)) and disproportionately segregated, red flags should go up. If those students are also suspended at disproportionate rates, an inquiry should be made into whether the students are properly identified and served, or have merely been “dumped” in special education to get them out of the regular classroom.
Likewise, the Department should be vigilant to ensure that children of color reap the benefits of special education. Unfortunately, our experience at DREDF advocating for thousands of students is that parents of students of color are often ignored or rebuffed when they seek specialized assessments and services. We see parents asking school districts for help with consistently failing grades and escalating suspensions. Many of the students we serve have invisible disabilities, such as learning disabilities, Post-Traumatic Stress Disorder (PTSD), and Attention Deficit Hyperactivity Disorder (ADHD), which dramatically affect learning. Too often it is assumed that problem behaviors and bad grades are a result of poor parenting or home and neighborhood environment if the student is African American or Latino.
For example, a Northern California school district recently denied our client’s request for an assessment for her African American foster child with severe emotional issues and a two-year achievement lag on the following grounds:
It would appear that an assessment to determine possible eligibility for special education is not warranted at this time. The law specifies that assessment be completed in areas of suspected disability only after general education interventions have been implemented and have proven ineffective. In addition, if academic difficulties are believed to be the result of a lack of motivation on the part of the student, non-completion of class work, non-completion of homework, poor attendance, frequent moves, limited school experience, substance abuse, social maladjustment, and/or non-compliance, student is deemed ineligible for special education services.
Although social deprivation does not automatically qualify a student for IDEA services, it is not mutually exclusive with disability, and should not be the basis of a denial to assess. This denial letter also demonstrates how schools steer low income minority parents away from special education but do not offer any other services or supports.
OSERS Must Strictly Monitor the Means by Which Disparities Are Reduced
If a stricter definition of disproportionality is adopted, as urged above, an increase in findings of significant disproportionality will inevitably lead many LEAs to reduce their IDEA enrollment. This type of corrective measure will benefit the many students of color with IEPs who do not belong in special education, particularly those needlessly segregated in self-contained settings. However, there are many students of color with disabilities who would be harmed by the cessation of special education services. Therefore, in order to safeguard against the improper exiting of minority students from special education, we ask the Department to strictly monitor the means by which disparities in identification are reduced.
Improve IDEA Exiting Data. In order to prevent improper removals, the Department must improve its collection and monitoring of exiting data. Sec. 618(a)(1)(A)(iv) requires SEAs to collect data on the number of students ages 14 through 21 who stopped receiving special education and related services and the reasons why those children stopped receiving special education and related services. DREDF would like to see this provision expanded to all students exited from special education. In our experience, students of color of all ages are susceptible to improper exiting.
Moreover, the Department must require LEAs to provide more substantive explanations for “exit reason.” In 2012-2013, over 50% of students exited from special education in the Berkeley Unified School District were listed as “no longer eligible for special education” or “transfer to another program.” These vague definitions do little to protect students from improper removals, and are essentially useless for SEA oversight. Lastly, the Department should require LEAs to disaggregate exiting data by race. The collection and examination of exiting data by race would alert the Department and SEAs to troublesome patterns and provide a helpful comparison for Indicator 9 and 10 data.
Improper Use of 504 Plans. Another common scenario for our clients is for an LEA to deny IDEA eligibility for a student with a disability that adversely affects learning, but agree to a 504 plan. These 504 plans are often cursory at best, and there is no apparent reason to use the 504 route other than to avoid procedurals safeguards, reduce costs or avoid a finding of disproportionate suspension under IDEA. While we strongly support the use of properly written and implemented 504 plans for students needing accommodations, students should not be denied IEPs based on improper reasons.
Parent vs. Teacher Referrals. In order to ensure that parents of color are not improperly rebuffed, we recommend that the Department require LEAs to keep data on both the race of students referred for IDEA assessments and the source of these referrals. We believe that accurate data documenting school versus parent referrals would be instructive to understanding both over and under representation of students of color in special education, as a student is less likely to be “dumped” in special education when it is his or her parent requesting the referral or asking for services.
Other Additional Data Collection and Monitoring Improvements. In addition to the data recommendations above, DREDF urges the Department to collect and monitor the following data to ensure students of color are benefitting from IDEA services: (1) the percentage of parental evaluation requests denied; (2) the percentage of students in restrictive settings transitioned back into general education; and (3) the number of students provided RTI and other pre-assessment intervention services who subsequently receive special education and related services under the IDEA.
Improved Monitoring of Educational Setting Data
Educational placement is a crucial, yet often overlooked piece of the disproportionality puzzle. Although Sec. 618(d) requires SEAs to monitor significant disproportionality in “the placement in particular educational settings of [children with disabilities],” it is often unclear how—or even if—SEAs perform these calculations. In our research, we have come across States that claim to use Indicator 5, despite the fact that this data is not disaggregated by race. We are unsure whether the California Department of Education (CDE) even monitors in this area; CDE’s website explains its methodology for significant disproportionality in identification and discipline, but is silent on educational settings. Similar to our recommendations regarding significant disproportionality in disciplinary actions, we urge the Department to strictly monitor the data SEAs use in their significant disproportionality in
educational settings determinations. Specifically, the Department should require all SEAs to use the comprehensive educational environment data collected pursuant to Sec. 618(a)(1)(A).
To Reduce Discipline Disparities, the Department Must Ensure Students with Disabilities are Provided a FAPE
DREDF believes that the entire core of special education—the right to a FAPE—is broken if students with disabilities are disproportionately suspended. For the reasons listed below, we urge the Department to take a more preventative approach to the issue of disproportionate discipline by issuing guidance on the responsibility of LEAs
to address behavioral issues educationally, as required by IDEA.
Lack of Behavioral Interventions Prior to the Eleventh Day of Removal. IDEA 1997 emphasized a balanced approach to the issue of discipline of children with disabilities that reflected the need for orderly and safe schools and the need to address behavioral challenges through educational evaluations and interventions. Behind this approach was the understanding that appropriate IEPs with well-developed behavior intervention strategies decreased school discipline problems.
To strike this balance, IDEA 1997 added a provision requiring the IEP Team to consider the use of positive behavioral interventions and supports for a child whose behavior impedes his or her learning or that of others (now codified at Sec. 614(d)(3)(B)(i)). As Senator Kennedy explained:
Likewise, OSEP Director Thomas Hehir called this the “key provision in IDEA ’97” and stated that a failure to consider such positive behavioral interventions and supports would constitute a denial of FAPE. OSEP guidance on IDEA 1997 added that IEP Teams should take prompt steps to address misconduct when it first appears, since such steps could eliminate the need to take more drastic measures.
In our experience, this crucial preventative measure has been completely subsumed by the “10 Day Rule” in Sec. 615(k). We have uncovered workshop presentations from school district attorneys that interpret Sec. 615(k) as giving schools 10 “free” removal days for each IDEA student—”free” in that they can be used without an IEP team meeting, behavioral intervention plan (BIP), functional behavioral assessment (FBA), or any other service or support. According to one presentation, the IDEA does not require intervention with positive behavioral interventions and supports until “Magic Day 11.”
In order to achieve the balance envisioned in IDEA 1997, LEAs must fulfill their obligation to provide FAPE to students removed for fewer than 10 days. Therefore, it is imperative that the Department issue guidance clarifying the obligations of an LEA under Sections 614(d) and 615(k), respectively. While Sec. 615(k)(1)(D) requires an FBA when a student is removed for more than ten days, in our experience, suspensions could be avoided by performing an FBA earlier in the IEP process. In fact, state of the art implementation of the positive behavioral supports referred to in Sec. 614(d)(3)(B)(i) will in most cases require an FBA and a BIP.
Disparities in Sec. 618(d) Data Should Trigger a Record Review. OSERS should require States to use Sec. 618(a)(1)(D) data to ensure that students are not being punished for disability-related behavior that should have been addressed in the IEP process. If an LEA reports the disproportionate suspension of minority students, the SEA should require the LEA to develop a trigger system to identify students suspended for fewer than 10 days that may not be receiving FAPE.
In our practice, a review of a suspended student’s records will likely show a problem with instruction (or lack thereof). For most of our African American clients, the only way behavior issues have been dealt with is through punitive measures. Therefore, at a minimum, a finding of significant disproportionality under Sec. 618(a)(1)(D) should trigger a review of individual student records. This review will likely show early warning signs of learning and attentional difficulties. If the student has a behavior plan, it is likely that it is inadequate and/or not followed with fidelity. Behavior plans are often routinized cut and paste jobs and are rarely based on an analysis of data. This is an area that desperately needs both monitoring and technical assistance by OSERS.
Pursuant to Sec. 614(d)(3)(B)(i), LEAs should develop protocols to ensure students with one or two suspensions are not being punished for educational deficiencies. An example of best practice in this area is illustrated by the Behavioral Support Continuum created by Fluency Plus, Inc. for the 2012 case E.H., et al. v. Mississippi Department of Education. This protocol calls for procedural safeguards for reviewing and revising students with disabilities IEPs and BIPs following removals from school of 2, 4, 7, and 10 days, respectively, for any disciplinary reason. As explained below, a similar approach was recently endorsed by the Court in our long-running IDEA case Emma C. v. Eastin.
Creation of New Discipline Indicator. In previous communication with OSERS, DREDF has expressed our belief that Indicator 4 fails to adequately evaluate and monitor an LEA’s provision of FAPE as required by Sec. 616(a)(3). As a result, we have urged the Department to create an Indicator based on Sec. 618(d) data that measures suspensions of fewer than 10 days to ensure LEAs are addressing the early signs of problematic behavior with positive behavioral interventions and supports. Because a recent decision in our case Emma C. v. Eastin validated our criticisms of Indicator 4, we renew our call for an additional discipline indicator here.
In Emma C., Plaintiffs challenged the adequacy of the CDE’s state-level monitoring system, arguing, inter alia,that the CDE’s exclusive use of Indicator 4 failed to connect suspensions of any length to potential child find and FAPE violations. We further argued that the IDEA requires an individualized record review of students suspended or expelled to monitor whether a denial of a FAPE and/or behavior related to students’ disabilities has caused the high rates of suspension. The Court Monitor agreed in his January 9, 2014 report, and ordered CDE to engage in corrective action steps “reasonably calculated to ensure that students with disabilities subjected to disciplinary removals for fewer than 10 days are receiving a FAPE, including any positive behavior supports necessary for them to receive FAPE.” Judge Thelton Henderson approved the Court Monitor’s determinations and corrective actions on July 2, 2014. See Emma C. v. Eastin, 2014 WL 2989946 (N.D. Cal., July 2, 2014).
The Court Monitor’s findings and Judge Henderson’s subsequent order approving these findings underscore the serious deficiencies in the current discipline monitoring model. Again, we urge the Department to address these deficiencies by creating an SPP/APR Indicator that measures suspensions of 10 days or less and to require a record review to
determine if the behavior should have been addressed in the IEP and if it was, whether services were delivered with fidelity.
Child Find Monitoring. The disproportionate suspension and expulsion of minority students may also implicate child find. In our practice, failing grades and suspensions are often a result of an unaddressed disability. However, the current state-level monitoring model does not adequately monitor child find requirements. The only current measures of LEA compliance with child find is Indicator 11, which monitors the timeframe between evaluation and identification, and Indicator 12, which monitors transition between Part C and Part B. As the Court Monitor in Emma C. explained, “an LEA can be fully compliant with these indicators yet still have children with disabilities in its jurisdiction who need special education and related services but who have not been identified, located, and evaluated.”
As discussed above, we believe the Department must issue guidance on the intersection of discipline and FAPE, including how discipline may implicate child find or necessitate RTI services. Although state-level monitoring is behind in this regard, some States have taken a proactive approach to discipline and child find. For example, Connecticut regulation Sec. 10-76d-7 requires the “prompt referral to a Planning and Placement Team of all children who have been suspended repeatedly or whose behavior, attendance, including truant behavior, or progress in school is considered unsatisfactory or at a marginal level of acceptance.” OSERS guidance should encourage all States to take similar action.
The Department Must Enforce IDEA Data Verification and Reporting Requirements
Data Verification. The Department must take action to ensure the data collected from SEAs is reliable and accurate. In our investigations of local districts, we have come across discipline data that varies so greatly from year to year that it seems unlikely CDE has verified its accuracy. Many of the discrepancies in CDE’s suspension data are due to problems with its internal data verification process, which consists of cross-referencing its two main databases, CASEMIS and CALPADS. This convoluted process often reveals inconsistent student data, which in some cases has prevented the State from ordering necessary corrective actions.
The Court Monitor in Emma C. also probed the CDE’s verification process and ordered corrective action steps to ensure that it collects and uses accurate data for monitoring and enforcement purposes. In particular, the Court Monitor questioned CDE’s exclusive use of a computer-driven verification process, and highlighted the need for in-person record reviews. For these on-site verification reviews, the Court Monitor ordered CDE to ensure each individual student record is reviewed and verified for each field in the database.
Data Reporting. In addition to data verification, the Department must also enforce IDEA data reporting requirements. Sec. 618(b)(1) requires SEAs to publicly report on the data collected pursuant to Sec. 618(a), which again includes data on suspensions of 1 day or more disaggregated by race. To DREDF’s knowledge, California does not comply with this public reporting requirement. The Department must enforce this requirement and alert SEAs of their discipline data reporting requirements behind Indicator 4. One solution would be for the Department to create a state-level indicator regarding compliance with the public data reporting requirement in Sec. 618(b).
OSERS Should Initiate Research on the Role of Implicit Bias in Over and Under Inclusion in Identification, and Disproportionate Segregation and Suspensions and Expulsions of Minority Students
Research shows that even well-intentioned people have implicit biases that influence their behavior. Low expectations for minority students reflect such biases. While bias can lead to identifying minority students as disabled, it can also lead to the failure to identify a minority student as disabled. Many of DREDF’s African American clients who receive exclusionary discipline have been failing academically for years, with no academic interventions, and no referrals to evaluate the causes of the poor academic performance. African American parents who request a referral for an educational evaluation are often rebuffed, put off or told to provide an outside diagnosis as a condition for receiving an evaluation.
Special education assessments are particularly vulnerable to implicit biases. For example, school officials often disregard an ADHD diagnosis in favor of stereotyping a struggling black student as uncooperative, oppositional or having a conduct disorder (i.e. bad). Such systemic practices result in disproportionate suspension of students with disabilities, often for behavior that could and should be addressed through proper behavioral interventions.
Implicit Bias Research. Social science research suggests that implicit bias contributes to the disproportionate discipline of students of color and students with disabilities.
First, research indicates lack of staff diversity and inexperience with African American students in similar school districts has been associated with disproportionate discipline of African American students, at least in part because of this “cultural mismatch” between students and school staff.
School staff’s inexperience with African American students can exacerbate stereotypes and implicit associations, leading to unwarranted suspensions and other discipline. Furthermore, white teachers can mistakenly view behaviors that are culturally appropriate for African American students as “overly aggressive, inappropriate, negative, rude, intimidating, and threatening.” African American students whose teachers view them as hostile may in turn become more hostile or aggressive in the school environment because of negative interactions.
Second, research indicates that African American students with disabilities are more likely to be subject to exclusionary discipline, such as receiving office referrals, corporal punishment, and out-of-school suspensions, and less likely to receive milder punishments (e.g., student conferences) when compared to other students with disabilities.
This research, when taken as a whole, highlights the need for school-wide implicit bias analysis and training as a means of addressing disproportionate discipline. While the U.S. Department of Education has previously endorsed implicit bias training as a means of addressing disproportionate discipline, we urge the Department to designate significant resources to understanding and eradicating implicit bias.
III. More Effective Targeting of CEIS Funds
In Question 3 of the RFI, the Department asked:
What actions, including research- or evidence-based actions, should the Department take to: (a) Encourage greater voluntary use of funds for CEIS in LEAs showing significant disparities (but no determination of significant disproportionality, pursuant to 34 C.F.R. § 300.646), by race and ethnicity, in the rates of identification of children for special education, including identification by disability category, educational placements, and
disciplinary actions; and (b) assist LEAs in more effectively targeting their use of funds for CEIS to address significant disproportionality in both districts required to use funds for CEIS (as a result of determination of significant disproportionality) and districts choosing to use funds for CEIS, in a manner that is both consistent with the requirements of the IDEA and which help to address the causes and effects of significant disproportionality?
Need for Greater Federal Oversight and Guidance on CEIS Expenditures
DREDF shares NDRN’s concerns regarding the lack of federal oversight of LEA CEIS expenditures. While Sec. 618 includes a number of CEIS reporting requirements, neither the statute nor OSERS guidance require SEAs to approve or even review the CEIS plans of LEAs found to be significantly disproportionate. Given the scarcity of Part B funds and the seriousness of the problem intended to be solved, we encourage the Department to provide specific guidance to States regarding the development and state review processes for CEIS plans.
Specifically, the Department should require LEA CEIS plans to be:
- Based on a root cause analysis, with an understanding that there may be more than one cause;
- Focused in a manner that will resolve the identified problem;
- Supported by accurate data;
- Centered around the use of evidence-based practices; and
- Evaluated at regular intervals to ensure they are achieving their goals.
For example, in California, LEAs with significant disproportionality are required to produce a Significant Disproportionality Coordinated Early Intervening Services Plan (“SD-CEIS Plan”) that includes a number of components that go beyond the IDEA requirements:
- An overview of the LEA’s Special Self-Review of Policies, Procedures, and Practices;
- A summary of the results of an in-depth programmatic self-assessment that identifies root causes and specific areas on which to focus efforts for reducing significant disproportionality currently found in the LEA’s special education system;
- A narrative describing the LEA’s planned efforts for implementing coordinated early intervening services for students kindergarten through grade twelve who are not identified as needing special education or related services, but who need additional academic or behavioral support to succeed in general education;
- A description of the relationship of the SD-CEIS Plan to existing initiatives that the LEA is currently researching or implementing.
The most crucial addition is the in-depth programmatic self-assessment to identify root causes and specific focus areas. CDE requires LEAs to choose one of three self-assessment tools, all of which were created by well-respected experts on disproportionality. For example, one such tool is Daniel J. Losen’s Annotated Checklist for Addressing Racial Disproportionality in Special Education, which provides for a thorough review of LEA resources; policies, procedures, and practices; and environmental factors such as implicit or unconscious biases. 
Thank you for the opportunity to provide information on these pressing issues.[i]
Arlene B. Mayerson
Robert J. Borrelle, Jr.
Equal Justice Works Fellow
Attachments: (1) IDEA Referral Denial Letter (Nov. 6, 2013)
(2) Excerpt from Court Monitor’s Determinations (Jan. 9, 2014)
 For example, in 2010-2011, the national graduation rate for students with disabilities was 59%, compared to 79% for all students. Marie C. Stetser, & Robert Stillwell, Public High School Four-Year On-Time Graduation Rates and Event Dropout Rates: School Years 2010–11 and 2011–12. First Look (NCES 2014-391). U.S. Department of Education. Washington, DC: National Center for Education Statistics. Available at http://nces.ed.gov/pubsearch. Moreover, in 2011-2012, students with disabilities were more than twice as likely to receive an out-of-school suspension (13%) than students without disabilities (6%). Civil Rights Data Collection, Data Snapshot: School Discipline, (March 2014).
Available at: http://www2.ed.gov/about/offices/list/ocr/docs/crdc discipline snapshot.pdf.
 Nationally, 36% of all black male secondary students with disabilities were suspended at least once in 2009-2010 compared to 17% of white male secondary students with disabilities. (Daniel J. Losen & Tia Elena Martinez, Out of School and Off Track: The Overuse of Suspensions in American Middle and High Schools, The Center for Civil Rights Remedies, April 8, 2013, at 11, available at: http://civilrightsproject.ucla.edu/resources/projects/center for civil rights remedies/school to-prison folder/federal reports/out of school and off track the overuse of suspensions in american middle and high schools/OutofSchool OffTrack UCLA 4 8.pdf).
 Nationally, black students were suspended at a rate three times greater (16%) than white students (5%) in 2011-2012. Civil Rights Data Collection, supra note 1.
 For this same reason, DREDF is critical of definitions that require LEAs to exceed a set risk ratio for multiple years before a finding of significant disproportionality.
 OSEP Policy Memorandum 08-09 (July 28, 2008). Available at: http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep08 09coordinatedearlyinterveningservices.doc.
 New Mexico Public Education Department (PED), Annual Performance Report FFY 2012 at 140 (Feb.3, 2014). Available at: http://www.ped.state.nm.us/SEB/2014/NM APR FFY 2012 FEB 03 2014.pdf.
 Michigan Department of Education, Office of Special Education, Procedures for Calculating
Significant Disproportionality—Discipline (Oct. 2013).
Available at: http://www.michigan.gov/documents/mde/Discipline Sig Dispro Procedures 428458 7.pdf.
 California Services for Technical Assistance and
Training (CalSTAT), Disproportionality and Significant Disproportionality (Dec. 2012). Available at: http://www.calstat.org/ISES/ises december2012/ISES handout.html.
 Arkansas Department of Education—Special
Education Unit, Significant Disproportionality and Coordinated Early Intervening Services, 2013-2014 CEIS Report (Apr. 2014). Available
at: https://arksped.k12.ar.us/documents/data n research/201314CEISSummaryReport.pdf.
 OSEP Policy Memorandum 07-09 (Apr. 24, 2007). Available at: http://www2.ed.gov/policy/speced/guid/idea/letters/2007 2/osep0709disproportionality2q2007.pdf.
 New Mexico, for example, uses Section 618(a)(1)(D) data in its significant disproportionality analysis. See New Mexico PED, supra note 6, at 140.
 Attachment 1.
 In fact, because lower income children and children of color have poorer health outcomes and worse access to health care, one can
expect a higher rate of disability in this group. See Children’s Defense Fund, The State of Black Children in Americaat 30 (2014). Available at: http://www.childrensdefense.org/child research data publications/data/2014 soac.pdf?utm source=2014 SOAC PDF utm medium=link utm campaign=2014 SOAC.
 Sec. 613(f)(4) of the IDEA already requires LEAs voluntarily using CEIS funds to keep data on the number of students subsequently referred to special education. DREDF recommends the Department require LEAs to keep data for all types of pre-assessment interventions, including Student Study Teams (SSTs), regardless of whether these interventions are funded through CEIS.
 E.g., Mississippi Department of Education, Coordinated Early Intervening Services (2012).
Available: http://www.mde.k12.ms.us/docs/sped director meeting june 2012/CEIS 042009.ppt?sfvrsn=2.
 California Department of Education, CDE Guidance on Disproportionality (2014). Available at: http://www.cde.ca.gov/sp/se/qa/disproguidance112011.asp#guid
 DREDF requests that the Department issue guidance on disproportionate suspension under IDEA and Section 504 similar to the joint
guidance issued by the Departments of Education and Justice on January 8, 2014 regarding school discipline under Title VI of the Civil Rights Act. U.S. Department of Education and U.S. Department of Justice. Dear Colleague Letter: Nondiscriminatory Administration of School Discipline (Jan. 8, 2014). Available at: www.ed.gov/school-discipline. The guidance should set forth the elements of a claim of discrimination but also address how the over-use of suspensions may implicate noncompliance with FAPE (as set forth below).
 143 Cong. Rec. S4318 (daily ed. May 12, 1997)
(statement of Sen. Edward Kennedy).
 Letter from Thomas Hehir, OSEP Director, to
Anonymous, 30 IDELR 707 (Jun. 16, 1998).
 OSEP Policy Memorandum 97-7 (Sept. 19, 1997). Available: http://www2.ed.gov/policy/speced/leg/idea/97-7.pdf.
 It is important to note that Sec. 615(k) allows suspensions up to 10 days “to the extent such alternatives are applied to children without disabilities.” Once an LEA or SEA has been found to use suspensions disproportionately for disabled students, the ability to suspend for 10 days without the provision of FAPE should be revoked. The purpose of the 1997 and 2004 IDEA re-authorization amendments on discipline was to allow school districts to use suspensions to discipline disabled students “to the extent” suspensions were being used to discipline non-disabled students. It would never have been contemplated that disabled students would
far exceed the percentage of non-disabled students being suspended.
 Clayton R. Cook et al., Establishing and Evaluating the Substantive Adequacy of Positive Behavioral Support Plans, 16 J. of Behav. Educ. 191, 192 (2007) (“Overall, PBS plans represent a vital aspect of the individual education plans (IEP) for students who chronically misbehave. According to IDEIA (2004), data obtained from a FBA provides the foundation upon which the PBS plan is developed”).
 Jackson (MS) Public Schools, Support Services/Child Find (2013). Available at: http://www.jackson.k12.ms.us/content.aspx?url=/page/eessupport.
 Attachment 2 at 19.
 Id. at 7. The Court Monitor later ordered CDE to set forth such a process for students subjected to disciplinary removals
for fewer than 10 days who do not currently have IEPs to ensure that such students are evaluated if they are suspected of having disabilities. Id. at 19.
 Id. at 11.
 DREDF also supports the view of the NDRN that the Department should monitor informal methods of removal in addition to suspensions and expulsions. We too have seen clients removed from instruction repeatedly and for significant periods of time through the use of shortened school days (e.g., repeated “sent
homes”), forced withdrawals from school, compulsory transfer to inadequate alternative programs, homebound instruction, lengthy stays in seclusion rooms, and other methods. Despite the clear FAPE implications, schools do not document these informal removals. Therefore, we urge the Department to expand its discipline monitoring to include all types of removals, formal or informal.
 Catherine M. Bradshaw et al., Multilevel Exploration of Factors Contributing to the Overrepresentation of Black Students in Office Disciplinary Referrals, 102 J. Educ. Psychol. 508, 509 (2010).
 Rebecca Vallas, The Disproportionality Problem: The Overrepresentation of Black Students in Special Education and Recommendations for Reform, 17 Va. J. Soc. Pol’y & L. 181, 189-90 (2009).
 La Vonne I. Neal et al., The Effects of African American Movement Styles on Teachers’ Perceptions and Reactions, 37 J. of Special Education 49, 50 (2003), available at http://coedpages.uncc.edu/cpobrie/African Americans bias movement.pdf; Cheryl Staats, State of the Science Implicit Bias Review 2013, The Ohio State University Kirwan
Institute for the Study of Race and Ethnicity (2013), at *33, http://kirwaninstitute.osu.edu/docs/SOTS Implicit Bias.pdf (citing C.S. Weinstein, S. Tomlinson-Clarke & M. Curran, Toward a Conception of Culturally Responsive Classroom Management, 55 J. of Teacher Education, 25-38 (2004)).
 Bradshaw, supra note 28, at 509.
 Anna C. McFadden, et. al., Disproportionality and discipline among Indiana’s students with disabilities: A status report, Indiana Education Policy Center (1992).
 In Guiding Principles: A Resource Guide for Improving School Climate and Discipline (“Guiding Principles”), a document released in conjunction with the January 8, 2014 Joint Dear Colleague Letter on Discriminatory Administration of School Discipline, the U.S. Department of Education
recommended schools provide professional development and training to equip educators to support students in improving their behavior and to respond to student misconduct fairly, equitable, and without regard to a student’s personal characteristics, including disability. Guiding Principles at 16-17. The Department specified that, where appropriate, schools may choose to explore using cultural competence to enhance staff awareness of their implicit or unconscious biases, and the harms associated with using or failing to counter racial and ethnic stereotypes. Id. at 17.
 CDE, Special Education Division, (Aug. 2012). Technical Assistance Guide on SD-CEIS Plan. Available at: ftp://ftp.cde.ca.gov/sp/se/ds/CDE Guidance on Sig Dis 8 10 12v3.doc.
 Daniel J. Losen, Annotated Checklist for Addressing Racial Disproportionality in Special Education (2008). Available at: http://www.createwisconsin.net/cms_files/resources/062409onlinechecklist.doc.
[i] We would like to acknowledge DREDF law clerk Casey Shea for her research and editing contributions to these comments.