On March 23, 2021, the national Fulfill the Promise coalition—an alliance of parents of students with disabilities; union educators from California, Massachusetts, Texas, and Wisconsin; civil rights attorneys; and local community organizations—filed a Class Petition for Guidance with the Department of Education to demand clear special education federal guidance by June 21, 2021. This class petition was one of several concrete steps to draw public and government attention to the need for civil rights protections for students with disabilities in our nation’s kindergarten through twelfth-grade schools. Congress must finally follow through on promises made to students with disabilities over 40 years ago as part of the enactment of the IDEA. Congress also must ensure that the needs of students who are eligible for supports and services under section 504 of the Rehabilitation Act, along with the need of children who have suffered deep trauma during the pandemic, are not overlooked. This diverse coalition is leading the charge to address the root causes of disability inequity in U.S. public schools using a multifaceted approach.
The Fulfill the Promise coalition has a number of goals:
- To ensure all children with disabilities have available to them a free and appropriate public education with supports and services designed to meet their unique needs.
- To hold Congress to its original promise to cover 40 percent of the additional cost required to provide those necessary services under the IDEA, in perpetuity.
- To support students who qualify for accommodations under section 504 of the Rehabilitation Act of 1973, including with funding, especially as we anticipate an increase in trauma-related qualifications related to the COVID-19 pandemic.
- To demand that the federal government protect the civil rights of students with disabilities to have the same access to school and school-based programs as their non-disabled peers.
- To demand that the OCR increase oversight of Title VI of the Civil Rights Act, IDEA, and Rehabilitation Act of 1973.
- To call on the OCR to use its Civil Rights Data Collection to proactively investigate disparate discipline outcomes for students of color with disabilities, especially Black students with disabilities.
Congress has never made good on its original promise to fund the IDEA at 40 percent. As the cost of specialized services continued to rise, the share of federal dollars has stagnated between 13 percent and 16 percent. While Congress abandoned its commitment, states developed crude mechanisms to suppress special education costs. Texas implemented the most egregious of these mechanisms in 2004 when its state education agency enacted an arbitrary and punitive special education identification cap of 8.5 percent—meaning that, while national statistics consistently showed an average of 14 percent of kindergarten through twelfth-grade students qualifying for special education, in Texas any district identifying more than 8.5 percent would be subject to audits under the state’s Performance-Based Monitoring Analysis System (PBMAS) through the state’s education agency.
The first comprehensive analysis on the impacts of this policy, by Briana Ballis and Katelyn Heath, revealed poor students and students of color were significantly more likely to have their IEPs removed in the aftermath of the policy’s implementation. As Texas public schools faced a dramatic annual decline in the rate of identification (from 13 percent to 8.5 percent in a few short academic years), it took the U.S. Department of Education more than a decade to investigate the de facto state cap. In fact, it was only after the Houston Chronicle ran its own journalistic investigation in 2016 that the department was prompted to open its own investigation. To this day, the rate of identification in Texas remains the lowest in the country; it is the only state to identify fewer than 1 in 10 students for civil rights protections and services under the IDEA.
What would it look like for states to count on 40 percent funding of the IDEA? It would mean earnest commitments to inclusion, comprehensive assessments, and humane disciplinary practices that keep students in the classroom. It would mean more special educators, psychologists, social workers, behavioral specialists, and therapists. It would mean a foundation by which the U.S. can fulfill its promise to our students.
Congress must also commit to funding students who require accommodations to access their public schools and whose rights are protected under section 504 of the Rehabilitation Act of 1973. According to a new report, Disabling Inequity: The Urgent Need for Race-Conscious Resource Remedies from the UCLA Civil Rights Project, Dan Losen and coauthors found the number of students identified for civil rights protections solely under section 504 has been steadily, though not uniformly, increasing over the last two decades. Students who qualify solely under section 504 for accommodation are those who have a disability that makes accommodations necessary but do not require specialized instruction provided under the IDEA.
Losen et al. found that, nationally, 2.7 percent of kindergarten through twelfth-grade students are identified under section 504 but that the rate of identification varied greatly by state, with Mississippi having the lowest rate at 0.65 percent and New Hampshire having the greatest rate at 6.32 percent. Perhaps the clearest example that districts are not meeting their affirmative “child find” obligation to identify students who should be protected under section 504 was the report’s finding that there are more than 3,000 large school districts (those with more than 1,000 students enrolled) that did not identify a single student for section 504 accommodations in the OCR’s Civil Rights Data Collection for 2017–2018.
As students continue to weather the pandemic, identifying and addressing anxiety disorders, depression, and intense trauma will be one of the most impactful ways to assist students most disparately affected by the COVID-19 pandemic. Given the preliminary statistics, collected by the University of Southern California, on those who continue to suffer the most during the pandemic, these will be our students of color. It can no longer be the default for school administrations to deal with disabling student trauma with zero-cost, low-effort accommodations like “count to five” or “take 60 seconds outside the classroom door to breathe.” Students need and deserve schools that are equipped with trained professionals who provide effective support according to a reasonable standard of care.
While funding is foundational, it does not tell the whole story, and civil rights for students with disabilities will not be secured until the U.S. Department of Education does its part to ensure access and equity for students with special needs. Ten years ago, Children’s Rights Litigation Committee members Rosa Hirji and Benétta M. Standly called for the OCR to fulfill its role as protector of students’ rights in their outstanding article “The OCR as a Tool in Dismantling the School-to-Prison Pipeline” in the summer 2011 issue of this newsletter. The fight today is no less urgent. The OCR has large, compulsory data collections at its fingertips and is vested with the power to investigate systemic racial disparities and enforce corrective action. It is past time the presidential administration unapologetically set in motion systemic protection for students across this country. Nowhere is this more pressing than the intersection of students with disabilities and students of color.
Though the Obama administration proposed several measures early in its second term, few concrete policies were adopted to target the school-to-prison pipeline. The most robust of the proposals came in the form of a 2014 guidance on school discipline, which the Trump administration summarily discarded. With a still-fresh Biden administration, President Biden and Secretary of Education Dr. Miguel Cardona must prioritize reducing both student contact with law enforcement and the days of lost learning suffered through suspensions, both of which disproportionately affect students of color with disabilities.
The U.S. Department of Education’s own Civil Rights Data Collection makes readily available the evidence its investigators need to proactively monitor and investigate civil rights violations on public school campuses. The Disabling Inequity report discovered egregious disparities that the OCR has the authority to investigate, including significant discipline disparities affecting students with disabilities. (Figure 4 from the report is reproduced here.)
Data presented in the Disabling Inequity report reveal that for every 100 kindergarten through twelfth-grade students with IEPs, 22 more school days are lost for disciplinary causes, as compared with non-disabled students. If we look at high school students only, this rate is significantly greater: 34 more days of lost instruction per 100 students with an IEP. While we believe the U.S. Department of Education should be more proactive with clear disciplinary guidance that keeps students in the classroom, there are large districts in the U.S. whose data illustrate disparate impact that should warrant further investigation. Richmond City Public Schools (Virginia), Tacoma School District (Washington), Victor Valley Union High (California), Omaha Public Schools (Nebraska), and Milwaukee School District (Wisconsin) all averaged more than 149 additional days of lost instruction for students with an IEP than those without, in the 2017–2018 school year. Students with disabilities in Richmond, Virginia, right in the U.S. Department of Education’s backyard, lost 303 days of instruction per 100 students, compared with 194 days of lost instruction per 100 students without an IEP.
It is clear from the data in the OCR’s Civil Rights Data Collection that students with disabilities, as a whole, are disproportionately affected by school discipline policies throughout the United States. But the situation is even worse for Black and Native American students with disabilities. (Figure B1 from the Disabling Inequity report is reproduced here.)
While students with disabilities lost 72 days of instruction from all disciplinary removals per 100 kindergarten through twelfth-grade students, the rate for Black kindergarten through twelfth-grade students with disabilities was nearly twice that, at 142 days per 100 Black students in 2018–2019.This cannot continue to be the experience of Black students with disabilities.
The report also found examples of extreme disparity in Black students with disabilities being referred to law enforcement. In perhaps the most egregious example of disproportionate district-initiated contact with law enforcement, Losen et al. found that one in three Black secondary students with disabilities in the Austin Independent School District were referred to law enforcement in 2017–2018. This is well above the already egregious national rate of one in four. (Figure 8 from the Disabling Inequity report is reproduced here.)
According to the 2017 Civil Rights Data Collection, more than 1,400 school districts in the U.S. employed more police officers than nurses, counselors, social workers, and school psychologists combined. It is clear from the data that districts across the U.S. are more likely to use punitive discipline practices on students with disabilities. According to the Centers for Disease Control and Prevention, the incidences of childhood trauma were already rapidly increasing prior to the COVID-19 pandemic. Law enforcement in schools then further inflicts racially disproportionate trauma on students, especially students with disabilities. Students need non-carceral interventions that address the symptoms of trauma, rather than punitive interventions that further increase trauma.
Before the pandemic, despite ostensibly enforceable federal and local laws, many school districts around the country were not welcoming places for students with disabilities. The system has been woefully and persistently underfunded and requires substantive changes to ensure civil rights laws are enforced with fidelity. The Fulfill the Promise coalition is dedicated to ensuring that our students with disabilities, their families, and educators thrive. It is imperative that we prioritize eliminating the shortage of fully certified special education teachers, counselors, psychologists, social workers, and nurses in our nation’s schools. It is then incumbent upon the federal Department of Education’s Office of Civil Rights to actively monitor the data it collects, investigate potential civil rights abuses, and enforce corrective action. To learn more or get involved, visit the Fulfill the Promise website.
