5. Special Education Overidentification Causes: Enforcement

The U. S. Congress for IDEA 1997 identified the special education overidentification problem and acted to discourage it.  For IDEA 2004 overidentification came up again and Congress moved to oblige states to report on progress to reduce disproportionality.  The U. S. Congress oversees education according to federal policy.   The U. S. Department of Education is a cabinet-level regulatory agency for the oversight of  IDEA  (Congressional oversight – Wikipedia, the free encyclopedia).  

One finds regulation largely ineffectual, from top to bottom, from then until now.


Prior to enactment of IDEA 2004, The Progressive Policy Institute and The Fordham Foundation published a collection of papers to establish the foundations for progressive change in special education (PPI & The Thomas B. Fordham Foundation,  May 9, 2001,  By Edited by Chester E. Finn, Jr., Andrew J. Rotherham & Charles R. Hokanson, Jr., Rethinking Special Education For A New Century / Rethinking Special Education for a New Century).  The Forward sets forth the issues:

“A quarter century ago, President Ford signed historic legislation seeking to ensure educational equity for children with disabilities and special needs. This legislation, now known as the Individuals with Disabilities Education Act (IDEA), was a major milestone in the quest to end the chronic exclusion and mis-education of students with exceptional needs. It helped open the door to fairness and access for millions of such youngsters and paved the way to greater educational success for many of them during the past 25 years.” 

The law was beneficial for exceptional children but had “unintended consequences.”  It became taboo to criticise the law. “Well-intentioned people who have attempted to highlight deficiencies, inequities, and problems with special education have been criticized as interlopers with bad motives or political agendas and told to leave such matters to the “stakeholder community.”  Hence, the federal special education program has been subjected to astonishingly little objective policy analysis…”

The editors posed important questions:  

“For example, is the current regulatory/civil rights model the best way to ensure quality education for youngsters with disabilities? Are students being needlessly referred to special education because of other deficiencies in our educational system — for example, because they receive poor reading instruction-rather than because they have extraordinary needs? Is race a factor in special education assignment? Does the program’s focus on compliance come at the expense of achievement?”

The Report foreshadows the findings of the President’s Commission on Excellence in Special Education (2002): 

“The Commission finds that the IDEA establishes complex requirements that are difficult to effectively implement at the state and local level. Nowhere in IDEA is this more complex than in the eligibility determination process. Improving this process, coupled with research-based early intervention programs, may reduce the number of children who are identified as having a disability, particularly when early identification and intervention are in place and research-based interventions are provided before referral”  (cf. Commission).


In 2007, Alexa Posny, Director, U. S. Office of Special Education Programs, wrote a reminder memo to state directors of special education:

“Excerpts from findings in the Individuals with Disabilities Education Act (IDEA) 2004′s statute note that: (1) greater efforts are needed to prevent the intensification of problems connected with mislabeling minority children with disabilities; (2) African-American children are identified as having mental retardation and emotional disturbance at rates greater than their white counterparts; (3) 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; (4) in the 1998-1999 school year, African-American children represented 14.8% of the population aged 6 through 21, yet comprised 20.2% of all children with disabilities served in our schools; and (5) studies have found that schools with predominately white students and teachers have placed disproportionately high numbers of their minority students into special education.”  cf.  States Monitor School Disproportionality

This statement does not address the rapid rise of learning disability placements,  where non-disabled children are placed in special education, and kept there too long.  Regulatory statements address “disproportionality” more than “overidentification.”  “Misidentification is not brought forth as an issue.


During the off-years cycle between renewals, we hear little about IDEA enforcement activities.  It took three years to develop the regulations following enactment, a loss of time to firmly start regulating overidentification.  States do meet their reporting obligations submitting numerical information on checking for disproportionality but critical analysis of the data has not been found.  We hear nothing about state requirements to regulate local districts (LEAs), a state responsibility.  There are recurrent calls for personnel training but these amount to nothing.  A few states have taken steps to raise awareness, and a few have taken direct action, for example New York, but overall the overidentification patterns have changed little, although some reduction in specific learning disability has been reported.  Response to Intervention has mounted some headway (roughly 50% of American schools) but the cutting edge of reducing overidentification is not a strong theme.

At this writing one does not have data on U. S. Department of  Education spot investigations.  How many and with what consequences we do not know.  An Iowa case may be the tip of the iceberg:

‘On September 14, 2010, the Iowa City Press Citizen reported the U. S. Department of Education is seeking to determine why there are so many black children in the Iowa City district special education department.  Audits from the 2004-2005 school year “…indicated although black students made up only 12 percent of the student population, they made up 40 percent of all students with Individualized Education Plans.”   cf., SLP Caseload Management in Iowa

San Francisco took the initiative to use a consulting organization to pinpoint areas for improvement:

“The report…calls for a reevaluation of the process to identify students who need special services. The auditors found disproportionate representation of particular ethnicities in some special-needs categories. African-American students in San Francisco, for example, account for only 11 percent of the total student population, but make up 24 percent of the special education population and 49.3 percent of the students identified as emotionally disturbed. The auditors are concerned that some of this “disproportionality” is the result of inappropriate identification.”  cf., Failing Special Education Program

Girl Scouts Marching on Main Street.

More outcomes data are needed for federal and state governments.


We should not forget the great benefits having flowed from federal, state and local agencies to protect the FAPE rights of at-risk school children since the Civil Rights Act of 1964.

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