By: Liza Davis
Associate Editor, Vol. 26
Under the Individuals with Disabilities Education Act (IDEA), every child with a disability who participates in a state school system accepting federal special education funds is guaranteed a free appropriate public education in the least restrictive environment appropriate.[i] Instead of ensuring that all disabled children have meaningful access to educational opportunities as Congress intended,[ii] IDEA has been manipulated to the profound disadvantage of Black students, students of color, and students from low-income, less-resourced communities. Racial bias and high stakes testing[iii] have led to the overrepresentation of Black students and other students of color within more subjective and stigmatized disability designations like “emotional disturbance.”[iv] Meanwhile, well-resourced white students with disabilities are overrepresented within disability designations like autism spectrum disorder, which are accompanied by additional resources, supports, and better educational outcomes for the disabled student.[v]
In under-resourced school districts, Black students and students of color who are labeled (sometimes inappropriately) as having disabilities are effectively segregated into special education classrooms, where they are then given a subpar education that leads to higher dropout and incarceration rates.[vi] Furthermore, the underrepresentation of Black students in disability designations like autism spectrum disorder showcases fundamental flaws in the execution of IDEA’s promise of meaningful access, including the statute’s reliance on parental advocacy.[vii]
IDEA relies upon parent-advocates, state and local officials, as well as reviewing federal courts to enforce the promises of the law.[viii] Given federal courts’ widespread practice of deferring to the educational policy judgments of state and local officials and failing to issue penalties for violating IDEA’s mandates,[ix] a parent’s capacity to advocate for their disabled child’s right to an appropriate education and resources becomes much more important. This reliance upon parental advocacy creates disadvantages for students with disabilities and their families along racial and class lines.
Many low-income and minority parents may not know their child’s legal entitlements under IDEA, may not be treated as equal team members in individualized education plan (IEP) meetings with educators and school officials, may not “feel confident about bringing due process claims,” and, most importantly, may not be able to afford legal assistance.[x] The wealthier and well-resourced white parents who tend to be most successful in getting their disabled child access to IDEA entitlements have a high level of knowledge about disabilities and special education and they also feel comfortable and confident advocating for their children in educational and legal settings.[xi]
As a result of IDEA’s insistence on “beneficiary action as a prerequisite to receiving benefits, stratification in cultural capital […] influence[s] which individuals, and consequently which groups, receive the benefit to which they are entitled.”[xii] Parents who can afford to hire a lawyer gain an advocate who can both educate them and make their legal claims against a school district more likely to prevail.[xiii] Well-resourced white parents also tend to create strong parental social networks around children with disabilities, but those networks tend to be homogeneous and thus, critical knowledge sharing is confined to a small empowered racial demographic.[xiv]
Beyond social and economic advantages, the perception and status of parents along racial and class lines are incredibly significant to those parents’ capacity to advocate for their disabled child’s right to special education resources. In a study, Black parents of children with autism found that they had to “vehemently and zealously advocate for their child to receive services that are routinely granted to other autistic students.”[xv] These parents also identified several communication barriers showcasing the impact of bias from school administrators: Black parents attending IEP meetings were seen as security threats; they were seen as aggressive when advocating for their children; administrators failed to disclose pertinent information about their child’s educational progress and made assumptions about parents’ educational levels; and their requests for related services were often ignored or inappropriately delayed.[xvi]
As demonstrated above, it is generally more difficult for Black parents to maintain positive relationships with schools because of historically justified skepticism about how they and their children will be treated as well as the automatic assignment of negative stereotypes to Black parents when they advocate for their children in the same ways that white parents do.[xvii] Beginning from a more empowered position, white parents often utilize an initially positive relationship with schools to establish their power to advocate for their children.[xviii]
By relying upon parental advocacy to enforce its mandates, IDEA has relegated many low-income and minority disabled students to positions of extreme disadvantage since their parents often cannot harness the social, economic, and cultural capital of wealthier white parents who use their capital to monopolize scarce special education resources. To make parental advocacy a more equitable mechanism for IDEA’s enforcement, there must be changes to the statute’s “level playing field” that actually acknowledge the racial and class stratifications impacting many children with disabilities’ access to IDEA entitlements.
Scholars have identified ways forward that include amendments to IDEA or ways to increase equality of access for parents and children with less cultural capital outside of statutory amendments. One scholar suggests a statutory amendment that would add a legal advocate for the disabled student’s parent to the IEP team,[xix] an advocate who is not necessarily a lawyer but a person with substantive knowledge of IDEA enforcement procedures as well as special education.[xx] UCLA Law Professor LaToya Baldwin-Clark suggests three ways to “increase all potential beneficiaries’ cultural capital. … (1) set[ting] up an ombud[s]man’s office in each school district; (2) provid[ing] “navigators” [community members who can coach parents on the formal and informal rules of parental advocacy] to all parents who request one; and (3) provid[ing] individual legal assistance.”[xxi] These solutions seek to address a substantial root problem: the purported level playing field offered by IDEA actually reproduces racial and class inequalities among disabled children when enforced.
[i] 20 U.S.C. § 1412(a)(1), (a)(5).
[ii] 20 U.S.C. § 1400(d)(1)(A).
[iii] Daniel J. Losen and Kevin G. Welner, Disabling Discrimination in our Public Schools: Comprehensive Legal Challenges to Inappropriate and Inadequate Special Education Services for Minority Children, 36 Harv. C.R.-C.L. L. Rev. 407, 420-22.
[iv] LaToya Baldwin-Clark, Beyond Bias: Cultural Capital in Anti-Discrimination Law, 53 Harv. C.R.-C.L. L. Rev. 381, 382 (2018). Emotional disturbance is a term of art that applies to clinically defined mental health conditions that adversely affect a child’s educational performance and experience. See 34 C.F.R. § 300.8 (2017).
[v] Id. at 383.
[vi] Margaret M. Wakelin, Challenging Disparities in Special Education: Moving Parents from Disempowered Team Members to Ardent Advocates, 3 Nw. J. L. & Soc. Pol’y 263, para. 18 (2008).
[vii] “The IDEA and accompanying regulations allocate resources according to a cultural expectation of ardent parental advocacy.” See Baldwin-Clark, supra note iv, at 384.
[viii] Wakelin, supra note vi, at para. 22.
[ix] Id. at para. 24.
[x] Id. at para. 29-35.
[xi] Baldwin-Clark, supra note iv, at 381.
[xii] Id. at 381.
[xiii] Id. at 420.
[xiv] Id. at 421-22.
[xv] Isabella C. Brown, Experiences of African American Parents of Students with Autism and School Partnerships 47 (May 2018) (unpublished M.A. thesis, San Francisco State University) (on file with the J. Paul Leonard Library, San Francisco State University).
[xvi] Id. at 52-57.
[xvii] Baldwin-Clark, supra note iv, at 428.
[xviii] Id. at 424.
[xix] Wakelin, supra note vi, at para. 57.
[xx] Id. at 59.
[xxi] Baldwin-Clark, supra note iv, at 437.