By: Alexis Franks, Associate Editor Vol. 27
The IDEA and the Emotional Disturbance Category
The Individuals with Disabilities Education Act (IDEA), first enacted in 1975, provides federal funding for special education services for children with disabilities.[i] The goal of the legislation is that all handicapped children, who were historically excluded from the classroom, would be able to receive free appropriate education.[ii] Under the IDEA, there are thirteen categories of disabilities that qualify students for special education services. The last of the thirteen, and certainly the most difficult to define, is emotional disturbance.[iii]
The federal definition of emotional disturbance (ED) is based on the work of Eli Bower, a consultant to the California Department of Education, who was charged with identifying the characteristics of a person with emotional disturbance.[iv] Throughout the course of his research, Bower identified five factors that are now used as the baseline for establishing special education eligibility under the ED category:
a) an inability to learn that cannot be explained by intellectual, sensory, or health factors
b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers
c) inappropriate types of behavior or feelings under normal circumstances
d) a general pervasive mood of unhappiness or depression
e) a tendency to develop physical symptoms or fears associated with personal or school problems. According to the legislation, if a child exhibits one or more of these factors for an extended period of time, and the factor(s) adversely affects their academic performance, they may qualify for services under the ED category.[v]
Social Maladjustment Exclusion
Under these criteria, it seems that most students exhibiting signs of emotional distress would be able to qualify for special education services. However, the writers of this special education law added a limitation: “The term does not include children who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed.”[vi] Although there is no widely accepted definition of social maladjustment (SM), it is generally understood that children who are socially maladjusted are easily frustrated, defiant, impulsive, and exhibit social aggression.[vii] Eli Bower never intended to exclude socially maladjusted children from special education eligibility, but lawmakers altered his definition of emotional disturbance and provided an avenue that would allow defiant children, who would otherwise qualify for services, to fall through the special education cracks.[viii]
It is important to acknowledge that social maladjustment does not automatically disqualify students from receiving services. Instead, the overarching rule is that socially maladjusted children can qualify for special education services if they also have other mental health diagnoses that are the root cause of their academic deficiencies. While this seems like a helpful clarification, it is flawed. Children who are emotionally disturbed are often also socially maladjusted. In fact, 60 to 80 percent of children in the ED category have external psychiatric diagnoses, like social maladjustment.[ix] The problem is that it is difficult, if not impossible, to determine which mental health diagnosis is negatively affecting a student’s academic performance. Consequently, there is a high risk that children will be misidentified, and “for many children with disabilities, classification as an IDEA-eligible student opens up access to services and support that can make the difference between graduating and dropping out.”[x] If an educator were to determine that a child’s social maladjustment was causing their academic deficiencies, instead of their other mental health diagnoses, the student would automatically be disqualified from receiving services— a decision that could drastically impact their long-term future.
So what really differentiates an emotionally disturbed student from a socially maladjusted student? According to many researchers and policymakers, the difference is that the socially maladjusted child makes a conscious decision to behave negatively, fails to appreciate the consequences of their behavior, and lacks remorse.[xi] Because social maladjustment was viewed as deliberate delinquent behavior at the time the bill was passed, policymakers were hesitant to provide socially maladjusted children with the same services that “truly” disabled children were offered. The lawmakers believed that “delinquent” children were at fault and therefore, should not be able to receive assistive services.[xii]
Reason for Adding the Clause
Although lawmakers have never expressly clarified their reasons for adding the social maladjustment clause to the IDEA, the decision was likely influenced by the “tough on crime” narrative of the 1960’s and 70’s, and the view that socially maladjusted children doubled as juvenile delinquents. The social maladjustment clause was added to the IDEA in 1975, on the tail end of Nixon’s presidency. During this time, “increases in youth crime and urban racial disorders provoked politicians’ cries for ‘law and order’ and encouraged the adoption of measures to ‘get tough’ and to repress, rather than to rehabilitate young offenders.”[xiii] Special education services, like juvenile corrections, were originally supposed to provide rehabilitative, assistive services to youth in need. All of that shifted when Americans began to call for “law and order.” Due to the “tough on crime” sentiment that pervaded the 1970’s, it is no surprise that the IDEA definition was altered to expressly exclude “criminal” children from receiving assistance.[xiv] Policymakers were very averse to the idea of extending special education services to “bad kids.” They viewed defiant children as undeserving, and wanted to ensure that they would be barred from reaping any benefits they were not “rightfully owed.”
Resulting Racial Disparities
Due to a variety of factors, the children who were labeled “bad kids” were most often minority youth. During the “tough on crime” era, the very definition of delinquency coincided with societal views and racial stereotypes of Black people.[xv] As crime rates climbed, society began to equate minority neighborhoods, cultures, and customs with delinquency and eventually, “blackness itself became synonymous with delinquency.”[xvi] White Americans believed that delinquency among Black youths was caused by “black degeneracy.”[xvii] As a result, Black children were forced to contend with the stigma of being considered degenerates from birth.[xviii] Tragically, these biases remain present. In 2006, the Office of Juvenile Justice and Delinquency Prevention issued a report identifying that African-American youth accounted for only 16 percent of youth in the U.S., but 37 percent of juveniles placed in detention facilities.[xix] In 2009, only 15 percent of youth in the United States were African-American, yet African-American youth made up 31 percent of all youth arrested in that year, an arrest rate nearly twice that of white youth.[xx]
The intersection of race and the waning tolerance of deviant behavior is especially vivid in academic settings.[xxi] School officials are among the least willing to tolerate misconduct, as evident in the tremendous increase of referrals of youth from public schools to juvenile courts.[xxii] Due to pervasive stereotypes that suggest youth of color are more prone to violence and are often disengaged from school, this increase has disproportionately impacted children of color.[xxiii] It is documented that teachers and administrators perceive Black children as “criminal” far more often than their white counterparts.[xxiv] Consequently, Black children in classroom settings are more likely to be watched, have their actions documented, and ultimately labeled as deviant.[xxv]
Because there are no clear guidelines that help educators accurately distinguish between socially maladjusted and emotionally disturbed children, the classifications are often arbitrary. This leads to a major problem: subjective classification systems allow bias to creep in and influence decisions, which can ultimately result in racial disparities. Studies have found that “among children displaying the same clinical needs, white children are more likely to receive special education services than racial or ethnic minority children.”[xxvi] Given teachers’ biased perspectives towards Black students, it is likely that this disparity arises in SM classification cases. If socially maladjusted children are labeled delinquents, and youth of color are assumed to be delinquents, it follows that the social maladjustment exclusion disproportionately affects Black children. For example, a teacher’s bias towards Black children, combined with their sense of low expectations, can easily lead a teacher to classify a child’s continued outbursts as expected and unremarkable. As a result, this child, who may very well be emotionally disturbed, remains undiagnosed and is eventually swept into the juvenile detention system.[xxvii]
The social maladjustment clause comes with a host of problems. Because the clause has never been formally defined, educators and administrators have free reign to interpret the clause however they see fit. As a result, racial bias likely taints classification determinations. Because Black students are viewed as deviant and uncontrollable, they face a higher risk of being misidentified as socially maladjusted and consequently losing access to assistive services. The goal of the IDEA is to ensure that historically marginalized children have a shot at success, and until society relinquishes its desire to penalize the “bad kid,” this will not come to fruition. Instead, Black children with disabilities, arguably the most marginalized group of all, will continue to be ignored, misidentified, and criminalized.
[i] Carolyn Mason, The Social Maladjustment Exclusion: Leaving A Category of Students Behind and the Problem with State and Judicial Interpretation of Congressional Intent, 19 U. D.C. L. Rev. 91, 94 (2016).
[ii] Daniel H Cline, A Legal Analysis of Policy Initiatives to Exclude Handicapped/Disruptive Students from Special Education, 15 Behavioral Disorders 159 (1990).
[iii] Mason, supra note 1 at 94.
[iv] Id. at 95.
[v] Id. at 94-95.
[vi] Kenneth Merrell & Hill Walker, Deconstructing a Definition: Social Maladjustment Versus Emotional Disturbance and Moving the EBD Field Forward, 41 Psychol. in the Sch. 899, 901 (2004).
[vii] Mason, supra note 1 at 97.
[viii] Daniel Olympia, et al., Social Maladjustment and Students with Behavioral and Emotional Disorders: Revisiting Basic Assumptions and Assessment Issues, 41 Psychol. in the Sch. 835 (2004).
[ix] Id. at 837.
[x] Jyoti Nanda, The Construction and Criminalization of Disability in School Incarceration, 9(2) Colum. J. Race & L. 265, 287 (2019).
[xi] Olympia, supra note 9 at 837.
[xii] Mark C. Weber, The Idea Eligibility Mess, 57 Buff. L. Rev. 83, 111 (2009).
[xiii] Barry C. Feld, The Transformation of the Juvenile Court-Part II: Race and the “Crack Down” on Youth Crime, 84 Minn. L. Rev. 327, 340 (1999).
[xiv] Id. at 368.
[xv] Cheryl N. Butler, Blackness As Delinquency, 90 Wash. U.L. Rev. 1335, 1364 (2013).
[xix] Margaret Olesnavage, Disproportionate Representation of Children of Color in the Child Welfare and Juvenile Justice Systems in Michigan Thoughts for Practitioners, 89 Mich. B.J. 26, 27 (2010).
[xx] Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98 Cornell L. Rev. 383, 409 (2013).
[xxi] Id. at 410.
[xxiii] Id. at 419.
[xxiv] Jyoti Nanda, The Construction and Criminalization of Disability in School Incarceration, 9(2) Colum. J. Race & L. 265, 295 (2019).
[xxv] Id. at 292.
[xxvi] Id. at 302.
[xxvii] Id. at 301.