Garda on Racial Equality in Special Education

New on Westlaw: Robert A. Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005). From the introduction:

In short, the IDEA is suffering an eligibility crisis on two intersecting fronts: African-American overrepresentation and an overall eligibility increase resulting from special education sweeping up students from a broken general education system. Congress's new IDEA, the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), embodies a dramatic educational paradigm shift to resolve these problems. For the first time, Congress has recognized that special education eligibility is directly linked to the general education system. Through the IDEIA, Congress reaches into the general education system to remedy the overidentification crises by legislating a certain level of individualized instruction. This model of individualized instruction in general education departs significantly from the one-size-fits-all educational model embodied in the old IDEA, wherein specialized instruction is exclusively the domain of special education that is provided only to disabled children. The IDEIA favors the individualization model almost out of necessity, as today's increasingly diverse students require a certain level of individualized instruction in the general classroom. It is better to address diverse needs in the general education classroom than to classify children as disabled and rely on special education to address their unique learning styles, cultural backgrounds, and different abilities. Special education's swelling rolls and the disproportionate representation of African-Americans reveal particular shortcomings of the general education system that the IDEIA seeks to reform.

The IDEIA will inevitably fall short of solving the dual eligibility crisis, however, primarily because its incremental reforms merely adopt--but do not embrace--its new pedagogy. It will not ensure a low level of individualized instruction to all students, as opposed to merely IDEIA-eligible students, and it will not insure that students will receive appropriate services in regular education before placement into special education. The IDEIA simply cannot redefine regular education without first redefining "special education" and who "needs" it in the stagnant thirty-year-old eligibility criteria that the IDEIA employs.

Eligibility under the IDEIA and all of its predecessor statutes hinges on finding that the child has an enumerated disability and "needs special education." The broad definition of "special education"--the adaptation of instructional content, methodology, or delivery--permits some decisionmakers to find that children requiring any adaptation to the general education environment need special education and are eligible, while other decisionmakers limit special education to significant and unique adaptations. The nonexistent definition of "need" leads to diverging views as to what level of services a child must be provided in general education before a need for special education is found. With little statutory guidance, decisionmakers apply their own pedagogical beliefs about what constitutes special education and who needs it--resulting in subjective eligibility determinations influenced by bias rather than uniform application of eligibility criteria.

This Article proposes that without fundamental changes to, and a proper understanding of, the "needs special education" eligibility criteria, the educational paradigm adopted in the IDEIA cannot take root, and the eligibility problems will persist. Reclaiming special education from overrepresented African-Americans and instructional casualties and placing it back in the hands of the genuinely disabled cannot occur until special education relinquishes its exclusive grip on individualized instruction, thus allowing certain unique student needs to be served in regular education without IDEIA eligibility attaching. To do so, the definition of "special education" must be limited to only significant instructional adaptations that are not provided to all students, regardless of disability. A child should also not be found to be in need of special education until all available accommodations and regular education interventions have proven ineffective. These circumscribed definitions prohibit the placement of students into special education if their individual needs can properly be served through general education. The result will be consistent eligibility decisions. It is only by limiting the definition of "special education" and when it is "needed" that general education can be redefined to embrace the paradigm of individualized instruction, and uniformity can be brought to eligibility determinations.