Fenton on Race and Disability Labeling

Just out: Zanita E. Fenton, Disabling Racial Repetition, 31 Law & Ineq. 77 (2012).  From the introduction:

Because of institutionalized racism, combined with institutionalized ableism, extreme numbers of Black boys receive inadequate education. Black children, especially boys, are disciplined, suspended, and expelled when it is least likely that their parents will challenge the outcome; this most often is the case when their parents are in poverty.  When the parents of a Black child are more affluent and generally more engaged in the educational welfare of their child -- often by challenging disciplinary measures -- there is an increased likelihood that their child will be diagnosed as intellectually disabled (formerly known as mental retardation) or emotionally disturbed. The effect of this dynamic is that Black children are expelled whenever feasible. When it is less than practicable, as when the parents are more affluent, the child is placed in an educational category that permits segregation from the general population, and is thereby placed in a position to receive inferior services and education. 

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Comprehension of the reoccurring, yet indefensible, disproportionate labeling of Black boys as intellectually disabled may be found in the labyrinth of structures perpetuated by laws, policies, and institutions that operate to ensure the continued subordinated status of groups based on race and disability, each used to reinforce the other. The repetition of disproportionate labeling of Black boys in the categories of intellectual disability and emotional disturbance is only symptomatic in a range of social repetitions related to education that operate to continue subordination of certain groups, most often defined by race, class, and disability status. Punishment for marginalized students is too often preferred over inclusion and needs-based education, preconditioning entry into the criminal justice system.  There are also repetitions in the differential delivery and inferior quality of education. Racial segregation continues both between school districts and within single schools.  

This crisis in education is situated at the juncture of social bias, inertial education policy, and malleable legislation. This essay seeks to illuminate the interaction of some relevant variables which routinely return to the original status. Part I engages in basic logic and light economic analyses to understand how, despite the fact that realization of universal education would maximize individual potential to the benefit of society, education has become a focus of social competition. Part I also describes the role of Brown I in both promising educational reform while simultaneously allowing restoration of the original predicament. Part II examines the exploitation of the interaction between socially subordinated categories to perpetuate those forms of subordination. It first focuses on the role of case law and legislation in this ecosystem. It then discusses forms of social bias that serve as the basis for the discretion of relevant actors in the administration and delivery of education. Part III focuses on the No Child Left Behind Act and the manner in which it has intensified mis-education of all children and deepened levels of inequality in education. To conclude, Part IV laments the inadequacy of reform efforts that are sometimes more harmful than the subject of those reforms. It also ties mis-education to the other prevalent social disproportions for both persons of color as well as individuals with intellectual disabilities. It ends with a plea that future reform efforts struggle more intensely and effectively to accomplish the goal of equality in education.