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Harvard University's Civil Rights Project Minority Issues In Special Education Conference - Speech

Kathleen S. Devine
Civil Rights Division
U.S. Department of Justice


I'm here on behalf of the United States Department of Justice to talk about a statewide special education agreement that the United States, private plaintiffs and the State Department of Education in Alabama entered into this year that addressed issues of overrepresentation of African Americans in the mentally retarded and emotionally conflicted exceptionalities and of underrepresentation of African Americans in the learning disabled and gifted exceptionalities.

I. Background

A. Originally, the Lee v. Macon case began in 1963 with suit against one school board by parents and children who were seeking an injunction to prevent the Macon County School Board from continuing to run segregated schools. The case was expanded in the next few years to include the Alabama State Board of Education and over 100 local school systems. At present, 82 school systems are still under court order in the Lee v. Macon cases.

In 1997, Judge Myron Thompson, in the Middle District of Alabama, called up 12 of these cases against local school districts, stating that the parties should move toward unitary status. During 1997 and 1998, the parties engaged in discovery and negotiated consent decrees with what was first 12, and then was reduced to 11, local school districts. While the state was one of the defendants in each of the consent decrees, these decrees addressed local level problems.

B. The Negotiations

However, in the course of the discovery produced in these cases, the plaintiff parties found that in all cases, there was an overrepresentation of African American students in the mentally retarded exceptionality and underrepresentation of African Americans in the learning disabled and gifted exceptionalities. In some of these cases but not all, there was also an overrepresentation of African Americans in the emotionally conflicted exceptionality.

While the consent decrees with the individual school districts addressed local special education issues such as isolating MR students in portables, the parties had stated in each local decree that the issue of special education was the subject of on-going negotiations with the State Department of Education. However each LEA, in the interim, was required to request an audit by the State of its programs to address what appeared to be disparities in placement, to submit the results of the audit to the plaintiffs and that the LEAs would adopt and implement the recommendations of the State.

The United States hired Dr. Stanley Trent, from the University of Virginia to assist us.

At that point, the parties began to develop a more in-depth discovery request, in the form of an audit protocol for the State to use, in an attempt to determine the depth and breadth of this problem and to try an distinguish between problems of local versus state implementation. After the state audit, the U.S. was going to conduct an audit.

While we were in negotiation with the state over the protocol, the state offered to waive any defense to liability if the plaintiffs would agree that the state would not have to conduct the statewide audit, which was going to be costly both with regard to time and personnel involved.

At about the same time, Barbra Shannon of OCR had negotiated a Title VI agreement with the state regarding the gifted program throughout the state. The parties in the Lee case were provided an opportunity to review that agreement while still in draft and then agreed to accept that agreement in settlement of the gifted issue and to incorporate it by reference into the consent decree we would ultimately enter.

The plaintiff parties then began negotiations with the State Department of Education. Assisting DOJ was not just Stanley Trent but the U.S. Dept of Ed's OGC and OCR. OCR's input, primarily through the work of Barbra Shannon was invaluable. She brought many tools to the table but two were especially important - an in-depth knowledge of how discrimination can be involved and avoided in the special education process from a legal perspective and a pre-existing and very good working relationship with the State actors. Dr. Trent was particularly helpful in fashioning remedies in the pre-referral stage and in focusing on teacher training The State, for its part, came to the table not just willing to talk but committed to addressing and attacking these issues in a meaningful way.

II. The Decree

The Decree has 4 major components which I'll list and then address each one in turn. The 4 components of the Decree require:

  1. changes to policies and procedures in the prerefferal, referral, evaluation and identification stages and changes to the eligiblity criteria;
  2. extensive teacher training;
  3. funding for programs in the general education curriculum, to address literacy issues and services for at-risk sudents;
  4. extensive monitoring of each LEA by the state and extensive monitoring of the state by the plaintiff parties

I'd like to address each one of these components.

A.    First component - Revisions to Policies and Procedures

Revisions to the Alabama Administrative Code (the Code) in the areas of prereferral, referral and evaluation procedures and eligibility criteria [some were driven by the reauthorization of IDEA and some were not] e.g:

  1. before a child is referred for special education services, prereferral intervention strategies must be implemented in the general education program and monitored by the appropriate staff for at least 6 weeks or longer [waived if severe problem requiring immediate attention or if parent refers];
  2. requiring a prereferral form be completed each and every time a student is suspected of having a disability. This prerefferal form documents the:
    • severity and duration of academic and behavior problems;
    • the interventions attempted;
    • results achieved, and;
    • demonstrate that a functional assessment of the classroom environment has been conducted. [Functional assessment includes structured observation of the setting before a display of inappropriate behavior or poor academic performance, the behavior or performance itself and the consequences. It looks to both the actions of the student and the teacher][Attachment2]
  3. The eligibility criteria for students with specific learning disabilities was revised to use a predicted achievement model, based on regression to the mean, to determine whether or not there is a severe discrepancy between a student's ability and achievement [beginning July 1, 1998, if identified using a simple standard score discrepancy, will continue to reevaluate this way unless the parent/qualified team deems it appropriate to use regression to the mean]. Since implemented in July 1998, we have seen less disproportion in the SLD exceptionality
  4. The eligibility criteria for students with mental retardation was revised to require not only that a school version of an adaptive behavior assessment. Also, efforts must be made to obtain a home version of the adaptive behavior assessment and these efforts must be documented either at the meeting to discuss referral if the parent is present (parent can complete or can conduct interview of parent) or home version will be sent home. The LEA must make at least 2 attempts - and document those attempts to have the home version completed;
  5. The eligibility criteria for students with MR was also revised to require that LEAs must gather information as part of the referral to determine if there are any environmental, cultural, language or economic differences that might mask a student's true abilities and thereby affect student performance.

    The tests and evaluation materials must be sensitive to environmental, cultural, linguistic and economic differences.

  6. Redesigned referral form which must be completed whenever a student is suspected of having a disability. The redesigned referral form documents:
    1. the severity/duration of the problem;
    2. prereferral interventions attempted;
    3. functional assessment of the classroom environment;
    4. ensures that medical and school history information has been included and reviewed;
    5. ensures consideration of environmental, cultural, language and/or economic concerns as part of the special education student referral form [these 4 concerns are used for 3 purposes;
      • to determine factors affecting a student's learning,
      • to determine if a student needs to be administered a non-traditional intelligence test if an item is checked and
      • to determine if there has been a lack of academic instruction [Attachment 6]
    6. inclusion of questions to ensure and demonstrate that the IEP team has analyzed the information in the referral form pack after a phase-in period of 4 years, mandatory use of Building Based Student Support Teams (BBSST) throughout the public schools in the state. The BBSST is made up of building based professional, with parent participation encouraged.

      The goal is to, as a group, use their strengths and skills to solve instructional and behavioral issues with individual students.

    7. Finally, by April 2001, review and reevaluation, of certain minority students currently identified as mentally retarded to determine if any students have been inappropriately placed. Such students include all minority student with a current full-scale intelligent quotient (IQ) of 65 or higher and all minority students not assessed with an adaptive behavior instrument.

      [Minority students in 7th grade or higher who were identified before July 1, 1999 will continue to be reevaluated under the criteria of the old rule - 290-8-9-.15 Non-minority students in 4th grade and higher who were identified as MR before July1, 1999 will continue to be reevaluated under the criteria of the old rule. However, if a qualified team, including parents, want to use the criteria in 290-8-9-.3(6), they can do so. Parents of minority students in 7th grade or higher have to be given notice and information in order to make an informed choice]

      Students found to be inappropriately placed will be evaluated for possible placement in another disability area and, if exited from special education, will be provided appropriate supplemental services to facilitate successful transition to the general education program;

      All approved assessment instruments are validated with respect to the population for whom they are being used;

B.    Second Component of the Decree addresses Teacher Training

  1. The State will implement extensive teacher training throughout the State regarding:
    1. characteristics of students with mental disabilities, emotional disturbances and specific learning disabilities and the purpose and significance of disability placement in special education;
    2. appropriate instructional and behavioral intervention strategies and methods;
    3. how to conduct a functional assessment of the classroom environment;
    4. revised special education student referral form and the referral process;
    5. administration and interpretation of various assessment measures, such as intellectual, nonverbal intellectual and adaptive behavior instruments
    6. revised Code requirements;
  2. development and piloting of a mentoring program for new teachers, which will include best instructional/behavioral intervention workshops. The State has agreed to fund 200 teacher mentors per year.

C.   Third Component - Funding For 2 Programs in the General Curriculm

  1. Continued funding of a multi-million dollar program for at-risk students [at risk of not experiencing school success and in danger of school failure and/or noncompletion of school due to situations, circumstances and/or conditions (e.g. environmental, family, health) over which the students may have limited control, 25 million funded in FY '98, 30 million funded in FY 99 and 32 million funded in FY 00;
  2. Establishment of a state-funded "Alabama Reading Initiative: Literacy For All" program, a research-based extensive teacher training program designed to improve reading achievement of all Alabama students on three fronts;
    • beginning reading,
    • expanding reading power, and
    • effective intervention.

    It is expected to be state-wide in 4 years.

D. Fourth - Monitoring

  1. The Decree requires comprehensive monitoring of each local school district by the State Board, comprehensive monitoring of the State Board by the plaintiff parties and includes the requirement that the State Board take enforcement action against local school districts who do not each comply.
  2. In return, the parties to the Decree agreed that if there was an issue regarding non-compliance with the decree, the plaintiff parties would pursue an action againt the state, not the local school district. In addition, any Alabama local school district which is still under a federal court desegregation order could be declared unitary in the area of special education even though there could be a pending claim against it by the plaintiffs or a present violation. In effect, the plaintiffs agreed to go after the State, not the local school district for a special education violation.
  3. Finally, the Court in its order approving the Decree, ordered annual status conferences.

III. Conclusion

We would like to use this Consent Decree as a model with other states.

Updated June 13, 2023