Special Education and the “Deserving Disabled”

This is excerpted from a speech given by DREDF attorney Robert Borrelle on June 1, 2015 at the Mind Science and Social Justice Conference in Oakland.

DREDF was founded in 1979 by individuals with disabilities and parents who have children with disabilities. Our mission is to advance the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development. From the start, DREDF’s goal was to become part of the wider civil rights community. Our name is no coincidence. We sought to follow in the tradition of the NAACP Legal Defense Fund, Mexican American Legal Defense and Educational Fund, and other organizations representing minorities and women.

The 25th anniversary of the Americans with Disabilities Act (ADA) is coming up next month and the disability rights community has launched a campaign to celebrate the anniversary that has the tag line, “Disability Rights Are Civil Rights.” You can go online and purchase t-shirts, posters, and pins with that slogan—”Disability Rights Are Civil Rights.” I think it’s an interesting choice for a slogan because I see it as a tacit admission that society as a whole still does not fully understand disability rights as civil rights; or even understand that the Americans with Disabilities Act is not an "accessibility" law, but is in fact a civil rights law, which expanded the non-discrimination protections of the 1964 Civil Rights Act to include people with disabilities.

I want my talk today to build upon that theme—that Disability Rights Are Civil Rights and to strongly encourage the people in this room conducting cutting-edge social science research to consider how disability biases may intersect with racial biases to contribute to racial disparities in education, health care, and other fields. The best way to begin to demonstrate this point is to discuss how assumptions and stereotypes regarding people with disabilities are similar to and in fact historically interrelated with assumptions and stereotypes about people of color.

My fellowship project at DREDF focuses on the intersection of race and disability in special education, a topic I studied extensively as a graduate student at Syracuse University. I chose Syracuse because it is a leader in the emerging field of Disability Studies, which is very much the academic wing of the disability rights movement. At the core of Disability Studies is a rejection of the medical model of disability, which locates a deficit within the individual, in favor of social model of disability, which places the responsibility squarely on society to remove the physical and attitudinal barriers that prevent people with disabilities from exercising their rights and fully integrating into society.[1]

Prior to the development of Disability Studies, the academic community referred to the study of disability as the study of “deviance.” Studies in this field, most notably Erving Goffman’s Stigma(1963), saw people with disabilities as objects to be studied, not human beings with their own unique perspectives and experiences.[2] The study of deviance coincided with the American eugenics movement of the early 20th century. Proponents of eugenics considered it a scientific fact that disability was genetic and that it was the cause of degeneracy, poverty, and crime, and enacted laws sanctioning the institutionalization, segregation, and forced sterilization of people with disabilities. In the 1927 case Buck v. Bell, the Supreme Court affirmed the forced sterilization of a disabled woman with a history of disability in her family, stating that “three generations of imbeciles is enough.”[3]

In the 1985 Cleburne case, Justice Thurgood Marshall reflected on this history of discrimination against people with disabilities and noted its similarities to our nation’s ugly history of discrimination against racial minorities:

“[People with disabilities] have been subject to a ‘lengthy and tragic history’…of segregation and discrimination that can only be called grotesque….A regime of state-mandated segregation and degradation…in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.”[4]

The horrors of the respective histories of disability discrimination and racial discrimination certainly parallel one another, but these histories themselves are actually closely intertwined. The rise of the eugenics movement has had a profound effect on minorities and immigrants. Attributing the label of disability to minorities and immigrants provided a scientific justification for discrimination and segregation. Special education in particular has historically served as a vehicle for segregation. There was widespread placement of African American students in special education classrooms in the decades following Brown v. Board of Education as a means of re-segregating schools.[5] Federal laws today closely monitor disparities in the identification of students of color as disabled because of this ugly history.[6]

DREDF strongly supports government efforts to prevent the improper placement of students of color in special education. But what I want to talk about today is a new twist on the intersection of race and disability in special education that I believe is harming students of color with disabilities, particularly students of color with invisible disabilities such as ADHD, Specific Learning Disabilities, and PTSD. Implicit racial biases combined with paternalistic stereotypes about disability are causing schools to keep students of color out of special education to the detriment of their education and their future.

Please let me clarify from the start that when I talk about special education, I am NOT referring to a place, but to supports and services in the regular education classroom. Schools do not see my African American clients with behavior issues and academic struggles as disabled—they see them as lazy, defiant, and just plain bad. But at the same time, these struggling students do not fit society’s idea of a “disabled” student worthy of our pity and protection.

To illustrate this dilemma, I’m going to talk about a client of DREDF’s whose story is at the heart of the case DREDF, Equal Justice Society (EJS), and National Center for Youth Law (NYCL) are pursuing against the Antioch Unified School District. For those of you unfamiliar with that case, Antioch is a city in Contra Costa County—about an hour’s drive northeast of Oakland—that has undergone a large demographic shift over the last 15 years or so. Today, a largely white police force and white school district staff has contributed to racial tension in the city and its schools. We recently reached an interim settlement with the school district in that case and we are excited that the district agreed to have experts, many of whom are in the room, to come in and examine how implicit biases may be contributing to discipline disparities and other educational issues in that district.

Our main Antioch client was, at the time, a 14-year-old African American student who had a specific learning disability diagnosis in the lower grades but was "exited" from special education in fourth grade. There was no educational reason to exit our client, and in fact he was retained that very same year. The student’s mother asked for a re-evaluation for special education in the sixth grade, two years after the exiting, due to increasing concern over his educational performance. But the district refused to reevaluate unless the mother produced an additional diagnosis. The family lacked health care, and the student’s school experience further disintegrated without an evaluation.

The mother eventually secured a position that offered access to health care and the student received a diagnosis of ADHD from a doctor. The mother immediately provided it to the school. By this time, the student was in seventh grade and had accrued 34 days of suspension and was failing every class except P.E. The school district conducted an assessment and found him ineligible for special education, discounting the medical diagnosis of ADHD and SLD, and instead decided that the student had conduct disorder and oppositional defiance disorder—conditions that do not qualify one for special education.

Besides falling short of all professional standards, the assessment suggested racial bias. The ADHD diagnosis was disregarded because this failing student’s lack of progress and impulsive behavior were considered par for the course—he was just a “bad black boy.”

But I believe this assessment says as much about disability bias as it does about racial bias. Society perceives the disabled as people who deserve our pity, charity, and protection—think of
how the Jerry Lewis Telethon portrayed people who live with muscular dystrophy. In the disability rights community
we like to call this “inspiration porn .” Yet there is a hierarchy within disability—society perceives people with more severe and visible disabilities as more deserving of charity than people with invisible disabilities. Struggling students of color often have underlying invisible disabilities, and because they don’t fit the mold of a “deserving” disabled child, schools deny them crucial services and supports.

Another example is English Language Learners. Schools similarly do not see struggling English Language Learners as the deserving disabled. I have so much difficulty securing special education services for my young English Language Learner clients because when they struggle, schools again just assume this is par for the course; that young Latino English Language Learners are supposed to struggle academically. As if it’s impossible for an English Language Learner’s struggles to be due to an underlying learning disability.

Students who have experienced early childhood trauma are another example of the undeserving disabled. We’ve worked with an African American woman who is the foster parent of her young three nieces, all of whom experienced early childhood trauma and are struggling mightily in school. When this foster parent wrote a letter to the school district seeking a special education assessment for one of her nieces, the school denied her request, stating that “frequent moves,” “limited school experience,” and “social maladjustment” are not grounds for a special education evaluation.

You can see then that in the field of special education, racial bias and disability bias are very much two sides of the same coin, and the impact of these dual biases has been devastating. My organization is flooded with calls from families of color seeking special education services for their children who simply cannot get into the door. This is a problem because in many school districts, particularly in urban school districts, special education is the only way to infuse individualized services to struggling students. Special education laws also offer many procedural protections to students with disabilities who receive suspensions or expulsions. Securing these protections could help keep these students in school and chip away at existing racial disparities in discipline .

As advocates, we must address this perception that the students with disabilities who are most at risk of entering the School-to-Prison Pipeline are not entitled to services and supports. In fact, Congress had this particular group of students in mind when it enacted the first federal special education law in 1975, the Education for All Handicapped Children Act (now called the Individuals with Disabilities Education Act). One of the main impetuses for that law was the 1972 case called Mills v. Board of Education[7] in which a group of African American students with behavioral disabilities successfully challenged their expulsion from the Washington D.C. public schools. The judge’s ruling affirmed that students with behavioral struggles are entitled to the special education and related services that ensure the provision of a free and appropriate public education.

Fortunately, there are a number of recent cases that are challenging this perception of students of color with
disabilities. Just a few weeks ago, Public Counsel filed a lawsuit against the Compton Unified School District in Los Angeles alleging that the district fails to provide special education services to address and accommodate the adverse impact of childhood trauma on learning. Note that Compton is an urban school district that serves a student population that is 79% Latino and 19% African American. The Bazelon Center for Mental Health Law filed a similar lawsuit in 2014 against the Springfield, Massachusetts School District. These cases demonstrate the potential of special education services and supports to address racial disparities and curb the School-to-Prison Pipeline.

Then there is of course the recent settlement DREDF, EJS, and NCYL reached with the Antioch Unified School District. As I mentioned before, this case is the first time a school district has hired nationally recognized experts to conduct a wide ranging review of the district’s disciplinary practices and special education services to identify whether implicit biases, stereotype threats, racial anxiety and other unconscious phenomena are producing disparities. I am incredibly excited about that settlement, especially because it explicitly covers special education, and I look forward to talking about that case with all of you throughout the rest of the conference.

This has been my pitch to convince all of you to consider how disability biases may intersect with racial biases to contribute to the racial disparities we face today. I ask that we examine and analyze how racial and disability biases seep into the special education process at key decision-making points such as the Child Find stage (which is the obligation of schools to locate and identify students with disabilities), the evaluation
stage, the IEP process (in which parents meet with the school district to create the student’s special education program), and the due process stage (where parents and school districts resolve special education disputes).

I also want to report to all of you that the disability rights community has already bought into the idea that the examination of implicit racial biases is the key to resolving racial disparities in special education. DREDF drafted a report on the School-to-Prison Pipeline for the National Council on Disability and the funding of studies on implicit racial biases was one of our top recommendations for Congress and the Department of Education. DREDF is also a participant in the Civil Rights Roundtable, a disability-focused task force organized by the National Disability Rights Network. We had a meeting last fall to create a unified platform for using legal and legislative advocacy to break the School-to-Prison Pipeline. When we went around the room to identify what we believe are the root causes of racial disparities in special education, the room was nearly unanimous that implicit racial biases are the number one cause.

The disability rights community is all in, but we need the academic community to reciprocate by recognizing disability bias. I also believe these types of examinations would be invaluable in other fields besides education—health care, for example. The Perception Institute and others have stated that there is ample evidence that implicit biases contribute to racial disparities in health care (PDF). People with disabilities also experience a range of physical, programmatic and systemic barriers (PDF) when they try to access health care. Thus examining the psychological underpinnings of disability discrimination in healthcare may very well inform our understanding of the causes of racial disparities in health care.

I want to once again thank Eva Paterson and the rest of EJS for inviting DREDF to speak today. My last message to you all is a reminder that Disability Rights Are Civil Rights, so as we continue to use mind science to better understand and solve the great civil rights challenges of our day, we must also consider the complex ways in which disability bias intersects with racial bias to exacerbate these challenges. Thank you.

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[1] Kanter, A. S. (2011). The law: What’s disability studies got to do with it or an introduction to disability legal studies 419-420. Columbia Human Rights Law Review,42(2).

[2] Simi Linton, Claiming Disability: Knowledge and Identity 102 (1998).

[3] Buck v. Bell, 274 U.S. 200, 207 (1927).

[4] City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 461-62 (1985) (Marshall, J., concurring in part and dissenting in part).

[5] Ferri, B., & Connor, D. (2005). Tools of exclusion: Race, disability, and (re) segregated education. TheTeachers College Record, 107(3), 453, 458.

[6] 20 U.S.C. §§ 1400(c)(12); 1418(d).

[7] Mills v. Bd. Of Educ. Of the Dist. of Columbia, 348 F.Supp. 866 (1972).