Equity & Eligibility

The Perpetuation of Disparities by Special Education Policy in Minnesota

Presenters:

Daniel Knewitz Nicole McKevett Mollie Weeks

(he/him) (she/her) (she/her)

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@MinnesotaCEE

#Equity&Eligibility

Agenda

• Introduction
• Brief Historical Context
• A Closer Look at Select Eligibility Categories
• Other Health Disabilities
• Specific Learning Disabilities
• Emotional & Behavioral Disabilities
• Practical Application

Introduction and Disclosure

*This workshop has inherent blind spots*

WHO WE ARE NOT

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WHO WE ARE

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We are school psychologists (full-time and in training) with a specific passion for equity who have consistently used our personal time to research, and understand how special education law has contributed to achievement disparities in Minnesota with the intention of advocating for positive change.

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And yes, the three of us are white. Our lens is limited. We believe that equity work is the responsibility of all school psychologists.

We do not represent every race/ethnicity, sexual orientation, gender identity, culture, religion, or ability level.

Introduction and Disclosure

This presentation will refer to some historical documents with very antiquated language. We recognize that some of the words in these documents are offensive.

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We also feel it is necessary to acknowledge this history and recognize how historical language and ideas have shaped our current reality.

Introduction

“In an equitable education system, personal and social identifiers such as race, gender, ethnicity, language, disability, sexual orientation, family background and/or income are not obstacles to accessing educational opportunities; the circumstances children are born into do not predict their access to the resources and educational rigor necessary for success. Within such a system, all individuals attain sufficient knowledge and skills to pursue the college and career path of their choice and become active and contributing members of their communities.”

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-Council of Chief State School Officers’ (CCSO) Leading for Equity: Opportunities for State Education Chiefs (2017)

Evidence Based Practices

The claims that we make within this presentation are derived from research literature. We look forward to engaging in thoughtful conversation

and hope that we can share relevant research to support our approaches to practice.

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History of a Complex Problem

A Brief Review of Historical Context

U.S. Education’s Historic Inequities

• 1853 - Margaret Douglas jailed for teaching children of freed slaves to read and write.

Skiba et al., 2008

• 1896 - Plessy v. Ferguson- separate but equal (never actually equal).
• Early 20th Century - Emergence of intelligence tests predicated on eugenics.
• Early 1950s - Education for African Americans tracked for low-ranked positions.
• 1968 - Identification of Disproportionality

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A Brief Review of Historic Legislation

Brown v. The Board of Education (1954)

• Integrated students; did not integrate staff*

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Title VI of the Civil Rights Act (1964)

• Prohibits discrimination based on race, color, or national origin

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*Learn more: Revisionist History podcast; episode entitled “Miss Buchanan’s Period of Adjustment”

IDEA (2004)

• Disproportionate representation leads to educational review.
• 15% of IDEA funds can be allocated to early intervening services.

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IDEA (2016)

• Standard methodology for calculating disproportionality

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How Do We Frame Disproportionality?

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What causes disproportionality?

Sullivan et al., 2017

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Is Disproportionality a Problem?

Is disproportionality always bad?

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Is disproportionality in special education a problem?

• Are we identifying the right students?
• Are special education services beneficial?

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No Problem

Problem

Yes

No

Sullivan et al., 2017

History of Eligibility in Minnesota

The Discrepancy Model - An Antiquated Method

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1907 - The Relation of the Institutions for Defectives to the Public School System

• Backward and Feeble-Minded children

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History of Special Education in Minnesota

1962 - A Framework for Considering Some Issues in Special Education

1965 - Mental Retardation in Greater Minneapolis

1997 - Special Education - A Program Evaluation Report

History of Uniquely Inequitable Policy in Minnesota

A few examples:

• 1972 - Booker v. Special School District No. 1
• 1977 - School Desegregation in Minneapolis, Minnesota - Report by the U.S. Commission on Civil Rights

Uniquely Burdensome Policy in Minnesota

Minnesota is one of just two states in America to allow only 30 days for the completion of evaluations to determine eligibility.

• Federal requirement allows for 60 days

Other Health Disabilities

What is OHD?

Per IDEA (2004)

(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—

(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

(ii) Adversely affects a child’s educational performance.

Who is Eligible Under OHD?

Proportion of All Students Eligible for Special Education in MN

• Black students: 11.81%
• Native American: 2.78%
• Hispanic: 11.03%
• White students: 63.92%

OHD

• Black students: 11.42% (-)
• Native American: 2.44% (-)
• Hispanic: 8.92% (-)
• White students: 68.50% (+)

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EBD

• Black students: 16.79% (+)
• Native American: 4.52% (+)
• Hispanic: 8.28% (-)
• White students: 60.43% (-)

Proportion of Race/Ethnicity (Eligible for Special Education) by Category

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Black

• OHD: 13.13%
• EBD: 16.19%

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Native American

• OHD: 11.95%
• EBD: 18.53%

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Hispanic

• OHD: 10.98%
• EBD: 8.55%

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White

• OHD: 14.56%
• EBD: 10.78%

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Discrimination by Diagnosis-Based Access

The requirement of a formal diagnosis to qualify for and access the services necessary to receive an appropriate education is a denial of FAPE.

• This is especially damaging with regard to mental health conditions
• People of color experience less access to health care as well as lower quality of care

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Hunt et al. (2015)

Newacheck et al. (2002)

Students of color:

• Are less likely to have health insurance coverage
• Have less access to necessary medical care
• Experience implicit bias from health professionals

Discrimination by Diagnosis-Based Access

Minnesota Rules, part 3525.1335

• “The evaluation team must seek written documentation of the student's medically diagnosed chronic or acute health condition signed by a licensed physician or a licensed health care provider acting within the scope of the provider's practice.
• For initial evaluation, all documentation must be dated within the previous 12 months.

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Denial of FAPE: If it is suspected that a child’s educational difficulties arise from a disability and that the child may need special education services, districts are obligated to promptly seek parental consent to conduct an evaluation to determine eligibility for special education.

Puts responsibility of ensuring FAPE, in part, on students’ guardians.

Specific Learning Disabilities

Why SLD Matters

• One third of students with LD have repeated a grade, increasing their risk of dropout
• Nearly two-thirds of special education disciplinary removals involve students with LD or OHD (covers many students with ADHD)
• Dropout rate for students with LD (18.1%) is nearly three times the average range of all students (6.5%)
• More than half (55%) of young adults with LD have been involved in the justice system
• It’s the largest disabilities category that SPs deal with..by far.

History of SLD in Minnesota

Discrepancy Model

RTI/MTSS

1989 - Minnesota Department of Education - Special Education in Minnesota Report to the Legislative Commission on Public Education

History of SLD in Minnesota

Task Force on Education for Children With Disabilities - Final Report

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Criteria adopted in January of 1991 for Specific Learning Disability required the use of the discrepancy model.

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MDE’s Study of Statewide Eligibility Criteria for Special Education Services

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Published in September 1994 - Questionnaires sent to School Psychologists and Teachers

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“Participants from all groups in this study expressed the concern that many of the underachieving students who no longer qualify, or who would previously have qualified under local standards, are now in a "gray area" where they will likely receive little or no educational support, despite having educational needs.”

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Has this changed in the past 25 years?

History of SLD and Issues of Equity

• 1960’s - Demands of increased academic rigor and academic struggles of many white middle class students resulted in the increase of a two track system, where intellectual tests were used to determine different levels of support given through the labels of LD and EBD

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• Many white students began to receive support under the label of SLD, in a way that was less stigmatizing than other special education labels, gaining access to special services (Ferri & Connor, 2005)

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Minnesota Educational Equity Partnership (MnEEP)

2012 Regulations for SLD Identification

1. Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability…
2. Must permit the use of a process based on the child’s response to scientific, research-based intervention; and
3. May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability...

2012 Regulations for SLD Identification

• Describes the use of:
• Response to intervention
• Patterns of strengths & weaknesses�

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• Does not describe the use of:
• Severe discrepancy

SLD in Minnesota Today

Two options for eligibility:

1. Use of data determining grade-level performance, lack of response to well-designed interventions, and a weakness in basic psychological process that is consistent with low achievement
• Districts have to document their process in the Total Special Education System
2. Discrepancy criteria
• Many schools maintain this criteria where MTSS is not in place

https://education.mn.gov/MDE/dse/sped/cat/sld/

SLD in Minnesota Today

• Districts not required to report which criteria they use for eligibility
• Don’t actually know how many are using each method�
• 2018 survey of 1500 schools in MN
• 20% of schools, self-reported full implementation of MTSS

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https://education.mn.gov/MDE/dse/sped/cat/sld/

SLD in Minnesota Today

In 2019, Minnesota was one of 4 states that still requires documentation of a processing disorder

• Documented through a checklist

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Severe Discrepancy

• Inconsistent implementation (MacMillan et al., 1998; MacMillan & Speece, 1999)
• Does not improve student outcomes (Aaron, 1997)
• Students with long-term academic achievement difficulties never receive supports or services, because of below average intellectual ability (Restori et al., 2009)
• Does not differentiate SLD from low achievement (Francis et al., 2005; Stuebing et al., 2002)

Confidence in Identifying SLD

• School psychologists report being confident in identifying SLD (Maki et al., 2018)

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• But, being confident in identification does not improve identification consistency
• Less likely to consider alternative explanations

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Inconsistent SLD Identification

• Overall consistency in SLD identification is low (Maki et al., 2016)
• Especially true for methods that rely on assessment of cognitive profiles (discrepancy & PSW)
• Suggests that SPs do not always adhere to strict identification criteria

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• Does not improve with years of experience or practitioner degree (MA, EdS, or PhD)�
• Does not improve with training or practice with a specific method of a particular methodology

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Inconsistent SLD Identification

Because of standard error of measurement

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(Particularly with methods that rely on a single data point at a single time)

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When additional testing results in variability

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When scores are close to identification cutpoints

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Because of the normal distribution of cognitive ability and achievement’

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Diagnostic Accuracy

• Discrepancy Method
• Positive predictive power (truly LD if identified as such) = 23%
• Negative predictive power (truly not LD if not identified as such) = 99%

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• Cross Battery Assessment
• Positive predictive power = 50%
• Negative predictive power = 96%

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Stuebing et al., 2012

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SLD Identification: In Summary

Research on methods that use cognitive profiles, suggests that these methods result in SLD identification being a high inference decision

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• Even with cutoff scores and ranges, is actually a subjective decision making process
• Based on within-person traits, rather than observable behaviors
• Results in less successful problem solutions

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Why Do We Cling to Ineffective Practices?

There are ways to use assessment data to choose treatments that produce large effects and are aligned to student needs.

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However, we continue to use methods that have no instructional utility, and consequently we don’t identify the right students

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Why Do We Cling to Ineffective Practices?

• Policies allow us to not improve our practices
• Many SPs have not received formal training in RTI procedures
• RTI/MTSS is a complex process
• RTI/MTSS requires a significant amount of time to support implementation
• Roles of SPs differs across schools
• There will always be more to do than can be done in a day
• It’s easier to work with an individual student than a team of adults
• Did we say it already?....We already have a lot to do

An Alternative to Other SLD Identification Methods

MTSS is here to stay

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Can be THE method of evaluation for SLD eligibility

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Cannot be used to delay evaluations

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Uses decision-making practices that are low inference and result in positive differences

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An Alternative to Cognitive Profile Analysis

• MTSS/RTI can lead to…
• Sustained academic improvements
• Reduction in behavior problems
• Reduction in inappropriate referrals to special education
• Improved graduation rates�
• Implementing response to intervention
• Uses low inference decisions
• Uses objective, observable, and measurable behaviors
• Uses assessment methods that have high validity
• Focus on improving outcomes for all students, rather than just a few

Is RTI another wait to fail model? No.

• Students who do not respond adequately to intervention (defined in terms of decoding and/or fluency) could be differentiated by weak initial skills in vocab and phonological awareness (Fletcher et al., 2011)

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• Use a two-stage screening process to predict responsiveness - some students should move immediately to the most intensive and extensive interventions (Compton et al., 2010; 2012; 2012)

Is RTI another wait to fail model? No.

• Children with the weakest reading skills should receive intensive intervention right away (Vaughn, Denton, & Fletcher, 2010)

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• Predictors of response to intervention: phonological awareness, rapid naming, language skills, and inattention and behavioral problems (e.g., Al Otaiba & Fuchs, 2012; Lam & McMaster, 2014)

SLD and Equitable Access to Pre-Referral Services

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“...the focus on improving general education and early intervening to reduce the emergence of potential special education disabilities is consistent with the intentions of IDEA…”

Sullivan & Osher (2019)

SLD and Equitable Access to Pre-Referral Services

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• Consider equitable access to pre-referral services
• Implement pre-referral policies and procedures with fidelity, across all student groups
• Race-ethnicity
• Language status
• Socioeconomic differences

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Sullivan & Osher (2019)

Implementation Matters

• What we implement is just as important as how we implement it
• Focus our efforts on helping schools implement the process with fidelity
• Focus on solving big problems, that will reach the greatest number of students
• Consider the complexity of local environments on academic and behavioral interventions

Emotional and Behavioral Disabilities

What is EBD per IDEA?

Per IDEA (2004)

(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(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.

(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.

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Vague Definitions

Many aspects of the definition are vague and open to interpretation:

• “Long period of time”
• “Satisfactory interpersonal relationships”
• “Socially maladjusted”

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With ambiguous definitions, how can we ensure fair, accurate, and equitable EBD identification?

Sullivan & Sadeh, 2014

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MN is no Exception

Many aspects of the MN eligibility criteria are vague and open to interpretation:

• “Overly perfectionistic”
• “Exceedingly antagonistic”
• “Pervasive sad disposition”

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We must clearly articulating what behaviors we are looking for and how to measure them.

Definitions and Equity

Unclear and ambiguous behavioral definitions create a space for educational inequity.

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Case in point: School Discipline

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School discipline disproportionality for students of color is more prevalent for ambiguous offenses such as disrespect, loitering, and excessive threat versus more objective offenses such as swearing or vandalism.

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These patterns indicate that conditions such as bias (implicit or otherwise) may influence educational decision-making.

Skiba et al., 2002

Social Maladjustment Controversy

Much of the current conceptualization of EBD is credited to Eli Bower and ignores that original research defined emotional disturbance by social maladjustment.

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Sullivan, 2017

Social Maladjustment and Law

Forty-six states and D.C. have a social maladjustment exclusion in their state eligibility criteria.

Wisconsin explicitly states that social maladjustment is not a means of denying EBD eligibility.

MN, IA, and ID excludes the social maladjustment clause- no need to distinguish social maladjustment from EBD.

States with social maladjustment exclusion clauses have lower prevalence of EBD.

Sullivan & Sadeh, 2014

Equity and EBD Evaluation

Noted unreliability in special education identification. EBD is no different.

• Consider how behavior is unreliably defined- eye of the beholder.

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Is there bias in referral?

• Likely Yes

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But is there bias in EBD identification?

• Unknown- little research has explored identification.

Donovan & Cross, 2002; Sullivan, 2017

EBD Identification: Tales from the Field

Equity in Context not Numbers

Equity and disproportionality are not solely based on numbers alone (e.g., risk ratios).

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One must consider context in determining whether inequity is present in school systems.

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Are there reasons in which we would expect disproportionately high rates of certain special education labels?

Sullivan & Osher, 2019

Context Continued

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Where Else Matters for EBD?

• Teacher Expectations
• Behavior Management
• School Climate
• Exposure to Adverse Climates and Conditions
• Cultural Experiences of Help-Seeking

• Perspective on Behavior
• Student-Teacher Relationships
• Emphasis on Discipline
• History of Medical Maltreatment
• Quality of Tier 1 Learning

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Cumulative impact of these factors resulting in an opportunity or identification gap.

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Stronger Together

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“We all - state education agencies, technical assistance providers, consults, institutions, professional learning providers, LEAs - have to work together to ensure that MTSS/RTI not only stays, but leads to sustained improvements for ALL students.”

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(Bailey, 2018)

References

Donovan, S., & Cross, C. T. (2002). Minority students in special and gifted education. Washington, DC: National Academies Press. doi:10.17226/10128

Hunt, J. B., Eisenberg, D., Lu, L., & Gathright, M. (2015). Racial/ethnic disparities

in mental health care utilization among US college students: Applying the Institution of Medicine definition of health care disparities. Academic Psychiatry, 39(5), 520-526.

Individuals with Disabilities Education Act. (2004). 20 U.S.C. § 1400

Newacheck, P. W., Hung, Y. Y., & Wright, K. K. (2002). Racial and ethnic

disparities in access to care for children with special health care needs. Ambulatory Pediatrics, 2(4), 247-254.

Skiba, R. J., Michael, R. S., Nardo, A. C., & Peterson, R. L. (2002). The color of discipline: Sources of racial and gender disproportionality in school punishment. The Urban Review, 34(4), 317-342.

Skiba, R. J., Simmons, A. B., Ritter, S., Gibb, A. C., Rausch, M. K., Cuadrado, J., & Chung, C. (2008). Achieving equity in special education: History, status, and current challenges. Exceptional Children, 74(3), 264-288.

Stuebing, K. K., Fletcher, J. M., Branum-Martin, L., Francis, D. J., & VanDerHeyden, A. (2012). Evaluation of the technical adequacy of three methods for identifying specific learning disabilities based on cognitive discrepancies. School Psychology Review, 41(1), 3-22.

Sullivan, A. L. (2017). Wading through quicksand: Making sense of minority disproportionality in identification of emotional disturbance. Behavioral Disorders, 43(1), 244-252. doi:10.1177/0198742917732360

Sullivan, A. L., & Osher, D. (2019). IDEA’s Double Bind: A Synthesis of Disproportionality Policy Interpretations. Exceptional Children.

Sullivan, A. L., Proctor, S., A’Vant, L., & Bartlett, C. (February, 2017).

Disproportionality: A racial justice perspective and practice recommendations. Symposium at the Annual Meeting of the National Association of School Psychologists, San Antonio, TX.

Sullivan, A. L., & Sadeh, S. S. (2014). Differentiating social maladjustment from emotional disturbance: An analysis of case law. School Psychology Review, 43(4), 450-471.

References

Link to historical documents related to special education in Minnesota:

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Join the Conversation

SAVE THE DATE

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Date: Friday, February 28, 2020

Time: 4:30 to 7:00

Location: BlackStack Brewing

755 Prior Ave N, St Paul, MN 55104

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@MinnesotaCEE

#Equity&Eligibility