The New Idea: Shifting Educational Paradigms to Achieve Racial Equality in Special Education
Robert A. Garda Jr.
Loyola University of New Orleans College of Law
Alabama Law Review, Vol. 56, No. 4, 2005
African American students are being re-segregated in today's public schools by their disproportionate placement in special education classes for the disabled pursuant to the Individuals With Disabilities in Education Act (IDEA). At the same time, the overall number of children found disabled and entitled to special education under the Act has skyrocketed over the past decade, leaving special education classes with swollen roles and inadequate resources. Congress attempts to remedy this divisive dual eligibility crisis when it re-authorized the IDEA in 2004 by promoting an educational paradigm of individualized instruction in general education. The new IDEA seeks to "fix" special education by "fixing" general education through encouraging schools to provide students with a certain level of individualized instruction in general education before referring the child to special education. Congress recognized that general education must employ a certain level of specialized instruction in the classroom rather than resign today's diverse learners that require slight instructional modifications to special education with its attendant harms. This Article argues that the new IDEA will inevitably fail at preventing the over-identification of students as eligible, particularly African American students, because it adopts, but does not embrace, its new pedagogy. The educational paradigm of individualized instruction in general education, already utilized in many classrooms, cannot take root until specialized instruction is pried from the exclusive control of special education. This cannot be accomplished without revisiting the archaic and vague special education eligibility standards, which fail to produce uniform outcomes and permit unconscious bias and racism to influence eligibility determinations. This Article contends that the critical first step remedying special education's dual eligibility crisis is to restrictively define "special education" and who "needs" it to ensure that only truly disabled students with unique needs, rather than mere instructional casualties from a poor general education system, are found eligible for special education.
Number of Pages in PDF File: 64
Keywords: special education, Individuals With Disabilities in Education Act, minority overrepresentation, disproportionate representation, African-American, Latino
JEL Classification: I12, I20, I21, I28, I29, I31, K10Accepted Paper Series
Date posted: April 25, 2008
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