The Misidentification of Children with Disabilities: A Harm with No Foul

65 Pages Posted: 18 Oct 2016

See all articles by Claire Raj

Claire Raj

University of South Carolina School of Law

Date Written: July 1, 2016

Abstract

Special education, despite being a uniform federal mandate, is often implemented drastically differently depending on the school system delivering services, the particular category of disability, and the race or ethnicity of students. Affluent white children who attend well-managed school districts tend to benefit from special education services. In the under-funded and over-tasked districts where most minorities attend school, the special education system does not always provide the same benefits. In these schools, special education, too often, operates as a dumping ground for those students the general education system cannot or refuses to serve. In these instances, the label of “special education” may carry harms that outweigh its benefits. For instance, African-American and American-Indian boys are the most likely to be removed from the general education classroom, be educated in more restrictive or separate environments, drop out of school, and be tracked into lower achieving classes. Consequently, they have the least access to higher education and post-high school employment. In short, special education does not appear to be helping many of these students overcome the challenges they face, and it can sometimes make matters worse.

The over-representation of minorities in certain categories of disability is a decades old problem. For more than thirty years, schools have struggled with the accurate identification of disabilities for students of color. Without a doubt, identifying the optimal level of special education is complex and fraught with uncertainty. But what seems relatively clear is that when students are inaccurately identified as having disabilities — when in fact they do not — the label and provision of special education services can cause educational harm, particularly for minority students. Despite the well documented problem of over-representation and its accompanying harms, courts generally refuse to provide a remedy for “misidentified” students. Thus, special education operates as a one-way street. Plaintiffs routinely sue schools to get more or better services, but when a school implements services the child does not need or want, courts disregard any educational harms suffered as a result of the erroneous label and provision of services. This Article argues courts rejecting misidentification claims do so under a misguided analysis. Misidentified students have valid claims for relief and schools can and should be held accountable for their failure to accurately identify disabilities when such a failure creates educational harms.

This article will explore the misidentification claims, including the current problem surrounding misidentification of disabilities and investigate the questions of why schools fail to accurately identify disabilities and what harms arise out of misidentification. It analyzes the laws in place which purport to guard against discrimination on the basis of race or disability and why those laws fail to offer remedies for misidentified students. Finally, it explores the possibility of injunctive relief or compensatory damages, both of which may force schools to increase accuracy of disability identification, thereby reducing the likelihood that children will be misidentified.

Keywords: Special Education, Disability, Education

Suggested Citation

Raj, Claire, The Misidentification of Children with Disabilities: A Harm with No Foul (July 1, 2016). Arizona State Law Journal, Vol. 48, No. 373, 2016, Available at SSRN: https://ssrn.com/abstract=2853498

Claire Raj (Contact Author)

University of South Carolina School of Law ( email )

701 Main Street
Columbia, SC 29208
United States
8037771391 (Phone)
8037771391 (Fax)

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