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Racial Bias Claim in Special Education Rejected by Divided Appeals Court

Cross-posted from the School Law Blog:

A divided federal appeals court has rejected a lawsuit alleging that a Pennsylvania school district acted with racial bias when it disproportionately assigned African-American students to special education classes.

Similar claims have been asserted elsewhere across the country for years—that some schools wrongly misidentify African-American students for special education or disproportionately place them put in classes with low expectations.

Several black families sued the Lower Merion school district under Title VI of the Civil Rights Act of 1964, which bars race discrimination in federally funded programs. But a majority of a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, held that there was no evidence the district purposely discriminated against students based on race.

"Looking at the whole record, which includes statistical evidence showing that minorities are overrepresented in low-achievement classes, we conclude ... there is no evidence showing that the district intended to discriminate against plaintiffs," the appeals court said.

The dissenting judge said the "allegations here are not pretty. No one likes to think that a school district, especially one with an outstanding educational reputation, allows race to be a factor in assigning African-American students to special education classes. However, there is sufficient evidence on this record to establish that a trial is warranted to determine whether this school district did exactly that."

Among the evidence cited in the families' suit was that the 7,000-student Lower Merion district had assigned black students to special education at a much higher rate than white students relative to their proportion of enrollment.

While black students were roughly 8 percent of the district's enrollment during a five-year period at issue in the suit (from the 2005-06 school year through the 2009-10 year), about 16 percent of them were in special education, court papers show. White students made up 83 percent of enrollment during those years, and about 80 percent of students in special education were white.

The suit also alleged that the district had created a "minority achievement program" that purported to discuss the way African-American students learn, including that they "rely heavily on visual input rather than auditory input" and prefer "to study while music or conversation occurs in the room."

And the suit pointed to an email from a Lower Merion school board member who suggested that moving low-income and African-American students to a particular school would create "an additional stressor that doesn't need to be there."

"From that comment, a reasonable jury could conclude that [the district] fostered an institutional culture (expressed by at least one board member) that tolerated racial insensitivity and viewed African-American students as creating unnecessary 'stress,'" the plaintiffs said in court papers.

In its defense, the school district argued that all placement decisions were made on an individual basis, not on the race of the student.

A federal district judge granted summary judgment to the school district on the issue of the alleged racial discrimination. 

In its lengthy Sept. 12 decision in Blunt v. Lower Merion School District, the 3rd Circuit majority affirmed the lower court.

"It is critical to recognize that there was no evidence presented in the district court that the [school district] applied different evaluation procedures for determining placement of African-American students than for Caucasian students," U.S. Circuit Judge Morton I. Greenberg wrote for the majority. "After all, if the same evaluation procedures are used for all students regardless of their race there simply is no discrimination."

The dissenter, Chief Judge Theodore A. McKee, said there was sufficient evidence alleged that the families' suit should have been allowed to proceed.

"There is an expert's conclusion that there is statistically significant evidence of African-Americans being disproportionately assigned to special education classes while none are enrolled in advanced placement or 'high-expectation classes,'" McKee said. "Whether or not the procedural irregularities in the erroneous and improper placement of these African-American students in special education classes was the result of bias (i.e. deliberate indifference), ineptitude, or coincidence should not be decided on summary judgment given the plaintiffs' evidence."

Separately, the 3rd Circuit court reaffirmed a ruling on an issue it decided in an earlier, separate case against the Lower Merion district by another black family alleging that a child was misidentified for special education. The court had ruled last year that the family could not bring a claim under the Individuals with Disabilities Education Act because the federal law's definition of "child with a disability" does not cover those students who are mistakenly identified for special education. 

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