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Nondiscriminatory Evaluation

Nondiscriminatory Evaluation
 

Definition:  Nondiscriminatory Evaluation in Special Education

In order for a child to be eligible for special education services, the child needs to be evaluated through appropriate assessment.  If a disability is suspected, the parent must give consent for testing or go to court.  Assessment of the child is broad (e.g., hearing, vision, medical, records, decoding).  Use of a language and culture sensitive assessment is crucial.  The language of the evaluation is the one the student is most comfortable with, which is an improvement in the new law.  One cannot use a single measure in evaluation.  For example, a student with mental retardation needs IQ and adaptive skills qualification (Linas, class lecture).

 

This page is prepared by Mary Ann Sawyer and Joan Aitken as part of Dr. Linas' course IEP, Transition, and the Law (EDSP 506) at the University of Missouri - Kansas City and not intended for use by anyone other than the students in that course. 

In-Class PowerPoint Presentation, click here.

Table of Contents (Click colored link):  Definition - DESE - Diversity - Evaluation Methods - Law - Overrepresentation - Presentation Outline - References and Resources - Top

 

DESE
Nondiscriminatory Evaluation (2006) See part V, p. 21 http://www.dese.mo.gov/divspeced/stateplan/PartC-current.pdf

Nondiscriminatory Evaluation (2004) http://www.dese.mo.gov/divspeced/Compliance/Part-C/stateplan/sec_v.pdf

Graduation, see p. 9.  Policy, see p. 11 http://www.dese.mo.gov/divimprove/sia/graduationhandbook.pdf

 

Quoted from PBS, 2006

Evaluation Methods

Tests
While there are no specific test or tests that are required, tests and measures should be selected based on the student’s strengths, weaknesses, and the suspected disability.
Tests may be given to evaluate what the student has learned or may learn in the future.
Tests used in the evaluation are usually "standardized" in that they are given in the same way to everyone.
Tests may also be "norm-referenced," comparing student to other children of the same age or grade


Observations
The student may be observed at school, at home, or in the community.
These observations should show how the student typically behaves in ordinary situations and places.


Interviews
The parent, other family members, teachers, and other school staff may be asked to provide information about the student.
The student may also be asked about his or her interests or feelings about school.


Medical Information
A doctor, nurse, or other medical expert may be asked to provide information about a student’s health and well being.

 

Fair Assessment

Many norm-referenced, standardized assessment instruments discriminate against people from minority cultural and lower socioeconomic groups.   The traditional overrepresentation of minority groups in special education classes and the underrepresentation of the same groups in classes for gifted and talented students underscore the need for nondiscriminatory assessment practices.  Although over- and under representation in Mental Retardation (MR) continue to be reported, substantial evidence indicates that they are being addressed.  For example, IDEA requires schools to reduce discrimination by administrating tests in the child’s native language, using tests that have been specifically validated for the purposes which they are being used, conduct assessments using a multidisciplinary team, using more than a single instrument to determine the existence of a handicapping condition.  Although these requirements do not guarantee nondiscrimination in assessment, they should help overcome the bias that often results in inappropriate labeling and placement of children from minority cultural groups in SPED.  Because teachers are classroom leaders, they must closely evaluate their personal attitudes toward expectations of culturally different students.  Effectiveness has to begin with tolerance toward, and acceptance of, culturally and linguistically different children.

Another form of assessment that can be beneficial in reducing discrimination against students is dynamic assessment.  Whatever assessment methods are used, educators need to be aware of the potential for discrimination against students with diverse language and cultural backgrounds.

Description of Policies and Practices Affecting Educational Services for Minority Students

Many factors contribute toward the overrepresentation of kids of color in Special Education Law.

More equity is present than before 1954, when Brown V. Board of Education recognized the fact that separate is not equal, segregation is a denial of equal protection under the law guaranteed by the 14th amendment, realizing that public policy based on physical, race or disability characteristics are not tolerated by the Federal Constitution, and discrimination is unconstitutional.   The interests/claims of African-Americans, people with disabilities, and other citizens with “unalterable characteristics” to equal educational opportunity have been greatly affected by this legislation.  This law eventually led to the Education for All Handicapped Children Act of 1975 and P.L. 108-446, the Individuals with Disabilities Education Improvement Act of 2004, and others. 

Larry P. v Riles, 1979 case was an instrumental in preventing unfair placement based on identification, assessment, and evaluation methods.  A federal district court in California banned the use of standardized IQ instruments to evaluate African American students for placement in classes for students with educable mental retardation (EMR).  The court ruled that such tests contained racial and cultural bias and discriminated against students from racial minorities.  In 1986, the Larry P. ban was expanded to include IQ testing of African American Students for all special education placements. 

Shortly after the first Larry P. decision, a federal district court, in Parents in Action of Special Education arrived at a different conclusion regarding IQ tests.  According to the court, the Wechsler Intelligence Scale for Children (WISC), the WISC-R, and the Stanford-Binet IQ tests were not racially or culturally discriminatory.  The court further ruled that they could be used in the special education placements of African American Children.  The court also found that the school district had not used the IQ tests as the sole basis for special education placement, thereby complying with IDEA in PASE v. Hannon, 1980.

Of the 488 items on the IQ tests, 9 were discriminatory, ex. The color of rubies, meaning of COD, Better to pay bills by check than cask, what if the store was out of bread, why give to organized charity than street people, finding a wallet, etc.

Judge overturned Larry P.

The Larry P. ban on IQ testing for purposes of placing African American students in special education classes was vacated in 1994 by the U.S. Court of Appeals for the Ninth Circuit in Crawford v. Hoing.  The action was brought by African American students who sought to have standardized IQ tests administered in special education evaluations so that they could qualify for SPED for students with LD. 
Appropriate use of IQ tests can be a valuable part of the evaluation process as long as they are valid, and are not racially or culturally discriminatory, and are not used for the sole criterion for placement. 

It has been determined that culture, poverty, and socioeconomic status correlate with suppression academic ability, not race.

Many factors affect the provision of appropriate educational services to children from minority cultures and different linguistic groups, not all of which are positive.  Nieto (1997) identified the following negative factors.

Institutional Racism – Tactic acceptance of dominant White norms and privileges.  Inherent racism based on history and tradition.

Expectations – Deeply held ideas about expected levels of achievement of different groups.  Teachers and others simply expect less of minority students.

Curriculum – Significant mismatch between curriculum and the needs of many students.  Textbooks also are not matched to the needs of students.

Pedagogy – Teachers often teach as they were taught, which often occurred in a very different cultural context than exists in today’s public schools.  Student-Centered, empowering pedagogy is needed.

Tracking – A very inequitable practice that persists in one form or another.  Continues to be thought by many as the best way of teaching students with a variety of different skills.

Student, Teacher, Parent Involvement- Schools continue to be run by professional educators and offer limited opportunities for parent and student involvement.

Diversity In Society

The U.S. population is composed of individuals from many cultural and linguistic backgrounds.  According to Langdon (1999), in the early 1990’s more than 6 million Americans did not speak English well.  Today, the number may be higher.  The wide spectrum of racial, ethnic, and linguistic characteristics associated with students from different cultures reveals that the melting pot theory has not been totally realized.  Unlike many classrooms in the 1950’s, when most students were of the same race and socioeconomic background, classrooms today are composed of students representing a wide variety of language, socioeconomic classes, and cultures.  Acceptance of such cultural diversity means viewing individuals with different cultural backgrounds positively and viewing diversity among the population as positive for society (Podemski, Price, Marsh, & Smith).

Difference or Deficit

With the wide range of cultures and racial groups represented in the U.S., and with the obvious regional differences present, language diversity is not surprising.  To the contrary, a lack of significant language diversity would be quite unusual.  Substantial diversity exists within the English language itself.  The form of English in the U.S. is very different than England, Scotland, and Australia.  Even within the U.S., wised variability in English dialects can be found in different regions of the country.  For example, in the South the phrase “you all” is frequently pronounced “y’all”.  In mountain English, an “a” is often added at the beginning of verbs with “ing”, as in “He was a’waiting at the store” meaning “He waited at the store” or “He was waiting at the store”.  In the North, the r is often dropped as in car and bar.  Ethnic, racial, and socioeconomic groups also speak varying English dialects.  These dialects, and the accents associated with them, reflect an individual’s linguistic background and are often difficult to modify.

Historically, the question that has often been posed is whether substantial linguistic variance constitutes a language deficit or simply a language difference.

The Deficit Position

Advocates of the deficit viewpoint have asserted that the language from lower social classes represents a deficient code, not just one that is different from the majority culture.  In the 1950’s, - 1970’s, this viewpoint has been replaced primarily with the “difference” position.  The deficit position is not longer considered appropriate.       

The deficit viewpoint was associated with the cultural deprivation theory, which assumed that various detrimental factors produced deprived homes and communities that fostered educational handicaps (Polloway and Patton, 1981).  Within these environments at the bottom of the social class structure, several forces resulted in learning problems for the children: lack of structure and organization in the home, authoritarian and inconsistent parenting practices; the absence of strong achievement motivation; parent absenteeism; and practical problems associated with poverty.  The language deficit viewpoint took the position one step farther.  It implied strongly that language  used in these environments actually caused and perpetuated many of the conditions described.

Hess and Shipman (1965) concluded that a poverty situation is often associated with a deprived learning environment and thus “produces a child who related to authority rather than to rationale, who, although compliant, is not reflective in his behavior, and for whom the consequences of an act are largely considered in terms of immediate punishment or reward rather than future effects and long range goals.

Work by Bernstein in working class people in England, and specifically on the concept of two forms of language:  elaborated and restricted codes.  He questioned how this was used for the poor child.  The use or abuse of this distinction between the codes has been equated with linguistic deprivation, linguistic deficiency, or being nonverbal.  Nevertheless, the hypotheses generated about these two codes became the basis for theories in American inner cities and thus warranted attention. 

The elaborated code is associated with a range of syntactical options available to the speaker.  The verbal channel becomes the basic orientation of communications and allows the speaker the opportunity to explicitly state his or her intentions.  Within the elaborated language pattern a greater flexibility in terms of vocabulary would be found to refer to abstract terms.

            A narrower range of syntactic and vocabulary possibilities characterizes the restricted code.  It is more rigid in form and relies more on gestures, voice, and facial expressions.  It is “we” oriented in contract to “I” oriented of the elaborated form.  As such, it represents an extensive collection of mutual experiences and expectations, such as prisons and gang culture.  The use of this code controls and transmits culture.  It stifles expression.  The use of the restricted code creates social solidarity at the cost of verbal elaboration of individual experience.

Specific Aspects

  1. Short, simple sentences, which are often incomplete and syntactically weak.

  2. Simple conjunctions  such as “so”, “then”, and “because”.

  3. Few subordinate clauses.

  4. Limited and repetitive use of adjectives and verbs.

  5. Statements that confuse reasons and conclusions, with the result being the product of categorical statements.

School problems, IQ test score deficits, difficulty with abstract concepts, and general language failures were traced to Bernstein.

He replied that

Lest the restricted code be misinterpreted as simply poor language, we must be aware that it contains a vast potential of meanings.  It is a form of speech which symbolizes a communally based culture.  It carries its own aesthetic.  It should not be disvalued.

Bereiter and Engelmann never implied that inner-city individuals lacked a communication system for sharing experiences, expressing emotions, and controlling behavior.  They stated that the lower class is not without culture, but he is deprived of that part of culture that can only be acquired through teaching. 

But they did indict the communication system’s inability to complement the growth of the cognitive processes, especially those related to deductive thinking, analysis, hypothesis, building, and inquiry.  Herein lay the so-called language deficit or defect.

One of the major invalid assumptions was that in this approach was that, automatically, students who did not speak standard English had a language deficiency.  As a U.S. society has moved toward integrating minority racial groups into schools, the work force, and society in general, the notion that a different linguistic system is inherently bad had faded.  Difference does not mean deficit.

The Difference position

The language position differs significantly from the deficit orientation. 

Proponent of this position believe that all languages have the potential for communicating the full range of human experiences and for meeting all of the purposes of language. 

Ortiz (1995) described a continuum of language skills found in children who do not proficiently use standard English.  Even though the continuum focuses primarily on language systems that are uniquely different from English, it underscores the idea that language systems may be different but not deficient.  Black dialect, regional dialects, or competence in a language other than English reflect difference, not an absence of language functionality.  Ebonics has been the primary focus of the difference position.    Seymour defined Ebonics as a linking of the terms Ebony (referring to Black) and phonics (referring to sound).  Spoken by many African Americans, Ebonics is one of many different varieties of English that is spoken by a group.  It is less regionalized than many dialects and is distinguished by patterns of grammar, morphology, semantics, syntax, and phonology.  Ebonics is probably the foremost dialectical variation of standard English studies since the mid 1970’s.  One reason is that African Americans constitute one of America’s largest minority groups.  Another is that many African Americans do not use language forms that have been assumed to enable one to succeed in school.  Most of these forms have traditionally been associated by the middle class.  Still another significant rationale for the interest in Ebonics is America’s failure to assimilate African Americans into the mainstream of life to the extent achieved with other ethnic groups.  Despite efforts to integrate African Americans into the majority culture, they still constitute a distinct group in many areas.  One can argue that Ebonics has contributed to this situation. 

Although many African Americans use Ebonics, it is primarily used by African Americans living in large urban centers, and it is observed most often in the language

Of children and teenagers.  Certain aspects of the dialect are also found in the language of African Americans in other low socioeconomic areas, such as the rural Southeast.  However, a significant degree of variance can be identified in the dialects spoken in different areas. 

            An essential element of the difference position is its tern “nonstandard” instead of “substandard” to refer to Ebonics and other variations of English.  This perspective views all dialects as complete linguistic systems rather than as inferior and error-ridden deviations from a standard English.  Ebonics became noteworthy in 1996 when the Board of Education of the Oakland, California school system acknowledged its existence and legitimacy.  The goal of the district was standard American English proficiency for all students; however, the means of achieving this goal focused on building on “the unique language background of African American students, which was referred to as Ebonics.  Labov in 1967, 1969 concluded that from this research on the language difference and nonstandard English, there is no empirical basis for the deprivation concept and that young Black children receive a substantial amount of stimulation, actively participate in varied verbal interchanges, and hear many structurally appropriate sentences on which to model their own speech.  Labov also stressed that Black dialect or Ebonics provided a basis for conceptual learning and followed linguistic logic similar to that of standard English.  He concluded that uninformed assessment and unwarranted conclusion result in the concept of language deprivation.  To illustrate this point, he presented a series of conversations that occurred between interviewers in his studies with young inner-city black children.  Children’s limited speech did little to contradict the notion of deprived language.

Teaching Implications

Language is a powerful tool.  Acceptance of language diversity can empower students to succeed in inclusive educational settings and communicate acceptance of individual differences.  Further, it can have a productive influence on subsequent adult adjustment.  Conversely, language snobbery can have significant negative effects in the classroom.  Unless language bias is drastically reduced or eliminated, many linguistically different children may leave U.S. public schools unprepared to function successfully in the community, in part because of their general frustration and dissatisfaction.

Bernstein states that in dialect there is nothing that prevents a child from internalizing and learning to use universal meanings.  If the culture of the teacher is to become part of the consciousness of the child, then the culture of the child must first be in consciousness of the teacher.

Competencies

  • First, the teachers must be able to effectively communicate in the language of their students.

  • Second, teachers must understand the structural differences.

  • Third, teachers must respond positively to cross cultural behavioral diversity.

  • Fourth, teachers must recognize similarities and differences among various cultures, particularly as they relate to learning opportunities or conflict.

Core knowledge Statements

The teacher will want to create a safe, positive, and supportive learning environment in which diversities are valued.  This process includes a demonstration of positive regard for the culture, religion, gender, and sexual orientation of individual students.  The school can provide an environment to implement strategies for preparing individuals to live harmoniously and productively in a multiclass, multiethnic, multicultural, and multinational world.  Teachers will benefit from knowing what personal cultural biases may affect their teaching.

Yell, 2006

Overrepresentation

Yell contends that there is an overrepresentation of kids with color in special education.  Many factors contribute toward the overrepresentation of kids of color in Special Education Law.

More equity is present than before 1954, when Brown V. Board of Education recognized the fact that separate is not equal, segregation is a denial of equal protection under the law guaranteed by the 14th amendment, realizing that public policy based on physical, race or disability characteristics are not tolerated by the Federal Constitution, and discrimination is unconstitutional.   The interests/claims of African-Americans, people with disabilities, and other citizens with “unalterable characteristics” to equal educational opportunity have been greatly affected by this legislation.  This law eventually led to the Education for All Handicapped Children Act of 1975 and P.L. 108-446, the Individuals with Disabilities Education Improvement Act of 2004, and others. 

            Larry P. v Riles, 1979 case was a instrumental in preventing unfair placement based on identification, assessment, and evaluation methods.  A federal district court in California banned the use of standardized IQ instruments to evaluate African American students for placement in classes for students with educable mental retardation (EMR).  The court ruled that such tests contained racial and cultural bias and discriminated against students from racial minorities.  In 1986, the Larry P. ban was expanded to include IQ testing of African American Students for all special education placements. 

            Shortly after the first Larry P. decision, a federal district court, in Parents in Action of Special Education arrived at a different conclusion regarding IQ tests.  According to the court, the Wechsler Intelligence Scale for Children (WISC), the WISC-R, and the Stanford-Binet IQ tests were not racially or culturally discriminatory.  The court further ruled that they could be used in the special education placements of African American Children.  The court also found that the school district had not used the IQ tests as the sole basis for special education placement, thereby complying with IDEA in PASE v. Hannon, 1980.

            According to Linas (personal conversation, 2006), of the 488 items on the IQ tests, 9 were discriminatory, ex. The color of rubies, meaning of COD, Better to pay bills by check than cash, what if the store was out of bread, why give to organized charity than street people, finding a wallet, etc…

Judge overturned Larry P.

            Yell continues to explain that the Larry P. ban on IQ testing for purposes of placing African American students in special education classes was vacated in 1994 by the U.S. Court of Appeals for the Ninth Circuit in Crawford v. Hoing.  The action was brought by African American students who sought to have standardized IQ tests administered in special education evaluations so that they could qualify for SPED for students with LD. 
Appropriate use of IQ tests can be a valuable part of the evaluation process as long as they are valid, and are not racially or culturally discriminatory, and are not used for the sole criterion for placement. 

            It has been determined that culture, poverty, and socioeconomic status to suppress academic ability, not race.

            Many factors affect the provision of appropriate educational services to children from minority cultures and different linguistic groups, not all of which are positive.  Nieto (1997) identified the following negative factors.

 

Polloway, Miller, & Smith, 2004)

According to Polloway, Miller, and Smith (2004):
Diversity In Society

The U.S. population is composed of individuals from many cultural and linguistic backgrounds.  According to Langdon (1999), in the early 1990’s more than 6 million Americans did not speak English well.  Today, the number may be higher.  The wide spectrum of racial, ethnic, and linguistic characteristics associated with students from different cultures reveals that the melting pot theory has not been totally realized.  Unlike many classrooms in the 1950’s, when most students were of the same race and socioeconomic background, classrooms today are composed of students representing a wide variety of language, socioeconomic classes, and cultures.  Acceptance of such cultural diversity means viewing individuals with different cultural backgrounds positively and viewing diversity among the population as positive for society (Podemski, Price, Marsh, & Smith).

Difference or Deficit

With the wide range of cultures and racial groups represented in the U.S., and with the obvious regional differences present, language diversity is not surprising.  To the contrary, a lack of significant language diversity would be quite unusual.  Substantial diversity exists within the English language itself.  The form of English in the U.S. is very different than England, Scotland, and Australia.  Even within the U.S., wised variability in English dialects can be found in different regions of the country.  For example, in the South the phrase “you all” is frequently pronounced “y’all”.  In mountain English, an “a” is often added at the beginning of verbs with “ing”, as in “He was a’waiting at the store” meaning “He waited at the store” or “He was waiting at the store”.  In the North, the r is often dropped as in car and bar.  Ethnic, racial, and socioeconomic groups also speak varying English dialects.  These dialects, and the accents associated with them, reflect an individual’s linguistic background and are often difficult to modify.

Historically, the question that has often been posed is whether substantial linguistic variance constitutes a language deficit or simply a language difference.

The Deficit Position

Advocates of the deficit viewpoint have asserted that the language from lower social classes represents a deficient code, not just one that is different from the majority culture.  In the 1950’s, - 1970’s, this viewpoint has been replaced primarily with the “difference” position.  The deficit position is not longer considered appropriate.       

The deficit viewpoint was associated with the cultural deprivation theory, which assumed that various detrimental factors produced deprived homes and communities that fostered educational handicaps (Polloway and Patton, 1981).  Within these environments at the bottom of the social class structure, several forces resulted in learning problems for the children: lack of structure and organization in the home, authoritarian and inconsistent parenting practices; the absence of strong achievement motivation; parent absenteeism; and practical problems associated with poverty.  The language deficit viewpoint took the position one step farther.  It implied strongly that language  used in these environments actually caused and perpetuated many of the conditions described.

Hess and Shipman (1965) concluded that a poverty situation is often associated with a deprived learning environment and thus “produces a child who related to authority rather than to rationale, who, although compliant, is not reflective in his behavior, and for whom the consequences of an act are largely considered in terms of immediate punishment or reward rather than future effects and long range goals.

Work by Bernstein in working class people in England, and specifically on the concept of two forms of language:  elaborated and restricted codes.  He questioned how this was used for the poor child.  The use or abuse of this distinction between the codes has been equated with linguistic deprivation, linguistic deficiency, or being nonverbal.  Nevertheless, the hypotheses generated about these two codes became the basis for theories in American inner cities and thus warranted attention. 

The elaborated code is associated with a range of syntactical options available to the speaker.  The verbal channel becomes the basic orientation of communications and allows the speaker the opportunity to explicitly state his or her intentions.  Within the elaborated language pattern a greater flexibility in terms of vocabulary would be found to refer to abstract terms.

A narrower range of syntactic and vocabulary possibilities characterizes the restricted code.  It is more rigid in form and relies more on gestures, voice, and facial expressions.  It is “we” oriented in contract to “I” oriented of the elaborated form.  As such, it represents an extensive collection of mutual experiences and expectations, such as prisons and gang culture.  The use of this code controls and transmits culture.  It stifles expression.  The use of the restricted code creates social solidarity at the cost of verbal elaboration of individual experience.

Institutional Racism – Tactic acceptance of dominant White norms and privileges.  Inherent racism based on history and tradition.

Expectations – Deeply held ideas about expected levels of achievement of different groups.  Teachers and others simply expect less of minority students.

Curriculum – Significant mismatch between curriculum and the needs of many students.  Textbooks also are not matched to the needs of students.

Pedagogy – Teachers often teach as they were taught, which often occurred in a very different cultural context than exists in today’s public schools.  Student-Centered, empowering pedagogy is needed.

Tracking – A very inequitable practice that persists in one form or another.  Continues to be thought by many as the best way of teaching students with a variety of different skills.

Student, Teacher, Parent Involvement- Schools continue to be run by professional educators and offer limited opportunities for parent and student involvement.

Directly quoted from US Government

Evaluation and Placement Must be Nondiscriminatory

Failure to provide persons with disabilities with an appropriate education frequently occurs as a result of misclassification and inappropriate placement. It is unacceptable to base individual placement decisions on presumptions and stereotypes regarding persons with disabilities or on classes of such persons. For example, it would be a violation of the law for a recipient to adopt a policy that every student who is hearing impaired, regardless of the severity of the child's disability, must be placed in a state school for the deaf.

Section 504 requires the use of evaluation and placement procedures that ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials.

An individual evaluation must be conducted before any action is taken with respect to the initial placement of a child who has a disability, or before any significant change in that placement.

Recipients must establish standards and procedures for initial and continuing evaluations and placement decisions regarding persons who, because of disability, need or are believed to need special education or related services.

These procedures must ensure that tests and other evaluation materials:

  • have been validated for the specific purpose for which they are used, and are administered by trained personnel in conformance with the instructions provided by their producer;

  •  include materials tailored to assess specific areas of educational need and not merely materials that are designed to provide a single general intelligence quotient; and

  • are selected and administered so as to best ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

Recipients must draw upon a variety of sources in the evaluation and placement process so that the possibility of error is minimized. All significant factors related to the learning process must be considered.

These sources and factors include, for example, aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior. Adaptive behavior is the effectiveness with which the individual meets the standards of personal independence and social responsibility expected of his or her age and cultural group.

Information from all sources must be documented and considered by a group of knowledgeable persons, and procedures must ensure that the student is placed with nondisabled students to the greatest extent appropriate.

Periodic reevaluation is required. This may be conducted in accordance with the IDEA regulation, which requires reevaluation at three-year intervals or more frequently if conditions warrant, or if the child's parent or teacher requests a reevaluation.

Recipients Must Have Due Process Procedures for the Review of Identification, Evaluation and Placement Decisions

Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.

Parents must be told about these procedures. In addition, parents or guardians must be notified of any evaluation or placement actions, and must be allowed to examine the student's records. The due process procedures must allow the parents or guardians of students in elementary and secondary schools to challenge evaluation and placement procedures and decisions.

If parents or guardians disagree with the school's decisions, they must be afforded an impartial hearing, with an opportunity for participation and representation by counsel. A review procedure must be available to parents or guardians who disagree with the hearing decision.

Spencer Fane Brit & Browne  LLP

Time Line
"The 60-day timeline may also be inapplicable in situations involving transfer students. An extension of the timeline may be appropriate if a student enrolls in your District after an evaluation is started in the student’s previous District (but before a determination is made regarding eligibility). The law provides the student’s new District more time to complete the evaluation if the District is making sufficient progress to ensure prompt completion of the evaluation. In addition, the student’s parent must agree to the District’s proposed date by which the evaluation will be complete."  http://www.spencerfane.com/content/content/2005-16174-790.asp
 

Disproportionality Mini Grants

Mini-Grants
There are opportunities for obtaining funds to improve a school's evaluation process, so that nondiscriminatory evaluation is a reality.  See, for example:  http://www.wi-rsn.org/minigrant.htm

Directly quoted from Montclair Public School District

Nondiscriminatory Assessment and Eligibility Determination

Under IDEA and the State Code, once you [the parent] and the team decide that there will be an evaluation, you all decide what the evaluation will consist of and who will conduct it. The evaluation, determination of eligibility, and development and implementation of the IEP must occur within 90 calendar days of written consent under the New Jersey Code. (The 90 days includes summer vacation, but not brief school breaks). The evaluation must be multi-disciplinary (at least two professionals), and the New Jersey Code indicates that at least two members of the Child Study Team must participate in the evaluation, one of whom must conduct a structured observation in an other-than-testing situation (for example, in the classroom). No single test can be used to determine the eligibility of your child. . .

The Child Study Team may not use tests with a discriminatory impact based on race or language. In addition, the evaluation must ensure that your child is not identified as having a disability due to lack of instruction in reading or math, limited English proficiency, or cultural differences. For example, if your child has transferred from another district that hasn't covered the same material covered in the Montclair Public Schools, s/he shouldn't be classified as disabled. Instead, s/he should get extra help to learn that material and catch up.

Law

Law

Law and Economics in Hobson v. Hansen



Larry P. v. Riles is the 1972 California Supreme Court decision that ruled using IQ tests to place children in Special Education violated the equal protection clause of the 14th Amendment of the U.S. Constitution because the tests were found to be culturally biased. The ruling also expanded the rights of parents of Special Education children. The court mandated that parents be notified of their child's placement in Special Education and made aware of specific education plans for their children that were based on a multidisciplinary assessment. Parents were also entitled to a hearing if they disagreed with the education plans created by their child's school. http://www.edsource.org/edu_stu_law.cfm

Banning the use of I.Q. Tests - Larry P. v. Riles
"For decades, thousands of African American students in California public schools were misplaced in separate, self-contained classes for the mentally retarded through the use of racially and culturally biased standardized I.Q. tests. In 1986, Public Advocates successfully brought a halt to the use of I.Q. tests for placement of African American students in special education classes. This landmark case began in 1971 when Public Advocates' clients filed a class action lawsuit against the State Department of Education and the San Francisco Unified School District. A 65-day trial, involving 53 witnesses and 28 leading experts was held in 1977. In 1979, Judge Peckham issued a 130-page order criticizing the educational system, the role of I.Q. tests, and the harm done by misplacing African American students in dead-end classes. In a historic decision, Judge Peckham ended the use of I.Q. tests for the purposes of identifying and placing African American school children in special classes for the mentally retarded and required remedying the misplacement which had occur. However, school districts and school psychologists continued to use and rely on I.Q. tests, despite the 1979 court order. The parties returned to the Court of Appeal; and, in 1986, the Court affirmed Judge Peckham's decision. Finally, the State Superintendent signed an agreement to end the use of I.Q. tests on September 16, 1986.  Today, Public Advocates continues to monitor the misuse of I.Q. tests in the State of California."

http://www.publicadvocates.org/education1.html#I.Q.%20Tests

Parents in Action on Special Education (PASE) v. Hannon (1980)
Legislative Basis for Nondiscriminatory Evaluation
The Education for All Handicapped Children Act of 1975
Section 504 of the Rehabilitation Act of 1973
The Americans with Disabilities Act of 1990
 

Interesting Links

Ethnic Representation in Special Education: The Influence of School-Related Economic and Demographic Variables, by Donald P. Oswald , Martha J. Coutinho , Al M. Best , Nirbhay N. Singh

http://www.questia.com/PM.qst?a=o&se=gglsc&d=5001232649&er=deny

Culture in Special Education:
Building Reciprocal Family-Provider Relationships, by 
Maya Kalyanpur and Beth Harry

(Excerpt from Chapter 2, “The Legal and Epistemological Underpinnings of the Construction of Disability,” from Culture in Special Education, by Maya Kalyanpur and Beth Harry (copyright Paul H. Brookes Publishing Co., 1999) http://cecp.air.org/interact/authoronline/culsped/ch2.htm

Kline,S.R. (1999) Alternative Assessment of Exceptional Culturally and Linguistically Diverse Students [On-Line]. Available: http://www.crede/Reports/intsummain.html

Cornell

Appropriate Evaluation
IDEA requires that before a student can receive special education and related services for the first time, he or she must receive a "full and individual initial evaluation." The law also requires:

  • parental consent of the initial evaluation;

  • a nondiscriminatory evaluation;

  • evaluation by a team in all areas of suspected disability;

  • not using any single procedure to determine that a child has a disability or to determine the child's educational program;

  • testing in the native language or mode of communication of the child, unless it is clearly not feasible to do so; and

  • that the local education agencies conduct reevaluations for each child with a disability if "conditions warrant a reevaluation or if the child's parents or teacher requests a reevaluation, but at least every three years (§614(a)(2)(A)).

Direct quote from http://www.ilr.cornell.edu/ped/daa/idea.html

PowerPoint Presentation Outline

Presentation Outline:  Nondiscriminatory Evaluation

Mary Ann Sawyer and Joan Aitken

Objectives

Define nondiscriminatory evaluation.

Identify key law cases.

Recognize important considerations for nondiscriminatory evaluation.

Recognize strategies to solve the problem of inappropriate representation.

Define nondiscriminatory evaluation.

Non-discriminatory Evaluation

The Non-Disciminatory Evaluation principle has two purposes:

1. To determine if a student has a disability; and

2. If there is a disability to determine whether the student then requires special education and related services and if so, to begin to determine which of these services they need.

Evaluation Free of Cultural and Linguistic Bias

Culturally and linguistically diverse (CLD).

English language learner (ELL).

English as second language (ESL).

Limited English proficiency (LEP).

English as foreign language (EFL).

Two language speaker (2L).

What Are The Steps?

Parental consent.

Assess child in all areas of suspected disability.

Appropriate to cultural & language.

Use valid instrument.

Multiple instrument/procedures (no single source of information).

Multidisciplinary team.

Placement in LRE AFTER complete evaluation.

Identify Key Law Cases.

Larry P. v. Riles (1972, 1979)

1972 California Supreme Court decision that ruled using IQ tests to place children in Special Education violated the equal protection clause of the 14th Amendment of the U.S. Constitution because the tests were found to be culturally biased.

The ruling also expanded the rights of parents of Special Education children.

The court mandated that parents be notified of their child's placement in Special Education and made aware of specific education plans for their children that were based on a multidisciplinary assessment.

Parents were also entitled to a hearing if they disagreed with the education plans created by their child's school. http://www.edsource.org/edu_stu_law.cfm

Parents in Action on Special Education (PASE) v. Hannon (1980)

PASE v Hannen 1988:  Previous case reversed because of an item analysis so can use IQ tests.  488 items, 9 potentially discriminatory.  Stanford Binet has one item:  Which one’s pretties.  WISC:  What is the color of rubies?  What is the meaning of COD.  Why is it better to pay bills by check than by cash?

Recognize important considerations for nondiscriminatory evaluation.

Potential Sources of Evaluation Error or Bias
(Overton, 2006, p. 94).

Use of measures intended for other purposes.

Use of the quickest or easiest instrument.

Use of the most popular instrument.

Failure to establish rapport with examinee.

Failure to record diagnosis-relevant behaviors during the examination.

Failure to follow standard test administration protocols.

Failure to record or score correctly.

Failure to interpret measure correctly. And. . .

Use of measures required by school administration, without consideration of appropriateness (Baca and Cervantes, 2003).

Assessment procedures in a school often reflect local politics.

States use language proficiency exams, criterion-referenced achievement tests, or both.

"Standard" assessments presumed a high degree of homogeneity of experiences

Evaluation Continuum (VESID, 2002)

Evaluate all incoming students.  

Place students into classes and wait until problems emerge.

Fallacies (Baca and Cervantes, 2003).

Fallacy: Students with exceptionalities cannot learn two (or more) languages.

Fallacy: Parents of CLD students (with and without exceptionalities) should speak with their children at home in English.

Fallacy: Acquiring more than one language is "difficult" and can lead to academic problems.

Fallacy: Some bilingual students don’t speak any language to a real extent and are "semilingual"

Determining Needed Evaluation Data (Yell, 2006)

Review existing evaluation data.

Parentally provided information.

Classroom-based assessments & observations.

Observations by teachers.

Formal and informal assessments.

Evaluation Data Needed
Identify the data that is needed to determine (Yell, 2006):

Category of disability

Present levels of performance

Special education & related services

Modifications to allow child to meet IEP goals & participate in general education

The student’s progress

Evaluation Materials (Yell, 2006)

Test and Evaluation materials

Must not be discriminatory

Must be given in the child’s native language or mode of communication

Must be used to assess all areas related to the suspected disability

Technically sound instruments to assess

Cognitive & behavioral factors

Physical & developmental factors

Standardized Tests Must (Yell, 2006):

Be valid.

Be administered by trained personnel in conformity with instructions.

Reflect of the student’s aptitude or achievement.

Assess specific areas of educational need.

Evaluation Procedures (Yell, 2006)

A variety of assessment tools & strategies must be used to collect functional & developmental information that may assist in determining:

Whether the child has a disability.

The content of the IEP.

No single procedure may be the sole criterion.

Decisions must be made by a multidisciplinary team.

Interpreting Evaluation Data (Yell, 2006).

Draw on information from a variety of sources.

Decisions must be documented and carefully considered.

Decisions must be made by a team (usually IEP team).

Placement decisions must be accordance with LRE requirements.

Individuals with Disabilities Education Act (IDEA) (PBS, 2006).

Evaluate in an individualized and nondiscriminatory way.

Individualized tests (given to the student alone with the test giver, rather than in a group).

Nondiscriminatory tests are known to be fair (or valid).

No cost to the parent.

Some Questions Parents Might Ask About Evaluation (Pacer Center, 1999)

Why do you want to evaluate my child?

What do you think you may find from the evaluation?

What kinds of test will you give?

In what areas will my child be tested?

Will the tests you use discriminate against my child based on: Race? Culture? Disability? Use of language?

And (Pacer Center, 1999)

How do you know that the tests do not discriminate?

What will happen if my child is NOT evaluated? Will he or she still get some help for the problems you have noticed?

By what date will you give me a written copy of the evaluation results?

What steps should I take if I do not agree with the evaluation results?

Over-representation or Under-representation?

Under-representation: Fear of lawsuits may prompt under-representation.

Over-representation: Cultural or language differences may be seen as evidence of diagnosis of disability.

African American Students (Robertson & Kushner, 1994).

16% of the total U.S. student population.

32% of students in programs for mild mental retardation (MMR).

29% in programs for moderate mental retardation.

24% in programs for serious emotional disturbance (SED).

Harvard (2001) studies show the trend continues with inappropriate special education placements for minorities.

Culturally and Linguistically Diverse (VESID, 2002, para. 13)

Children from 160 countries in New York schools, who also may have:

Come to the United States after an extended stay in another country to which they were forced to immigrate from their homelands,

Experienced traumatic events such as war and other civil disturbances,

Been subjected to forced family separations,

Had little or no formal schooling before arriving in the United States, and/or

Live lives of chronic poverty and disruption in the United States.

Variables May Account for Disproportionate Representation

Language.

Poverty.

Assessment practices.

Systemic issues.

Professional development opportunities for teachers.

References and Resources

References and Relevant Sources

Baca, L. M. & Cervantes, H. T. (2003). The bilingual special education interface. (4th ed.) New York: Prentice Hall.

Bansberg, B. (2003). Applying the Learner-Centered Principles to the special case of literacy. Theory into practice, 42(2), 142-50.

Barrera, M. (2006). Roles of definitional and assessment models in the identification of new or second language learners of English for special education. Journal of Learning Disabilities, 39(2), 142-56.

Bernal, E. (2002). Three ways to achieve a more equitable representation of culturally and linguistically different students in GT programs. Roeper Review, 24(2), 82-8.

Chamberlain, S. (2005). Recognizing and responding to cultural differences in the education of culturally and linguistically diverse learners. Intervention in School and Clinic, 40(4), 195-211.

Croghan, M. (2000). History, linguistic theory, California's CLAD, and the Oakland Public Schools resolution on Ebonics: What are the connections? World Englishes, 19(1), 73-97.

EdSource. (2003, May). Selected student-related laws and policies. EdSource: Mountain View, CA.  Retrieved October 13, 2006, from http://www.edsource.org/edu_stu_law.cfm  

EMSTAC. (No date). Disproportionality: The disproportionate representation of racial and ethnic minorities in special education. Washington, DC: EMSTAC. Retrieved October 20, 2006, from http://www.emstac.org/registered/topics/disproportionality/faqs.htm

Figueroa, R., & Newsome, P. (2006). The diagnosis of LD in English learners: Is it nondiscriminatory?. Journal of Learning Disabilities, 39(3), 206-14.

Garcia, S., & Ortiz, A. Preventing disproportionate representation: Culturally and linguistically responsive prereferral interventions. TEACHING Exceptional Children, 64-68.

Gopaul-MacNicol, S., & Reid, G. (1999). The psychoeducational assessment of Ebonics speakers: Issues and challenges. Journal of Negro Education, 67(1), 16-25.

Grantham, T. (2002). Straight talk on the issue of underrepresentation: An interview with Dr. Mary M. Frasier. Roeper Review, 24(2), 50-1.

Green, T., McIntosh, A., & Cook-Morales, V. (2005). From old schools to tomorrow's schools: Psychoeducational assessment of African American students. Remedial and Special Education, 26(2), 82-92.

Gunderson, L., & Siegel, L. (2001). The evils of the use of IQ tests to define learning disabilities in first- and second-language learners. The Reading Teacher, 55(1), 48-55.

Gutierrez-Clellen, V., & Pena, E. (2001). Dynamic assessment of diverse children: A tutorial. Language, Speech, and Hearing Services in Schools, 32(4), 212-24.

Harris, J. (2003). Toward an understanding of literacy issues in multicultural school-age populations. Language, Speech, and Hearing Services in Schools, 34(1), 17-82.

Harvard Graduate School of Education. (2001). Harvard studies find inappropriate special education placements continue to segregate and limit educational opportunities for minority students nationwide. Cambridge: Harvard University. Retrieved October 12, 2006, from http://www.gse.harvard.edu/news/features/speced03022001.html  

Helman, L. (2005). Using literacy assessment results to improve teaching for English-language learners. The Reading Teacher, 58(7), 668-77.

Hosp, J., & Reschly, D. (2003). Referral rates for intervention or assessment: A meta-analysis of racial differences. The Journal of Special Education, 37(2), 67-80.

Hosp, J., & Reschly, D. (2004). Disproportionate representation of minority students in special education: Academic, demographic and economic predictors. Exceptional Children, 70(2), 185-99.

Katsiyannis, A., & Herbst, M. (2004). Minimize litigation in special education. Intervention in School & Clinic, 40(2), 106-110.

Layton, C., & Lock, R. (2002). Sensitizing teachers to English language learner evaluation procedures for students with learning disabilities. Teacher Education and Special Education, 25(4), 362-7.

Limbos, M., & Geva, E. (2001). Accuracy of teacher assessments of second-language students at risk for reading disability. Journal of Learning Disabilities, 34(2), 136-51.

Overton, T. (2006). Assessing learners with special needs: An applied approach. (5th ed.). Upper Saddle River, NJ: Pearson.

Pacer Center. (1999). Special education: Evaluation. Minneapolis: PACER Center. Retrieved October 8, 2006, from http://www.ldonline.org/articles/6185  

Paul, D. (2004). The train has left: The No Child Left Behind Act leaves black and Latino literacy learners waiting at the station. Journal of Adolescent & Adult Literacy, 47(8), 648-56.

PBS Parents (2006). Inclusive communities. Washington, DC: US government. Retrieved October 12, 2006, from http://www.pbs.org/parents/inclusivecommunities/special_education3.html

Polloway, E. A., Miller, L. & Smith, T. E. C. (2004). Language instruction for students with disabilities. (3rd ed.) Denver: Love Publishing Company.

Robertson, P. & Kushner, M. With Starks, J. & Drescher, C. (1994). An update of participation of culturally and linguistically diverse students in special education: The need for a research and policy agenda. The Bilingual Special Education Perspective, 14(1), 3-9.

Rosenberg, M., Sindelar, P., & Connelly, V. (2004). CLD position statement: alternative routes to certification in special education. Learning Disability Quarterly, 27(2), 122-3.

Saenz, L., Fuchs, L., & Fuchs, D. (2005). Peer-assisted learning strategies for English language learners with learning disabilities. Exceptional Children, 71(3), 231-47.

Scott, M., Delgado, C., & Tu, S. (2005). Selecting and validating tasks from a kindergarten screening battery that best predict third grade educational placement. Education and Training in Developmental Disabilities, 40(4), 377-89.

Scott, M., Tu, S., & Fletcher, K. (2003). Cross validating a new preschool screening test. Education and Training in Developmental Disabilities, 38(2), 167-78.

Sheppard, S. (2001). Improving academic success for diverse-language learners. Preventing School Failure, 45(3), 132-5.

Simpson, E., & Yocom, D. ([YEAR]). Every child. Teaching Exceptional Children, 37(5), 36-40.

Skaggs, M. (2001). Facing the facts: Overrepresentation of culturally and linguistically diverse students in special education. Multicultural Education, 9(2), 42-3.

Tam, K., Heward, W., & Heng, M. (2006). A reading instruction intervention program for English-language learners who are struggling readers. The Journal of Special Education, 40(2), 79-93.

Townsend, B. (2002). "Testing while black": standards-based school reform and African American learners. Remedial and Special Education, 23(4), 222-30.

Troia, G. (2004). Migrant students with limited English proficiency: Can Fast ForWord language make a difference in their language skills and academic achievement?. Remedial and Special Education, 25(6), 353-66.

Valencia, R., & Villarreal, B. (2003). Improving students' reading performance via standards-based school reform: A critique. The Reading Teacher, 56(7), 612-21.

VESID. (2002). Key issues in bilingual special education Work Papers. Albany: New York State Education Department. Retrieved October 12, 2006, from http://www.vesid.nysed.gov/lsn/bilingual/trainingindex.htm

Warner, T., Dede, D., & Garvan, C. (2002). One size still does not fit all in specific learning disability assessment across ethnic groups. Journal of Learning Disabilities, 35(6), 500-8.

Wilkinson, C., Ortiz, A., & Robertson, P. (2006). English language learners with reading-related LD: Linking data from multiple sources to make eligibility determinations. Journal of Learning Disabilities, 39(2), 129-41.

Wimes, M, & Rush, S. (2006). Making the most of the new IDEA federal regulations: An in-service training for Hickman Mills School District. Kansas City, MO: Spencer Fane Brit & Browne LLP. http://www.spencerfane.com/

Yell, M. (2006). The law and special education. Upper Saddle River, NJ: Merrill/Prentice Hall.

Table of Contents (Click colored link):  Definition - DESE - Diversity - Evaluation Methods - Law - Overrepresentation - Presentation Outline - References and Resources - Top

This page has no affiliation with any school, organization, or institution.  Significant portion of this page were quoted directly or adapted from:

Yell, M. (2006). The law and special education. Upper Saddle River, NJ: Merrill/Prentice Hall.

Citation Information:  Aitken, J. E., & Sawyer, M. A.  (2006).  Nondiscriminatory evaluation.  Kansas City, MO:  JoanAitken.org.  Retrieved month day, year, from http://JoanAitken.org/Nondiscriminatory.html

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