What Color Is Special Education

I. INTRODUCTION: THE SUPREME COURT SETS A COLORBLIND PARADIGM . . .[I]n finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." [T]he Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . .his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial (Iy) integrated school system." Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.1 Writing thus in Brown, the Supreme Court foreshadowed later developments around exclusion and restrictive educational environments2 as they might impact the learning of children of color and children with disabilities. Whatever may have been the state of modern authority on effective educational practice in 1954, by 1982 the view that separate environments bred a sense of inferiority and lower motivation and achievement was foundational in the approach to children with disabilities in the first federal legislation dealing with their special needs. This legislation would be construed in Rowley? But unlike Brown, Rowley, the preeminent special education case, does not speak directly to issues of race and ethnicity. On the thirtieth anniversary of Rowley, we reflect on Rowley's continued vitality and on whether, in the context of this span of years, Rowley might now have something to say to students with disabilities of this generation. We frame the question this way: If Amy Rowley, a white, deaf, intelligent, first grader, apparently correctly categorized in terms of her hearing impairment, and receiving all of her special education in the regular education setting could not expect to have sufficient special education services to reach her potential, what hope would there be in the special education system for DeShawn, a black boy with discipline problems, or Dakota or Alejandro, young Native American and Hispanic students who have not learned to read by fifth grade, or even for Kicho, a young Asian girl who has special education needs but has been overlooked for referral because of her race?4 This question raises the issue of disproportionality and differential treatment in special education, that is, the question of a representation of certain racial or ethnic groups in particular special education categories or placements inconsistent with their numbers in the school population or the disability population as a whole.5 We conclude that the message from Amy to DeShawn6 is not good news. Living with the answer the Supreme Court gave to Amy, DeShawn would likely fare poorly in his school experience: Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. …