Webinar for Education Service Center Houston, TX March 18, 2014 Samuel O. Ortiz, Ph.D.

1. Disproportionality and English Language Learners in Special Education:Why it happens and what to do about it. Webinar for Education Service Center Houston, TX March 18, 2014 Samuel O. Ortiz, Ph.D. St. John’s University

2. A Brief History of Disproportionality in Special Education • Controversy begins around 1968 – Dunn, L. M. (1968). Special education for the mildly retarded: Is much of it justifiable? Exceptional Children, 35, 5-22, questioned fairness of testing • Diana v. California in 1970 – Hispanic children misidentified as disabled and placed in special education on basis of tests given in English—a language they did not fully comprehend • EHCA (IDEA) PL 94-142 in 1975 – Established requirement that children be assessed in their native language when feasible & in a nondiscriminatory manner • Larry P. v. Riles in 1979 – African American children placed in “dead end” special education classes questioned validity of IQ tests for this purpose

3. Disproportionality in Special Education:Ethnic Disproportionality Why does it exist – Competing Hypotheses Differential Susceptibility Hypothesis (i.e., some racial/ethnic groups are more susceptible to various disabilities, e.g., SLD, ID, ED and other disorders, than are other racial/ethnic groups) vs. Systemic School Bias (i.e., the manner in which children from diverse ethnic/racial backgrounds are valued, serviced, taught, and treated differs from the way that the majority ethnic/racial children are valued, serviced, taught, and treated)

4. Evidence for the Differential Susceptibility Hypothesis

5. Evidence for Systemic School Bias I. Instructional Practices • Lack of attention to native language development • Ineffective instructional practices • Racially-bound student-teacher interactions • Lack of affirmation for student/parent culture and community • General ethnocentrism in education II. Referral Procedures • Lack of culturally-linguistically appropriate interventions • Unrealistic expectations of progress (catching up) • Lack of knowledge regarding developmental interaction of language and education • Failure to provide intervention/services in general education • Desire to “remove” students with learning “difficulties” from general classroom III. Assessment Procedures • Lack of accepted guidelines and standards for evaluations • Tools with limited validity for use with diverse individuals • Insufficient education and training for professionals • Misattribution of cultural/linguistic differences evidence of disorder IV. Noncompliance with State or Federal Guidelines • Lack of monitoring of ethnic/racial representation in special education • Failure to consider native language needs in designing IEP • Removal of general education services (i.e., ESL) • Lack of competent and certified bilingual special education personnel

6. Passage of IDEA ’97 (PL 105-17) confirmed the problem of, and provided Federal requirements for addressing, potential disproportionality in special education. Disproportionality in Special Education:Ethnic Disproportionality • “Greater efforts are needed to prevent the intensification of problems connected with mislabeling minority children with disabilities” {601 (c) (8) (A)} • “More minority children continue to be served in special education than would be expected given the percentage of minority students in the general population” {601 (c) (8) (B)}

7. Disproportionality in Special Education:Ethnic Disproportionality Passage of IDEA ’97 (PL 105-17) recognized the importance of effective instruction or the lack of opportunity to receive effective instruction as leading to inappropriate special education placements. “The authors of IDEA believed that students were being incorrectly identified as having a disability (typically a learning disability) because they displayed academic difficulties that were a direct result of ineffective instruction or the lack of opportunity to receive effective instruction. To prevent these students from being over-identified, the lack of instruction requirement was added to the law. (Kovaleski & Prasse, 1999, p. 24)

8. Disproportionality in Special Education:Ethnic Disproportionality Beginning with IDEA ’97 (PL 105-17), Federal law specifically added new procedural safeguards to address and prevent potential disproportionality in special education. • Specific provision addressing lack of effective instruction • Specific provision regarding limited English proficiency • “In making a determination of eligibility under paragraph 4(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or made or limited English proficiency” Section 614 (b) (5)

9. Disproportionality in Special Education:Ethnic Disproportionality Beginning with IDEA ’97 (PL 105-17), Federal law specifically allowed Congress to require states to provide certain information as a condition for receiving Federal funding. • Required states to collect ethnic data by type of disability, not just in general • Required states to use methods to determine if disproportionality exists • Required states to address such problems via written corrective action measures

10. Evidence for Systemic School Bias I. Instructional Practices • Lack of attention to native language development • Ineffective instructional practices • Racially-bound student-teacher interactions • Lack of affirmation for student/parent culture and community • General ethnocentrism in education II. Referral Procedures • Lack of culturally-linguistically appropriate interventions • Unrealistic expectations of progress (catching up) • Lack of knowledge regarding developmental interaction of language and education • Failure to provide intervention/services in general education • Desire to “remove” students with learning “difficulties” from general classroom III. Assessment Procedures • Lack of accepted guidelines and standards for evaluations • Tools with limited validity for use with diverse individuals • Insufficient education and training for professionals • Misattribution of cultural/linguistic differences evidence of disorder IV. Noncompliance with State or Federal Guidelines • Lack of monitoring of ethnic/racial representation in special education • Failure to consider native language needs in designing IEP • Removal of general education services (i.e., ESL) • Lack of competent and certified bilingual special education personnel

11. Academic Attainment and Instructional Practices for English Language Learners Although many effective instructional practices are similar for both ELLs and non ELLs why does instruction tend to be less effective for ELLs? Because ELLs face the double challenge of learning academic content and the language of instruction simultaneously. Source: Goldenberg, C. (2008). Teaching English language learners: What the research does—and does not—say. American Educator, 32 (2) pp. 8-23, 42-44.

12. Effective Instruction for ELLs: What the Research Says Typical English Learners who begin school 30 NCE’s behind their native English speaking peers in achievement, are expected to learn at: “…an average of about one-and-a-half years’ progress in the next six consecutive years (for a total of nine years’ progress in six years--a 30-NCE gain, from the 20th to the 50th NCE) to reach the same long-term performance level that a typical native-English speaker…staying at the 50th NCE) (p. 46). In other words, they must make 15 months of academic progress in each 10 month school year for six straight years—they must learn 1½ times faster than normal. Source: Thomas, W. & Collier, V. (1997). Language Minority Student Achievement and Program Effectiveness. Washington DC: NCBE.

13. Developmental Implications of Early Language Differences 52 points 42 points 45 points 41 points 30 points 31 points Results of NAEP Data on Reading Achievement for ELL vs. Non-ELL

14. Developmental Implications for ELLs: When does Egberto “catch up?” Classroom or Grade Level Aim Line 6 week standard 12 week standard 50 WRCPM 50 WRCPM = Number of Words Read Correctly Per Minute Egberto’s progress if he makes gains comparable to English speaking peers 45 15 word difference 40 35 WRCPM 35 Egberto’s progress if he makes gains comparable to other ELLs 30 25 word difference 25 Classroom/grade level expectations = 15 WRCPM progress over a 6 week period 15 word difference 20 Egberto’s progress if he doesn’t make gains comparable to other ELLs 35 word difference 20 word difference 15 10 25 word difference English learners often begin behind English speakers 5 Week 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Example 2nd Grade Progress Monitoring Chart *Note: Name of “Egberto” used with apologies to Dan Reschley.

15. Effective Instruction for ELLs: What the Research Says Of the five major, meta-analyses conducted on the education of ELLs, ALL five came to the very same conclusion: “Teaching students to read in their first language promotes higher levels of reading achievement in English” (p. 14). Source: Goldenberg, C. (2008). Teaching English language learners: What the research does—and does not—say. American Educator, 32 (2) pp. 8-23, 42-44.

16. Achievement Trajectories for ELLs: Native language makes a difference. General Pattern of Bilingual Education Student Achievement on Standardized Tests in English 0 10 20 30 40 50 60 61(70)* Two-way bilingual 52(54)* Late-exit bilingual and content ESL 40(32)* Early-exit bilingual and content ESL 34(22)* Content-based ESL 24(11)* ESL pullout traditional *Note 1 Normal Curve Equivalents K 2 4 6 8 10 12 Grade Level Grade Level *Note 1: Average performance of native-English speakers making one year's progress in each grade. Scores in parentheses are percentile ranks converted from NCEs. Adapted from: Thomas, W. & Collier, V. (1997). Language Minority Student Achievement and Program Effectiveness. Washington DC: National Clearinghouse for Bilingual Education.

17. Evidence for Systemic School Bias I. Instructional Practices • Lack of attention to native language development • Ineffective instructional practices • Racially-bound student-teacher interactions • Lack of affirmation for student/parent culture and community • General ethnocentrism in education II. Referral Procedures • Lack of culturally-linguistically appropriate interventions • Unrealistic expectations of progress (catching up) • Lack of knowledge regarding developmental interaction of language and education • Failure to provide intervention/services in general education • Desire to “remove” students with learning “difficulties” from general classroom III. Assessment Procedures • Lack of accepted guidelines and standards for evaluations • Tools with limited validity for use with diverse individuals • Insufficient education and training for professionals • Misattribution of cultural/linguistic differences evidence of disorder IV. Noncompliance with State or Federal Guidelines • Lack of monitoring of ethnic/racial representation in special education • Failure to consider native language needs in designing IEP • Removal of general education services (i.e., ESL) • Lack of competent and certified bilingual special education personnel

18. Pre-Assessment Considerations in Nondiscriminatory Assessment: Contrasting Models

19. PSYCHOMETRIC ECOSYSTEMIC ORIENTATIONIndividual Child Ecosystem of the Child ROLE OF HOME Background information Foreground of hypothesis AND CULTURE generation and central to "interpretations“ ROLE of PARENTS Source of information Collaborators PROBLEMInternal individual differences Situations DEFINITION PROCESS Identification of child's deficits Differentiation of functional and dysfunctional transactions and settings and identification of potential resources. INTERVENTION Remediation Mediation Liaison Consultation GOAL "Fix" the child Alter transactions Pre-Assessment Considerations in Nondiscriminatory Assessment: Contrasting Paradigms Adapted From : Cook-Morales, V. J. (1994). The Cultural and Linguistic Diversity Project. A pre-service professional training grant funded by the Office of Bilingual Education and Minority Language Affairs, U. S. Department of Education.

20. Testing Evaluation Assessment ORIENTATIONMeasurement Judgments Problem solving FOCUS Traits Person Problem situations ROLE of TESTS Central Essential Optional ROLE OF TEAM Cleric or Expert or Consultant or MEMBERS Technician Diagnostician Collaborator RESULTS How much Comparison Problem resolution(s) REPRESENTATION Scores Diagnosis/Label Descriptions REPORT STYLES Test focused Person focused Problem focused LINKED to Rarely Optional Central INTERVENTION Pre-Assessment Considerations in Nondiscriminatory Assessment Differentiation of Terms Adapted From: Cook-Morales, V. J. (1983). Testing v. Measurement v. Appraisal v. Evaluation v. Assessment: Is it a 'Game of Semantics' or 'Is Naming Knowing?' Unpublished manuscript. San Diego State University.

21. Pre-Assessment Considerations in Nondiscriminatory Assessment Source: Adapted from Flanagan & Ortiz, 2001 and Cook-Morales, 1995.

22. Evidence for Systemic School Bias I. Instructional Practices • Lack of attention to native language development • Ineffective instructional practices • Racially-bound student-teacher interactions • Lack of affirmation for student/parent culture and community • General ethnocentrism in education II. Referral Procedures • Lack of culturally-linguistically appropriate interventions • Unrealistic expectations of progress (catching up) • Lack of knowledge regarding developmental interaction of language and education • Failure to provide intervention/services in general education • Desire to “remove” students with learning “difficulties” from general classroom III. Assessment Procedures • Lack of accepted guidelines and standards for evaluations • Tools with limited validity for use with diverse individuals • Insufficient education and training for professionals • Misattribution of cultural/linguistic differences evidence of disorder IV. Noncompliance with State or Federal Guidelines • Lack of monitoring of ethnic/racial representation in special education • Failure to consider native language needs in designing IEP • Removal of general education services (i.e., ESL) • Lack of competent and certified bilingual special education personnel

23. The Top 10 Reasons why LEP students are referred for Special Education Evaluation 1. Poor/low achievement 2. Behavioral problems 3. Oral language related problems (acquisition or delay) 4. Reading problems 5. Learning difficulties 6. Socio-emotional difficulties 7. Diagnosis for particular handicapping condition 8. Written language problems 9. Low attention span 10. Unable to understand or follow directions Source: Ochoa, Robles-Pina, Garcia, & Breunig, 1999)

24. Training in Nondiscriminatory Assessment Procedures Survey of school psychologists 66% reported that they were inadequately trained to understand cross cultural issues in assessment 79% reported that they were inadequately trained to understand second language acquisition 82% reported that they were inadequately trained to conduct a bilingual evaluation 77% reported that they were inadequately trained to interpret a bilingual evaluation Source: Ochoa, et al. 1997

25. Inappropriate Assessment Practices Commonly Used with Diverse Individuals • Over-reliance on nonverbal measures • Use of untrained interpreters • Lack of consideration of child’s language proficiency • Use of questionable assessment practices • Assumption of fairness in native language tests • Use of translated tests • Assumption of fairness of CBM methods

26. Important Factors to Consider When Assessing English Language Learners • Professional standards governing evaluation • Language of instruction and educational programming • Developmental pattern of child’s L1 and L2 acquisition • Cultural factors: goodness of fit between child’s developmental cultural experiences & the demands of the testing situation as well as a particular test • Nondiscriminatory assessment: evaluation of the impact of cultural and linguistic factors on the validity of test performance and equitable interpretation One must consider all five factors simultaneously when assessing English language learners. Failure to follow a comprehensive approach in assessment may lead to discriminatory outcomes, particularly misdiagnosis of disability, which can contribute to disproportionate representation in Special Education.

27. 90 80 70 60 50 Higher Scores Low Acculturation and Language Proficiency High Acculturation and Language Proficiency More likely difference More likely disorder Lower Scores Difference vs. Disorder and Test Score Validity The figure below provides an illustration that can help distinguish between difference or disorder. It is important to note that the probability or likelihood of one vs. the other is based primarily on data regarding cognitive functioning generated from standardized tests compared against the information regarding the relative influence of cultural or linguistic differences and the presence of inhibitory factors (environmental and community). Decisions concerning difference vs. disorder must ultimately be bolstered by other information including that derived from direct observation, interviews with people familiar with the child, informal or authentic assessment, and analysis of actual work samples. This figure should not be used for making definitive conclusions about performance, rather it should be viewed only as a guide for evaluating data. Moderate Acculturation or Language Proficiency

28. A Recommended Best Practice Approach for Using Tests with ELLs • Step 1. Assessment of Bilinguals – validate test scores (difference vs. disorder) • Select or create an appropriate battery that is comprehensive and responds to the needs of the referral concerns, irrespective of language differences • Administer all tests in standardized manner in English only, no modifications • Score tests and plot them for analysis via the C-LIM • If analysis indicates expected range and pattern of decline, evaluation ends, no disability is likely • If analysis does not indicate expected range or pattern of decline, apply XBA (or other) interpretive methods to determine specific areas of weakness and difficulty and continue to Step 2 • Step 2. Bilingual Assessment – validate disorder (cross-language confirmation) • Review prior results and create a select set of tests related to the areas where the suspected weaknesses or difficulties were noted • Select tests that are as parallel as possible to the original tests using one of 3 methods: • Native language test administered in the native language (e.g., WJ III/Bateria III or WISC-IV/WISC-IV Spanish) • Native language test administered via assistance of a trained interpreter • Informally translated test administered via assistance of a trained interpreter • Administer all tests in whatever manner necessary to ensure full comprehension including use of any modifications and alterations necessary to reduce barriers to performance • Observe and document approach to tasks, errors in responding, and behavior during testing • Analyze data both quantitatively and qualitatively to evaluate areas of weakness or difficulty • If areas of weakness do not match weaknesses in Step (are now average or higher), disability NOT likely • If areas of weakness match weaknesses in Step 1 (remain below average), disability is likely, except for Gc • Ensure that tests of Gc are interpreted and assigned meaning relative to actual peers and if testing of Gc in native language reveals better functioning than in English, use/interpret native language Gc score

29. Evidence for Systemic School Bias I. Instructional Practices • Lack of attention to native language development • Ineffective instructional practices • Racially-bound student-teacher interactions • Lack of affirmation for student/parent culture and community • General ethnocentrism in education II. Referral Procedures • Lack of culturally-linguistically appropriate interventions • Unrealistic expectations of progress (catching up) • Lack of knowledge regarding developmental interaction of language and education • Failure to provide intervention/services in general education • Desire to “remove” students with learning “difficulties” from general classroom III. Assessment Procedures • Lack of accepted guidelines and standards for evaluations • Tools with limited validity for use with diverse individuals • Insufficient education and training for professionals • Misattribution of cultural/linguistic differences evidence of disorder IV. Noncompliance with State or Federal Guidelines • Lack of monitoring of ethnic/racial representation in special education • Failure to consider native language needs in designing IEP • Removal of general education services (i.e., ESL) • Lack of competent and certified bilingual special education personnel

30. Nondiscriminatory Assessment: Federal Legislation 1. No child, including one who is culturally and linguistically diverse, may be placed in special T F education solely on the basis of identified academic need in the absence of a disability related to educational performance. (34CFR 300.7) 2. Information about the child's language proficiency in both the primary language and in English must T F be considered in determining how to conduct the evaluation of a pupil with limited English proficiency. (34CFR 300.532) 3. Lack of familiarity with the English language does not preclude a child from being eligible for special T F education services. (34CFR 300.534b2) 4. Cultural difference ("disadvantage") is not a sufficient condition with which eligibility for special T F education services can be questioned. (34CFR 300.7b10ii and 300.541b4) 5. Environmental or economic disadvantage that adversely affects a pupil's academic achievement T F may be used to form the basis of a disability or establish eligibility for special education services. (34CFR 300.7b10ii and 300.541b4) 6. The normal process of second-language acquisition, as well as manifestations of dialect and socio- T F linguistic variance may be diagnosed as a handicapping condition. (34CFR 300.533a and 300.534b) 7. Tests and procedures that are culturally discriminatory can not be used to qualify a pupil for T F special education services. (34CFR 300.532a1) 8. Tests and other assessment materials need not be provided in the pupil's primary language or other T F mode of communication. (34CFR 300.532a2) 9. Psychological assessment of a pupil in their native language by a bilingual psychologist meets the T F requirements under the law for assessment in the primary language. (34CFR 300.136 and 300.533a) 10. Once a pupil is determined to have a disability that merits and requires special education services, T F no further consideration of the child’s needs in the native language is required. (34CFR 300.324a2iv)

31. Nondiscriminatory Assessment and RTI: IDEA 2004 Specifications Assessments and other evaluation materials used to assess a child under this section— • (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; • (ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer; • (iii) are used for purposes for which the assessments or measures are valid and reliable; • (iv) are administered by trained and knowledgeable personnel; and • (v) are administered in accordance with any instructions provided by the producer of such assessments.

32. Current Federal (IDEA 2004) Specifications for All Evaluations Conducted for Eligibility Purposes Sec. 614. Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements. (b) Evaluation Procedures.– …(5) Special Rule for Eligibility Determination.—In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is— (A) lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965; (B) lack of instruction in math; or (C) limited English proficiency. Note that because this language appears as part of the general guidelines for evaluations, it must be adhered to and considered as a part of any evaluation for any disability, not merely SLD where additional exclusionary variables, including cultural “disadvantage” are also specified in that definition.

33. Inadequate and Discriminatory Evaluation Can Lead to Disproportionality in Special Education OCR Surveys and National Trends in Disproportionality OCR Surveys Conducted every 2 years - • 1978 – 2010: • African Americans continue to be over-represented as: ID and ED • 1980 – 2010: • Hispanics continue to be overrepresented as: LD, SLI and ID National Trends - • African American identification increasing in: ID, ED, and LD • Hispanic identification increasing in: LD and SLI • Native American identification increasing in: ID,ED and LD

34. Disproportionality in Special Education: An example of relative risk. Relative Risk Calculation 0.0178 / 0.0074 = 2.40

35. Source: Disparities in Education, Funding and Provision of Special Education. In Racial Inequity in Special Education by Harvard Press (2002)

36. Is Special Education the Answer? OCR Surveys and National Trends in Disproportionality OCR Surveys Conducted every 2 years - • 1978 – 2010: • African Americans continue to be over-represented as: ID and ED • 1980 – 2010: • Hispanics continue to be overrepresented as: LD, SLI and ID National Trends - • African American identification increasing in: ID, ED, and LD • Hispanic identification increasing in: LD and SLI • Native American identification increasing in: ID,ED and LD

37. Is Special Education the Answer? Special education cannot solve problems that are rooted in all aspects of education, and it cannot be used to absolve general education from taking responsibility for failing to educate certain groups of children, particularly those without disabilities, in an appropriate and effective manner.

38. XBA - Cross-Battery Assessment Resources BOOKS: Flanagan, D. P., Ortiz, S.O. & Alfonso, V.C. (2013). Essentials of Cross-Battery Assessment, Third Edition. New York: Wiley & Sons, Inc. Flanagan, D.P. & Ortiz, S.O. (2012). Essentials of Learning Disability Identification. New York: Wiley & Sons, Inc. Flanagan, D. P., Ortiz, S.O. & Alfonso, V.C. (2007). Essentials of Cross-Battery Assessment, Second Edition. New York: Wiley & Sons, Inc. Flanagan, D.P., Ortiz, S.O., Alfonso, V., & Mascolo, J. (2006). The Achievement Test Desk Reference (ATDR): A guide to Learning Disability Assessment, 2nd Edition. New York: Wiley. ONLINE: CHC Cross-Battery Online http://www.crossbattery.com/