In the 40 years since the enactment of the Individual with Disabilities Education Act (IDEA), minority students have consistently been overrepresented in special education. In the “Findings” section of the IDEA, the drafters expressed concerns that “more minority children [are] served in special education than would be expected from the percentage of minority students in the general school population.” A Congressional House Report noted that “African-Americans are nearly three times as likely to be identified as [intellectually disabled] as their peers and nearly twice as likely to be emotionally disturbed.” Today, African-American students continue to be disproportionately classified with such disabilities, and they account for 20.2 percent of the special education population but only 14.8 percent of the total student population. Commentators attribute the over-identification to implicit or overt racial bias.

The U.S. Court of Appeals for the Third Circuit recently confronted this issue in S.H. v. Lower Merion School District, 2013 U.S. App. LEXIS 18458 (3d Cir. Pa. Sept. 5, 2013). S.H. is an African-American student whose school district found her to be in need of special education services when she was in fifth grade. Based upon this finding, S.H. made several remarks to her school that “she did not want to be in special education.” However, her mother repeatedly signed documents agreeing with the school’s findings and recommendations about S.H.’s educational placement. S.H. continued in special education until tenth grade, when it was found that she did not, nor had she ever, had a disability.

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