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Federal complaint says new N.C. policy harms poor children with special needs

To JoAnna Barnes, it’s the biggest education story you’ve never heard of in North Carolina.

Barnes, a Triangle attorney and president of the Learning Disabilities Association (LDA) of N.C., says the state’s education leaders have, for about a year, been devising sweeping policy changes to how North Carolina identifies children in need of special education services.

The policy that they crafted, which was approved by the N.C. State Board of Education in February, will seriously undercount the number of low-income, minority children who qualify, she says, and it’s a violation of federal law.

Barnes, along with advocates like the nonprofit Disability Rights N.C., warned state board members repeatedly that their actions might harm the roughly 200,000 or so children across the state who qualify for special education. When state officials moved forward anyway, Barnes says she filed a complaint this month with the U.S. Department of Education’s Office for Civil Rights, asking federal education officials to bar North Carolina’s reforms.

“LDA of N.C. believes as a result of these changes proposed and implemented by the N.C. Department of Public Instruction and adopted by the State Board of Education, nonwhite students with disabilities in low-performing schools will be discriminated against and their civil rights violated,” Barnes wrote to the federal office.

Under federal law, children who qualify for special education services will fall under 13 different categories, which include developmental disorders like autism or hearing, vision and speech impairments. The final category opens eligibility to students with a specific learning disability, or SLD.

One of the most pivotal points in the new North Carolina rules is a contingency that requires, for a child to be eligible under a learning disability, that their academic performance be compared to “culturally and linguistically similar peers, classroom, school and/or comparison groups.”

Barnes argues that, while federal special education law does call for state officials to consider “cultural factors” when assessing eligibility, it does not direct the states to subdivide students’ grades in this manner.

It’s an alleged misinterpretation that she says will disproportionately impact students with learning disabilities in low-wealth, minority districts. These students, Barnes says, are more likely to be improperly deemed ineligible if comparisons to their peers show other students in their “cultural” group are testing poorly too.

This month, Barnes’ group asked federal officials to block state leaders from implementing their policy change, which will be phased into 97 percent of local public school systems and a portion of charters by the end of the 2016-2017 school year. By 2017-2018, the new rules will be in force in every local school system and public charter in the state.

It’s a complicated policy that, according to critics like Corye Dunn, public policy director of Disability Rights N.C., only partially adheres to an already very complicated federal special education law.

But one thing is simple, says Dunn. “It makes it tougher for kids who are already in low-resource communities to get the help that they need.”


Ginny Sharpless’ daughter is in fifth grade, but she reads at a second-grade level.

Sharpless, an Orange County resident, says her daughter is dyslexic, a learning disability that impairs reading comprehension. When it comes to the North Carolina children who qualify for special education under a learning disability, the vast majority are diagnosed with a similar reading problem.

Sharpless says she knows intimately the daily academic struggles for her daughter, and how special education services, which include intensive services in smaller classroom settings, are vital.

It’s why she’s one of a handful who wrote State Board of Education members this year to complain that North Carolina’s new policy could harm an already vulnerable population.

“It’s not right to hurt small children,” Sharpless tells Policy Watch. “This is wrong.”

To Sharpless and other critics, it comes down to cash. While the federal Individuals with Disabilities Education Act (IDEA), as it was originally written in 1990, was intended to ensure federal agencies compensated states for pricey special education services, federal government grants pay for just a small portion of all costs today.

In North Carolina, the state spends more than $700 million annually, on top of more than $300 million in federal grants, to cover the largely personnel needs in the state’s public schools for special education. Each public school student who qualifies for special education receives an additional $3,900 in funding, in addition to the per-pupil share they already receive from state and local coffers.

However, state funding for special education caps out at 12.5 percent of a local school district’s population, meaning if more than 12.5 percent of the district qualifies for special education, it’s up to the local district to pay the remainder.

Given the enormous costs, Sharpless and other advocates say there’s a clear financial incentive for states and districts to find reasons to exclude children from their special education program.

“This was their ‘get-out-of-jail-free’ card,” says Sharpless of the new DPI policy.

Yet there’s no mention of funding in State Board of Education documents leading up to its pivotal February vote. And Bill Hussey, director of DPI’s Exceptional Children Division, says the state’s move was motivated by academics, not finances.

“We changed the definition because the prior approach was not working and both the field and research support our conclusions,” Hussey wrote in an email to Policy Watch. “It was a wait and fail model and we were over-identifying students who were not SLD but were ‘curriculum and instructional casualties’ who when given appropriate intervention were able to make progress without special education support.”

The policy emerged in February from the State Board of Education’s Student Learning and Achievement Committee. In a brief interview this week with Eric Davis, chair of the committee for the state board, Davis declined to comment on the civil rights complaint, saying he had yet to read the allegations. And Olivia Holmes Oxendine, vice chair of the committee, did not respond to email requests for an interview with Policy Watch.

To understand the conflict, both sides agree that one must first understand the history of special education in the United States. Once, SLD eligibility was entirely determined by the so-called “discrepancy” model, whereby education officials compare academic performance to a student’s IQ test. If the student is performing more poorly in school than their IQ would indicate, it may be evidence of a learning disability.

But critics of the discrepancy model say “cultural bias” on IQ tests led some minority and low-income children to score poorly, meaning it was more difficult to find evidence of a learning disability.

The alternative, first codified in federal education law in a 2004 reauthorization by Congress, is the “response-to-instruction,” or RTI, model. Under RTI, students quality for varying tiers of intervention. Tier 1 includes the general student population, with tiers 2 and 3 speeding increasingly higher level of intervention for struggling students.

RTI, advocates say, is part of a growing national movement to reassess special education eligibility in the face of ballooning costs and to limit unnecessary special education services.

Doug Fuchs, a professor in the Department of Special Education at Vanderbilt University, says RTI evolved in the last two decades with an “implicit” belief that too many children are being labeled with a learning disability, that it’s classroom failures in teaching that are mostly to blame.

RTI seeks to alternately diagnose and treat the problem, he explains.

Indeed, DPI staff, following a 10-month special education task force on the issue, wrote in a memo to board members in February that the multi-tiered, RTI model was “critical” in determining that instructional deficiencies were not to blame for a student’s poor performance.

The tiers, supporters say, would allow schools to morph their interventions with struggling children over time, responding to improvement or weakening scores. Otherwise, under the discrepancy model, schools would be required to wait until the difference between IQ and performance was large enough to qualify for special education, something commonly referred to as “wait to fail” by special education experts.

“It’s a belief that general education can be made so resourceful and so responsive, it’s not that we don’t need special education any more, but we can probably reduce the proportion of kids who qualify very, very dramatically, from anywhere to 50 to 80 to 90 percent,” says Fuchs.

The 2004 federal reauthorization of special education law allowed for states to opt for the RTI model. It also ordered that no state may solely require use of the discrepancy model. Hussey tells Policy Watch that the state’s revisions this year, which exclude the discrepancy model altogether, are only implementing what federal law allows.

It’s an argument that once resonated with many special education researchers, says Fuchs, but he points out—since the federal government authorized the use of RTI—special education scholars, including former RTI supporters like himself, have grown increasingly skeptical of the model.

“As someone who has tried to work hard to make RTI work in different places, there are many school districts across the country that, despite best intentions, are having a hell of a time trying to make it work,” says Fuchs.

Complications abound in implementing the model equitably and assessing its results, Fuchs points out, and the academic results have been lackluster in multiple national assessments of academic progress.

“All these databases point clearly to the fact that most kids with disabilities are performing abysmally,” said Fuchs. “They are performing way below what they should be performing at. If RTI were working, you would expect to see stronger academic achievement, because RTI has been around for 15 years. It’s not like we’re expecting great results from a policy change that took effect a year and a half ago.”

Fuchs adds that he believes advocacy groups are right to be concerned about its full-scale implementation in North Carolina, particularly given the policy change requiring comparisons to similar cultural groups.

The results, advocates contend, will surely be a significant drop in the number of North Carolina students who qualify for the program. “This is the clearest effort to create a policy that would not just be a disincentive, but would actually reduce the number of kids identified,” says Dunn.

Disability rights groups aren’t the only ones who’ve blasted the new policy. The Council on Educational Services for Exceptional Children, an advisory panel for the state board that includes parents, educators and legislators, offered a number of cautions about the new policy in January, citing concerns about equity. The policy may increase the likelihood of “legal violations,” the group warned, with local school districts passing over eligible children.

“There’s an irony there,” said Fuchs. “It sounds similar to the concerns that were expressed years ago about IQ achievement discrepancy.”

Additionally, the Council argued that the state’s removal of the word “psychological” from the federal definition of a specific learning disorder—which describes a SLD as a “disorder in one more of the basic psychological processed involved in understanding or in using language, spoken or written”—creates inconsistencies between the state and federal rules, perhaps opening the door to increased legal challenges.

Sharpless adds that the policy gives little reason to believe the state will step in if a specific district begins using the rules to drastically reduce services and thus cut costs.

Yet while the state has not prepared any estimates of the impact on finances or the statewide count of students in the program, Hussey acknowledged that there should be a drop in students identified. However, Hussey called the impact “minimal,” saying that claims to the contrary are purely “suppositions.”

“We’re not fully in play yet, so the complaint itself, there’s no factual information to back up their concerns,” he said.

As of today, there is no timeline for completion of the federal investigation yet, but to people like Barnes, the exclusionary elements of the new state policy should be the most troubling to education advocates, particularly given that it may allow students in an already troubled population to avoid specialized services.

“If a student is failing, but performing on par, then they’re fine,” she says.

Fuchs agrees, pointing out the cost of the program, above all, may be paramount in states’ move to such policies. “Can I prove it?” says Fuchs. “Do I have a smoking gun? No, but do I believe it? Yes, I do.”

Either way, Dunn says the policy may amount to nothing more than discrimination.

“We’re saying as a community that specific learning disabilities are just for kids in better schools. Kids in low-income communities, it’s not really for them, and when you consider that learning disabilities are a pathway to services, it’s really troubling to us.”

But that’s not what troubles Sharpless the most about the State Board of Education’s vote, she says.

“They knew what they were doing and they did it anyway,” she says. “That’s what gets me.”

Editor’s Note: This article was published by NC Policy Watch on June 5, 2016.

Billy Ball

Billy Ball is the education reporter at N.C. Policy Watch.