According to a directive from the California Department of Education (CDE) in the State of California African American students cannot

be assessed for special education purposes with Intelligence (IQ) tests. This includes all standardized tests that purports to measure intelligence either in the form of cognition, mental ability or aptitude. (Riverside, 2010). To a large extent the State has made this ruling based on the various rulings of Judge Peckham in the cases know as Larry P. v. Riles. (793 F. 2d 969, 9th Cir. 1984) Judge Peckham found that IQ tests were culturally biased and led in part to the overrepresentation of African-American students in special education classes. Was Judge Peckhams ruling necessary? Is it still necessary today? Although the issue of using IQ tests to assess African-American students for special education has been litigated in various states, the only state to have banned their use is California (Powers & Hagans-Murillo, 2004). These issues are even more pertinent now since the district court in future hearings will hear evidence that Latino and other limited English proficient students are over-represented in special day and resource specialist classes. Depending on the evidence, the court may decide to broaden the parameters of Larry P. to include all minority students and English language learners. (Riverside, 2010).
Overrepresentation

The proportion of different ethnic groups in any category or program should be equal to the proportion of that ethnic group in the general school population. When the proportion of a given ethnic group enrolled in a given category exceeds the proportion of that ethnic group in the school population, then overrepresentation is deemed to have occurred . (MacMillan & Reschly, 1998)
For the past 40 years the over representation of minority students in special education has been regarded as a significant issue in the United States public school system (Valles, 2009).

Disproportionate representation of minority students, particularly the over representation of

African American students, has been discussed extensively (Artiles & Trent, 1994, p. 411). As recently as 2012 it was reported by Ford (2012) that too little progress in the area of special education disproportionality or overrepresentation among Black and Hispanic students (p. 392). An analysis of information pertaining to enrollment and disability categories reveals that African American students nationwide are nearly three times more likely than whites to be labeled mentally retarded. They are almost two times more likely to be labeled emotional disturbed, and almost one and a half times more likely to be diagnosed with a learning disability. As a result African American students are more likely to be not receiving their education in the general education classrooms (Jordan, 2005). African American (non-Hispanic) students' special education risk ratio of 1.45 indicate that as a group they have a 45% greater likelihood of being enrolled in special education programs than all other ethnic groups combined. Additionally, the percentages of African American students with disabilities who received special education services for MR and DD are substantially higher than the percentages for other ethnic groups. African American students have a 200% higher probability of placement in the Mentally Retarded category than other groups combined (Edwards, 2007). While African-American students make up just under 15 percent of the K-12 school population, they account for more than 20 percent of the special education population. Black students are between 2.5 and three times more likely to be identified as mentally retarded, and nearly 1.5 times more likely to be diagnosed as learning disabled, and between than white students. (Valles, 2009) Federal Governments Position

In its 1997 amendment to the IDEA, Congress specifically addressed the disproportionate identification issue identified by the National Research Council and others. The opening findings and purpose section of IDEA provide specific recognition of the apparent intransigence of this concern. Congress stated that more minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population. African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts. In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.(Redfield & Kraft, 2012, p.183) So, Whats Wrong with Being Placed in Special Education? Students placed in special education classes are so placed so that they will get extra help and attention. At first look it appears that it would be a positive occurrence to be placed in special education. However, many of these students are misclassified, and unnecessarily isolated from their peers. Often they are poorly educated, and thus, inadequately served. Federal law mandates that students identified with disabilities are to be educated in the least restrictive environment (LRE). The overrepresentation of African Americans in restrictive, segregated placements therefore raises serious questions about educational equity. To the extent that these problems occur, special education clearly leads to the denial or "watering down" of educational opportunity for some students. (Jordan, 2005 p. 134). Students who are placed in special education also can face the impact of stigma that accompanies being labeled as a special education student. They may also lower self-esteem and may suffer from lower expectations of their teachers and others around them. (Valles, 2009)

Use of IQ Tests IQ tests are an integral part of educational diagnosing for special education classification. (IDEIA, 2004) and play a major role in the placement of students within special education. Despite a multidisciplinary team approach to special education eligibility and placement decisions, examiners are often the most influential team members because they select the tests to administer, generate the reports from which decisions are made, and are perceived as the professionals with the most assessment expertise. (Edwards, 2007. P. 31) However, according to Agenyega and Jiggets IQ tests invariably are culturally, socially and racially biased reflecting white, middle class values and experiences (1999) The test may also be a sampling of which cultural, social and linguistic attitudes and styles but administered to black and minority children which makes statistical interpretation very suspect. (Agenyega & Jiggets, 1999, p. 628) Much of the research suggests that a flawed assessment and referral process contributes to the overrepresentation of black students in special education. (Valles, 2009). According to Valles there is a lot of evidence which demonstrates testing bias among minority and underprivileged students. Nonetheless, standardized tests remain the tool most frequently used for assessing whether students are Mentally Retarded or Learning Disabled. The result is many black students are inappropriately identified as needing special education services on the basis of poor test scores that fail to accurately assess their actual abilities. (Valles, 2009) Larry P. The case of Larry P. v. Riles (1972/1979/1984/1986) in California is probably the best known case involving disproportionate representation. In the Larry P. decision, the existence of over representation, and an over reliance on ability tests that were not sufficiently validated for use

among minority students, were important issues. As a result of these series of trials it was found that the disproportionate representation of African American students in programs for students with mild mental retardation was discriminatory. It was ordered that the use of IQ tests with African American students be banned. (Coutinho & Oswald, 2000) Overrepresentation in EMR was viewed as "problematic" by Judge Peckham in part because the education provided to students who were placed in these EMR classes was perceived to be ineffective. Judge Robert Peckham repeatedly described these special classes as "deadend," "inferior," and "stigmatizing". (MacMillan & Reschly, 1998) The 1979 Larry P. (495 F. Supp. 926, 9th Circuit) decision is mainly known for the ruling that declared that intelligence tests should not be used to qualify African American students for EMR classes or their substantial equivalent. Judge Peckhams also found that EMR classes are primarily dead-end programs since less than 20 % of the students in EMR classes retuned to a regular education classroom. The Judge also ruled that the State Board of Education should conduct a review process for approving intelligence tests for use in determining special education eligibility. However, this review has never been conducted. Thus, there are no CDE approved assessments of African American students intelligence. In 1984, (793 F. 2nd 969, 9th Circuit) the court expanded the injunction on intelligence tests from banning their use in placing African American students in EMR programs to determining eligibility of African American students for all special education programs. Thus, Larry P. was extended to: the complete prohibition against using intelligence tests for identifying or placing Black pupils in special education...and IQ tests may not be given to a Black pupil even with parental consent. Moreover, when a school district receives records containing test pro-protocols from other agenciesIQ scores contained in the records shall not become a part of the pupils current school record.

There are no special education related purposes for which IQ tests shall be administered to Black students (Larry P., 1986,, as cited in Reschly, 1997). According to Reschly the reasoning in Larry P. is flawed for three reasons (a) the original Larry P. case focused on overrepresentation of African American students in EMR programs more so than the psychometric quality of the tests; (b) mean differences between African American and European American test scores do not equate to test bias (Brown, Reynolds, & Whitaker, 1999); and (c) lower mean IQ scores render African Americans less likely to qualify for special education eligibility because low IQ scores make it difficult to qualify for Specific Learning Disability the largest special education category (Sternberg & Grigorenko, 2002; (Reschly, 1997). California is the only state to hold that IQ tests cannot be given to special education students. Other states have found that IQ test are valid measurement In 1980, the court ruled in PASE v. Harmon (506 F. Supp. 831, ND Illinois) that IQ test bias was not a significant issue in the assessment process and that the observed over representation was not discriminatory. In both the Marshall et al. v. Georgia (1984/1985) and the S-1 v. Turlington (1986) cases, the over representation of African American students in Educable Mentally Retarded programs was at issue, but over representation, per se, was not found to be sufficient evidence of differential treatment of individuals who are African American (Coutinho & Oswald, 2000). According to Coutinho & Oswald (2000) the judges hearing the Marshall and S-1 cases were able to draw on new information unavailable to Judge Peckham in the highly regarded National Academy of Sciences Panel Report (Heller et al.,1982), accumulating information about bias in test items, and better guidelines with which to interpret the new AAMD guidelines for

defining mental retardation (e.g., incorporating adaptive behavior, flexibility around the cut-off point). Has the Ban on IQ tests Made a Difference? It is difficult to determine if the ban on IQ testing of minority students have made an impact on the overrepresentation of African-American students in special education. Between 1980 and 1994, in response to the Larry P. decision and with full implementation of IDEA (then the Education of the Handicapped Act (EHA), P. L. 94-142), California eliminated the category of Educable Mentally Retarded. However, the over representation of African American students as having Specific Learning Disabilities have increased markedly during that time period. In 1980, African American students were under represented in the category of Specific Learning Disability. However, by 1994 they were over 1.3 times as likely as White students to be identified as being categorized as having a Specific Learning Disability. In fact the identification rates for African American students were substantially higher than that of any other ethnic group in California over the last 10 years. This trend in California is difficult to accept because it is unlikely that many of the former MMR students in California met the eligibility criteria of a significant discrepancy between achievement and ability. Evidence exists that children with borderline intellectual functioning in large urban school settings are indeed being classified as LD . (Coutinho & Oswald, 2000, p.145) Powers & Hagans-Murillo stated that in their review they have found that many of the policies and practices surrounding intelligence testing of African Americans in California have not achieved their purpose as evidenced by the fact that 25 years after Larry P. and the introduction of alternative assessment methods for determining special education eligibility, African Americans remain significantly over-represented in special education (2004, p.145).

Judge Peckham himself declared that the IQ testing can be done on African-American students. In the case of Crawford v. Honig (37 F.3d 485, 9th Cir. 1994) This suit was brought by a group of African American students in 1992 challenging the 1986 expansion of the Larry P. injunction on intelligence testing to all special education eligibility decisions. The plaintiffs requested that intelligence tests be allowed for determining the eligibility of African American students to receive special education under the category of Specific Learning Disability. Judge Peckham agreed with the plaintiffs and vacated the 1986 modification, leaving the original 1979 injunction in place. This decision was based on the finding that the 1979 case focused on the disproportionate number of African American students in EMR classes rather than the technical merits or inadequacies of intelligence tests (Powers & Hagans-Murillo, 2004, p. 146). Replacing cognitive tests with alternate assessment methods has not resolved the problem of over-identification of African American students for special education programs here in California. As reported in the 24th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act (U.S. Department of Education, 2002) 12% of African American students in the 2000-2001 school year are identified as disabled, whereas only 7.4% of European American students and 3.5% of Asian American students are classified as disabled (U.S. Department of Education, 2002). The report further indicated that African American students are almost twice as likely as European American students in California to be identified as having a Learning Disability, or as being labeled Mentally Retarded or Emotional Disturbed. Compared to national statistics, however, Californians appear to have had some success in reducing over-representation in the MR disability category. (Sternberg & Grigorenko, 2002) Further Research Needed

In as much as it appears that the ban on using IQ testing of African American students have not had much of an impact on reducing the over representation of African American students in special education classes, (Powers & Hagan-Murillo, 2004) the question is raised that is this ban still needed? Presumably school psychologists and special education teachers and administrators would prefer to have the ability to use IQ tests when the issue of mental retardation (now termed Intellectual Disability) or Special Learning Disabilities are raised. When a student is looked at as possibly having a Specific Learning Disability their academic achievement scores are compared to their cognitive abilities (IDEIA, 2004). Having the ability to rate a students IQ would be a helpful measure in making the determination of Specific Learning Disability. Research should be conducted in order to gage the amount of support among these groups for the use of IQ tests on all students. Another issue that needs to be further examined is that of some of Judge Peckhams concerns that lead to the banning of IQ testing of African Americans. One of his concerns is that African Americans were overly placed in deadend classes where they fell further behind the academic achievements of those students who were in general education classes (Larry P. v. Riles, 1972, 343 F. Supp. 1306, ND California) Research should be conducted to investigate how many students are in such dead-end classes. Judge Peckham indicated that less than 20% of the subtends in such classes ever retunred to the general education class (Larry P. v. Riles, 1972, 343 F. Supp. 1306, ND California) Research such be conducted to investigate if this figure is still correct. Furthermore, research should be conducted to investigate if students in special education classes are ever cured and able to return to general education classes. In other words should that return to a general education class from a special education class even be a consideration.

Another issue that Judge Peckham appeared not to have considered is that of students who have been found to be categorized with a Specific Learning Disability who are left within the general education class receiving push-in special education support without leaving their classroom. Should those students be considered be considered as part of the 20% who returned to a regular education classroom? Could those students who are in general education classes be given IQ tests? Judge Peckham also ruled that IQ tests can be given to African American students once the tests were shown to be nondiscriminatory. The Judge ordered that the State Department of Education set up a review process in order to review the IQ tests to see if they met the standard of being nondiscriminatory (Larry P. v. Riles, 1972, 343 F. Supp. 1306, ND California). This review process has not occurred (Reschly, 1997). An investigation should be conducted to explore why this was not done. Further investigation can be done of the test makers to explore if any have attempted to norm their tests so as to make them adequate to test African Americans. As noted earlier, there may be a move to increase the sweep of the Larry P. decision to ban IQ testing of all minorities (Riverside, 2010). Presumably those who oppose the ban on IQ testing on African Americans will also oppose the ban on such testing on all minorities. Further research is needed to determine not only if the ban on IQ testing be expanded but also on if the ban should continue to exist.

References Agenyega, S. & Jiggetts, J. (1999). Minority children & Their over-representation in special education. Education, Vol 119 No. 4 pp. 619 632. Artiles, A. & Trent, S. (1994) Overrepresentation of minority students in special education: A continuing debate. The Journal of Special Education, Vol. .l 27 No. 4, pp. 410-437. Brown, R. T., Reynolds, C. R., & Whitaker, J. S. (1999). Bias in mental testing since Bias in mental testing. School Psychology Review, 14(1), 208-230 Coutinho, M. & Oswald, D. (2000). Disproportionate representation in special education: A synthesis and recommendations. Journal of Child and Family Studies. Vol. 9, No. 2 pp. 135 156. Edwards. O. (2007) An analysis of the differential impact of IQ: Considering consequential validity and disproportionality. Research in the Schools, Vol. 14, No. l, 29-39. Ford, D.Y. (2012) Culturally different students in special education: Looking backward to move forward. Exceptional Children, 78(4), 391 405. Hibel, J., Farkas, G. & Morgan, P. (2010). Who is placed into special education? American Sociological Association, DOI: 10.1177/0038040710383518. Jordan, K. (2005). Discourses of difference and the overrepresentation of black students in special education. Journal Of African American History, 90(1/2), 128-149. MacMillan, D. & Reschly, D. (1998). Overrepresentation of minority students: the case for greater specificity or reconsideration of the variables examined. Journal of Special Education, Vol. 32 Issue 1, p15. Powers, K., & Hagans-Murillo, K. (2004) Twenty-five Years after Larry P.: The California response to overrepresentation of African Americans in special education. The California School Psychologist, Vol. 9, pp. 145-158. Redfield, S. & Kraft, T. (2012). What color is special education? Journal of Law & Education, Vol. 41, No. I Reschly, D. (1988). Minority MMR overrepresentation and special education reform. Exceptional Children, , Vol. 54, No.4, pp. 316-323. " 1988 The Council for Exceptional Children. Reschly, D. (1997). Disproportionate minority participation in general and special education programs: Patterns, analyses, and solutions. Paper presented at the meeting of the National Association of School Psychologist, Atlanta, GA.

Riverside County Special education Local Plan Area (SELPA). 2010. Guidelines for assessing African-American students .http://www.rcselpa.org/docs/policies/Section%20III%20Evaluations/III.h%20Guidelines %20for%20Assessing%20African-American%20Students.pdf Sternberg, R. J., & Grigorenko, E. L. (2002). Difference scores in the identification of children with learning disabilities: Its time to use a different method. Journal of School Psychology, 40(1), 65-83. Vallas, R (2009). The disproportionality problem: the overrepresentation of black students in special education and recommendations for reform. . Virginia Journal of Social Policy & the Law. 2009, Vol. 17 Issue 1, p181-208.