On September 14, 2022, the California Department of Education (CDE) issued a Memorandum on Special Education of African American Students. It intended to clarify issues, especially in light of everyone coming back to schools in person. However, confusion remains, and many members, districts, and SELPAs have asked CASP for clarity before they modify their practices. Our team has spoken with representatives from CDE, including State Director of Special Education Heather Calomese, seeking clarity.
We anticipate that CDE will release updated written guidance in the future and are working collaboratively to expedite it. In the meantime, there are two questions that can be answered:
- Is there an equivalent of EMR currently? Yes
- Is the Larry P. injunction still in place? Yes
The memo states, “In 1979, the court permanently enjoined LEAs throughout California from using standardized intelligence tests for (1) the identification of African American students as EMR or its substantial equivalent or (2) placement of African American students into EMR classes or classes serving substantially the same functions. The court held that court approval would be required for the use of any standardized intelligence tests for African American students for the above purposes. The court laid out a state process for this.”
The memo accurately indicates that “The court has never held hearings to determine the “substantial equivalent” of the EMR identification or placement, or whether IQ tests are appropriate for assessing African American students for identifications or placements other than the substantial equivalent of EMR.” Some have read this to indicate that EMR is no longer an eligibility category, and thus conclude the Larry P. injunction no longer applies – this conclusion would be erroneous. The memo later notes that “Although the law on assessment has evolved…the Larry P. injunction remains in place.” While the court has never held hearings to determine the “substantial equivalent” of EMR identification or placement, Intellectual Disability is the category that replaced Mental Retardation (of which EMR was once a subclassification with respect to level of service need). The courts did not need to hold a hearing to determine that ID is the “substantial equivalent,” because subsequent laws changed the label.
In brief: Yes, the Larry P. injunction is still in place for ID and for placement in ID type programs.
Whether the Larry P. injunction still applies to all special education disability categories remains to be determined. In Crawford v. Honig (1992) the Court ruled against CDE’s 1986 Larry P. Settlement Agreement that expanded the Larry P.’s injunction to all 13 special education categories. The Court only applied ruled that the Larry P. injunction applied only to the assessment of EMR and its equivalent, which is ID. Two years later, a CDE 1994 Memorandum Of Understanding indicated that regardless of the Crawford v Honig decision, CDE would still apply the Larry P. injunction to all disability categories.
Much has changed since 1994, yet Larry P. has not evolved. CASP will be having additional meetings with CDE to address the remaining confusion regarding their 2022 memo, and future assessment practices for African American students with regard to the other 12 disability categories.
This update was originally published in the Spring 2023 issue of CASP Today. To read CASP Today, log into the CASP Member Center.
