The Law Center and co-counsel Baker & Hostetler LLP submitted petitions for an en banc rehearing in Blunt v. LMSD.
A three-judge panel recently affirmed the dismissal of this case regarding racism in special education placements. We are asking the court to rehear the case en banc, or before all judges on the court. We believe that the recent decision is contrary to important precedents, and that our appeal involves questions of exceptional importance. We believe the decision conflicts with previous case law on the issue and that there remain disputed facts in the case that must be resolved.
Of the panel, Chief Judge McKee vigorously dissented, noting that the plaintiffs put forward “strong statistical evidence,” including that for several years “the percentage of African-American students enrolled in special education classes in LMSD was twice the percentage of the number of African-Americans in the student body.” Judge McKee wrote that he is ”at a complete loss to understand how the District Court could have looked at this record and concluded that Plaintiffs had not put forth more than a scintilla of evidence that the LMSD had acted with a racially discriminatory purpose in identifying them as disabled and placing them in special education courses.”
Two of the three judges on the panel agreed that the advocacy organization Concerned Black Parents should not have been dismissed from the case at an early stage. We agree with Judge McKee, who wrote: “The interests of children in the quality of their education is identical to the interests their parents have in seeing them obtain such an education without the poisonous sting of racial bias.”
Nationwide, a disproportionate amount of minority students are identified for special education. Federal special education law recognizes that problem and imposes certain obligations on the state and school district if a school district has “significant disproportionality.” The problem is that federal law gives wide leeway to states as to how to define the ratios of disproportionality. The Law Center has been working on this issue for years. Click here to read about how we are dealing with this issue outside of the courtroom, by recently submitting comments to the federal government.
Update (10/2/14): The court has ordered LMSD to to respond for our petition for rehearing. The district has 14 days from the date of this order to file an answer.
Click here to read the petitions filed in this case: