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Memorandum from the Director of Special Education

This memorandum is intended to provide guidance on special education assessment of African American students for identification and placement and the Larry P. court decision.

California Department of Education


Date: September 14, 2022

To: Special Education Local Plan Area Directors

From: Heather Calomese, Division Director, Opportunities for All Branch

Subject: Special Education Assessment of African American Students


Recently questions have arisen about special education assessment of African American students for identification and placement and the Larry P. court decision, as detailed below. This memo is intended to provide guidance on that issue. This memo reflects the most current federal and state statutory, regulatory and case law, and supersedes any previous guidance on this issue.

Laws Relating to Assessment for Special Education

In the many years since the original Larry P. decision, a body of federal and state special education statutes and regulations have evolved that emphasize nondiscriminatory assessment that gathers a wide range of information about the student, using multiple measures, and without focusing on a single criterion such as an intelligence quotient (IQ) score. A summary of key legal requirements for assessment follows. The California Department of Education (CDE) considers these principles in its monitoring of local educational agencies (LEAs) in relation to special education assessment of African American students.

  1. No single measure or assessment may be used as the sole criterion for determining whether the child has a disability or for determining an appropriate educational program for the child. (20 United States Code [U.S.C.] § 1414[b][2][B]; 34 Code of Federal Regulations [C.F.R.] part 300.304[b][2]; Education Code [EC] §§ 56001[j] and 56320[e]; California Code of Regulations [Cal. Code Regs.], Title 5, § 3030[j][4].)

  2. Assessments and other evaluation materials must include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient. (34 C.F.R. part 300.304[c][2]; EC § 56320[c].)

  3. A variety of assessment tools and strategies must be used, in order to gather relevant functional, developmental and academic information about the child. (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. part 300.304[b][1]; EC § 56320[b][1].)

  4. Assessments and other evaluation materials must be valid and reliable for the purpose for which they are used. (20 U.S.C. § 1414[b][3][A][iii]; 34 C.F.R. part300.304[c][1][iii]; EC § 56320[b][2].)

  5. Assessments and other evaluation materials must be selected and administered so as not to be discriminatory on a racial or cultural basis. (20 U.S.C. § 1414[b][3][A][i]; 34 C.F.R. part 300.304[c][1][i]; EC §§ 56001[j]; 56320[a].)

The Larry P. Case

In 1972 in the Larry P. case, the United States District Court for the Northern District of California found that African American students in the San Francisco Unified School District were being placed into classes for “Educably Mentally Retarded (EMR)” students in disproportionate numbers, based on criteria that relied primarily on the results of intelligence quotient (IQ) tests that were racially and/or culturally discriminatory and not validated for the purposes for which they were being used1. In 1979, the court permanently enjoined LEAs throughout California from using standardized intelligence tests2 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 functions3.

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 EMR category no longer exists. 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. The state process to seek approval has not been invoked.

Although the law on assessment has evolved, as described above, the Larry P. injunction remains in place, and the court retains jurisdiction over its enforcement. The Larry P. injunction does not apply to tests that are not considered standardized intelligence tests.

Assessment for Learning Disabilities

So long as LEAs follow legal requirements, generally speaking they have discretion in selecting which particular assessments to use in determining eligibility for special education4. When assessing for a learning disability, LEAs are not required to consider whether the student has a severe discrepancy between intellectual ability and achievement. Rather, they must permit a model based on a student’s response to intervention, or RTI. (20 U.S.C. § 1414[b][6].)5 When assessing for a learning disability using a severe discrepancy model, LEAs are not required to use IQ tests to determine intellectual ability6.


1 Larry P. v. Riles, 343 F. Supp. 1306, 1315 (N.D. Cal. 1972).

2 The court defined a standardized intelligence test as one that result in a score purporting to measure intelligence, often described as “general intellectual functioning.”  Larry P., 495 F. Supp. 926, 931 n. 1 (N.D. Cal. 1979), affirmed in part, reversed in part, 793 F.2d 969 (9th Cir. 1986).

3 Larry P., 495 F. Supp. at 989.

4 E.M. v. Pajaro Valley Unified School District, 652 F.3d 999, 1003 (9th Cir. 2011).

5 Michael P. v. Department of Education, 656 F.3d 1057, 1060-1061 (9th Cir. 2011).

6 Ford v. Long Beach Unified School District, 291 F.3d 1086, 1088-1089 (9th Cir. 2002).

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