This commentary, presented at the Practicing Law Institute in San Francisco on September 12, 2022, takes a look back at the 1970s, when the 9th Circuit Court of Appeals attempted to remedy the disproportionate placement of black students into isolated special education classrooms. As a result of legal challenges, the 9th Circuit granted an injunction to halt the practice of placing students in classrooms for the "educable mentally retarded" based solely on IQ tests. The challenge since that time has been how to identify and use culturally sensitive testing to determine ability levels, when some states, including California, forbid the use of any IQ testing for black students, thus disenfranchising those students yet again.

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