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Abstract
The disproportionate representation of minority students in special education has long been recognised as a problem in the United States. It is, however, only with the 2004 authorisation of the Individuals with Disabilities Education Improvement Act (IDEA) that Congress has tried to prescribe a remedy for this. Beginning with a deconstruction of the case law, public law and policy interpretations built around IDEA, this paper will first use an understanding of the concept of ‘institutional ablism’ as it has been developed within disability studies, to challenge the widely accepted view of IDEA as civil rights legislation. Drawing on Critical Race Theory, the article will then offer a further deconstruction of IDEA focusing on the IDEA’s attempt to address the disproportionate representation of minority students in special education. The analysis of the law illustrates the use of a mechanism that I will call transposition: the use of the legally accepted segregation of special education to maintain the effects of the unacceptable and illegal segregation by race. The analysis will make the case that the development of special education in the United States offers yet another example of interest convergence, specifically that of the marginal disability rights gained with the creation of special education converging with the white interest of recouping the losses of the US Supreme Court’s historic Brown v. Board of Education desegregation decision.
Acknowledgements
I would like to thank Claudine Rausch and Nicola Rollock for feedback that helped clarify my thinking about transposition.
Notes
1. Brown v. the Board of Education is the landmark civil rights case widely credited as ending formally segregated education in the United States. A detailed history of the case can be found in Kluger (Citation1975).
2. This is IDEA’s terminology rather than my own. It is used consistently throughout the law. The law refers to minority groups, minority children, children with disabilities from minority backgrounds, and racial and ethnic groups. All of these terms appear to be used interchangeably within the law. There is little recognition that disproportionate representation affects some minority groups and not others, although African Americans are mentioned as one group significantly impacted by disproportionality. There is no mention of the historical context of racism in public education that has contributed to this. It is not even asserted that disproportionality is not a natural result of individual deficiency. The law merely asserts that disproportionality is something that needs to be queried to determine causality.
3. P.L. 108‐446 (2004) The Individuals with Disabilities Education Improvement Act, p. 5.
4. Different writers have used these terms in a variety of ways. At times, they have been used interchangeably; at other times, they have been argued as distinct from one another. While throughout this paper I focus on inclusive education, and use it as distinct from mainstreaming and integration, in this sentence I am highlighting the blurring of the terms within the overarching debate.
5. I have closely adapted this definition, from the definition of institutional racism offered by the Macpherson report on the inquiry into the death of Stephen Lawrence.
6. The Stephen Lawrence Inquiry was the official investigation into the mishandling of the investigation into the murder of Stephen Lawrence, a young black man who was murdered by seven white youths while waiting for a bus in London. The Inquiry’s report represented the first time that the existence of institutional racism was recognised by the UK government. For more information, see Macpherson, Citation1999.
7. It should be noted that the Stephen Lawrence Inquiry’s definition of institutional racism has been criticised by some as too narrow a definition. John Solomos (Citation1999, 3) has argued that ‘the report is in many ways not concerned with defining the meaning of institutionalised racism in any depth’ and that the definition offered the commission a means of condemning the actions of the murderers while at the same time absolving them of the crime of intent.
8. President Bill Clinton, 4 June 1997, on the re‐authorisation of IDEA.
9. Other requirements have been added in the subsequent re‐authorisations (including two significant additions in the 2004 act that focus on attorney fees and the reduction of paperwork).
10. P.L. 94‐142 (1975). The Education for all Handicapped Children Act.
11. P.L. 105‐17 (1997). The Individuals with Disabilities Education Act, p. 30.
12. P.L. 108–446, pp. 6–7.
13. The distinction between disability and impairment has emerged largely out of the disability rights movement and the field of disability studies (for more, see Barnes Citation1996; Finkelstein Citation2004; Oliver Citation1990; UPIAS Citation1976).
14. The social model of disability emerged largely as a criticism of the medical model. Proponents of the social model of disability argue that disability is a socially constructed oppression (rather than an individually located problem) in which various impairments are used by society as the basis for group marginalisation (Barnes Citation1996; Finkelstein Citation2004; Oliver Citation1990; UPIAS Citation1976).
15. No Child Left Behind is the law passed by the Bush administration in 2001. It is based on the belief that a standardised testing regime will hold schools accountable and thus lead to an improved education system. It was been widely criticised, not only for its rationale (Hursh Citation2005; Darling‐Hammond Citation2004), but also for discriminating against many groups of students (Fusarelli Citation2004; Giroux and Schmidt Citation2004).
16. White’s opinion was joined by joined by Justices Brennan and Marshall. The … within the quote represents citations from the congressional record, which White uses far more extensively than Rehnquist in making the case for legislative intent.
17. P.L. 108–446, p. 94.
18. It should be noted that several legal and critical race scholars (Delgado Citation2003; Delgado and Stefancic Citation2005) have also begun to take note of an eroding of this strict scrutiny standard as it applies to race; but the doctrine of the court does still say that a strict scrutiny can be applied in relation to race, which does make disability as determined by Cleburne much more accessible.