|Disability Studies Quarterly
Spring 2006, Volume 26, No. 2
Copyright 2006 by the Society
for Disability Studies
Ableism, Racism and IDEA 2004
Gregg D. Beratan
For thirty years, the Individuals with Disabilities Education Act (IDEA) has been regarded as a civil rights legislation intended to fight discrimination against individuals with disabilities. While the sincerity of this claim is not in question, I contend that ableism is deeply ingrained within IDEA. Covert forms of discrimination, such as institutional ableism and racism, are far more insidious than overt discrimination because they are so difficult to question–as is the case with the Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004]. Using some of the techniques developed by scholars of both disability studies and critical race theory, I detail how IDEA 2004 embeds unintentional discrimination within the policies, structures and practices of the educational system. I argue that the institutions themselves (policies, practices, schools) become instruments of discrimination despite their stated purpose to end discrimination.
Keywords: Disability Studies, policy
The intersection of disability and race as a means of discrimination in the United States has a long history dating back to the beginning of the eugenics movement (Reid & Knight, in press; Selden 1999; Valencia, 1997). It is a juncture that is most prominent today in the disproportionate representation of minority students[i] in special education. The Individuals with Disabilities Education Improvement Act of 2004 (IDEA) formally recognizes such disproportionate representation as a problem in special education.
This is not to suggest that the disproportionate representation of minority students in special education is a new issue. Overrepresentation was addressed in the 1997 reauthorization of IDEA and has been identified as an issue for more than 30 years (Losen & Orfield, 2002; Tomlinson, 1982).
In this paper, I contend that American society uses the Individuals with Disabilities Education Improvement Act of 2004 (IDEA, 2004) and a combination of institutional ableism and racism to discriminate against students with disabilities–a violation of the stated intent of the law. First, I define institutional ableism. Then, I deconstruct the meanings and understandings of disability contained within U.S. case law, public law, and policy interpretations that have been built around IDEA. Lastly, I illustrate how the very components of the law that prohibit discrimination against disabled and minority students, in fact, actively contribute to and maintain existing discrimination.
I believe that the body of scholarly work discussed below collectively establishes the existence of what I refer to as institutional ableism. Specifically, I contend that discriminatory structures and practices, as well as uninterrogated beliefs about disability deeply ingrained within educational systems, subvert even the most well-intentioned policies by maintaining the substantive oppression of existing hierarchies.
I would argue that scholars within both disability studies and inclusive education– without coining the term institutional ableism–have begun over the last quarter century to make an argument for the existence of such a concept in relation to disability. Vic Finkelstein (1980; 1981), Mike Oliver (1981; 1983), and Irving Kenneth Zola (1981; 1982), for example, were among the first to apply an understanding of the social model of disability to larger societal practices and structures, illuminating a multitude of the barriers encountered by disabled people in U.S. and British society. In 1982, Sally Tomlinson looked at the materialist structures and policies that artificially constructed West Indian students in England as educationally subnormal. Tomlinson's A Sociology of Special Education is arguably the first major disability studies in education text and was also one of the first books to challenge the belief that disabled students' inequitable position within the education system is the result of their individual and inherent deficits.
Barton (1986) examined the underlying politics and unquestioned beliefs that shaped educational policies and practices in England, arguing that they served as a built-in obstruction to more traditional educational pathways–a "safety valve for the mainstream system." This was an early development within a much larger body of sole-authored and edited work (e.g., Barton, 2003; 1988; Barton & Slee, 1999) that focused upon identifying intended and unintended discrimination and oppression built into educational systems. This task has been furthered by a number of researchers, most notably Roger Slee (1999a; 1996; 1993a; 1993b) and Gillian Fulcher (1999).
Clough (1988) charted the ways in which discrimination is built into curriculum. This was an important step as, until this point, the inclusive education/integration/mainstreaming[ii] debate had largely focused on the issue of location as the main institutional barrier to disabled people accessing education. Since this time, research has begun to elaborate on the discriminatory effects of pedagogy (Allan, 1999; Benjamin, 2002;, education reform (Bowe, et al, 1992; Peters, 2002; Slee, 1993b), school funding practices (Marsh, 1998), and teacher education (Barton, 2003; Booth, 2003; Nes & Strømstad, 2003).
Relevance of Critical Race Theory to Disability Studies in Education
In reaction to persisting evidence of institutional racism, many scholars of race and racism turned to the burgeoning field of critical race theory as a means of interrogating this phenomenon (Ladson-Billings, 1998). Critical race theorists deconstruct meanings and understandings of race embedded within both case and common law to better understand how those meanings and understandings create existing inequities (Crenshaw, 1995; Ladson-Billings, 1998; Parker & Stovall, 2004).
Critical race theory formalizes the application of a number of practices and uses them to place understandings of race at the center of the analysis of particular policies (Ladson- Billings & Tate, 1995, Ladson-Billings, 1998; Parker and Stovall, 2004). None of these practices are exclusive to critical race theory, and in fact, all are used extensively throughout social science research. For example, narrative/counter-narrative has been employed in relation to class, race, and gender by both Michael Apple (1999) and bell hooks (2000). Likewise, deconstruction has been used by a range of theorists and researchers, from philosophers such as Jacques Derrida (1982) to feminist theorists such as Hélène Cixous (1986).
Disability studies scholars have also begun to utilize these same means to place disability at the center of a number of areas of theory and research. For example, Morris (1989; 1991) and Thomas (1999) use narratives of disabled women to gain an understanding of their experiences of both disability and oppression. Corker (1999) relies upon deconstruction as a way of understanding competing discourses within disability studies, while Armstrong (2003) deconstructs the meanings and understandings of "inclusion" and "exclusion" to gain new insight into the positioning and experience of disabled people within the English and French educational systems. It has been argued that such deconstructive strategies allow for an understanding in which both macro and micro level perspectives become clear.
I would like to deconstruct the ways in which the meanings of disability embedded within IDEA actively construct disabled students' marginalized positioning within schools. Derrida (cited in Armstrong, 2003) expands upon the both the analytical and the transformative power of Deconstruction:
While Derrida is speaking in relation to his own examination of art and architecture, I apply deconstruction to the structures, institutions, mechanisms, and discourses built around IDEA. I have no delusions of this process displacing structures as Derrida suggests, but hopefully some understandings and perceptions of IDEA will be displaced.
Since its inception, IDEA has been portrayed as an anti-discrimination law in the same vein as the civil rights laws of the 1960's.
IDEA might be about civil rights, but can it be called anti-discriminatory? It is an improvement on the institutions it shut down, but being an improvement on institutionalization is hardly a grandiose claim. What does it do and how does it do it?
The 1975 passage of IDEA was a case of the government trying to catch up with the law. In 1971 and 1972, U.S. district courts agreed to two consent decrees which declared that in states guaranteeing a right to education, denying disabled students an education amounted to a violation of the equal protection clause of the fourteenth amendment. IDEA formalized the right to education that the courts had recognized and attempted to fund it (Gilhool, 1997; Rothstein, 2000).
IDEA is a funding bill. States accepting money under the law are required to adhere to certain principles. There were five principles in the original act[iii]:
For the purposes of this paper, I focus only on the principle of LRE as a significant factor in the institutional ableism within the U.S. public school system. This is not to imply, however, that the other requirements are not deeply involved in embedding ableist discrimination within the law.
The Least Restrictive Environment and its Qualifiers
While IDEA does not specifically mention the concept of inclusive education, the principle of least restrictive environment (LRE) has been taken by many to imply it. As stated in the 2004 authorization LRE requires:
The idea that IDEA encourages or promotes inclusive education originates in this definition of LRE, which implies preference for educating disabled students in the same environment as nondisabled students. While much of the literature has focused on the meaning and interpretation of "least restrictive environment" (e.g., Crockett & Kaufman, 1999; Daugherty, 2001; Lipton, 1997), the words that dominate the clause are "to the maximum extent appropriate." The word "appropriate" serves as a qualifier that overshadows the rest of the section. The law itself does not define appropriate.
The importance of the word "appropriate" comes in the implication that what the law refers to as "the regular educational environment" is not appropriate to the same level for all children. This is important, for a number of reasons, not the least of which is the assimilationist intent implicit within IDEA. In other words, the onus is on disabled students who, given the necessary "supplementary aids and services, "must find a way to fit into "the regular educational environment."
This is by no means excusive to IDEA. Slee (1999b) has described the same phenomenon within the Australian context.
One of the problems with an assimilationist approach is that it establishes an instant hierarchy between those being assimilated (in this case disabled students) and those students for whom the system was designed. This hierarchy is reflected in a reading of the least restrictive environment clause, which ends with a statement to the effect, that if a disabled student cannot reasonably fit into the existing system, it is acceptable to segregate them.
There are a number of things built into IDEA that serve to complement and augment this hierarchy. Most notable is the law's definition of disability:
This definition operates wholly from within a deficit model understanding of disability. The conflation of impairment and disability is something that has long been criticized within both disability studies and disability politics (Corbett, 1996; Oliver, 1990; UPIAS, 1976). Proponents of the social model of disability[iv] argue that by not distinguishing between impairment and disability, disabled people become constructed as problematic. Deficit understandings do not account for or recognize disability as socially constructed; rather, disability is conceptualized as an internal deficit located solely within the individual (Altman, 2001; Oliver, 2004; 1990).
A number of social model theorists argue that the act of problematizing individuals amounts to a form of oppression (Abberly, 1996; Swain, French & Cameron, 2003; Oliver, 2004). In adopting deficit model understandings of disability, institutions and laws reinforce this oppression (Oliver, 1990). Embedded within IDEA is a conception of disabled people as "less than" in comparison to nondisabled people, and therefore not always worthy of equal treatment under the law. Looking again at the phrase "to the maximum extent appropriate," it becomes clear that its intended interpretation is "to the maximum extent appropriate to an individual's deficit." This is one example of how IDEA sends a form of ableism into the educational system regardless of the intent of the individuals within that system.
Case law interpreting the LRE clause has been inconsistent (Henderson, 1993; Rothstein, 2000). While almost all of the LRE cases have determined that the law implies that the regular educational environment is not always the least restrictive environment, there have been significant disagreements in the courts over how and on what basis this is to be determined. Case law interpretation is important because it is the court interpretation of the meaning of IDEA from which schools and school districts must take their cue. Just as the actual wording of IDEA has constructed ableist institutions, so has the judicial interpretation of IDEA.
In Board of Education of the Hendrick Hudson Central School District v.Amy Rowley (1982), the Supreme Court, focusing upon the FAPE requirement, expounded on what they saw as the proper interpretation of the term "appropriate." Justice Rehnquist wrote on behalf of the majority:
The ruling establishes the bare minimal standard of educational benefit as the final arbiter of appropriateness. Rehnquist argues that this interpretation stems directly from legislative intent.
It is important to remember that Supreme Court rulings are the law of the land, as far as how any particular law is to be interpreted. This ruling says that states need only meet a standard of educational benefit for a program to be deemed appropriate. The ruling also reinforces a hierarchy between disabled and nondisabled students whose education is held to a higher standard, particularly in light of recent standards based reforms such as No Child Left Behind. While the ruling does not prohibit states from holding a higher standard, very few states have attempted to do so.
It is worth noting that the dissenting opinion expressed by Justice White considered the majority's opinion akin to unequal treatment. In fact, Justice White disputed Rehnquist's interpretation of legislative intent.
If Justice White's assertion is believed[v], it becomes clear that the majority opinion embeds yet another layer of ableism within IDEA by allowing schools to provide lesser standards of education for disabled students than for nondisabled students.
Other cases have affirmed the interpretation that the regular education environment is not always appropriate (e.g. Roncker v. Walter, 1983; Daniel R.R. v. State Board of Ed., 1989) while still other cases have determined who gets to determine what is appropriate. For example, in Hartman v. Loudon County Board of Ed. (1997), the 4th circuit court of appeals determined that responsibility for determining the appropriate placement belonged to the school's IEP team rather than the courts. The significance of this is in its recognition of the privileging that IDEA gives to professional expertise. It is noteworthy that "expertise" does not apply to the entire IEP team–only the professionals on the team who have the "right to apply their professional judgement."
Yet another hierarchy is created in which professional expertise is officially valued more highly than the knowledge and expertise of disabled students and their parents. A large body of work within disability studies has examined the oppressive nature of this hierarchy of expertise (Biklen, 1992; Corbett, 1996). For many of these professionals, their professional identity is strongly tied to the deficit understandings of disability discussed earlier (Reiser & Mason, 1995).
It is clear that ableist understandings and mechanisms are firmly entrenched within IDEA. I have focused only on one clause within the law; however, I assert that ableism runs throughout IDEA. Its domination of the LRE clause alone should raise alarms for anyone concerned with equity. The remainder of this article will focus on the interplay between institutional ableism and institutional racism in IDEA's attempts to address racial disproportionality in special education.
Disproportionality: Racist Ableism or Ableist Racism?
Institutional ableism is insufficient to understanding the disproportionate identification of minority students under IDEA. An understanding of institutionalized racism must also be brought into the picture. The importance of the concept of institutional racism lies not only in its recognition that racism is more than just individual prejudice, but also in the understanding that individual intent is irrelevant, even if an institution attempts to eradicate racist outcomes. If it does not succeed, it is still institutionally racist. For example, Gillborn (1995) studied a school committed to anti-racist education and found that, despite this activism, school structures and practices were still geared towards producing racist outcomes for students in terms of educational attainment.
In relation to disproportionality, institutional ableism (as will be discussed shortly) is very much a factor; however, it is impossible to take institutional racism out of the equation. It is difficult to find a more clearly racist outcome than the disproportionate segregation of minority students from general education. If ableism alone were involved, one could expect to find similar levels of representation across racial and ethnic groups.
The conflation of institutional ableism and institutional racism serves to make both stronger than either would be on their own. Society's willingness to accept discrimination against disabled people as the result of individual deficiencies is used to make racism more palatable. As Reid and Knight (in press) point out:
While much of the focus on institutional racism in education has been around the resegregation of public schools through a variety of covert mechanisms, including white flight (Johnson & Shapiro, 2003), testing (Brown et al., 2003; Gillborn & Youdell, 2000), "color-blind" policies (Bonilla-Silva, 2003), and pedagogy (Gillborn, 1990; Sleeter, 2004), the use of ableist segregation of special education allows for a legal, overt, and systematized means of achieving the same end. IDEA does, legally and overtly, everything that the courts attempted to do away with in the Brown decision.
The 2004 incarnation of IDEA expands upon the attempts of earlier versions to address disproportionality. Whereas the 1997 version of IDEA stopped at requiring local education agencies (LEAs) to report, review, and, if necessary, revise policies, practices, and procedures aimed at preventing the disproportionate representation of minority students in special education, the 2004 version of IDEA mandates LEAs
This full funding trigger located in section 618 d (B) of IDEA is written in a way to suggest that it is intended to give more funds to LEAs for the purpose of fighting existing disproportionality. Although there is no reason to question this intention, an understanding of both institutional ableism and racism means that intentions are irrelevant and there is a need to focus on outcomes. While it is too soon to determine the outcomes of this clause, there is enough evidence to speculate upon possibilities.
Anything that triggers maximum funding for a school or local education agency is an incentive. In this case, rather than discouraging the disproportionate identification of minority students as disabled, the clause serves as a bounty actively encouraging overidentification as a means to higher funding levels. Greene and Forster (2002) found that bounty funding systems in special education led to far greater growth in special education than lump sum funding systems (no incentives):
Although Greene and Forster (2002) focused upon the effects of bounty systems on the identification of special education students, there is no reason to suggest that a bounty targeting minority students would have a different outcome.
It could be argued that any incentive would be nullified by additional costs related to a student being identified as needing special education services. Greene and Forster (2002) have also answered this claim by pointing out that there is actually a cost benefit tied to increased identification of students.
The funding mechanisms in terms of both funding received and cost benefits becomes an institutionalized mechanism of inequity.
Is this a form of institutional ableism or institutional racism? It is neither and it is both. In this instance, the two are indistinguishable. Neither offers sufficient explanation on its own. Crenshaw (2003) argues in her analysis of the intersections of race and sex that focusing on either construction as discrete from the other:
Disability and race are similarly conjoined in IDEA's disproportionality clause. It is ableist in that students' opportunities and experiences are being limited by mechanisms and structures built around constructions of disability, but it is also institutionally racist in the way it targets students by their membership in racial and ethnic minority groups. The racist outcomes could not be achieved without the ableist mechanisms.
We have heard for the last thirty years that IDEA is a civil rights legislation intended to fight discrimination. While the sincerity of this claim is not in question, I contend that ableism is deeply ingrained within IDEA. Covert forms of discrimination, such as institutional ableism and racism, are far more insidious than more overt discrimination because they are so difficult to question. IDEA's attempts to address disproportionality are perfect examples. The stated purpose of the clause indicates an anti-discriminatory intent, but the mechanism the clause creates to achieve this end is designed in a way that is most likely to cultivate the very outcome it intends to eradicate.
In merging the outcomes of both institutional ableism and racism, IDEA has created a powerful and institutionalized inequity. Society's acceptance of disability discrimination enables the acceptance of the otherwise unacceptable racial discrimination. Camouflaged in the language of good intentions, IDEA is protected against charges of either racism or ableism. It is necessary for researchers in disability studies and critical race theory to cross borders and engage with this interaction in order to address the inequities.
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i 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.
ii Different writers have used these terms in a variety of ways.
At times, they have been used interchangeably, and at other times, they have
been argued to be 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
iii Other requirements have been added in the subsequent reauthorizations
(including two significant additions in the 2004 act that focus on attorney
fees and the reduction of paperwork).
iv 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 marginalization (Barnes, 1996; Finkelstein, 2004; Oliver, 1990).
v White's opinion was joined by joined by Justices Brennan &
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.
Disability Studies Quarterly (DSQ) is the journal of the Society for Disability Studies (SDS). It is a multidisciplinary and international journal of interest to social scientists, scholars in the humanities and arts, disability rights advocates, and others concerned with the issues of people with disabilities. It represents the full range of methods, epistemologies, perspectives, and content that the field of disability studies embraces. DSQ is committed to developing theoretical and practical knowledge about disability and to promoting the full and equal participation of persons with disabilities in society. (ISSN: 1041-5718; eISSN: 2159-8371)