Abstract

This article reports a qualitative study of six court cases that consider the admissibility of facilitated communication (FC) as evidence. While this is not a study of the legal system per se, I examine this system as a site where meanings of science, research, ability, and disability are contested. In order for a set of truths and practices to operate as legitimate in a particular institution, there is also a wider discourse and set of associated practices within which the received truths and practices of that institution come to be accepted. This study examines the discursive production of disability and disability research in the legal setting as the participants (investigators, attorneys, judges) sought to make sense of FC.

Introduction

The meanings of science are currently contested in many arenas. In this study I am interested in examining the broader discourses of science and of disability within which participants in the legal setting make meaning. This paper examines the ways practitioners in the legal sphere made sense of disability research in their everyday practice when arguing the admissibility of facilitated communication (FC) into evidence. The broader discourses of disability and of science provided sets of strategies that participants took up, as well as tools for recognizing, or at least rejecting, other sets of strategies.

Phillips and Hardy (2002) suggest that some topics lend themselves to discourse analysis. Examples include the reconceptualization of identity as a topic of study, processes of social construction, particularly of knowledge, and the relationship between knowledge and power. "Building particularly on the work of Foucault, researchers have become interested in how processes of social construction lead to a social reality that is taken for granted and that advantages some participants at the expense of others" (p.15). The aim of discourse analysis, according to Phillips and Jorgensen (2002),

... is to find out how the world (or aspects of it) is ascribed meaning discursively and what social consequences this has. The starting point is that discourses, by representing reality in one particular way, rather than in other possible ways, constitute subjects and objects in particular ways, create boundaries between the true and the false, and make certain types of action relevant and others unthinkable (p.145).

The prevailing Western view of reality draws heavily on a particular view of the scientific method, and insists that this method is the only valid approach to the acquisition and understanding of knowledge. Evans (1979) outlines four propositions regarding the nature of science that underpin this worldview. The first two propositions are described as scientism:

1. Science gives us the whole truth about the nature of reality.
2. Science gives us the ultimate truth about the realities it deals with.

The second two propositions form the unity of science thesis:

3. There is one method that all the genuine sciences employ.
4. This one method consists of giving deterministic causal explanations that are empirically testable.

According to this view, true science is objective, neutral, and value-free. Burr (1995,) summarizes the work of Potter et al. and identifies two discourses of science. Within an empiricist discourse "scientists were able to represent their personal theoretical preferences as deriving in a neutral way from 'the facts' revealed by the research." A contingent discourse is "used to cast doubts upon the views of opponents by representing them as more influenced by non-scientific contingencies (such as political bias)" (p.175).

In this article, I first briefly describe FC and the controversy surrounding it. I then background the debates about the qualities of science and research in three areas: disability studies, the wider field of education, and finally, in the legal setting. I then consider published court cases to look at the admissibility of FC to evidence. The data for the study includes interviews with attorneys and judges, the fieldnotes of a participant observer in a family court hearing, the written decisions from the published cases, and a number of legal analyses of the published cases.

What happens in the context of a legal investigation and court proceedings is of interest to disability studies and educational researchers for at least two reasons. First, disability studies can attend to the "vast realm of meaning-making that occurs in metaphoric and symbolic uses of disability. These devices need to be analyzed in an array of cultural products to understand their meanings and functions, and to subvert their power" (Linton, 1998, p.125). The legal setting is one such site of cultural production. Second, the legal setting is a potential sphere of influence for professionals in the disability field as they serve, for example, as advisors, expert witnesses, and authors of published studies (Brantlinger, 2000; King & Piper, 1995). Empiricist and contingent discourses of disability policy and research can be seen at work in these court cases.

Facilitated Communication

FC has been described as a way of enabling individuals with severe communication impairment (i.e. absent or limited speech) to access a communication device (DEAL Communication Centre, 1992). The role of the facilitator is to provide physical support, such as providing stability and resistance, to the disabled person's forward pointing movement as s/he uses a communication device. In addition, the facilitator provides emotional support, such as an expectation of competency (Biklen, 1990; Crossley & McDonald, 1980). With the support of a facilitator, individuals with a history of no known reliable form of communication are reported to point to objects, photographs, symbols, words, or individual letters to form words, phrases and/or sentences (Attwood, 1992; Intellectual Disability Review Panel, 1989). Facilitators have worked in this manner with people described through a variety of labels that connote disability including cerebral palsy, autism, Down syndrome, Rett syndrome, and severe and/or profound mental retardation (Biklen, 1990; Biklen & Cardinal, 1997; Biklen, Morton, Saha, Duncan, Gold, Hardardottir, Karna, O'Connor & Rao, 1992; Crossley, 1997). In early 1990, reports surfaced in the press that some individuals using FC were making allegations of sexual abuse (e.g. Getman-Jackson, 1990; Moriarty, 1990). These allegations led to a number of court cases and appeals between 1992 and 1995. All of these cases focused in whole or in part on the admissibility to evidence of prior statements and testimony made through FC. The published research on FC was emerging at the time. As Goode (1994) remarked,

The formal "scientific" evaluation of FC was instigated primarily in response to legal decisions about the validity/veridicality of FCs claiming sexual abuse and because similar incidents have occurred in many countries. ... How the courts will deal with such statements, whether they will continue to require scientific verification through behavioral, quasi-experimental methods, will have not just scientific implications. How courts decide about the question of the reliability of FC will reflect directly upon the possibility of certain individuals being able to employ the resource of language in order to protect themselves and their quality of life. (pp.310-311)

What was missing from Goode's analysis was the prior question of how and why some of the courts came to understand the issue as one of scientific interest. Danforth (1997a), Erevelles (2002), and Kliewer & Drake (1998) also examined the language used in the debates that were taking place within professional journals. Kliewer & Drake (1998) and Danforth (1997a) were critical of the traditional conceptions of science and knowledge production. Danforth (1997a) and Erevelles (2002) described the hegemony of the tenets of modern social science practices and professionalism, and the "validation trap" (Danforth, 1997b, p.393).

In the next section, I look to disability studies for analyses of how meanings of disability have been discursively ascribed, and the social consequences this has had for disabled individuals, as well as for disabled and non-disabled researchers who have challenged traditional discourses.

Disabling Science

A number of disability studies scholars have expressed concerns about the continuing reification of empirical research by a group of influential scholars writing in support of segregated special education (e.g. Brantlinger, 2000; Danforth, 1997a; Kleiwer & Drake, 1998; Linton, 1998). Of particular concern to Brantlinger is the way these influential scholars position the research they do in comparison to the research of those authors with whom they disagree. According to Brantlinger, the "influential" and "traditionalist" authors promote "the superiority of positivist science," and "are not alone in assuming that technical research is apolitical and nonideological" (p.1089). Brantlinger's paper was originally published in a 1997 edition of the Review of Educational Research, in which she set out this call to the readership: "think about how the arguments put forth in this article have implications beyond special education" (p.1067). Brantlinger further asserts:

These authors write in support of a continuum of special education services and recommend that only the results of empirical research should inform special education practice. They also express wariness about the concept of inclusion and the direction of the inclusion movement. In touting the superiority of their own scholarship, they accuse the inclusion supporters of being political, subjective and ideological (p.1066).

Traditionalists claim that authors who support inclusion are advocates who, rather than seeking to eliminate the values that contaminate research, allow them to permeate their work. Inclusion supporters suffer from a lack of empiricism compared to the traditionalists who can claim a

... technical orientation which boasts the superiority of incremental reform based on the findings of empirical studies. Kauffman (1996) worries about the 'haphazard or inverse relationship between popular intervention procedures and reliable research data' and 'recommends that future research ... be directed toward finding ways to suppress the tendency to accept unsubstantiated claims for materials and methods and to construct a culture of support for research-based practices (p.55, cited in Brantlinger, 2000, pp. 1071-2).

This is an example of a contingent discourse of science — or in this instance, research on disability.

Kliewer & Drake (1998) offer a similar analysis of the arguments mounted by critics of deinstitutionalization, school inclusion, and FC. Kliewer & Drake describe the critics as using scientism as a way of denying, ignoring or hiding their (the critics) ideologies of segregation and professional control. Scientism is the "rhetoric of the natural sciences used to cloak an ideology of control through segregation" (p.108).

Traditionalists [in special education] constitute a discourse community, that is, one that produces knowledge (Bensimon, 1995) and establishes conditions for who speaks and what gets heard (Bakhtin, 1991). Because it is institutionally sanctioned, their discourse is powerful (Britzman, 1991); its 'regime' or 'politics of truth' (Foucault, 1980) sets standards for the field. Special education is engulfed in bureaucratic rationality with an ideology of 'professionalism' or 'expertism' instantiating power relations (Tomlinson, 1996; Troyna & Vincent, 1996) (Brantlinger, 2000, pp.1074-1075).

Borthwick and Crossley (1999) have argued that the debates about FC (FCT in their article) illustrate the commitment by a group of professionals to a particular view of mental retardation. They argue that these professionals also share a commitment to a particular view of the connection between cognitive abilities and language production.

Those who are sceptical about FCT reject historical analogies on the grounds that the changing boundaries of intellectual disability represent not conceptual shifts, but the progressive improvement of diagnostic processes. They argue that the mistakes of the past are conspicuous only because they have now been recognised as mistakes, and thus in fact represent successes. No analogy is recognised between, say, the establishment of communication with deaf people in the 18th century and the possibility of establishing communication with 'mentally retarded' people without speech today; the deaf were linguistically capable but without a means of communication, while contemporary cases appear to be incapable of language. In contrast, advocates see culturally based misdiagnosis in the past as raising the possibility of culturally based misdiagnosis today, with analogous social assumptions concealing the linguistic abilities in both instances (Paragraph 35).

The more powerful discourse community defines knowledge as that produced through their research practices, resulting, as Brantlinger (2000) said, in "incremental reform based on empirical studies." Brantlinger's interest in particular scholars and their publications arose from her assessment of them as powerful in the special education community. She outlines how they come to have and to maintain their impact:

The authors are influential because of their multitude of publications, frequent citations in special education literature, positions on editorial boards of journals, and active involvement in and leadership of organizations for special education professionals. They have also received substantial federal funding; their articles and chapters often end with notes acknowledging grants from the US Department of Education (p.1067).

With Burr (1995), I would argue that it is a particular discourse community that has had the most impact on special education and "set the standards for the field":

... within a social constructionist framework traditional psychology, as a scientific enterprise, is seen as making powerful truth claims. The discourse and rhetoric of science gives the findings of psychological research the stamp of 'knowledge' or 'truth', and put the psychologist or researcher in a relatively powerful positions with respect to those whom they are researching... (pp.160-161).

Researchers in special education who report their studies of the experiences of institutionalized people, or students in segregated settings, or who have used FC, are describing and reporting their work in what is still a largely hostile "regime" — particularly when those studies report experiences that do not suggest institutionalization, segregation or silence is helpful.

Outside of disability studies, other critical social scientists have been commenting on the reification of an empiricist view of science enshrined in the No Child Left Behind (NCLB) Act (e.g. Lather, 2004; Lincoln & Cannella, 2004a, 2004b; Weinstein, 2004). According to Weinstein (2004) the NCLB Act is an example of a

... regulatory orientation [that signals] official positions on matters of scientific veracity of appropriateness. Legislation, laws, and policies construct the "normal," imposing jurisdiction over the conceptualization and practice of (in this case) research. ... The legislation established what will be considered, by funding agencies and others charged with evaluation and research contracts, as "evidence-based" findings. There is no doubt what kinds of studies will be funded, what kinds of evidence will be considered "scientific," or what types of knowledge will be used to determine the successes or failures of the legislation. Such language "regulates" who will conduct the studies, who will receive resources, what kinds of data will be collected, and what evidence will be considered useful in policy recommendations. It serves to "police" the boundaries of the acceptable and declares whose work will be considered legitimate and whose will not (p.7).

Weinstein notes that there is a particular focus in NCLB on the correct method of science, with an emphasis on designs associated with psychological and clinical models of research, including experimental and quasi-experimental research, and large-scale random-assignment controlled trials. As Mercer has (2002) commented with respect to the legal setting, methods discourses also served to align researchers' identities within — or outside of — particular discourse communities. Weinstein (2004) highlights the same discursive moves in NCLB:

Evelyn Fox Keller (1995) has noted that discussions of method are displacements of discussions of politics. Certainly, the appeals to science in NCLB and its reverence of the randomized experiment are highly politicized moves to discredit the avowedly — and necessarily — (lower case) political nature of research in education. Through appeals to science as impartial, objective, and context free the ethnographic, postmodern and textual research of the past 20 to 40 years is rendered beyond the pale (p.257).

Lincoln & Cannella (2004b) describe the continuing impact of psychology in a way that is very similar to Burr's (1995) description of the impact of psychology, and to Brantlinger's (1997) warning about traditionalist researchers in special education:

... the attachment of education research to earlier psychological models, which in the beginning of the 20th century adopted behaviorism from the natural sciences, creates a social infrastructure that precludes easy acceptance of a-experimental, qualitative, or any non-conventional paradigms or methods of research (Lincoln & Cannella, 2004b, p.175).

Similarly, Bloch (2004) explores the ways the National Research Council's report on Scientific Research in Education inscribes "definitions of good (and poor) quality scientific research" (p.96). Bloch asserts that

The report's elaboration of what the key scientific principles are, what science is thought to be, and the emphasis on the cumulative effects of good science research in education that must be scrutinized must be scrutinized itself. Indeed, I believe that despite the apparent inclusivity in what the report acknowledges as good research, the NRC report is not only limited in its outlook but also dangerous (p.97).

Nevertheless, Bloch argues, the report is useful to the extent that, again, it shows clearly the domain of this particular discourse, the boundaries that will be defended, which must also be challenged. It is important to do so because "The report is only part of a much broader discursive field that focuses on expertise, professionalism, quality management, defined-measurable outcomes, and the discourse of good science." (p.107) The NRC report and the NCLB Act are not merely setting an agenda for "evidence-based" educational policy and practices, when we consider that only those policy decisions or recommendations that can claim to be based on objective and value-free research will be legitimate.

Litigating Research

Austin (1994) suggests that legal decisions should be read "not for the rules they contain, but for their cultural value" (p.7) — for the expression of cultural ideals. The debates about science and scientific method (even the scientific method) in the legal setting have been described as efforts to safeguard juries and judges from having to deal with "junk science" or "pseudo science" (Caudill & Redding, 2000; Edmond 2002), especially that which is propounded by "unscrupulous" and "self-serving" expert witnesses. Edmond described the concern in the US of "the justice system suffering from the deleterious effects of unreliable and unconstrained expert witnesses, especially those testifying on behalf of plaintiffs" (p.387). According to this view, true science is objective, neutral, and value-free, and can be presented without bias to any audience by any authentic expert. While arguably a naïve view, it is an influential one that underpins particular strategies in the courts.

Breyer (2000) has noted, "Scientific issues permeate the law" (p. 53). At the time of the trials around FC, the courts were also engaged in wider debates about how to deal with scientific and expert evidence. Guidance to courts about the admissibility of scientific and expert evidence has been provided through the Frye standard, the Federal Rules of Evidence, and more recently, following the rulings in Daubert v Merrell Dow Pharmaceuticals Inc. t. These guidelines, and the debates surrounding them, are described below. The case of Frye v US, was decided in 1923. The Supreme Court was asked to decide whether or not evidence obtained by polygraph (lie detector) should be admissible. The Supreme Court ruled that such evidence was not admissible. The standard that was applied concerns the general acceptance of a scientific technique or theory within the relevant field or scientific community. Since the 1923 decision, Frye hearings have been held on the admissibility of expert scientific testimony as related to DNA testing, hypnosis as an aid to recall for victims or witnesses, and the use of validation interviews to determine the presence or absence of child sexual abuse syndrome or rape trauma syndrome as corroborating evidence.

Etlinger (1995, p. 1268) notes that the Frye standard of general acceptance requires more than demonstrating that the "underlying theory and research technique are scientifically valid." According to Etlinger (1995), a dilemma that courts face when using the Frye standard is that "the basis for acceptance in the relevant scientific community is, ironically, not necessarily measured by scientific reliability or validity. Consensus in the scientific community does not necessarily represent empirical verification" (p. 1269). Guidance to courts about the admissibility of scientific and expert evidence is also provided by the Federal Rules of Evidence. Rule 702 (cited in Williams, 2001, p.275) states:

If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise.

Williams (2001) describes the effects of the US Supreme Court's review of the Federal Rules of Evidence in two key decisions —Daubert (1993) and Kumho (1999). Following these decisions, the role of trial judges is to act as gatekeeper, and assume the responsibility of assessing the scientific merit of expert testimony. Daubert sets out four factors that must be considered in decisions regarding the admissibility of scientific evidence:

1. whether the theory can be seen and tested (focusing on methodology);
2. whether the theory has been subjected to peer review and publication;
3. the known or potential rate for error;
4. whether the theory has been generally accepted (Williams, p. 276).

According to Williams (2001), the Kumho decision affirmed "...unequivocally that all expert testimony falls within the purview of Daubert's gatekeeping requirement" (p.276). Breyer (2000) further asserts that "the purpose of Daubert's gatekeeping requirement is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field" (p.55).

These newer guidelines have their own problems. Caudill and Redding (2002) note that the first and third factors in Daubert appear without qualification. These two factors "set a benchmark for scientific validity" (p. 687) that in itself relies on a particular view of science and the scientific method.

The second and fourth factors, on the other hand, are established as useful but not determinative, confirming that publication in peer-reviewed journals and general acceptance would be inappropriate considerations for novel scientific theories. This flexibility leads to the conclusion that Daubert is less deferential to the scientific establishment than Frye was even though the Court also acknowledged a concern that judicial screening of evidence "will sanction a stifling and repressive scientific orthodoxy." Instead of stressing that the four factors are less deferential to scientific orthodoxy, the Court distinguished science, which considers multiple hypotheses, from law, which has no time for "conjectures that are probably wrong" and in which "authentic insights and innovations" might be rejected to resolve a dispute quickly. ... In concluding, the Daubert Court implied that novel views are probably wrong, without realizing that novel views often may appear to be wrong when compared to mainstream science - that's what makes a view "novel." But even novel science must conform to minimally acceptable standards and practices of the scientific method (p.687).

Caudill & Redding (2000) argue that the Daubert Court struggled with traditional and constructivist views of science, leaving subsequent courts to pick up either view, or even a third "pragmatic constructivism" (p. 688), constructing and reconstructing science for each case.

Other legal analyses of cases post-Daubert have taken up issues of representations of science and who is a scientist,and therefore a credible witness. Edmond (2002) and Mercer (2002) both describe how the protagonists sought to more or less tightly define what counted as scientific, as well as how adjudicators should determine what was science, and who was a scientist, and therefore an expert. Edmond (2002) looked at a US Appeal Court case to

... illustrate how definitions and representations of science, engineering, non-science, the civil jury, rules of evidence and procedure, experts and society were intimately and strategically related in ways designed to achieve particular outcomes in a particular appeal and, more generally, to influence the standard of admissibility for expert opinion evidence in all legislation in US federal courts (p.371).

Mercer's (2002) study examined the scientific method discourses in a New South Wales public inquiry into electro-magnetic fields.

[The] durability and portability of claims was further enhanced by the way method discourses drifted into the intersection of epistemology and normativity, where the identities of the most reliable and trustworthy scientists were specified ... The identities of these 'most' trustworthy scientists were also used to amplify and reinforce the trustworthiness of ['their' associated protagonist] (Mercer, 2002, p.223).

In Daubert the US Court found itself attempting to resolve issues of standards of good science:

As Justice Blackmun explained in Daubert, courts must act quickly to resolve legal disputes, and in cases involving scientific issues, courts cannot wait for scientists to resolve their own controversies. Similarly, when the Court began an abstract inquiry into the characteristics of good science to set standards for admissibility of expert scientific testimony, it needed to act quickly. We might wish that the Court would have surveyed the disputes in the history, philosophy, and sociology of science; acknowledged the diverse positions in the field; and then, after selecting its preference, carefully defended that position against existing criticism. In the rush to judgment, the Court told a story, constructed a narrative about how science operates (Caudill & Redding, 2000, pp.765-766).

The fact-finders construct their story of science within their particular interpretive community. Caudill & Redding (2000) concur with analyses by Edmond (2002) and by Mercer (2002) that "courts and commentators have retreated to or remained in a positivist framework and have not adopted the view that law and science are both socially-constructed enterprises" (p.763). In fact, they are far from it, as Caudill & Redding conclude that "Social constructivism, it is true, has not yet had its day in court or in the field of legal commentary" (p.766). In Daubert the Court told their story to the interpretive community of the legal system; by 1998 there were over a 1000 decisions and a further 1000 published commentaries citing Daubert (footnotes 7 and 8, p.688). However, for this particular set of "truths" about science to be seen as legitimate, they must circulate within a wider discourse and set of practices — the protagonists constructed their arguments about science, researchers, and experts by drawing on a wider, empiricist, discourse of science. As Mercer (2002) argued "identities of the most reliable and trustworthy scientists were specified" concurrently with specifying the most reliable and trustworthy science(p.223). While these particular debates took place within the context of legal argument, the identities of "good" researchers who do the "right" kind of science — uninfluenced by politics and values — are constructed within and through the wider discursive community of researchers.

FC in the legal system

Within an adversarial legal system, attorneys work to present the best possible case for their client. The attorneys have the task of selecting the relevant traits or aspects of a case in order to identify the relevant case law or precedent that will allow evidence "that is most favorable" to their client's position. They must successfully and aggressively make the argument that the precedent they have distinguished best fits the issues at hand. As Minow (1990) puts it, "The judge then selects the winning side" (1990, p.2). Stubbs (1993) argues that judges have and exercise choice in their application of precedent, "delimiting the scope of statues and distinguishing and rejecting authorities" (p.464).

The pre-trial hearing provides a key strategic opportunity in an adversarial legal system. According to Myers (1992), the purpose of a preliminary hearing "is to screen out cases where the evidence is so weak that the case should be dismissed without trial" (p.12). Opposing attorneys can also file pre-trial motions (motions in limine) "requesting the judge to resolve selected legal issues prior to trial" (p.16). In the first publicized hearings, the selected legal issue was whether or not facilitated communication should be subjected to the Frye standard, and subsequently, whether or not it met the Frye standard for the admissibility of novel scientific evidence. The prosecutor in one of these cases described how she was informed about the pre-trial hearing:

Prosecutor: On Monday afternoon the judge walked past me in the hallway and said, "of course you know you're going to have to have a Frye hearing, you're prepared for a Frye hearing?" I responded "of course," having no idea what a Frye hearing was. And so the first thing I did was to zoom into the other judge's law clerk and say "help, what is a Frye hearing?" And she said to me "okay no problem here's a book on the admissibility of scientific evidence, that's what Frye is all about, it will tell you everything you need."

MM: How did the judge decide it was a Frye hearing?

Prosecutor: Well apparently there was an ex parte communication between the defense attorney and the judge.... Judge said, "of course we have to determine the admissibility of the statements, without that you have nothing. And it's a scientific method and so we have to have a Frye hearing."

In effect, the defense attorney and the judge had seen something in FC, or perhaps the people who use it, that placed it within the realm of Frye. One indication of how FC came to be framed this way lies in one of the criteria of Frye: "generally accepted as reliable and valid within the relevant scientific community [italics added]." The membership of this community was then debated in these hearings. In DSS ex rel Jenny S the judge sets out her determination of the relevant community:

In determining the admissibility of the alleged statement under Frye (supra) the court must first determine the scientific community to which the technique must gain general acceptance. As noted by the court in People v Quinn (153 Misc 2d 139) there are specific problems with the Frye standard when a specialized community is called upon to judge whether a procedure has become accepted. This is particularly the case if the community is narrowly drawn. In essence the scenario can become one in which the consensus judgment mandated by Frye becomes illusory in that the opinion of a few experts could constitute the judgment of a scientific community. This court has scrupulously sought to avoid that potential outcome. This court finds that the relevant scientific community includes physicians, psychologists, psychiatrists, educators, neurologists, and speech and language pathologists.

As Mercer (2002) and Weinstein (2004) have both argued, this process of designating the relevant community sets the boundaries of who is acceptable and the kind of science that is legitimate; particular scientific identities and particular empiricist methods were again reified as reliable and trustworthy. While the judge has sought to avoid a "narrowly drawn" community, opting for the Frye standard, which precluded other forms of knowledge production, such as first person accounts from individuals using FC, or from other disabled individuals reporting their experiences of non-speech communication. The judge also effectively ruled herself out as someone who might be able to tell if Jenny S was communicating, as only the experts she listed would be able to make this assessment. In a second Frye hearing, the Matter of MZ, the judge slightly broadened the relevant community:

In this case the court concluded that under any theory, the experts whose opinion on facilitated communication would be relevant would include psychologists, psychiatrists, speech and language pathologists, special education practitioners, and neuro-scientists (i.e., neurologists, researchers and clinicians in this field). Also included would be other clinicians or educators with experience and training in evaluating data for purposes of diagnosis, treatment or research (e.g., physicians who have diagnosed or treated patients with the aid of facilitated communication).

In this description, it is possible to recognize that the judge draws on a wider, traditional empiricist discourse of science. One attorney reflected on the Frye hearing she had been part of:

Attorney: In this instance it's [the Frye hearing] been different because it's more than just facilitated communication, it's more than just one person's opinion against another person's opinion. This appears to be bigger, it appears to be an ongoing battle between the scientific community about what kind of research is real research and what kind of research isn't real research, and that became the issue real quick, whether or not the research on facilitated communication was real research — was it like research on DNA testing, or on polygraphs, or clinical trials for a medication.

However, not all courts ruled that Frye was the relevant standard. The New York State Supreme Court Appellate Division: Second Department ruled on March 29, 1993 in the Matter of P. (anonymous), Luz that the Family Court of Orange County had "legally erred" in requiring a Frye hearing. Rather, the justices wrote:

The test for the court in cases such as these is a pragmatic one. Can the interpreter, or in this case the facilitator, effectively communicate with the witness and reliably convey the witness's answers to the court? A determination of these questions does not require expert testimony. To the contrary, the proffered facilitated communication lends itself to empirical rather than scientific proof. Thus, the test proposed by the County Attorney, whereby the court could question Luz outside the presence of the facilitator and then hear her responses through facilitated communication, should adequately establish whether this is a reliable and adequate means of communication by Luz.

The justices distinguished this case from the Matter of Jenny S., which sought to introduce out-of-court statements made through FC:

Moreover, even as to out of court statements, Matter of Jenny S. appears to be of questionable value. The better position, in our view, is set forth by our colleagues in the Appellate Division, Third Department, in Matter of Marshall R. (73 AD2d 988). In that case the Appellate Division reversed the dismissal of a child abuse and neglect petition because the Family Court ruled that an out of court statement made by a six-year-old deaf child could not be testified to by an interpreter for the deaf. In language that is equally applicable to this case, the court observed: "The best interests of the child are far more important than some technical objection, which on this record, appears to have little substance. The testimony of the interpreter should have been admitted, and then it would become the duty of the court to weigh and evaluate such testimony in the light of the circumstances under which it was given."

The justices ordered that the case be remitted to family court, where the judge would determine whether or not Luz's facilitator was reliably transmitting Luz's testimony. "If the court is not convinced that the facilitator is reliable then that facilitator may not serve as the interpreter. However such a finding should not foreclose Luz from testifying if a reliable facilitator can be found elsewhere." A number of tests were devised; Luz had to indicate the names of pictures that her facilitator could not see. She was able to do this, and the prosecutor then wished to call her to give testimony. The defense attorney objected and requested that the facilitator not hear the questions that were put to Luz, so the facilitator wore headphones. Luz was still able to communicate. The defense attorney again objected and requested that the facilitator not look when questions were asked, nor look where Luz was pointing to indicate her answers. At this point Luz could no longer communicate. The prosecutor requested time for Luz to be able to practice trying to communicate under these new conditions. The request was denied, and the case was dismissed.

A number of law review articles have been published following the decisions described above (e.g. Dwyer, 1996; Luxton, 1994; Maurer, 1995). They are critical of Frye as an appropriate standard, and instead argue from a discourse of rights, citing, for example, the Americans with Disabilities Act (ADA). Like the appellate decision in Luz, these reviewers point to the right of individuals to have someone act as an interpreter. There is a need to balance this right with the rights of the accused to ask, "is this individual really communicating with facilitated communication?" Unlike Frye, which asks if the technique has reached a standard of acceptance so that we might predict whether or not people can communicate this way, taking an individual, case-by-case approach means that the court need only be concerned with the validity of a particular individual's communication. At face-value such an approach would appear to be less restrictive. As can be seen from Luz, however, a judge may simply move to attempt to replicate the same "controlled experiment" approaches on an individual basis. Dwyer (1996) points out that no such requirements were made of Luz's parents and their Spanish interpreter. Maurer (1995) notes that it is ironic that those individuals who are arguably the most vulnerable, children with disabilities, should have a higher burden of proving their credibility and competence as witnesses than do the adults who might be accused.

However "individualized" the alternatives to Frye, which were advocated in the Luz decision and by the reviewers above, they have chosen approaches that derive explicitly from experimental studies. Lincoln and Cannella's (2004b) and Weinstein's (2004) concerns about definitions of educational research that prescribe correct methods of science are apposite in this legal setting. The behavioral traditions of psychology are grounded in the work with isolated and segregated groups of disabled individuals. Lincoln & Cannella (2004b) noted that it is this tradition that underpins the models of science and educational research set out in NCLB. As Bloch has noted, the NRC report on Scientific Research in Education "is only part of a much broader discursive field that focuses on expertise, professionalism, quality management, defined-measurable outcomes, and the discourse of good science" (p.107). The legal arguments and decisions about the admissibility of FC are part of this discursive field.

Conclusion

The "Science Wars" (Lather, 2004) are proceeding on multiple fronts. In courtrooms and in legislation, the status of social constructionism and interpretivist research appears precarious at this time. Lincoln & Cannella (2004a) call these "dangerous discourses" that re-invoke a positivist worldview. Writing about the paradigm debates in the legal context, Ewick (2001) notes a similar sense of danger from a positivist's perspective: the possibility of a "value-infused science appears contradictory and dangerous" (p.21). Perhaps on this, at least, there is agreement; these are precarious and dangerous times, with the potential for far reaching consequences:

This move to collapse all epistemologies and methodologies into one metanarrative of science is a telling example of erasure, of silencing, and of fear. I ask again, whose science is this science, the one that remains when difference is erased? Who was in the room when decisions about the real nature of science were being made? (St Pierre, 2004, cited in Lincoln & Cannella, 2004a, p.12).

I agree with Bloch (2004) who argues that a research methodology without explicit politics is the more dangerous. I would argue that it is now imperative to make explicit the political and social values of all researchers so that we may interrogate the way these shape — and are shaped by — the daily practices of research, so that we may interrogate the impact on legal decisions, on policy at national and local levels, as well as on the daily lives of the researched and researchers.

Acknowledgement

I would like to thank the reviewers and also Doug Biklen and Liz Gordon for their invaluable feedback.

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