Abstract

This response supports the interactive notions of ableism and racism aptly deconstructed by Beratan, and extends the notions through examining the premises of distributive justice inherent in market-driven hegemonic discourses. However, deconstruction does not carry the argument far enough. Strategies and notions for reconstruction need articulation in order to offer a way forward. Lessons learned from Corey H. et. al. v Chicago Board of Education and responses to the No Child Left Behind Act (NCLB) provide instructive strategies and tactics necessary for redressing institutional inequity.

Keywords: Disability Studies, Policy

I applaud Beratan's critical deconstruction of the Individuals with Disabilities Education Act (IDEA) in his article "Institutionalizing Inequity: Ableism and Racism in IDEA." It is time that scholars directly challenge both the language and the underlying premises in this law, as well as the legal consequences for marginalization and oppression. It is no easy task to mount a direct challenge to a law that has been touted as transforming our apartheid system of education and credited with providing access to education on the part of millions of disabled children, for the first time in our nation's history. Many politicians, as well as educators and parents, would consider this challenge ungrateful folly. After all, when one considers the previous widespread institutionalization and segregation of 10-20% of our nation's children, haven't we come a long way? Doesn't this law represent progress?

But just as the desegregation of our nation's schools in the 1960's led to de-facto re-segregation along race and color-lines, there is plenty of evidence that similar practices have taken place along ability-lines in the 1990's and beyond. In fact, one of the central premises of Beratan's article is that IDEA has played a major role in promoting racism as well as ableism. The core of evidence that this is so lies in IDEA's recognition of over-representation of minorities in special education as a major problem. The regulations that were promulgated to enforce IDEA 2004 require all states to address and monitor disproportionality. Specifically, Indicators 9 and 10 of state performance plans require states to report and describe the disproportionate representation of racial and ethnic groups in special education and related services as the result of inappropriate identification. This reporting by the states shall include activities undertaken in monitoring data, review of policies, practices and procedures as required under section 618(d) of the federal act. Beyond identification of the extent of disproportionality, IDEA 2004 requires States to develop specific measurable goals and yearly benchmarks to reduce it.

However, in a seminal article on over-representation, Alfredo Artiles (2003) provides an in-depth discussion of several causes for disproportionality, and concludes: "The problem will not be solved with quotas, and it is an oversimplification to blame it on either massive bias or child poverty," (p. 176). He goes on to assert:

It is also paradoxical that, due to the inclusion movement, minority students might be returning to general education, but with an identity that adds on an additional layer of difference–that is, a label adding ability to the composite of racial, linguistic, and social-class markers. This new identity dispensed by the special education system legitimizes the surveillance of these students through legal and technical means [emphasis added]. (p. 177).

Artiles further argues that over-representation affords the opportunity to shift our gaze inward and to examine our assumptions about culture, socio-historical contextual factors, and the structural correlates of poverty and discrimination. However, I would argue that Beratan's gaze at the law and policy itself affords us the opportunity to directly challenge the powerful mechanism by which these factors, assumptions, and correlates are institutionalized and perpetuated. Essentially, the legal and technical means by which this constellation of issues is legitimized must be deconstructed and exposed for its misguided premises and policies. It is only through this exposure that the inequities Artiles suggests can begin to be addressed. More of the same surveillance on the long and dangerous road of "accountability" and "school effectiveness" inherent in IDEA 2004, as well as its partner law–NCLB 2001–does not constitute progress toward social justice and equity. As Linda Darling-Hammond (2004) puts it, in Many Children Left Behind, "Most unhappily, ....[a] one-way accountability system that holds children and educators to test-based standards they are not enabled to meet, does not hold federal or state governments to standards that would ensure equal and adequate educational opportunity" (p. 6). In fact, emerging data paint a picture of quality teachers leaving schools labeled as "failing" (based on student test scores) in droves, to be replaced by teachers without experience or training. These "failing" schools are mostly urban, inner-city schools with high numbers of minority children, so that the law is more likely to reduce still further the quality of education available in the schools these children must attend (Darling-Hammond, 2004).

IDEA has been amended and reenacted approximately every five years since its inception in 1975. The essential mechanism in IDEA 2004 and in its previous iterations, by which legal surveillance and sorting have been carried out, is embedded in the premises of Least Restrictive Environment (LRE). Beratan focuses on LRE for good reasons, as he outlines in his article. His deconstruction of the premises inherent in LRE uncovers (1) its assimilationist and hierarchical nature; (2) its deficit-driven assumptions about disability and impairment; (3) its focus on narrow conceptions of educational benefit versus educational opportunity; and (4) its privileging of professional expertise. Following this deconstruction, the general education classroom is presumed to be the "least restrictive" environment (and I would presume, among all the restrictive environments currently available). But, as Beratan aptly points out, the caveat "to the maximum extent appropriate" contained in the clause on LRE serves as an over-riding qualifier that opens the door to professional gate-keeping, and places the onus on the child to adapt to the environment that is restrictive in the first place, or face exclusion. Essentially, the nature of appropriateness in LRE operates from a presumption of deficit in the child, not in the restrictive environment. Through this caveat of appropriateness, LRE decisions rest in the hands of professionals, and have been manipulated by them to function as an exit door for unwanted students. It is an exit door that very few are ever enabled to re-enter.

Beratan's deconstruction of the LRE uncovers the conjoined ableist and racist consequences for children with unwanted differences. He also states that these consequences are largely unrecognized and essentially covert (inherent in the law, but not explicit in it). I would add that the reasons for this lie in different notions of justice. In Disability and the Dilemmas of Education and Justice, Rizvi and Lingard (1996) assert that the current hegemonic ideology of market-individualism rests on a distributive notion of justice. Laws such as IDEA support this ideology through a view of equality that is based on material factors–in this case, the presumed materiality of the individual body impairment. As well, LRE is operationally defined as a material market place. Justice, therefore, constitutes material placement of material bodies in order to achieve "equal" access and equity for individuals who have been materially defined. Rizvi and Lingard recognize that distributive justice is necessary but not sufficient.

This is so because while access and equity policies enable individuals to gain entry into mainstream institutions, they often leave the institutions themselves unaltered. In the case of students with disabilities, while many are allowed access, by and large the social conditions they experience have remained much the same, leading to their frustration and inability to cope (p. 21).

Market-individualism ideology, and the rational/technical/bureaucratic solutions it spawns, singles out individuals by material status, sorts them into individual classes, and uses individual decision-making mechanisms for its accomplishment. This ideology of individual distributive justice has become so ingrained in our society that alternative notions of justice are difficult to recognize, let alone achieve. Further, distributive justice goals of access and equity disguise the lack of acceptance and quality. It is not surprising that US courts have upheld distributive justice, and as Beratan notes, interpreted and encoded this justice as a floor of educational benefit, rather than the broader and higher notion of educational opportunity. This ideology and its inherent denial of educational opportunity ultimately expresses itself in institutional ableism and racism, and goes unrecognized as such.

I have taken some time and space here to delineate macro-level ideology in order to extend and to reinforce Beratan's twin assertions that IDEA constitutes ableism and racism and that these go unrecognized. So, what are alternative notions of justice, and how can they be achieved? If IDEA is not the answer to social justice and equity for children, what is?

Beratan ends his article with the statement: "It is necessary for Disability Studies and Critical Race theory to cross borders and engage with this interaction [between ableism and racism] if they are going to address the inequity." Like Rizvi and Lingard, I contend that challenging racism and ableism is necessary but not sufficient. I believe it is incumbent upon those who deconstruct to attempt a reconstruction. I challenge Beratan, and other scholars, to take this next step. I believe that not much will change unless at the same time that we provide critical commentary, we offer some ways forward.

The notions inherent in Beratan's deconstruction offer this opportunity and should be included. Specifically, Beratan quotes Parker and Stovall's recommendation for critical race theorists to link teaching and research to general practical knowledge about institutional forces that impact disparities in education. Beratan also cites Derrida (in Armstrong) as recommending "you have to displace 'solid' structures, not only in the sense of material structures, but cultural, pedagogical, political and economic structures." (this issue). These recommendations for linkages and displacements provide essential keys to creating equity through specific strategies. In this short commentary, I will end by providing two examples, although there are probably many more.

The first example that offers a way forward involves a legal case that has direct bearing on Beratan's deconstruction of IDEA–Corey H. et. al. v. Chicago Board of Education and Illinois State Board of Education (1998). Scrutinizing this case for opportunities to move forward is very timely, since the implementation of the settlement agreement was scheduled to end in January, 2006. Corey H. was a federal class action lawsuit brought by Designs for Change (DFC) on behalf of 40,000 special education students in Chicago public schools. Designs for Change is a non-profit educational research, advocacy, and client assistance organization focused on improving the quality of education for low-income, minority, and disabled students. The case was filed in 1992 and a settlement agreement was entered into beginning in 1997. The case charges that Chicago public schools were in stark violation of the LRE mandate in IDEA. In preparing for the case, the DFC research team found 13,000 students classified as Educably Mentally Handicapped (EMH), and that students given this label were overwhelmingly enrolled in separate classes or schools (97%). More than 10,000 of the students given the EMH label were African-Americans. In prosecuting this case, DFC employed multiple strategies, including extensive research, community organizing to mobilize public support, media exposure through press conferences to highlight research findings, and lobbying against legislative opposition. Further, their settlement agreement presumed that schools are the essential unit of change, and that schools are complex human systems. Focusing on quality in LRE, the agreement required schools to undergo significant restructuring, to provide professional development for school staff (administrators as well as teachers and support personnel), and to change their assessment practices as well as curriculum and instruction. In return, schools were given substantive resource allocations to accomplish these changes. Accountability for results was to be monitored by an external group of experts composed of stakeholders that included parents of children with disabilities (Soltman & Moore, 2004).

Essentially, Corey H. and the settlement agreement recognized schools as socially constructed complex systems, and privileged the voices of those directly impacted–disabled students and their families. The approach combined bottom-up with top-down strategies within schools as well as outside of schools, in the communities and at different levels of the system. The strategies and tactics employed correspond with central theoretical tenets of Disability Studies and Critical Race theory.

The second example that provides possible ways forward involves public reaction to NCLB, and by correlation IDEA–since IDEA 2004 was enacted in accordance with NCLB mandates and has been highly impacted by NCLB. As I write this commentary, today's front-page headlines from our local newspaper are propped up in front of my desk. Under the headline "'No Child' Law: Intent vs. Reality," the article challenges the fairness of NCLB with regard to standards and testing of students, claiming it puts unfair pressures on children in Michigan schools–especially those with disabilities, minority students, and ELL students. This issue of "fairness" is not limited to Michigan. To date, at least ten states have filed lawsuits against the federal government's NCLB mandates.

In addition to lawsuits, NCLB has spawned critical reactions from educators, researchers and scholars. A seminal book, Many Children Left Behind (Meier & Wood, 2004), edited by some of our nation's leading education researchers and educators, provides not only a critical commentary, but also specific recommendations for alternatives. One of the over-riding themes in this book, and in commentary by other scholars, is the notion of school-level and societal-level accountability for quality education. One such recommendation calls for Opportunity to Learn standards that should be measurable and reported annually. These standards include teacher qualifications, curriculum opportunities, materials and equipment. Recognizing that schools cannot accomplish these standards without a national agenda, scholars are demanding incentives for teachers and intensive resources for schools that serve high numbers of minority, disabled, and at-risk students. Other recommendations involve "value-added" approaches that assess long-term progress of individual students, not annual changes in average student scores that penalize schools serving these students. Finally, Beratan joins other scholars such as Artiles (2003), in highlighting "bounty funding formulas" that amount to incentives for segregation of students with differences. New formulas are needed that encourage pooling of funding for separate programs, such as Head Start and Reading Recovery, so that all students may be educated together.

Taken together, class action law suits, widespread public reaction, and published commentary from scholars that combines research and critical commentary with alternatives for practice are the ingredients that I believe are essential to move us forward. Creating equity out of widespread disparity, discrimination, ableism, and racism is not an easy task. Nor will equity be accomplished overnight, or even within a decade. Beratan is one of the few scholars in Disability Studies who has been courageous in directly confronting public law and policy, exposing the inequities and creating a climate for change. Yet, although confrontation and critical deconstruction are essential, they are not sufficient. It is incumbent upon all of us to combine our work–or as Beratan puts it, to cross borders–to create change through a combination of research, deconstruction, direct advocacy, public pressure, and community organizing.

References

Artiles, A. (2003). Special education's changing identity: Paradoxes and dilemmas in views of culture and space. Harvard Educational Review, 73 (2), 164-202.

Corey H. v. Board of Education of City of Chicago, 995 F. Supp. 900 (N.D. Ill 1998).

Darling-Hammond, L. (2004). From 'separate but equal' to 'no child left behind': the collision of new standards and old inequalities. In D. Meier & G. Wood (Eds.), Many Children Left Behind (pp. 3-32). Boston: Beacon Press.

Meier, D., & Wood, G. (Eds). (2004). Many Children Left Behind. Boston: Beacon Press.

Rizvi, F., Lingard, B. (1996). Disability, education and the discourses of justice. In Disability and the Dilemmas of Education and Justice (pp. 9-16). C. Christensen and F. Rizvi (Eds). Philadelphia: Open University Press.

Soltman, S. & Moore, D. (2004). Ending segregation of Chicago's students with disabilities: Implications of the Corey H. Lawsuit (pp. 239-271). In Racial Inequity in Special Education. D. Losen & G. Orfield (Eds). Boston: Harvard Education Press.