The Law in the Special Education Literature: A Brief Legal Critique

Abstract

* Given the central role of law special education, exemplified by the Individuals with Disabilities Education Act (IDEA), is fitting that the literature is replete with refereed journal articles specific to the legal dimension of various key issues of professional practice. However, the issue is the quality, added to the quantity, of these legal articles special education journals.To examine the extent and nature of this quality dimension, this brief critique examines an illustrative legal article Behavioral Disorders, diagnosing common symptoms and underlying problems. This critique is intended as a constructive salutary diagnosis, although such rigorous assessments are typically less than welcome. The framework consists of these primary legal sources: (a) the U.S. Constitution, (b) federal legislation and regulations, and (c) the court decisions that apply the preceding sources and fill gaps with contract and common law. In addition, due to the administrative structure of the IDEA, hearing and review officer decisions, the state education agency complaint resolution process reports, and the U.S. Department of Education's Office of Special Education Programs (OSEP) policy interpretations serve as tangential supplementary sources. The forums for legal dispute resolution extend to the U.S. Department of Education's Office for Civil Rights (OCR) due to the overlapping scope of Section 504 of the Rehabilitation Act and its sister statute, the Americans with Disabilities Act. For a roadmap of these alternate avenues under the IDEA and Section 504, see Zirkel and McGuire (2010).The next section of this critique examines an article discussing selected legal issues specific to students with emotional and behavioral disorders (E/BD) as a relatively representative example. The subsequent sections briefly identify (a) prevailing symptoms of the special education literature's treatment of legal issues illustrated by the critiqued article, (b) systemic factors that contribute to these prevailing symptoms, and (c) initial suggestions for moving the field forward.Illustrative ArticleSmith, Katsiyannis, and Ryan (2011) described their article as an in discussion of current law involving students with E/BD the areas of (a) response to intervention (RTI) and Child Find procedures, (b) required mental health services, and (c) the controversial uses of restraint to manage aggressive behaviors (p. 185). Careful examination with a legal lens reveals that the treatment is not in-depth and that the selection of these areas as is questionable. For the sake of economy of space, the lens is zoomed on the first area-RTI-and less magnified for the other two-mental health services and restraints.Response to InterventionFirst, RTI is not legally critical for students with EB/D because the IDEA (2012, 11414(b)(6)) provides recognition of RTI only with regard to the identification of students with specific learning disability (SLD), not any other classification, including emotional disturbance (ED) or other health impairment (OHI). The Office of Special Education Programs, which administers the IDEA, has made clear that the use of RTI with other suspected disability classifications is a matter of state law (Letter to Brekken, 2010). Thus far, only a handful of state laws have extended RTI beyond SLD, and Louisiana is the only one to extend to ED and/or OHI (Zirkel, 2011b). Even within SLD, the component of RTI these state laws is notably limited, contrast with nonbinding state guidelines (Zirkel, 2011b). For the IDEA, OSEP has clarified that it would be inappropriate to assume that an adopted RTI process must be based on and/or that this [RTI] process extends to other classifications more closely connected to behavior (Letter to Zirkel, 2011).Second, rather than in depth and case law, Smith et al. (2011) provided an undifferentiated mix of court decisions, hearing officer decisions, state complaint resolution reports, OSEP policy interpretations, and OCR letters of findings that, as a representative sample, is both overand under-inclusive with regard to RTI. …

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