This exciting new anthology edited by Arlene Kanter and Beth Ferri originates in the Disability Studies in Education Second City conference held in 2009 at Syracuse University and breaks new ground for all concerned with promoting equality and justice for people with disabilities. While there have been others who have written anthologies linking disability studies and law (see Reference Jones and Basser MarksJones & Basser Marks 1999; Reference Pothier and DevlinPothier & Devlin 2006) and a CRN devoted to Disability Legal Studies was recently established at the Law and Society Association, this volume is unique in analyzing the contributions of disability studies specifically to the field of education and education law. Bringing together a vibrant group of American legal and educational scholars who write about disability rights issues, including Harvard Law School Dean Martha Minow, Philip Ferguson and Mark Weber among others, the text broadly covers three main themes. The first four chapters analyze the intersections between law, education, and disability studies. Chapters 5, 6 and 7 explore the historical exclusion of people with disabilities in education. The remaining five chapters are focused on the experiences of people with disabilities under the Individuals with Disabilities Education Act of 1990 (IDEA). While disability studies is a growing field and contains scholars with a wide variety of ideological and theoretical perspectives, a common thread is the notion that disability is largely a social construct rather than a personal tragedy (pp. 4, 7). The precise contours and interpretation of the social model have been extensively debated by disability studies scholars, but the belief that one must focus on altering structural barriers that are endemic and deeply rooted in society in areas such as education, employment, and transportation unites the contributors.
The volume opens with an engaging and powerful essay by Arlene Kanter on the relationship between law and disability studies. She effectively communicates for the uninitiated differences between a medical approach to disablement and a social model approach, as well as the various nuances in social model theory. Citing the seminal work of Reference CoverRobert Cover (1986), she also capably illustrates the importance of using appropriate language when writing and speaking about disability to dismantle discriminatory attitudes toward people with disabilities (p. 14). She provides three compelling reasons why disability studies ought to be of value to legal scholars. First, disability is an open-ended category that can affect anyone at any time. As Kanter correctly notes, people with disabilities are the fastest growing minority group in the world (p. 28). Second, disability is too often omitted from policy discussions on diversity, on university campuses and elsewhere (p. 31). While Kanter is undoubtedly accurate in describing the American legal and political context, I should note that some countries, such as Canada, have included disability as a long established legal criterion for what is known as affirmative action in the United States and it is very much part of the conversations around diversity and inclusion in universities and employment. Finally, she suggests that disability studies shed light on the values of our legal system through narratives and jurisprudence. From veterans to circus freaks to grassroots advocates for accessibility, the stories of people with disabilities require retelling. The role of the long forgotten League of the Physically Handicapped in challenging exclusion from government relief during the Great Depression is just one illustration (p. 32). Kanter might have added that the analysis of narratives of people with disabilities, and its relationship to identity and law has become a pivotal focus of some legal scholars (Reference Engel and MungerEngel and Munger 2002; Reference Malhotra and RoweMalhotra and Rowe 2014). She is right, however, to note that disability law extends to a surprisingly broad range of fields, forcing scholars to reconsider their perspectives on issues ranging from criminal law to guardianship law to the constitutional legal issues that have bitterly divided the Supreme Court in its consideration of the applicability of the Americans with Disabilities Act (ADA) to the States.
Thomas M. Skirtic and J. Robert Kent provide an interesting and compelling meditation on Martha Nussbaum's capabilities approach in the context of IDEA (Reference NussbaumNussbaum 2006). Nussbaum developed the capabilities approach as an intervention in the debates surrounding Rawlsian liberal theory. Skirtic and Kent persuasively argue, however, that she fails to fully appreciate how individualized education programs (IEPs) mandated by IDEA have become largely symbolic, while there has been a far greater emphasis on ensuring that school boards conform to standardized testing regimes imposed by legislatures through the No Child Left Behind Act. They also rightly suggest that Nussbaum does not adequately support principles of inclusion for students with disabilities (pp. 76–80). Other chapters are equally stimulating. Mark Weber makes a valuable contribution in analyzing the role of parents of children with disabilities in education litigation. He suggests that parents, who most often do not share a disability with their children, sometimes favor segregated settings in an attempt to avoid harassment or because the local school board provides no other option. While a greater role for children with disabilities is recognized in the context of transition to adulthood, Weber suggests this could be applied more widely in the IEP process to give a greater voice to disabled youth (p. 212). A chapter by Alicia Broderick on the ethics of expert testimony in inclusion litigation under the IDEA is especially challenging for readers new to disability politics, as she raises philosophical questions about the meaning of what constitutes an expert and wades into the debates surrounding facilitated communication. Space constraints preclude a summary of every chapter but I found the volume consistently erudite and enjoyable.
Overall, Kanter and Ferri have produced a highly readable and thoughtful anthology which will be of great use to legal scholars. One area that I think warrants future attention is the role played by teachers' unions in the accommodation process. There is a rich and controversial history on the questionable role played by many American trade unions during the long struggle against Jim Crow (Reference HillHill 1998). It stands to reason that teachers' unions, often overwhelmed with their own struggles, did not necessarily always enthusiastically support inclusion of students with disabilities. Scholars working at the intersection of disability studies, law, and education are ideally placed to analyze this history. The editors might have also divided the book into sections. Nonetheless, this volume poses many questions for future generations of scholars to answer and deserves to be read widely.
