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Tuesday, November 5, 2013

Poverty as Disability and the Future of Special Education Law

From Education Law Prof Blog

October 30, 2013

For those who did not catch James Ryan's article, Poverty as Disability and the Future of Special Education Law, when it went up on ssrn or for those who need a citation, the final version is now available on westlaw at 101 Geo. L. J. 1455 (2013).

The article is pretty remarkable in its analysis and conclusion. Ryan's primary argument is that new findings in neuroscience indicate that poverty affects the brain and learning in much the same way that some disabilities do. "To oversimplify, growing up in poverty can physically affect how a child's brain develops and functions." Disability law, however, distinguishes between internal conditions that impede learning--such a dyslexia--and external ones-such as poverty.

For those looking for a thought provoking education article, including those who do not focus on special education, this one is a must read. The introduction to his article follows:

“This Article is the first part of a broader project designed to bring more sustained scholarly attention to the goals, assumptions, and mechanics of IDEA, primarily by using the insights available from recent neuroscience research. The central, overarching thesis of the project is that advances in neuroscience research and our understanding of how the brain develops and functions will eventually radically transform special education law.

"This Article begins that project by focusing on a specific example of how neuroscience could--and should--provoke change in one crucially important area of special education law: learning disabilities and the treatment of poor students.

“The problem today is that the distinction between internal disorders and external circumstances is increasingly untenable. Research into the impact of poverty on brain development and function suggests that external circumstances, such as living in sustained poverty, can have internal effects. To oversimplify, growing up in poverty can physically affect how a child's brain develops and functions.

"In a real sense, conditions associated with poverty can cause learning problems in much the same way that a brain injury or lead poisoning--which are explicitly included as bases for special education eligibility--can cause learning problems. It does not follow, of course, that all poor children are learning disabled.

"But the presumption that poor children who are struggling academically are not learning disabled is increasingly difficult to justify, even if one takes IDEA on its own terms as reserving special education for students with internal disorders.

"The Article's broader contention is that advances in neuroscience research will eventually end special education as we know it. In short, neuroscience research is challenging a number of important assumptions that undergird special education law, including, for example, the assumption that there is a real difference between students with a specific learning disability, who are covered by the law, and those who are simply “slow,” who are not covered. As central assumptions about cognitive functioning become less and less tenable, the current structure of special education will necessarily become more vulnerable.

“The Article proceeds in four parts. Part I provides an overview of IDEA and describes the origins and operation of the exclusionary clause. Part II discusses the relevant neuroscience research. Part III explains how the neuroscience research calls into question the premises that underlie the exclusionary clause. Part IV looks beyond the exclusionary clause to consider additional changes to special education law that might be warranted in light of advances in neuroscience and our understanding of how the brain develops and functions.”

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