Publication Date

12-20-2019

Volume

94

Document Type

Article

Abstract

Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school remedies under federal law.

While this litigation exposes the depth of student need in high-poverty communities, the strategy is legally flawed and risks under-explored collateral consequences. Although advocates are correct that many of these children warrant individual remedies, using disability law to achieve system-wide educational reform is both unwise and unfeasible. First, such claims falsely assume that schools must identify all students who have any type of disability, when in fact schools’ substantive duties are limited to those students whose disabilities require special education or related services to ensure meaningful access to education. Second, disability law mandates services that meet individual students’ needs. Claims seeking schoolwide programmatic changes for all students are simply not legally required. Finally, classifying entire communities as disabled is over-inclusive and has the potential to stigmatize, albeit unfairly, all impoverished minority children as impaired.

This Article proposes a more nuanced litigation strategy and a broader legislative agenda. First, advocates should use schools’ obligations to individual ACEs-impacted students to force schools to adopt more effective early identification processes. Schools should not assume all children have a disability, but identify those who do earlier. Second, federal and state legislation should provide targeted grants to schools that serve a high percentage of students impacted by ACEs. This approach would address unmet needs of students while guarding against over-inclusion.

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Published here with the permission of Washington Law Review.

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