Volume 101 - Issue 6 Georgetown Law Journal

Poverty as Disability and the Future of Special Education Law

This 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.
This broader contention might seem overly speculative, perhaps even alarmist. Interestingly enough, however, special education law and policy are already changing in a way that could accommodate the advances in neuroscience predicted here. Amendments to IDEA in 1997 and 2004 have introduced what could be called an “expand-to-reduce” approach, under which some additional services are initially offered to all struggling students, in the hope that the number of students ultimately deemed eligible for “special” education will be reduced. Although the steps so far have been tentative and limited, and more changes would have to be made, a plausible path forward has already been marked. This Article suggests that these still-nascent policy changes will likely grow over time and eventually transform special education, at least for the large number of students with learning disabilities.
In arguing that federal special education law will have to change, this Article joins a growing chorus in favor of reforming special education. Yet most critiques of special education operate on the premise that too many without “real” disabilities are enrolled. This Article takes a very different view and contends that the problem may be the opposite: there are too many students not in special education who do, in fact, have real disabilities. But special education, and the education system as a whole, cannot afford to enroll all of them, which means that special education will have to change.

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