Kids and Rules: Challenging Individualization in Special Education

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45 Journal of Law and Education 1 (2016)

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Karen Czapanskiy
special education; IEP; IDEA; FAPE; aversive intervention; autism; ASD; TEACCH; DTI; PECS; predetermination
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In Kids and Rules: Challenging Individualization in Special Education, I take the provocative position that individualization in special education (or IEPs, “individualized education programs) should be abandoned in favor of rules. My proposal is limited to situations where multiple students share educational needs that can be addressed with the same intervention. I argue that the allegiance in special education to the idea of individualization derives more from the history of stigma and exclusion around disability than from substantial proof of benefit to today’s children, forty years after the adoption of IDEA. Requiring school districts to propose and adopt rules in suitable situations could deliver multiple benefits, including greater use of evidence-based interventions, reducing disparities between high- and low-resourced families, and elevating democratic values such as public participation over privatization and individualization. The departure point for my argument is a Second Circuit case, Bryant v. New York State Education Department, 692 F.3d 202 (2012), in which New York state’s rule against the use of aversive interventions in special education was upheld over parental objections about the statutory requirement of individualized plans. I apply the court’s thinking to a hypothetical rule about interventions for preschool and elementary-age children who have Autism Spectrum Disorder, or ASD. The hypothetical rule is based on the IEPs proposed in thirty-cases over five years decided by the Southern District of New York. The cases are summarized in a chart that accompanies the article as an appendix.