Massey, P A; Rosenbaum, S A --- "Disability Matters: Toward a Law School Clinical Model for Serving Youth with Special Education Needs" [2005] LegEdDig 53; (2005) 14(2) Legal Education Digest 5

Disability Matters: Toward a Law School Clinical Model for Serving Youth with Special Education Needs

P A Massey & S A Rosenbaum

[2005] LegEdDig 53; (2005) 14(2) Legal Education Digest 5

11 Clinical L Rev, Spring 2005, pp 271-334

Aware of the critical shortage of attorneys available for special education representation, and intrigued by the potential for disability awareness through a clinical experience, the authors set out to locate those law schools that provide students with a live-client opportunity to represent clients in special education disputes. They conducted an informal survey of existing clinics for the purpose of identifying general trends in structures of and approaches used in such clinics.

The objective of this article is to provide support for faculty, students and community members interested in establishing special education clinics. Beyond the obvious client and student needs to be fulfilled both inside and outside the law school walls, these clinics offer a number of opportunities for creative pedagogy and advocacy. Almost thirty years ago, Congress adopted the original Individuals with Disabilities Education Act (IDEA). This legislation promised children with disabilities educational access, opportunity, and a free appropriate public education. The IDEA provides for two levels of enforcement: governmental and parental. Government efforts are directed toward monitoring state and local systemic compliance. The record of federal-level ineffectiveness reflects the problems generally with this method of enforcement.

Congress intended each parent to contribute to educational planning as an expert on her child and to advocate for that child’s needs. Yet, to do so, the parent is implicitly expected to participate in the complex task of monitoring the delivery of service: to recognise when a school is failing to comply with the agreed-upon plan, whether the plan is actually enabling the child to progress, to request further meetings as necessary, and to challenge school district decisions about goals, placement and related services. Parents generally have no training in recognising disability and tend to rely on school personnel to call attention to ways in which their child is an atypical learner.

In California, recognising the impediments to enforcement, the National Council on Disability (NCD) has made a number of recommendations to increase the availability of attorneys, technical assistance and self-advocacy services. The Council called on the Department of Education to fund a greater number of lawyers to counsel clients and to set up and maintain a national back-up centre and self-advocacy training programs for students with disabilities and their parents. Given the particular need of poor and underserved families, the NCD specifically recommended that a lawyer be available at each parent training and information or community resource centre.

Admittedly, law school clinics are not primarily legal services organisations. Moreover, low-income clients’ needs for legal assistance far exceed what law school clinics can hope to provide, especially given the low caseloads that clinic students can handle. But clinics can make a difference, especially by setting precedents in individual cases and by engaging in legislative and systemic advocacy. The case studies and analyses involving disability culture are woefully underdeveloped, as are the opportunities for live client legal interaction with disabled clients. What was learned in these interviews, conversations and written exchanges shines a spotlight on the work that special education clinicians do in assisting parents from local, marginalised communities to secure their children’s educational benefits.

The experience of existing clinics also demonstrates that special education representation increases disability awareness among law students. Moreover, such clinics provide a forum in which to consider the public policy and civil rights implications of the challenges faced by poor parents, families of colour, language minorities and immigrants.

Among other structural considerations in creating a clinic are the processes for determining the target client population and case acceptance. Given the large need for legal services and limited clinic capacity, only a small portion of the special education families and children from marginalised communities can actually be served. Each of the clinics we surveyed restricted the potential client pool in ways that did not necessarily correspond to the prototypes described above.

Some clinics have eschewed income guidelines because, as one director noted, few families whose children are in public education have the means to afford representation in a due process hearing. Some clinics narrow the target population on the basis of the type of disability. The selection of clients by type of disability inevitably has an impact on law student understanding of disability or marginalisation. Pedagogical objectives and student needs also influence individualised case selection.

Some law schools enter into arrangements with non-profit organisations to offer attorney-supervised field placements or externships. An interdisciplinary clinic structure has particular advantages. For clients with disabilities and their families, these are not simply resources for advocacy but also for educational counselling and evaluation of instructional and therapeutic needs. For law students, there is an opportunity to confront their unawareness and learn from their peers in other professional fields.

Mediation and alternative dispute resolution are, in many respects, at the heart of special education legal representation. Even for those students not inclined toward special education or other education or disability issues, the prospect of practical training in mediation and informal dispute resolution could well be attractive and offset the paradigmatic view of lawyering as a distinctly adversarial activity. Some of the most creative work in alternative resolution of disputes is being done in the field of special education.

Good intentions notwithstanding, the skills needed to attain community organising, coalition-building and global problem-solving skills are rarely found in the repertoire of most education advocates, legal services lawyers or clinicians. Such a form of practice demands a disciplinary perspective not to be found in most law faculties. There are few legal theoreticians or practitioners who teach students how to support community organising. We must also turn to social workers and professional organisers to teach about organisation building, mobilisation, education consciousness raising. This will require law schools to call on colleagues in social work, planning, education or other departments to augment the curricular offerings.

Client needs and pedagogical objectives drive the criteria for determining student enrolment in clinics. In addition to completing prerequisite courses, law students must have the maturity to deal with highly charged issues and the ability to examine their own disability bias. Some clinics require prerequisites or concurrent courses in special education law, disability law or, less frequently, education law. All clinicians desire that their students eventually apply the skills they acquired at law school in their profession — and many would want that application to be in the interests of social justice.

Funding decisions may also have implications for the extent and character of disability awareness. Clinics that restrict service to a particular range of disabilities may influence law students’ awareness of the wide range of discrimination that may be experienced. A law school’s decision about the kind of clinic it wants to establish necessarily turns on the goals the school seeks to accomplish. One way to gauge whether the service need is met is to look at client outcomes.

A measure of the impact clinics have had in addressing the advocacy needs of disabled youth can be found in the favorable view that legal practitioners and others have expressed about clinical student representation. For those who are persuaded that there is an unmet need for special education representation in their surrounding communities, the authors suggest five general areas for further consideration in evaluating and developing a proposal for a new special education clinic: (1) the target population and extent and nature of need for legal services; (2) types of current local providers and their capacity to serve the need; (3) the nature of community support for the venture and the ability to secure financial support; (4) the existing law school resources as they relate to faculty support, existing course offerings, and facilities; and (5) law school skills and teaching objectives.

What the parents and family members of disabled children will understand from their own experience is the message that needs to be communicated to the other law school faculty members and administration: that there is an urgent need to expand the network of legal assistance for students with disabilities and that addressing that need with law school clinics will help to broaden the understanding of law students and begin to overturn the disturbing historical pattern of disability discrimination and insensitivity in legal education and in the profession and society at large.