JUMPING THE QUEUE: AN INQUIRY INTO THE LEGAL TREATMENT OF STUDENTS WITH LEARNING DISABILITIES.

• Author: Weis, Andrew

JUMPING THE QUEUE: AN INQUIRY INTO THE LEGAL TREATMENT OF STUDENTS WITH LEARNING DISABILITIES. By Mark Kelman([dagger]) and Gillian Lester.([double dagger]) Cambridge: Harvard University Press. 1997. 313 pp. $39.95.

In this review, Andrew Weis critically examines Mark Kelman and Gillian Lester's Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities. Writing from the perspective of an individual who has a learning disability, Weis disputes Kelman and Lester's contention that people with learning disabilities should not qualify as a rights protected group. Weis begins by identifying four main arguments underlying Kelman and Lester's conclusion: Individuals who have learning disabilities (1) are not a cohesive, easily-defined group; (2) do not suffer from irrational stereotyping; (3) do not endure animus or other negative treatment; and (4) do not need or benefit from rights protection. Weis then challenges these arguments using a combination of personal narrative and empirical data. Weis concludes by locating both Kelman and Lester's arguments and his own rebuttal of them within the spectrum of legal theory. He notes that although Kelman and Lester seem to argue from a centrist or liberal rights approach, they incorporate certain aspects of a critical legal studies approach as well

I am an invisible man. No, I am not a spook like those who haunted Edgar Allan Poe; nor am I one of your Hollywood-movie ectoplasms. I am a man of substance, of flesh and bone, fiber and liquids--and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me. Like the bodiless heads you see sometimes in circus sideshows, it is as though I have been surrounded by mirrors of hard, distorting glass. When they approach me they see only my surroundings, themselves, or figments of their imagination--indeed, everything and anything except me.(1) Invisible. That's how I often feel. Like Ralph Ellison's invisible man, my invisibility stems from people's unwillingness to see me. Although Ellison's Invisible Man articulates the anger, alienation, and isolation experienced by people of color, his evocative words, almost fifty years later, capture aptly the present anguish and frustration of many people with disabilities, including those with learning disabilities (LD). People with LD often face a double invisibility: the invisibility of not being considered individually for their attributes and potential,(2) and the invisibility of a stigmatic condition which, unlike physical disabilities, is less readily observable and all the more vulnerable to unwarranted assumptions.

Mark Kelman and Gillian Lester's provocative new book, Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities, unintentionally demonstrates this simple point in the process of exploring the complex and technical research on LD. Nowhere in the book do Kelman and Lester incorporate the perspective of someone like myself--a person with LD. This book review will highlight the incongruity of researching and publishing a book-length study about LD special education without actually interviewing its "supposed beneficiaries." The resulting omissions not only call into question much of Kelman and Lester's analysis, but also deny the reality of the struggles of individuals with LD.(3) By refusing to take a personal look at individuals with LD, Kelman and Lester's arguments miss key information that undermines many of their assumptions and causes them to ignore or undervalue countervailing empirical research.

As its title suggests, Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities not only investigates LD special education, but also delves into the heated debate over legal rights and entitlements. Kelman and Lester conclude that LD does not constitute a brute fact, but rather a socially constructed, legal conclusion.(4) In support of this thesis, the authors question, inter alia, the method and efficacy of diagnostic testing,(5) the scientific accuracy and rigor of the definition,(6) and the ultimate success of remedial intervention.(7) Consequently, they argue that to treat LD claims as legal rights instead of as policy interests distorts and abuses the traditional notion of antidiscrimination.(8) From an educational standpoint, their book adds little that is new to the field, essentially reviewing many previously discussed and disputed criticisms of special education for students with LD.(9) However, from a legal perspective, Kelman and Lester's work contributes to the growing body of literature devoted to the concept of rights. This review, accordingly, explains their position in the larger context of the rights debate in addition to responding to their critique of LD policy.

This review consists of three sections. Part I explains briefly the contours of Kelman and Lester's LD antidiscrimination argument. In essence, they argue that people with LD do not satisfy the four traditional indicia necessary for classification as a rights protected group. Unlike race and gender, people with LD, according to the authors, do not: (1) possess a cultural identity; (2) endure animus and other forms of aversive conduct; (3) suffer irrational stereotyping; or (4) need rights protection. Part II rebuts Kelman and Lester's contentions discussed in Part I, arguing that the problems facing people with LD are, indeed, comparable to the challenges confronting historically oppressed racial groups and women. In presenting what the authors overlooked or ignored, this section employs narrative reflecting my personal experiences with LD, combined with empirical data that challenge Kelman and Lester's assumptions and conclusions. And finally, Part III describes the political continuum of antidiscrimination theories, placing Kelman and Lester's position and my rebuttal in the proper theoretical context. While the authors seem to adopt the traditional, liberal conception of rights, their analysis employs some of the arguments associated with the Critical Legal Studies critique of rights. In contrast, my response draws heavily on the techniques developed by Critical Race and Critical Feminist Theorists.

1. KELMAN AND LESTER'S CRITIQUE OF LD ANTIDISCRIMINATION POLICY

   Kelman and Lester posit that the interests of those with LD cannot constitute valid "civil rights claims."(10) Although women and minorities, they contend, can assert plausibly group victimization, persons with LD should not be allowed to do so. This "claim hopping" not only provides people with LD certain absolute rights to which they are not entitled, but, they argue, it also threatens the entire regime of rights.(11)

   In challenging the underpinnings of LD rights protection, Kelman and Lester build their argument on four specific points.(12) First, Kelman and Lester express skepticism that people with LD constitute a well-defined, homogeneous group. The authors argue that disagreements over the existence of LD,(13) its precise definition,(14) and how it may be identified,(15) support their view that this "disability" remains unproven. The children identified as LD do indeed have serious learning difficulties, but so do other "slow" children. In order to explain why one group of slow learners receives special entitlements, Kelman and Lester suggest that `rent-seeking' by middle-class parents accounts for the development of this field.(16) To Kelman and Lester, the claim that those with LD compose a historical, sociocultural group seems especially problematic.

   Second, Kelman and Lester doubt that students with LD really need protection from wrong-headed stereotypes. A stereotype involves misconceptions by the general public or a large segment of the public about an individual's actual capacities and deficits. According to the authors, therefore, "the stereotyper identifies a socially salient fact about the object of discrimination--say, his ethnicity, her gender--and then assumes that the object will have certain traits, e.g., poor on-the-job performance, proclivity for violence, or absenteeism or job discontinuity."(17) But, in the case of the supposed anti-LD stereotyper, no salient characteristic exists because he remains unaware of the person's status as a person with a disability.(18) If the supposedly "different" characteristic stays hidden, there should be no danger of stereotypes.

   Third, and closely related to the two previous points, Kelman and Lester maintain that people with LD, unlike others championed by multiculturalists, are not beset by irrational prejudice or animus. The inability to recognize the potential of students with LD, they argue, represents the primary, and only, form of bigotry on the basis of LD.(19) However, if prejudice exists as a result of academic performance, it is the "poor achievers," not those with LD, who suffer the actual victimization.(20) Thus, they argue, the claim that students with LD atypically suffer from incorrect perceptions because of their "disability" seems hard to support. Even if LD does exist, the authors argue, it is awfully difficult to discriminate purposefully against a person on the basis of an "invisible" condition.(21)

   And fourth, the authors attack the normative case for spending more resources on people with LD than on other pupils, particularly others who come from low socioeconomic backgrounds. "It is worth noting," they argue, "that those who make the case for focusing all `discretionary' funds on LD students by relying on the inefficacy of alternative spending plans will have great difficulty sustaining this line of argument."(22) In particular, Kelman and Lester disagree with the claim that the LD group benefits uniquely from remedial interventions.(23) Despite extensive spending, many studies question the effectiveness of special education programs.(24) By redistributing resources to this group of...