2007_conceptual models and the future of special

EDUCATION AND TREATMENT OF CHILDREN Vol. 30, No, 4, 2007

Conceptual Models and the Future of SpecialEducation

James M. KauffmanUniversity of Virginia

AbstractA medical model has advantages over a legal model in thinking about specialeducation, especially in responding supportively to difference, meetingindividual needs, and practicing prevention. The legal conceptual model nowdominates thinking about special education, but a medical model promises abrighter future for special education and for children with disabilities.

In 1974, my colleague Dan Hallahan and I published an article inExceptional Children pointing out the virtues of the much-malignedmedical model (Kauffman & Hallahan, 1974), Although I believe thebasic arguments that we made in favor of the medical model are stillsound, a note of caution is in order. Among our statements is this:"The 'medical' model, now being placed by its critics in the position ofexplaining all that has gone wrong with special education, is a strawman" (p. 101). I do not want to substitute one straw argument withanother. Specifically, I do not want to blame the legal model, which Ibelieve now dominates our thinking, for all of special education's ills.We cannot eliminate the law, nor should we want to. In fact, we needthe law, although I do not believe it is the best model for approachingor solving most of special education's problems, I raise issues aboutwhich model should play the more influential role in the way we thinkabout special education, which one should play the dominant role inguiding our practice, and which one bodes better for our future andfor our students'.

The Nature of Conceptual Models"Conceptual model" means the way we think about things, not

the actual practices themselves. In subsequent paragraphs when I re-fer to a structure or system I mean the conceptual model that guidesour thinking and provides rules for practice. My primary concern isthe way we approach problems and their resolution.

Special education is necessarily closely aligned with generaleducation. In fact, special education is an integral part of generalCorrespondence to James M, Kauffman, 2915 Riggory Ridge Road, Charlottesville, VA22911; e-mail: jmk9t@virginia,edu.

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education and vice versa. Nevertheless, the future of special educa-tion may well hinge on its consistent gravitation toward a particularconceptual model, not its association with general education. The con-ceptual model of another profession may shape our ways of thinkingand suggest the types of decisions that we believe should guide ourpractices.

Other than education itself, the two social structures or systemsand their rules that play the most prominent roles in special educa-tion are law and medicine. I am concerned about whether we thinkabout the problems of special education primarily in terms of evi-dence-based instruction or primarily in terms of legal protections ofthe rights of children to appropriate education. Both ways of thinkir\gare important, and I am not suggesting that we should follow eitherthe medical or the legal model exclusively. Nevertheless, the way weconceptualize and respond to problems has profound implications forhow we proceed in practice, so we need to consider carefully whetherthinking first like a lawyer or first like a physician would serve usbetter.

Conceptual Models and Societal ProblemsAll highly organized societies have developed social structures

or systems and rules for dealing with problems that they define associal deviance or physical illness. That is, all modern societies, in-cluding those frequently called underdeveloped or third-world, havelegal structures and rules for dealing with threatening and intolerablebehavior and medical structures and rules for responding to illness.Although in some instances social authorities judge a problem to beclearly a matter of social deviance or clearly a matter of physical ill-ness, in other cases the problem is not clearly one or the other. In thesecases, the society's authorities make an ambiguous judgment or assignjoint responsibility to law and medicine. In most cases of ambiguity orjoint responsibility, either law or medicine takes the leading role or isassigned primary responsibility for dealing with the problem, usuallydepending on the situation. In short, all highly organized societies intoday's world have prisons and hospitals. They also have prison hos-pitals, or medical treatment offered within prisons, and hospital pris-ons or severe restrictions of freedom within hospitals, which we oftencall "locked wards." That is, government, in general, has establisheda legal system for dealing with social deviance and running prisonsand a medical system for dealing with illness and rurming hospitals.However, government also recognizes that the legal and medical sys-tems have overlapping responsibilities. These systems cannot be com-pletely disconnected from each other.

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Covernments give authority to the legal system for regulatingnondeviant as well as deviant behavior. That is, the legal system regu-lates the practice of medicine, the operation of schools, and many oth-er aspects of social life that involve behavior falling within the normalrange. In fact, social deviance is judged at least in part against a back-ground of conformity to law. And the law may include exceptions forsocial deviance that has a medical explanation, such as the verdict "notguilty by reason of insanity." Likewise, medicine is concerned withhealth as well as illness and makes judgments of illness at least in partagainst a background of knowledge of normal physical developmentor typical physical condition. Moreover, medicine has obligations un-der law. Its practitioners are required to report certain findings, suchas child abuse, gunshot wounds, and cause of death to legal authori-ties. In short, we find that law and medicine are tightly connected,although they are separate domains of knowledge and practice. Law-yers and physicians do not serve exactly the same functions in society,although one may influence the other. We may best consider law andmedicine to be intersecting sets of social responsibility.

The Historic Connection of Education to Law and MedicineConsider that education is yet a third set of social responsibilities

intersecting both law and medicine. Education has its own domain ofknowledge and practice, which is instruction (see Kauffman & Hal-lahan, 2005; Kauffman & Landrum, 2007). Teachers are neither law-yers nor physicians, although their practice is guided by both lawyersand physicians to some extent. Education has long been mandatedand regulated by law, which has required particular curricula, teacherqualifications, and so on as well as attendance. Understanding of childgrowth and development, which has roots in medical knowledge, isexpected of teachers.

Schools serving the general population were established underthe legal system, not the medical system. Noteworthy here is the factthat many or most of the earliest leaders in special education were phy-sicians (e.g., Samuel C. Howe, Jean M. Itard, Edouard Seguin, andMaria Montessori; see Hallahan & Kauffman, 1978; Kauffman & Lan-drum, 2006). History seems to suggest that general and special educa-tion began for very differerit reasons and under the auspices of twodistinct social structures, institutions, or systems. General educationwas begun primarily under the rule of law, and special education wasguided in its origins primarily by physicians. However, both generaland special education historically have shared a primary concern forproblems of instruction, and both are now practiced under legal stric-tures and with insights provide by medicine.

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The Dominance of Law in Contemporary American SocietyAs our social systems of law, medicine, and education have

evolved, it has become increasingly clear that law dominates thegovernance of medicine and education. That is, medicine and educa-tion are regulated by law, and law is the ultimate arbiter of access toboth medical treatment and education. The contemporary dominanceof medicine by law is most obvious in the legal governance of suchmedical decisions and treatments as contraception, abortion, assistedsuicide, medical liability, and the use of cannabis (i.e., marijuana) andopiates in the treatment of agonizing and terminal illnesses. The con-temporary dominance of education by law is most obvious in the NoChild Left Behind Act (NCLB) and the Individuals with DisabilitiesEducation Improvement Act (IDEA, 2004).

Law definitely has the upper hand, and it governs not only howsocial deviance is managed in the absence of illness but also how ill-ness, including mental illness leading to social deviance, is treated bymedicine. Likewise, law now dominates the governance of generaland special education, such that schools must provide instruction inconformity with law. In the United States, mandatory public educa-tion, NCLB, IDEA, and many other rules governing instruction arecases in point (see Bateman, 2007; Bateman & Linden, 2006; Huefner2006; Yell, 2006).

It may be understandable, then, that advocates of education forstudents with disabilities may wish to align themselves unambigu-ously with the dominant system, which in contemporary Americais the legal system. Many prefer to align their cause with the socialsystem that is, in any case, the final arbiter of one's advocacy. Somemay argue that it is best to think of special education in terms of itsconvergence or intersection with law rather than medicine. This mayhave advantages, but there may be good reasons not to do so. How-ever finding these good reasons first requires consideration of types ofmistakes and how a professional using a particular conceptual modelresponds to uncertainty in practice.

Errors of JudgmentAll who participate in making decisions that affect the lives of

others would like to have flawless judgment. Alas, none of us hasperfect judgment. Every teacher, psychologist, physician, lawyer, andjudge, for example, makes mistakes. We do our best not to make mis-takes, and we understand that all mistakes of judgment are costly intheir consequences to individuals as well as in dollars, no matter howthe mistakes might be described. Yet, some mistakes are more costlythan others, and we must always seek to minimize not only errors but


costs to the individual and to society. So, in any given case, our judg-ment may be yes or no about a particular question. Our judgment isunerring when the correct answer is yes or no and our judgment cor-responds to the truth. We call these kinds of judgments true positivesand true negativesno mistakes. But sometimes we conclude that theanswer is yes when the truth it is no, or we say no when the truth isyes. We call these two kinds of mistakes false positives and false nega-tives, respectively. When we make an error known as a false positive,we judge that the person, for example, is guilty when the truth is theperson is not guilty, to have cancer when the truth is that he or shedoes not have cancer, or to have a disability when in fact the studentdoes not have a disability. When we make an error known as a falsenegative, we judge, for example, that the person is not guilty when thetruth is the person is guilty, not to have cancer when in fact he or shedoes have it, or not to have a disability when in fact the student doeshave one.

So, we really have to ask ourselves which kind of error is worsein a given instance and lean toward the other, somewhat safer andless costly error in terms of harm to another person. We would like todo the least harm, so in a way we hedge our bets. We would rather besafe than sorry, so if we are in doubt we make what we consider to bethe less costly mistake. That is, given that we must make a particularjudgment, we may lean toward a false positive or a false negative,depending on which kind of mistake we think is less damaging (seeRuscio, 2002).

How Legal and Medical Conceptual Models DifferLaw and medicine conceptualize and approach problems of hu-

man variation differently. They also differ in the criteria by which theyjudge success. Finally, they differ in the sharpness and agility withwhich they are capable of drawing distinctions in individual cases.Conceptualization of and Approach to Problems

Both legal and medical systems observe that there are wide vari-ations in human beings. Both are concerned primarily, although notexclusively, with negative variationsillegal behavior in the case oflaw, illness or chronic health problems in the case of medicine. There-fore, we consider only negative variations here.

Legal Model

Law has a clearly dominant, primary, or typical manner of deal-ing with violations of its edicts in prosecutions. It relies primarily onpunishment. Certain aspects of law, especially the juvenile justice

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system, may have rehabilitation as an objective, but even in these casesthe law coerces compliance by demanding treatment in lieu of punish-ment. Apprehension, trial, and punishment or threat thereof remainthe major tools of the legal system. Moreover, in some cases juvenilesare now prosecuted as adults and receive the same consequences asadults for given crimes, including life imprisonment or death. Lawdefines illegality, which may range from violation of scoff-laws to se-rious felonies. Legal authorities may ignore illegal behavior, providemerely a warning, prescribe restitution or something assumed to berehabilitative in lieu of punishment, or level very serious negativeconsequences, including a fine, imprisonment, or even death.

Because the law primarily provides punishment or threat there-of (e.g., some arduous process thought to be rehabilitative and offeredas an alternative to punishment) as a consequence for negative devia-tion, it prefers a false negative (i.e., false exoneration or false acquittal)to a false positive (i.e., false accusation or false conviction). In short,the false positive is the error to be most carefully avoided in the legalsystem. In law, being safe rather than sorry means choosing the falsenegative when in doubt. That is, legal authorities generally seek toavoid punishing an innocent person. A person is therefore typicallyassumed to be innocent until his or her guilt is said to be beyond rea-sonable doubt, although in many cases being charged under the lawis tantamount in the minds of many to a proof of guilt.

Medical Model

Medicine prefers a false positive (i.e., false identification of ill-ness or needless treatment of an assumed health problem) to a falsenegative (i.e., a false assumption of no health problem). The false neg-ative is the error to be most carefully avoided in medicine. This prefer-ence for false positives over false negatives in medicine is due to thefact that the medical system provides treatment, not punishment, fornegative deviation and seeks to be preventive. In medicine, being saferather than sorry means that when there is doubt one should choosewhat turns out to be the false positive. That is, medical personnel gen-erally try to avoid failure to treat a person with a health problem, sothey gravitate toward false positives.

Contrasting Models

The legal system conceptualizes negative variation as wrong orblameworthy, and it responds with threat or punishment. The medicalsystem conceptualizes negative variation as ill health and respondswith treatment (i.e., health care) or prevention. Of course, there is nu-ance in both systems, but there is more finely graduated nuance in


medicine. That is, both the more severe the punishment or the morearduous the requirement by law and the more serious or dangerousthe treatment in medicine, the greater the care that is required in deci-sion making. The reason I see greater nuance in medicine than in lawis that the variety of treatment of individuals in medicine is greaterthan the variety of consequences in law. Perhaps the most importantcontrast, however, is that they have very different approaches to mis-takes. Whereas thinking like a lawyer promotes the idea that the falsenegative is the less costly error, thinking like a physician promotes thenotion that the false positive is the less costly mistake.Criteria for Success

Both law and medicine are concerned with success. That is, bothstrive to improve the lives of individuals and society. Both have waysof judging the success of their work.

Legal Model

In law, success is generally thought to mean reduction in ille-gal behavior through threat of or actual detection and punishment ofcrime. Law also views success as a reduction in recidivism and main-tenance of legal behavior without its further involvement. Simply put,law judges success by its effective coercion and by normative functionwithout further legal intervention. Law sees success as the achieve-ment of what is "normal," as exemplified most obviously in educationby the legal expectation included in NCLB that there should be nodifferences between the performance of students with and withoutdisabilities (i.e., there should be no "achievement gap"; see Kauffman,2005b; Kauffman & Konold, 2007).

However, another criterion for success is that the law was fol-lowed in an individual case. That is, the outcomes of legal proceed-ings are not necessarily judged by a conclusion that is thought to bereasonable or good in the sense of fairness but by whether the lawwas followed as written. What is written may, indeed, require the in-terpretation of a judge, but often what is written requires little or nointerpretation. For example, if the law as written specifies that some-thing must be done within 10 days, then having it done within morethan 10 days is a violation of the law, regardless of extenuating cir-cumstances. The Washington Post (2007b), for example, reported thata man's appeal, filed within 16 days, was found by the U. S. SupremeCourt to be in violation of a law that required that it be Hied within14 days, although an appeals court judge had given the man 17 daysin which to file his appeal. In short, judges may say that indeed theyunderstand that the law is unreasonable and that the outcome of their

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decision is unfair, but they must do what the law says. Legal thinkingdefines ultimate justice as following the law as written; what is writ-ten trumps what is fair or reasonable.

Medical Model

In medicine, success is generally thought to mean reduction of illhealth through risk reduction or treatment of health problems. Medi-cine views success as improvement of function or of health, regard-less whether a cure or complete reversal of the health impairment wasachieved. And medicine judges success by its effective assistance, in-cluding assistance for as long as needed. In fact, in medicine treatmentmay involve life-long assistance to maintain improved functioning,although it is true that the highest level of success is attained whenfurther or continuing assistance is not needed. Medicine defines suc-cess as improvement, not necessarily the achievement of what is con-sidered "normal." And although medicine has standard proceduresor treatments, they are not held to be inviolate if circumstances re-quire a deviation from what is written in a text.

Contrasting Models

The way we conceptualize success is important in arguing forthe effective treatment of children. Thinking guided by law (most ob-viously exemplified by NCLB) sets expectations that are at odds withrealities of education and results in the predetermined judgment thatspecial education is a failure (see Kauffman, 2005b; Kauffman & Ko-nold, 2007; Rothstein et al., 2006). The way in which physicians thinkabout success is consistent with a defensible way of judging the suc-cess or failure of special education (see Kauffman & Hallahan, 2005).Special education is better served by a conceptual model in which suc-cess is achievable. It is also better served by a way of thinking thatplaces a higher value on outcome than on procedure.Individual versus Group

Both law and medicine are concerned with individuals and thelarger society. The issue is which model of thinking about individualsand society is better suited to the task of special education.

Legal Model

The law is a blunt instrument. It is lumbering in its responseto problems. The law brings its weight to bear only long aftertypi-cally at least weeks and sometimes years aftera violation of law isdetected and only after due process. The law often ignores individualdifferences except in the broadest outlines of individuality. The legal


system focuses on procedure and paper work, and any deviation fromthe law or absence of the proper paper is sufficient in many cases tothwart the ostensible purpose or meaning of the law (see WashingtonPost, 2007b). The law may be described as ham-handedclumsy, in-ept, and slow in its response to individuality. It may well deal withindividuals, but only as they are part of a larger group or as requiredby a law. Even individualization must fall within the boundaries ofthe law, and no law can specify what every student needs.

Medical Model

Medicine typically responds quickly, sometimes immediately,to perceived health needs. Indeed, medical practitioners who do notrespond promptly to medical need may be subject to legal sanctions.The practice of medicine demands attention to any and every aspectof individuality that might determine the effectiveness of a particulartreatment. Medicine has procedures or protocols to follow in manycases, but it is not so obsessed with procedure and paper as to in-validate a successful outcome on that basis or require a restart of thetreatment.

Contrasting Models

Medicine is more finely attuned to variance than is law, andmedicine approaches problem variations much differently than doesthe law. The modus operandi of medicine are early identification ofproblems and immediate response to correct them with attention tothe characteristics and needs of the individual, whereas the law is typ-ically slower, characterized by delays, slow to reach a conclusion, andguided primarily by precedent. The legal way of thinking asks howthe individual should be treated within the framework of the writtenlaw; the medical way of thinking asks how the individual should betreated to achieve the desired outcome.

Conceptual Models and Special Education's FutureIn no way did I and my colleague suggest in our earlier publica-

tion (Kauffman & Hallahan, 1974) that we treat disabilities literallylike illnesses, with medications and medical responses to disabilities inlieu of special education. I do not suggest here that disabilities shouldbe thought of by those of us who are not physicians as conditions forwhich medicine is typically the preferred treatment (albeit, for somedisabilities medical treatment, including medication, is extremelyhelpful if not essential; see Earley, 2006; Forness & Kavale, 2001). By"medical model" and "legal model" I mean the way we think aboutthe clients we serve and about the errors we might make.

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Special education has a very constrained future if it is more close-ly aligned conceptually with law than with medicine. But the futureis full of possibility for special education if it is aligned more closelywith the way medicine conceptualizes and responds to problems.Inappropriate Dominance of Legal Thinking

Today, special education is more closely aligned with law thanwith medicine. Consider that contemporary special education is typi-cally slow to respond to negative variations and, when it does respond,abhors the false positive more than the false negative. This means thatit cannot possibly be preventive in any real sense because it viewsfalse identification of disability as far worse than falsely assumingthat a student has no disability. Those governing special educationtend to view identification for special education as tantamount to alegal convictiori and the provision of special education as tantamountto a jail sentence. Special education practice too often considers onlythe broad outlines of disabilities rather than the details of individuals'needs.

Perhaps the close alignment of special education with legalanalysis is understandable, given the extensive legal admonitionsunder which special education is practiced, the high level of concernfor overidentification and false identification, the lack of confidencein special education as an effective intervention, and the legendaryconcern for paper work. But if law becomes even more dominant inspecial education, I foresee even greater problems. Under the domi-nance of law, I think special education is likely to be perceived in in-creasingly negative terms, to be limited to fewer treatment options,to become less attuned to individual needs, and to be judged increas-ingly as a failure.

The negative consequences of legal domination of our thinkingabout special education may be severe. With the domination of suchthinking, special education may be reserved for only those with themost obvious and severe impairments. That is, thinking within a legalframework, legislators and educators may conclude that for all exceptthose with the most obvious and profound disabilities good generaleducation is all that is required. We see this consequence emerging to-day in NCLB and in the response to intervention (RTI) literature, bothof which stress the importance of meeting the criteria set for a largegroup. Johns (2003) has pointed out that NCLB focuses on groups,whereas IDEA focuses on individuals.

I Hnd attempts to address special education issues through NCLBdistressing, not only because I think NCLB represents a degradationof the individual treatment demanded by IDEA but because NCLB


itself is irrational. For example, NCLB calls for educators to close gapsin performance that simply cannot be closed, such as the gap betweenthe average achievement of students with disabilities and those with-out disabilities (see Kauffman, 2005b; Kauffman & Konold, 2007). Fur-thermore, some of the central themes of NCLB, such as proficiency forall, are best described as oxymorons (Rothstein, Jacobsen, & Wilder,2006). NCLB is, in my opinion, a set of ideas certain to underminespecial education as well as public schools, and it is more likely to doso when special educators suggest that it is consistent with IDEA.

The interventions allowed by law are likely to dwindle in num-ber and variety as the law requires treatment that is more and morelike that received by nondisabled students. In fact, if NCLB is seen asan appropriate model for special education, then conformity to uni-versal standards of curriculum and testing are likely to be the rule forstudents with disabilities. This is quite the opposite of the individualtreatment that is called for by IDEA, as Johns (2003) has pointed out.

Under the influence of legal thinking, special education is likelyto be delayed even longer than it is now in any case in which thereis any uncertainty about the existence of a disability. That is, specialeducators will become even more determined to avoid the false posi-tive because of their fear of stigma, poor outcomes, and legal reprisals.This means that any hope of early intervention and prevention mustbe abandoned in favor of caution, under the assumption that identifi-cation and treatment are worse than nontreatment.

Using the kind of thinking encouraged by current education law(NCLB), special education will be judged to be a failure in cases inwhich it does not result in exit from special services, and it will be saidto be successful only to the extent that it closes the achievement gapbetween students with disabilities and those having no disability. Thefact that this is nonsensical (see Kauffmaii & Hallahan, 2005; Kauff-man & Konold, 2007) does not preclude its adoption as the standardway of thinking about special education.Reasons for Gravitating Toward Medical Thinking

The fact that jails have hospitals and psychiatric units is testa-ment to the fact that even the legal system recognizes that somethingother than law is required for some individuals' well being. Legalthinking suggests a very ineffective approach to the immediate needsof people with mental illness, as a psychiatrist explains:

"Adversarial proceedings may work well in criminal cases,"Dr. Foitier complained, "but they are a poor way to proceedwhen you're trying to help someone who has a medicalproblem. I always find testifying to be a frustrating experience

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because we should be focused on what is best for a mentallyill person, not what the mentally ill person wantsespeciallyif he is not thinking clearly. Yet that is exactly what the publicdefender focuses on." (Earley, 2006, p. 146)

The legal system is often dismissive of mental illness and othernonphysical disabilities, providing very little or nothing in the wayof treatment. In fact, prisons and streets have become the mostcommon locations of people who are mentally ill, and the failureof deinstitutionalization seems obvious (see Earley, 2006; Lamb &Weinberger, 2001; Torrey & Zdandowicz, 1999). Considerable evidenceshows that false negatives are far more common than false positivesin the case of mental illness of children and youth and that treatmentis typically delayed long after the onset of mental health problems(Costello, Egger, & Angold, 2005; Wang, Berglund, Olfson, Pincus,Wells, & Kessler, 2005).

Denial and delay in treatment of mental illness occurs in thecontext of assertions that students with such problems are overidenti-fiedassertions that fly in the face of overwhelming evidence to thecontrary. Moreover, serious issues in criminal justice are the executionof prisoners with mental disabilities (Patton & Keyes, 2006) and the de-cision to try juveniles in adult courts and apply to juveniles the samesentences that would be applied to adults. In short, the legal systemsometimes denies the mental health needs of children and youth withdisabilities in sentencing and even in execution, although the medicalsystem regularly points up the neglect of young people's needs andthe advisability of early treatment of mental health problems.

Hospitals have locked wards because restrictions are sometimesrequired for effective treatment of illness. Even the legal system recog-nizes this in some cases. However, the legal system emphasizes leav-ing people alone (allowing them to make their own bad decisions),too often regardless of their need for restrictive treatment (see Earley,2006; Suhay, 2007). That is, the legal concern for the least restrictive al-ternative sometimes pre-empts the medical concern for effective treat-ment, such that in the case of mental illness an individual may notbe treated until he or she has committed an act of violence for whichimprisonment or execution is the consequence. Emphases in the lawon "privacy" and "least restrictive" alternatives thus sometimes denyindividuals or their families not only information but the most effec-tive medical treatment possible (Earley, 2006; Suhay, 2007).Role of Empirical Evidence in Judgment and Practice

The abandonment of empirical evidence as the bedrock forinstructional practices and judgment of social justice is one of the


greatest tragedies that could befall special education (see Kauffman& Sasso, 2006a, 2006b; Mostert, Kavale, & Kauffman, 2008). Any fieldof study is vulnerable to abandonment of empirical evidence as itsfoundation, but it appears that law is more readily corrupted by suchabandonment of science than is medicine. Unlike those who complainabout what they call the "medicalization" of mental health or specialeducation (e.g., Skrtic & Sailor, 1996), I think the medical outlook, notthe legal outlook, provides the most hopeful prospects for our field.The practice of medicine isor should be, and for the most part isguided by scientific evidence. Law, however, is dependent upon theevidence provided by medicine and related disciplines, and thereforelegal decisions based on best scientific evidence are always made af-ter, sometimes long after, the evidence is found. Moreover, the lawdoes not always demand nor does judicial decision always follow em-pirical evidence (Crockett & Kauffman, 2001; Washington Post, 2007a).Even "common sense" or consideration of the individual or of circum-stances in the discipline of school children is sometimes abandoned inlegislative zeal when a problem is encountered (see Associated Press,2007; Gladwell, 2006; Skiba & Rausch, 2006 for commentary on thefoolish, nonempirical, and counterproductive legal approach knownas "zero tolerance").

Education, like medicine, would do well to be guided in prac-tice by scientific evidence (Kauffman & Hallahan, 1974; Mostert et al.,2008). Although the law known as NCLB calls for the use of scien-tific evidence in education, it also blithely ignores the impossibilityof achieving its goals based on the realities with which science deals(Kauffman & Konold, 2007; Rothstein et al., 2006).

Needless restriction should be avoided in special education andthe treatment of mental illness, and the law has done us a service inpointing to the needlessly restrictive environments that have some-times been recommended or demanded. Nevertheless, effectivenesshas sometimes been sacrificed for the legal concept of less restric-tion, and the traditionally positivist view of law has been usurped byrelativist and nonempirical thinking that undercuts the best practiceof education and medicine (see Crockett & Kauffman, 2001; Earley,2006).

ConclusionBoth medicine and law address issues of participation in society

and protection from threat, but in opposite ways. Both law and medi-cine have responsibilities to both individuals and to society. Howev-er, medicine's primary purpose is the protection of individuals fromthreats of the ill effects of disease and bodily malfunction, whereas

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law's primary purpose is the protection of society from the behaviorof individuals or of individuals from society. Medicine seeks to fos-ter healthy, productive citizens. In contrast, law seeks to protect soci-ety from individuals who threaten security or to constrain a society'streatment of an individual. Although both law and medicine are con-cerned about individuals and groups, the law tends toward emphasison the group or class of individuals, whereas medicine tends towardemphasis on the individual.

We need special education law, but we do not need to let legalis-tic thinking dominate what we do. Fear of legal consequences shouldnot intimidate us into abhorring false positives so much that we areless concerned about false negatives. The law may call for individual-ized education plans and other indicators of individual attention, butthe legal model is a comparatively inept way of approaching the prob-lem of individual need for treatment. Law is better suited to settinglegal precedents that apply to classes of individuals and for shapingbehavior through coercion. The model of thinking provided by medi-cine, by contrast, focuses our attention on the individual, encouragesus to avoid false negatives, and advises us to seek treatments that sci-entific evidence shows are most effective.

Our society has become increasingly preoccupied with law. Spe-cial education must buck this trend and return to its roots of closeralignment with medicine than with law if it wants to have a brightfuture. If it does align itself primarily with medicine, it will becomemore concerned about false negatives than about false positives. Thischange of concern would allow special educators to catch more casesof disability early and allow them actually to practice prevention, notmerely give it lip service (see Kauffman, 1999, 2005a). Special educa-tion would thus catch more incipient and mild cases of disability forwhich more effective interventions are possible. The practice of spe-cial education would be more finely attuned to individuality. The fieldwould gravitate toward scientific evidence for its practice and gainmore confidence in its ability to respond effectively to educational dis-abilities. Special educators could more clearly distinguish how whatthey do differs from general education (see Cook & Schirmer, 2006).Special education's success would not be judged by comparing theachievement of students with disabilities to that of students withoutdisabilities but by how students with disabilities perform when theyreceive special education compared to how they probably would havedone without special education (Kauffman & Hallahan, 2005). Theperformance to which I refer here is not only academic achievementwhile in school but how students fare after their schooling, when theylive in our communities and seek employment.


Medical practice has its shameful history, but the history of lawis no less shameful. Anyone who listens to and reads the news knowsthat the law, in spite of the good intentions of lawyers and judges, fre-quently results in miscarriages of justice. And who would want nei-ther law nor medicine involved in the treatment of disability or wouldbe so naive as to think that education can go it alone as a concept or asa profession? Given the history of social organization and the natureof legal and medical analysis of problems, I would rather be part of aprofession aligned more closely with medicine than with law for thesake of students. As special educators, a medical model of thinkingwould serve us better than a legal model.

AcknowledgementsThe author is grateful to Jean B. Crockett, Kathleen L. Lane, Kel-

ley A. Lassman, and Patricia L. Pullen for their helpful and insightfulcomments on previous drafts of this paper and for their suggestionsabout how the paper might be improved.

References

Associated Press. (2007, June 16). When does 'zero tolerance' negatecommon sense? States mull dropping rules amid strict pun-ishments. Charlottesville Daily Progress, A9.

Bateman, B. D. (2007). Law and the conceptual foundations of specialeducation practice. In J. B. Crockett, M. M., Cerber, & T. J., &Landrum (Eds.), Achieving the radical reform of special education:Essays in honor of James M. Kauffman (pp. 95-114). Mahwah, NJ:Lawrence Eribaum Associates.

Bateman, B. D., & Linden, M. A. (2006). Better IEPs: How to developlegally correct and educationally useful programs (4"" ed.). Cham-paign, IL: Research Press.

Cook, B. G., & Schirmer, B. R. (Eds.). (2006). What is special about specialeducation? Examining the role of evidence-based practices. Austin,TX: Pro-Ed.

Costello, E. J., Egger, H., & Angold, A. (2005). 1-year research updatereview: The epidemiology of child and adolescent psychiatricdisorders: I. Methods and public health burden. Journal of theAmerican Academy of Child and Adolescent Psychiatry, 44, 972-986.

Crockett, J. B., & Kauffman, J. M. (2001). The concept of the least re-strictive environment and learning disabilities: Least restric-tive of what? Reflections on Cruickshank's 1977 guest edito-rial for the Journal of Learning Disabilities. In D. P. Hallahan &

256 KAUFFMAN

B. K. Keogh (Eds.) Research and global perspectives in learningdisabilities: Essays in honor of William M. Cruickshank. (pp 147-166). Mahwah, NJ: Lawrence Erlbaum Associates.

Earley, P. (2006). Crazy: A father's search through America's mental healthmadness. New York: Penguin.

Forness, S. R., & Kavale, K. A. (2001). Ignoring the odds: Hazards ofnot adding the new medical model to special education deci-sions. Behavioral Disorders, 26, 269-281.

Gladwell, M. (2006, September 4). Comment: No mercy. The NewYorker, 37-38.

Hallahan, D. P., & Kauffman, J. M. (1978). Exceptional children: Introduc-tion to special education. Englewood Cliffs, NJ: Prentice-Hall.

Huefner, D. S. (2006). Getting comfortable with special education law: Aframework for working with children with disabilities {2"'' ed.).Norwood, MA: Christopher Cordon.

Johns, B. H. (2003). NCLB and IDEA: Never the twain should meet.Learning Disabilities: A Multidisciplinary Journal, 22(3), 89-91.

Kauffman, J. M. (1999). How we prevent the prevention of emotionaland behavioral disorders. Exceptional Children, 65, 448-468.

Kauffman, J. M. (2005a). How we prevent the prevention of emotionaland behavioural difficulties in education. In P. Clough, P. Gar-ner, J. T. Pardeck, & F. K. O. Yuen (Eds.), Handbook of emotionaland behavioural difficulties (pp. 429-440). London: Sage.

Kauffman, J. M. (2005b). Waving to Ray Charles: Missing the meaningof disability. Phi Delta Kappan, 86, 520-521, 524.

Kauffman, J. M., & Hallahan, D. P. (1974). The medical model and thescience of special education. Exceptional Children, 41, 97-102.

Kauffman, J. M. & Hallahan, D. P. (2005). Special education: What it isand why we need it. Boston: Allyn & Bacon.

Kauffman, J. M., & Konold, T. R. (2007). Making sense in education:Pretense (including NCLB) and realities in rhetoric and policyabout schools and schooling. Exceptionality, 15, 75-96.

Kauffman, J. M., & Landrum, T. J. (2006). Children and youth with emo-tional and behavioral disorders: A history of their education. Aus-tin, TX: Pro-Ed.

Kauffman, J. M., & Landrum, T. J. (2007). Educational service interven-tions and reforms. In J. W. Jacobson, J. A. Mulick, & J. Rojahn(Eds.), Handbook of intellectual and developmental disabilities (pp.173-188). New York: Springer.


Kauffman, J, M,, & Sasso, G. M. (2006a). Toward ending cultural andcognitive relativism in special education. Exceptionality, 14,65-90.

Kauffman, J, M., & Sasso, G. M, (2006b), Certainty, doubt, and thereduction of uncertainty: A rejoinder. Exceptionality, 14, 109-120.

Lamb, H, R,, & Weinberger, L. E, (Eds,). (2001), Deinstitutionalization:Promise and problems. San Francisco: Jossey-Bass.

Mostert, M. R, Kavale, K. A., & Kauffman, J. M, (Eds,). (2008). Chal-lenging the refusal of reasoning in special education. Denver, CO:Love.

Patton, J, R., & Keyes, D. W, (2006), Death penalty issues followingAtkins. Exceptionality, 14, 237-255.

Rothstein, R., Jacobsen, R,, & Wilder, T. (2006, November). "Proficien-cy for all"An oxymoron. Paper presented at a symposiumon "Examining America's commitment to closing achieve-ment gaps: NCLB and its alternatives." New York: TeachersCollege, Columbia University,

Ruscio, J. (2002), Clear thinking with psychology: Separating sense fromnonsense. Pacific Grove, CA: Wadsworth.

Skiba, R. J., & Rausch, M, K. (2006). Zero tolerance, suspension, andexpulsion: Questions of equity and effectiveness. In C. M. Ev-ertson & C. Weinstein (Eds.), Handbook of classroom manage-ment: Research, practice, and contemporary issues (pp. 1063-1089).Mahwah, NJ: Lawrence Erlbaum Associates.

Skrtic, T, M., & Sailor, W, (1996). School-linked services integration:Crisis and opportunity in the transition to postmodern soci-ety. Remedial and Special Education, 17, 271-283,

Suhay, L. (2007, June 16). Va. Tech lesson: What families need to help.Washington Post, A15.

Torrey, E. F., & Zdandowicz, M, T. (1999, July 9), Deinstitutionaliza-tion hasn't worked: "We have lost effectively 93 percent of ourstate psychiatric hospital beds since 1955," Washington Post.Retrieved February 25,2007 from www.psychlaws,org/gener-alresources/articlel7.htm.

Wang, P. S,, Berglund, P, Olfson, M., Pincus, FI. A., Wells, K, B., &Kessler, R. C, (2005). Failure and delay in initial treatmentcontact after first onset of mental disorders in the nationalcomorbidity survey replication. Archives of General Psychiatry,62, 603-613.

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Washington Post. (2007a, June 16a). Autism in court: A special U. S.court hears the first case about the disorder and vaccines.Washington, DC: Author, A14.

Washington Post. (2007b, June 17). Beware of the judge: The SupremeCourt's doctrine of tough luck. Washington, DC: Author, B6.

Yell, M. L. (2006). The law and special education (2nd ed.). Upper SaddleRiver, NJ: Prentice-Hall.

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