Intersections: Activism and Advocacy, part 2, the POWER edition

In this blog series, I’m summarizing some of the major points of Daniel Hunter’s Building a Movement to End the New Jim Crow: An Organizing Guide, and suggesting ways in which we can apply the ideas to intersections of Disability Rights activism and Special Education advocacy. If you missed part one, you can find it here. This post will discuss (some of) the second chapter of Hunter’s guide. There’s so much to pull out of this chapter, but for the sake of honing in on the nexus of Disability Rights and Special Education, I’ll limit my discussion to only one of his main ideas: power.

“Power” has many meanings within the context of movements. I want to address multiple intersections of power: how oppressive systems hold and maintain power; how movements can put pressure on and dismantle oppressive power structures. In a subsequent essay, I’ll look at the human cost of standing up to power, as well the ever-important question of who should hold power / be empowered in movements.

Power Structures

One of Hunter’s crucial points is his explanation of how oppressive structures maintain and control power. Hunter addresses this issue not only to instruct us in how to take down oppressive systems, but also to remind us that unless we pay attention to how power structures tend to be supported, we face the possibilities of (a) building unstable movements, and (b) unwittingly replicating oppressive structures within our own movements. It is important to understand that oppressive systems are not as structurally sound as they may seem. As Hunter points out, “an oppressive system that relies on abusing and degrading humans is insecure––it requires being held up by pillars of support. Some of these pillars include social systems that give the structure legitimacy, such as laws, courts, media, and schools that train us to obey. Other pillars include people who may oppose the system but are complicit in keeping it running–– including administrators, guards, chaplains, janitors, construction workers to build prisons, and so on.” His examples here are specifically about the pillars of support that keep the prison industrial complex intact. Compromise one or more of these pillars, Hunter writes, and we can begin to topple the entire system.

What pillars hold the Special Education system up? School administrators, legislators, teachers, school psychologists, local school boards, State boards of education, State education administrative agencies, school districts, and attorneys who represent school districts in an effort to minimize parent and student rights all contribute to shoring up Special Education. I would also argue that advocates who are so closely connected to the system that they do not question its limitations also help to maintain the system. Special Education is not inherently oppressive by design, but the current delivery of services, locked up in philosophical questions of who is “normal” or “typical” and who should have the right to be in particular classrooms, is not just flawed; it is ableist. And we support the system without thinking much about its ableist underpinnings.

And if, at this moment, you are thinking “Not all [teachers, administrators, school board members, etc.] are ableist!” please remember that I’m not naming individual people; I’m describing how people assume roles within systems and contribute to their perpetuation. I’m reminding us that we all have to take a meta view of the system(s) in which we work and remember why we do what we do in the first place.

(Dis)Serve and Protect

I’m about to make a big leap and equate the Criminal Justice system with Special Education. That feels uncomfortable, I know. Consider the network of laws that underlie the Criminal Justice system, some of which are about how offenses against society are punished, and some of which are about the rights of the accused. (For reference, see Title 18 of the U. S. Code: Crimes and Criminal Procedures.) We also have rights protected by the Constitution: The First Amendment gives us freedom of speech, freedom to assemble peaceably, freedom of the press, and freedom of religion; the Fourth Amendment protects us against unreasonable search and seizures; the Fifth Amendment allows us the protection of not incriminating ourselves; and so on. (For a handy primer on your basic rights, see Practical Ways to Exercise Your Rights Under a Trump Presidency, by Dani Alexis Ryskamp.) When these rights are trampled, we have the right to legally fight back. We also have a right to representation, a right to due process (a trial), a right to be informed of the accusations against us, and a right to a jury of our peers. Sounds great, right? With all of these rights, surely only “guilty” people are incarcerated.

Nope. I’m sure there are experts who will argue that we’re better off than when we were before these laws were put into place, but as many criminal justice activists, advocates, attorneys, and both formerly- and currently-incarcerated people will testify, the system doesn’t always protect those whom it was intended to serve, and it certainly doesn’t protect Black and Brown lives (which is, of course, a milquetoast re-stating of the entire point of Michelle Alexander’s book, The New Jim Crow).

What about Special Education laws? The laws that were first crafted to protect disabled children in schools—such as Section 504 of the Rehabilitation Act (1973) and IDEA (1975)—have been game changers. They were created to ensure basic educational rights and to give parents recourse should those rights not be honored. Before the 1970s, millions of children were denied even a basic education every year. As in: disabled children were not allowed to go to school; they had to be kept at home or were institutionalized. Special Education laws ensure the possibility of a Free and Appropriate Education. When they work well, the laws also help families build connections between schools and community services to create a network of support for disabled students before they leave school. Special Education laws have helped to raise graduation rates among Disabled students, and have empowered more to seek out post-secondary education. But. Like the Criminal Justice system, Special Education is now an overloaded, underfunded, and inefficient system, a system wrapped in endless regulations originally intended to protect, but that ultimately entail a high human cost. Like the Criminal Justice system, Special Education no longer serves its intended function well. The human cost is high in both cases: innocent people go to jail, and students who need an individualized education are warehoused or denied services, or drop out after years of frustration. And too often, these same children end up in the school-to-prison pipeline, which brings us back to the gross injustices of the Criminal Justice system.

law-scalesCrashing the system

So if we understand that a system is built on pillars and we decide a system needs to be dismantled to pave the way for something new, how do we—as part of a larger movement—compromise the strength of a pillar to undermine the power of a system? Hunter offers several examples of how this has worked in real-life movements. One such example is of Serbian citizens who fought against Slobodan Milosovic by refusing to participate in day-to-day activities that maintained the normalcy of the government. This nonviolent approach was ultimately successful, and Hunter attributes the success to mobilization of a massive number of people who were able to identify the pillars and dismantle the pillars one by one. Rapid mobilization efforts and clear-minded understanding of how power works (translated into specific campaigns), are both necessary for movements to grow. (Similar suggestions about effective means of resistance in our post-election society are popping up. Just one example: On November 14, David Cole, incoming legal director of the ACLU, published what is essentially a guide to non-violently bringing down the Trump agenda.)

Hunter also describes in detail what he calls a “crash the system” approach, a way of overloading a particular system by vigorously exercising particular constitutional / legal rights. Hunter cites the work of Susan Burton and her program A New Way of Life for developing a particularly effective “crash the system” approach within the criminal justice system. Burton’s idea was simple: provide legal resources to large numbers of people so that they can collectively demand their constitutional right to a jury of their peers rather than accepting plea-bargains. This approach was necessary because most criminal court cases are resolved through plea bargains, primarily because of harsh mandatory minimum sentencing laws. (How many is “most”? Hunter says 90% of cases are resolved through plea bargains. Findlaw agrees with 90%. Tim Lynch puts this figure at 95%. Jed Raskoff places the number of Federal Court plea bargains at more than 97% of criminal cases. Any way you slice it, the number is YUUUGE.) Prosecuting attorneys convince people that if they go to court, and if they’re found guilty, the minimum sentence will be very harsh. Their alternative is to accept a plea bargain, a compromise that leaves them with a guaranteed lesser sentence in exchange for “admitting” guilt. What these folks give up in these “bargains” is their constitutional right to a trial by a jury of their peers.

Courts push plea bargains in part because the system is so over-loaded with cases; it takes much more work and time to assemble a trial by jury. But this system also ensures that many innocent people go to jail. Burton’s theory was that if more and more people requested their constitutional right to a jury of their peers, the system would become clogged with cases; judges and prosecutors fall further and further behind. To explain the possible outcomes of this move, Hunter offers us a thought experiment: “Imagine how this might play out: In a small city, 100 people refuse to accept plea bargains. They collectively demand jury trials. The already stretched and overloaded city judiciary scrambles to arrange jury trials. Those who are unable (or who refuse) to pay their bond are stuck in jails. (This tactic, as any to shift a system this huge, would require suffering.) Others who are released tour the country to rally support.” More people join, and then an avalanche of more. As local jails and systems are flooded, lawyers file appeals to ensure the right to a jury trial, and public protests support the movement, the system falls into chaos. And then we would need to redesign the system from the ground up.

Crashing the System in Special Education?

What “crash the system” analogy might we make in Special Education? By far the strongest tool in the parent toolbox is the Independent Educational Evaluation (IEE). When a child is evaluated for Special Education services, the school district arranges the initial evaluation. Parents then have a legal right to get a second opinion at no cost to them, an IEE performed by an expert not affiliated with the school district. (See, how, why, and when to request an Independent Educational Evaluation (IEE).) When parents request an IEE, schools must either comply or take the parents to court. After an IEE has been completed, schools are required to “consider” the outside opinion when services are offered to the child. When used carefully and purposefully, IEEs can help parents hold school districts accountable and push school districts to provide an individualized education for every child, as provided by law.

I haven’t been able to find data about the frequency of IEE requests. But to extend our thought experiment, let’s imagine what might happen if every parent of a child who is identified as needing Special Education services requested an IEE. Let’s imagine that in an elementary school that enrolls 800 students total there are 100 kids who have qualified for services under IDEA. (I’m using about the national average here of 13%, but in my own state, the average is 8.5%; hundreds of thousands of children are being underserved, as Brian Rosenthal has revealed.) If the parents or guardians of all 100 kids requested an IEE from that school alone, that would mean that the handful of local private evaluators—including Occupational Therapists, Speech / Language Pathologists, Neuropsychologists, Developmental Pediatricians, and other specialists—would need to weigh in on every case, working within their private case load. It would not take long for the cases to become so backed up that schools could not deliver IEEs within the required time frame. Perhaps local hearing officers would be encouraged to find more often in favor of parents when they appeal, to help keep the system running. Perhaps parents would crash the system, requiring us to rethink why the system often favors schools over parent input. So as a collective mobilization tool, IEEs for everyone is an approach worth considering. But we need to be careful that as we crash the system, we also protect the people for whom we are advocating. The human cost is high any time we assert our rights within a system, as I’ll discuss in my next post.