EDUCATION AND TREATMENT OF CHILDREN Vol.

30, No, 4, 2007

Conceptual Models and the Future of Special

Education
James M. Kauffman
University of Virginia
Abstract
A medical model has advantages over a legal model in thinking about special
education, especially in responding supportively to difference, meeting
individual needs, and practicing prevention. The legal conceptual model now
dominates thinking about special education, but a medical model promises a
brighter future for special education and for children with disabilities.

n 1974, my colleague Dan Hallahan and I published an article in

Exceptional Children pointing out the virtues of the much-maligned
medical model (Kauffman & Hallahan, 1974), Although I believe the
basic arguments that we made in favor of the medical model are still
sound, a note of caution is in order. Among our statements is this:
"The 'medical' model, now being placed by its critics in the position of
explaining all that has gone wrong with special education, is a straw
man" (p. 101). I do not want to substitute one straw argument with
another. Specifically, I do not want to blame the legal model, which I
believe now dominates our thinking, for all of special education's ills.
We cannot eliminate the law, nor should we want to. In fact, we need
the law, although I do not believe it is the best model for approaching
or solving most of special education's problems, I raise issues about
which model should play the more influential role in the way we think
about special education, which one should play the dominant role in
guiding our practice, and which one bodes better for our future and
for 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 refer to a structure or system I mean the conceptual model that guides
our thinking and provides rules for practice. My primary concern is
the way we approach problems and their resolution.
Special education is necessarily closely aligned with general
education. In fact, special education is an integral part of general
Correspondence to James M, Kauffman, 2915 Riggory Ridge Road, Charlottesville, VA
22911; e-mail: jmk9t@virginia,edu.

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education and vice versa. Nevertheless, the future of special education may well hinge on its consistent gravitation toward a particular
conceptual model, not its association with general education. The conceptual model of another profession may shape our ways of thinking
and suggest the types of decisions that we believe should guide our
practices.
Other than education itself, the two social structures or systems
and their rules that play the most prominent roles in special education are law and medicine. I am concerned about whether we think
about the problems of special education primarily in terms of evidence-based instruction or primarily in terms of legal protections of
the rights of children to appropriate education. Both ways of thinkir\g
are important, and I am not suggesting that we should follow either
the medical or the legal model exclusively. Nevertheless, the way we
conceptualize and respond to problems has profound implications for
how we proceed in practice, so we need to consider carefully whether
thinking first like a lawyer or first like a physician would serve us
better.
Conceptual Models and Societal Problems
All highly organized societies have developed social structures
or systems and rules for dealing with problems that they define as
social deviance or physical illness. That is, all modern societies, including those frequently called underdeveloped or third-world, have
legal structures and rules for dealing with threatening and intolerable
behavior and medical structures and rules for responding to illness.
Although in some instances social authorities judge a problem to be
clearly a matter of social deviance or clearly a matter of physical illness, in other cases the problem is not clearly one or the other. In these
cases, the society's authorities make an ambiguous judgment or assign
joint responsibility to law and medicine. In most cases of ambiguity or
joint responsibility, either law or medicine takes the leading role or is
assigned primary responsibility for dealing with the problem, usually
depending on the situation. In short, all highly organized societies in
today's world have prisons and hospitals. They also have prison hospitals, or medical treatment offered within prisons, and hospital prisons or severe restrictions of freedom within hospitals, which we often
call "locked wards." That is, government, in general, has established
a legal system for dealing with social deviance and running prisons
and a medical system for dealing with illness and rurming hospitals.
However, government also recognizes that the legal and medical systems have overlapping responsibilities. These systems cannot be completely disconnected from each other.

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Covernments give authority to the legal system for regulating

nondeviant as well as deviant behavior. That is, the legal system regulates the practice of medicine, the operation of schools, and many other aspects of social life that involve behavior falling within the normal
range. In fact, social deviance is judged at least in part against a background of conformity to law. And the law may include exceptions for
social deviance that has a medical explanation, such as the verdict "not
guilty by reason of insanity." Likewise, medicine is concerned with
health as well as illness and makes judgments of illness at least in part
against a background of knowledge of normal physical development
or typical physical condition. Moreover, medicine has obligations under law. Its practitioners are required to report certain findings, such
as child abuse, gunshot wounds, and cause of death to legal authorities. In short, we find that law and medicine are tightly connected,
although they are separate domains of knowledge and practice. Lawyers and physicians do not serve exactly the same functions in society,
although one may influence the other. We may best consider law and
medicine to be intersecting sets of social responsibility.
The Historic Connection of Education to Law and Medicine
Consider that education is yet a third set of social responsibilities
intersecting both law and medicine. Education has its own domain of
knowledge and practice, which is instruction (see Kauffman & Hallahan, 2005; Kauffman & Landrum, 2007). Teachers are neither lawyers nor physicians, although their practice is guided by both lawyers
and physicians to some extent. Education has long been mandated
and regulated by law, which has required particular curricula, teacher
qualifications, and so on as well as attendance. Understanding of child
growth and development, which has roots in medical knowledge, is
expected of teachers.
Schools serving the general population were established under
the legal system, not the medical system. Noteworthy here is the fact
that many or most of the earliest leaders in special education were physicians (e.g., Samuel C. Howe, Jean M. Itard, Edouard Seguin, and
Maria Montessori; see Hallahan & Kauffman, 1978; Kauffman & Landrum, 2006). History seems to suggest that general and special education began for very differerit reasons and under the auspices of two
distinct social structures, institutions, or systems. General education
was begun primarily under the rule of law, and special education was
guided in its origins primarily by physicians. However, both general
and special education historically have shared a primary concern for
problems of instruction, and both are now practiced under legal strictures and with insights provide by medicine.

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The Dominance of Law in Contemporary American Society

As our social systems of law, medicine, and education have

evolved, it has become increasingly clear that law dominates the
governance of medicine and education. That is, medicine and education are regulated by law, and law is the ultimate arbiter of access to
both medical treatment and education. The contemporary dominance
of medicine by law is most obvious in the legal governance of such
medical decisions and treatments as contraception, abortion, assisted
suicide, medical liability, and the use of cannabis (i.e., marijuana) and
opiates in the treatment of agonizing and terminal illnesses. The contemporary dominance of education by law is most obvious in the No
Child Left Behind Act (NCLB) and the Individuals with Disabilities
Education Improvement Act (IDEA, 2004).
Law definitely has the upper hand, and it governs not only how
social deviance is managed in the absence of illness but also how illness, including mental illness leading to social deviance, is treated by
medicine. Likewise, law now dominates the governance of general
and special education, such that schools must provide instruction in
conformity with law. In the United States, mandatory public education, NCLB, IDEA, and many other rules governing instruction are
cases in point (see Bateman, 2007; Bateman & Linden, 2006; Huefner
2006; Yell, 2006).
It may be understandable, then, that advocates of education for
students with disabilities may wish to align themselves unambiguously with the dominant system, which in contemporary America
is the legal system. Many prefer to align their cause with the social
system that is, in any case, the final arbiter of one's advocacy. Some
may argue that it is best to think of special education in terms of its
convergence or intersection with law rather than medicine. This may
have advantages, but there may be good reasons not to do so. However finding these good reasons first requires consideration of types of
mistakes and how a professional using a particular conceptual model
responds to uncertainty in practice.
Errors of Judgment
All who participate in making decisions that affect the lives of
others would like to have flawless judgment. Alas, none of us has
perfect judgment. Every teacher, psychologist, physician, lawyer, and
judge, for example, makes mistakes. We do our best not to make mistakes, and we understand that all mistakes of judgment are costly in
their consequences to individuals as well as in dollars, no matter how
the mistakes might be described. Yet, some mistakes are more costly
than others, and we must always seek to minimize not only errors but

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costs to the individual and to society. So, in any given case, our judgment may be yes or no about a particular question. Our judgment is
unerring when the correct answer is yes or no and our judgment corresponds to the truth. We call these kinds of judgments true positives
and true negativesno mistakes. But sometimes we conclude that the
answer is yes when the truth it is no, or we say no when the truth is
yes. We call these two kinds of mistakes false positives and false negatives, respectively. When we make an error known as a false positive,
we judge that the person, for example, is guilty when the truth is the
person is not guilty, to have cancer when the truth is that he or she
does not have cancer, or to have a disability when in fact the student
does not have a disability. When we make an error known as a false
negative, we judge, for example, that the person is not guilty when the
truth is the person is guilty, not to have cancer when in fact he or she
does have it, or not to have a disability when in fact the student does
have one.
So, we really have to ask ourselves which kind of error is worse
in a given instance and lean toward the other, somewhat safer and
less costly error in terms of harm to another person. We would like to
do the least harm, so in a way we hedge our bets. We would rather be
safe than sorry, so if we are in doubt we make what we consider to be
the less costly mistake. That is, given that we must make a particular
judgment, we may lean toward a false positive or a false negative,
depending on which kind of mistake we think is less damaging (see
Ruscio, 2002).
How Legal and Medical Conceptual Models Differ
Law and medicine conceptualize and approach problems of human variation differently. They also differ in the criteria by which they
judge success. Finally, they differ in the sharpness and agility with
which 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 variations in human beings. Both are concerned primarily, although not
exclusively, with negative variationsillegal behavior in the case of
law, illness or chronic health problems in the case of medicine. Therefore, we consider only negative variations here.
Legal Model

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

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system, may have rehabilitation as an objective, but even in these cases

the law coerces compliance by demanding treatment in lieu of punishment. Apprehension, trial, and punishment or threat thereof remain
the major tools of the legal system. Moreover, in some cases juveniles
are now prosecuted as adults and receive the same consequences as
adults for given crimes, including life imprisonment or death. Law
defines illegality, which may range from violation of scoff-laws to serious felonies. Legal authorities may ignore illegal behavior, provide
merely a warning, prescribe restitution or something assumed to be
rehabilitative in lieu of punishment, or level very serious negative
consequences, including a fine, imprisonment, or even death.
Because the law primarily provides punishment or threat thereof (e.g., some arduous process thought to be rehabilitative and offered
as an alternative to punishment) as a consequence for negative deviation, 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 legal
system. In law, being safe rather than sorry means choosing the false
negative when in doubt. That is, legal authorities generally seek to
avoid punishing an innocent person. A person is therefore typically
assumed to be innocent until his or her guilt is said to be beyond reasonable doubt, although in many cases being charged under the law
is tantamount in the minds of many to a proof of guilt.
Medical Model

Medicine prefers a false positive (i.e., false identification of illness or needless treatment of an assumed health problem) to a false
negative (i.e., a false assumption of no health problem). The false negative is the error to be most carefully avoided in medicine. This preference for false positives over false negatives in medicine is due to the
fact that the medical system provides treatment, not punishment, for
negative deviation and seeks to be preventive. In medicine, being safe
rather than sorry means that when there is doubt one should choose
what turns out to be the false positive. That is, medical personnel generally try to avoid failure to treat a person with a health problem, so
they gravitate toward false positives.
Contrasting Models

The legal system conceptualizes negative variation as wrong or

blameworthy, and it responds with threat or punishment. The medical
system conceptualizes negative variation as ill health and responds
with treatment (i.e., health care) or prevention. Of course, there is nuance in both systems, but there is more finely graduated nuance in

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medicine. That is, both the more severe the punishment or the more
arduous the requirement by law and the more serious or dangerous
the treatment in medicine, the greater the care that is required in decision making. The reason I see greater nuance in medicine than in law
is that the variety of treatment of individuals in medicine is greater
than the variety of consequences in law. Perhaps the most important
contrast, however, is that they have very different approaches to mistakes. Whereas thinking like a lawyer promotes the idea that the false
negative is the less costly error, thinking like a physician promotes the
notion that the false positive is the less costly mistake.
Criteria for Success

Both law and medicine are concerned with success. That is, both
strive to improve the lives of individuals and society. Both have ways
of judging the success of their work.
Legal Model

In law, success is generally thought to mean reduction in illegal behavior through threat of or actual detection and punishment of
crime. Law also views success as a reduction in recidivism and maintenance of legal behavior without its further involvement. Simply put,
law judges success by its effective coercion and by normative function
without further legal intervention. Law sees success as the achievement of what is "normal," as exemplified most obviously in education
by the legal expectation included in NCLB that there should be no
differences between the performance of students with and without
disabilities (i.e., there should be no "achievement gap"; see Kauffman,
2005b; Kauffman & Konold, 2007).
However, another criterion for success is that the law was followed in an individual case. That is, the outcomes of legal proceedings are not necessarily judged by a conclusion that is thought to be
reasonable or good in the sense of fairness but by whether the law
was followed as written. What is written may, indeed, require the interpretation of a judge, but often what is written requires little or no
interpretation. For example, if the law as written specifies that something must be done within 10 days, then having it done within more
than 10 days is a violation of the law, regardless of extenuating circumstances. The Washington Post (2007b), for example, reported that
a man's appeal, filed within 16 days, was found by the U. S. Supreme
Court to be in violation of a law that required that it be Hied within
14 days, although an appeals court judge had given the man 17 days
in which to file his appeal. In short, judges may say that indeed they
understand 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 thinking
defines ultimate justice as following the law as written; what is written trumps what is fair or reasonable.
Medical Model

In medicine, success is generally thought to mean reduction of ill

health through risk reduction or treatment of health problems. Medicine views success as improvement of function or of health, regardless whether a cure or complete reversal of the health impairment was
achieved. And medicine judges success by its effective assistance, including assistance for as long as needed. In fact, in medicine treatment
may involve life-long assistance to maintain improved functioning,
although it is true that the highest level of success is attained when
further or continuing assistance is not needed. Medicine defines success as improvement, not necessarily the achievement of what is considered "normal." And although medicine has standard procedures
or treatments, they are not held to be inviolate if circumstances require a deviation from what is written in a text.
Contrasting Models

The way we conceptualize success is important in arguing for

the effective treatment of children. Thinking guided by law (most obviously exemplified by NCLB) sets expectations that are at odds with
realities of education and results in the predetermined judgment that
special education is a failure (see Kauffman, 2005b; Kauffman & Konold, 2007; Rothstein et al., 2006). The way in which physicians think
about success is consistent with a defensible way of judging the success or failure of special education (see Kauffman & Hallahan, 2005).
Special education is better served by a conceptual model in which success is achievable. It is also better served by a way of thinking that
places a higher value on outcome than on procedure.
Individual versus Group

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

The law is a blunt instrument. It is lumbering in its response

to problems. The law brings its weight to bear only long aftertypically at least weeks and sometimes years aftera violation of law is
detected and only after due process. The law often ignores individual
differences except in the broadest outlines of individuality. The legal

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system focuses on procedure and paper work, and any deviation from
the law or absence of the proper paper is sufficient in many cases to
thwart the ostensible purpose or meaning of the law (see Washington
Post, 2007b). The law may be described as ham-handedclumsy, inept, and slow in its response to individuality. It may well deal with
individuals, but only as they are part of a larger group or as required
by a law. Even individualization must fall within the boundaries of
the 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 not
respond promptly to medical need may be subject to legal sanctions.
The practice of medicine demands attention to any and every aspect
of individuality that might determine the effectiveness of a particular
treatment. Medicine has procedures or protocols to follow in many
cases, but it is not so obsessed with procedure and paper as to invalidate a successful outcome on that basis or require a restart of the
treatment.
Contrasting Models

Medicine is more finely attuned to variance than is law, and

medicine approaches problem variations much differently than does
the law. The modus operandi of medicine are early identification of
problems and immediate response to correct them with attention to
the characteristics and needs of the individual, whereas the law is typically slower, characterized by delays, slow to reach a conclusion, and
guided primarily by precedent. The legal way of thinking asks how
the individual should be treated within the framework of the written
law; the medical way of thinking asks how the individual should be
treated to achieve the desired outcome.
Conceptual Models and Special Education's Future
In no way did I and my colleague suggest in our earlier publication (Kauffman & Hallahan, 1974) that we treat disabilities literally
like illnesses, with medications and medical responses to disabilities in
lieu of special education. I do not suggest here that disabilities should
be thought of by those of us who are not physicians as conditions for
which medicine is typically the preferred treatment (albeit, for some
disabilities medical treatment, including medication, is extremely
helpful if not essential; see Earley, 2006; Forness & Kavale, 2001). By
"medical model" and "legal model" I mean the way we think about
the 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 closely aligned conceptually with law than with medicine. But the future
is full of possibility for special education if it is aligned more closely
with the way medicine conceptualizes and responds to problems.
Inappropriate Dominance of Legal Thinking

Today, special education is more closely aligned with law than

with medicine. Consider that contemporary special education is typically slow to respond to negative variations and, when it does respond,
abhors the false positive more than the false negative. This means that
it cannot possibly be preventive in any real sense because it views
false identification of disability as far worse than falsely assuming
that a student has no disability. Those governing special education
tend to view identification for special education as tantamount to a
legal convictiori and the provision of special education as tantamount
to a jail sentence. Special education practice too often considers only
the broad outlines of disabilities rather than the details of individuals'
needs.
Perhaps the close alignment of special education with legal
analysis is understandable, given the extensive legal admonitions
under which special education is practiced, the high level of concern
for overidentification and false identification, the lack of confidence
in special education as an effective intervention, and the legendary
concern for paper work. But if law becomes even more dominant in
special education, I foresee even greater problems. Under the dominance of law, I think special education is likely to be perceived in increasingly negative terms, to be limited to fewer treatment options,
to become less attuned to individual needs, and to be judged increasingly as a failure.
The negative consequences of legal domination of our thinking
about special education may be severe. With the domination of such
thinking, special education may be reserved for only those with the
most obvious and severe impairments. That is, thinking within a legal
framework, legislators and educators may conclude that for all except
those with the most obvious and profound disabilities good general
education is all that is required. We see this consequence emerging today in NCLB and in the response to intervention (RTI) literature, both
of which stress the importance of meeting the criteria set for a large
group. Johns (2003) has pointed out that NCLB focuses on groups,
whereas IDEA focuses on individuals.
I Hnd attempts to address special education issues through NCLB
distressing, not only because I think NCLB represents a degradation
of the individual treatment demanded by IDEA but because NCLB

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itself is irrational. For example, NCLB calls for educators to close gaps
in performance that simply cannot be closed, such as the gap between
the average achievement of students with disabilities and those without disabilities (see Kauffman, 2005b; Kauffman & Konold, 2007). Furthermore, some of the central themes of NCLB, such as proficiency for
all, are best described as oxymorons (Rothstein, Jacobsen, & Wilder,
2006). NCLB is, in my opinion, a set of ideas certain to undermine
special education as well as public schools, and it is more likely to do
so when special educators suggest that it is consistent with IDEA.
The interventions allowed by law are likely to dwindle in number and variety as the law requires treatment that is more and more
like that received by nondisabled students. In fact, if NCLB is seen as
an appropriate model for special education, then conformity to universal standards of curriculum and testing are likely to be the rule for
students with disabilities. This is quite the opposite of the individual
treatment that is called for by IDEA, as Johns (2003) has pointed out.
Under the influence of legal thinking, special education is likely
to be delayed even longer than it is now in any case in which there
is any uncertainty about the existence of a disability. That is, special
educators will become even more determined to avoid the false positive because of their fear of stigma, poor outcomes, and legal reprisals.
This means that any hope of early intervention and prevention must
be abandoned in favor of caution, under the assumption that identification 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 in
which it does not result in exit from special services, and it will be said
to be successful only to the extent that it closes the achievement gap
between students with disabilities and those having no disability. The
fact that this is nonsensical (see Kauffmaii & Hallahan, 2005; Kauffman & Konold, 2007) does not preclude its adoption as the standard
way of thinking about special education.
Reasons for Gravitating Toward Medical Thinking

The fact that jails have hospitals and psychiatric units is testament to the fact that even the legal system recognizes that something
other than law is required for some individuals' well being. Legal
thinking suggests a very ineffective approach to the immediate needs
of 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 proceed
when you're trying to help someone who has a medical
problem. I always find testifying to be a frustrating experience

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

The legal system is often dismissive of mental illness and other

nonphysical disabilities, providing very little or nothing in the way
of treatment. In fact, prisons and streets have become the most
common locations of people who are mentally ill, and the failure
of deinstitutionalization seems obvious (see Earley, 2006; Lamb &
Weinberger, 2001; Torrey & Zdandowicz, 1999). Considerable evidence
shows that false negatives are far more common than false positives
in the case of mental illness of children and youth and that treatment
is 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 the
context of assertions that students with such problems are overidentifiedassertions that fly in the face of overwhelming evidence to the
contrary. Moreover, serious issues in criminal justice are the execution
of prisoners with mental disabilities (Patton & Keyes, 2006) and the decision to try juveniles in adult courts and apply to juveniles the same
sentences that would be applied to adults. In short, the legal system
sometimes denies the mental health needs of children and youth with
disabilities in sentencing and even in execution, although the medical
system regularly points up the neglect of young people's needs and
the advisability of early treatment of mental health problems.
Hospitals have locked wards because restrictions are sometimes
required for effective treatment of illness. Even the legal system recognizes this in some cases. However, the legal system emphasizes leaving 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 alternative sometimes pre-empts the medical concern for effective treatment, such that in the case of mental illness an individual may not
be treated until he or she has committed an act of violence for which
imprisonment or execution is the consequence. Emphases in the law
on "privacy" and "least restrictive" alternatives thus sometimes deny
individuals or their families not only information but the most effective medical treatment possible (Earley, 2006; Suhay, 2007).
Role of Empirical Evidence in Judgment and Practice

The abandonment of empirical evidence as the bedrock for

instructional practices and judgment of social justice is one of the

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greatest tragedies that could befall special education (see Kauffman

& Sasso, 2006a, 2006b; Mostert, Kavale, & Kauffman, 2008). Any field
of study is vulnerable to abandonment of empirical evidence as its
foundation, but it appears that law is more readily corrupted by such
abandonment of science than is medicine. Unlike those who complain
about what they call the "medicalization" of mental health or special
education (e.g., Skrtic & Sailor, 1996), I think the medical outlook, not
the legal outlook, provides the most hopeful prospects for our field.
The practice of medicine isor should be, and for the most part is
guided by scientific evidence. Law, however, is dependent upon the
evidence provided by medicine and related disciplines, and therefore
legal decisions based on best scientific evidence are always made after, sometimes long after, the evidence is found. Moreover, the law
does not always demand nor does judicial decision always follow empirical evidence (Crockett & Kauffman, 2001; Washington Post, 2007a).
Even "common sense" or consideration of the individual or of circumstances in the discipline of school children is sometimes abandoned in
legislative zeal when a problem is encountered (see Associated Press,
2007; Gladwell, 2006; Skiba & Rausch, 2006 for commentary on the
foolish, nonempirical, and counterproductive legal approach known
as "zero tolerance").
Education, like medicine, would do well to be guided in practice by scientific evidence (Kauffman & Hallahan, 1974; Mostert et al.,
2008). Although the law known as NCLB calls for the use of scientific evidence in education, it also blithely ignores the impossibility
of 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 and
the treatment of mental illness, and the law has done us a service in
pointing to the needlessly restrictive environments that have sometimes been recommended or demanded. Nevertheless, effectiveness
has sometimes been sacrificed for the legal concept of less restriction, and the traditionally positivist view of law has been usurped by
relativist and nonempirical thinking that undercuts the best practice
of education and medicine (see Crockett & Kauffman, 2001; Earley,
2006).
Conclusion
Both medicine and law address issues of participation in society
and protection from threat, but in opposite ways. Both law and medicine have responsibilities to both individuals and to society. However, medicine's primary purpose is the protection of individuals from
threats 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 behavior

of individuals or of individuals from society. Medicine seeks to foster healthy, productive citizens. In contrast, law seeks to protect society from individuals who threaten security or to constrain a society's
treatment of an individual. Although both law and medicine are concerned about individuals and groups, the law tends toward emphasis
on the group or class of individuals, whereas medicine tends toward
emphasis on the individual.
We need special education law, but we do not need to let legalistic thinking dominate what we do. Fear of legal consequences should
not intimidate us into abhorring false positives so much that we are
less concerned about false negatives. The law may call for individualized education plans and other indicators of individual attention, but
the legal model is a comparatively inept way of approaching the problem of individual need for treatment. Law is better suited to setting
legal precedents that apply to classes of individuals and for shaping
behavior through coercion. The model of thinking provided by medicine, by contrast, focuses our attention on the individual, encourages
us to avoid false negatives, and advises us to seek treatments that scientific evidence shows are most effective.
Our society has become increasingly preoccupied with law. Special education must buck this trend and return to its roots of closer
alignment with medicine than with law if it wants to have a bright
future. If it does align itself primarily with medicine, it will become
more concerned about false negatives than about false positives. This
change of concern would allow special educators to catch more cases
of disability early and allow them actually to practice prevention, not
merely give it lip service (see Kauffman, 1999, 2005a). Special education would thus catch more incipient and mild cases of disability for
which more effective interventions are possible. The practice of special education would be more finely attuned to individuality. The field
would gravitate toward scientific evidence for its practice and gain
more confidence in its ability to respond effectively to educational disabilities. Special educators could more clearly distinguish how what
they do differs from general education (see Cook & Schirmer, 2006).
Special education's success would not be judged by comparing the
achievement of students with disabilities to that of students without
disabilities but by how students with disabilities perform when they
receive special education compared to how they probably would have
done without special education (Kauffman & Hallahan, 2005). The
performance to which I refer here is not only academic achievement
while in school but how students fare after their schooling, when they
live in our communities and seek employment.

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255

Medical practice has its shameful history, but the history of law
is no less shameful. Anyone who listens to and reads the news knows
that the law, in spite of the good intentions of lawyers and judges, frequently results in miscarriages of justice. And who would want neither law nor medicine involved in the treatment of disability or would
be so naive as to think that education can go it alone as a concept or as
a profession? Given the history of social organization and the nature
of legal and medical analysis of problems, I would rather be part of a
profession aligned more closely with medicine than with law for the
sake of students. As special educators, a medical model of thinking
would serve us better than a legal model.
Acknowledgements
The author is grateful to Jean B. Crockett, Kathleen L. Lane, Kelley A. Lassman, and Patricia L. Pullen for their helpful and insightful
comments on previous drafts of this paper and for their suggestions
about how the paper might be improved.
References
Associated Press. (2007, June 16). When does 'zero tolerance' negate
common sense? States mull dropping rules amid strict punishments. Charlottesville Daily Progress, A9.
Bateman, B. D. (2007). Law and the conceptual foundations of special
education 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 develop
legally correct and educationally useful programs (4"" ed.). Champaign, IL: Research Press.
Cook, B. G., & Schirmer, B. R. (Eds.). (2006). What is special about special
education? Examining the role of evidence-based practices. Austin,
TX: Pro-Ed.
Costello, E. J., Egger, H., & Angold, A. (2005). 1-year research update
review: The epidemiology of child and adolescent psychiatric
disorders: I. Methods and public health burden. Journal of the
American Academy of Child and Adolescent Psychiatry, 44, 972986.
Crockett, J. B., & Kauffman, J. M. (2001). The concept of the least restrictive environment and learning disabilities: Least restrictive of what? Reflections on Cruickshank's 1977 guest editorial for the Journal of Learning Disabilities. In D. P. Hallahan &

256

KAUFFMAN

B. K. Keogh (Eds.) Research and global perspectives in learning

disabilities: Essays in honor of William M. Cruickshank. (pp 147166). Mahwah, NJ: Lawrence Erlbaum Associates.
Earley, P. (2006). Crazy: A father's search through America's mental health
madness. New York: Penguin.
Forness, S. R., & Kavale, K. A. (2001). Ignoring the odds: Hazards of
not adding the new medical model to special education decisions. Behavioral Disorders, 26, 269-281.
Gladwell, M. (2006, September 4). Comment: No mercy. The New
Yorker, 37-38.
Hallahan, D. P., & Kauffman, J. M. (1978). Exceptional children: Introduction to special education. Englewood Cliffs, NJ: Prentice-Hall.
Huefner, D. S. (2006). Getting comfortable with special education law: A
framework 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 emotional
and behavioral disorders. Exceptional Children, 65, 448-468.
Kauffman, J. M. (2005a). How we prevent the prevention of emotional
and behavioural difficulties in education. In P. Clough, P. Garner, J. T. Pardeck, & F. K. O. Yuen (Eds.), Handbook of emotional
and behavioural difficulties (pp. 429-440). London: Sage.
Kauffman, J. M. (2005b). Waving to Ray Charles: Missing the meaning
of disability. Phi Delta Kappan, 86, 520-521, 524.
Kauffman, J. M., & Hallahan, D. P. (1974). The medical model and the
science of special education. Exceptional Children, 41, 97-102.
Kauffman, J. M. & Hallahan, D. P. (2005). Special education: What it is
and 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 policy
about schools and schooling. Exceptionality, 15, 75-96.
Kauffman, J. M., & Landrum, T. J. (2006). Children and youth with emotional and behavioral disorders: A history of their education. Austin, TX: Pro-Ed.
Kauffman, J. M., & Landrum, T. J. (2007). Educational service interventions and reforms. In J. W. Jacobson, J. A. Mulick, & J. Rojahn
(Eds.), Handbook of intellectual and developmental disabilities (pp.
173-188). New York: Springer.

FUTURE OF SPECIAL EDUCATION

257

Kauffman, J, M,, & Sasso, G. M. (2006a). Toward ending cultural and

cognitive relativism in special education. Exceptionality, 14,
65-90.
Kauffman, J, M., & Sasso, G. M, (2006b), Certainty, doubt, and the
reduction of uncertainty: A rejoinder. Exceptionality, 14, 109120.
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). Challenging the refusal of reasoning in special education. Denver, CO:
Love.
Patton, J, R., & Keyes, D. W, (2006), Death penalty issues following
Atkins. Exceptionality, 14, 237-255.
Rothstein, R., Jacobsen, R,, & Wilder, T. (2006, November). "Proficiency for all"An oxymoron. Paper presented at a symposium
on "Examining America's commitment to closing achievement gaps: NCLB and its alternatives." New York: Teachers
College, Columbia University,
Ruscio, J. (2002), Clear thinking with psychology: Separating sense from
nonsense. Pacific Grove, CA: Wadsworth.
Skiba, R. J., & Rausch, M, K. (2006). Zero tolerance, suspension, and
expulsion: Questions of equity and effectiveness. In C. M. Evertson & C. Weinstein (Eds.), Handbook of classroom management: 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 society. 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), Deinstitutionalization hasn't worked: "We have lost effectively 93 percent of our
state psychiatric hospital beds since 1955," Washington Post.
Retrieved February 25,2007 from www.psychlaws,org/generalresources/articlel7.htm.
Wang, P. S,, Berglund, P, Olfson, M., Pincus, FI. A., Wells, K, B., &
Kessler, R. C, (2005). Failure and delay in initial treatment
contact after first onset of mental disorders in the national
comorbidity survey replication. Archives of General Psychiatry,
62, 603-613.

258

KAUFFMAN

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 Supreme
Court's doctrine of tough luck. Washington, DC: Author, B6.
Yell, M. L. (2006). The law and special education (2nd ed.). Upper Saddle
River, NJ: Prentice-Hall.