Addressing the Gap between Case Law and Professional Practice: A Response to Zirkel

Abstract

Over the past several years, Zirkel has expressed serious concern over the quantity and quality of articles published within the field of special education reviewing case law, often claiming that many of these scholarly works lack sufficient academic rigor (Zirkel, 2011a; 2011b; 2012; 2014). He contends this is symptomatic in the special education given the limited legal background that both scholars and reviewers within our field possess and that a proper analysis through a careful and impartial legal lenses reveals that the literature of special education falls short in various notable ways (Zirkel, 2014). Zirkel's most recent article, published in this issue of Behavioral Disorders, is critical of an article that reviewed recent case law addressing several areas we believe to be significant in confronting the field of educating students with emotional or behavioral disorders (E/BD; Smith, Katsiyannis, & Ryan, 2011). Although we agree with many of Zirkel's recommendations for improving the overall quality of legal articles in the field of special education, we take issue with his analysis and at times misrepresentation of the article to make his point.Again, we commend Zirkel for his recommendations for increasing the quality of scholarship by (a) having special education journals increase the number of reviewers with specialized legal expertise, (b) encouraging joint efforts between special education organizations (e.g., Council for Exceptional Children) and the Education Law Association, and (c) ensuring authors provide clear disclosures of any partisan perspective they may have on a specific issue. However, although we are in agreement with his recommendations, we find ourselves in disagreement over his findings and the method in which he builds his argument. To begin with, it is critical to identify properly the scope and purpose of the original article in question. Zirkel (2014) claims the article does not adequately serve as either an in-depth legal or literature review. We wholeheartedly agree, especially given it was never intended to do so. As clearly stated in the abstract, the article reviews recent case law for several critical areas of concern to the field today, including: (a) response to intervention (RTI) and child find procedures, (b) required mental health services, and (c) the controversial use of restraint to manage aggressive behaviors (p. 185). Our intent was not to provide a comprehensive review of case law in each of these topics in a manner appropriate for a law review intended for legal experts, especially given the fact that legal experts are not the audience of Behavioral Disorders. Instead, we aimed to inform the readership, which primarily entails special education researchers and practitioners of recent legal developments, and point to emerging trends and variability of issues involved.Perhaps the nexus of our substantive disagreements with Zirkel arises from his view of the field from a purely legal perspective, specifically his contention that only seminal cases from the highest courts matter, given that these carry the greatest significance. Although it is obvious, as a matter of law, the relative influence of appellate courts versus lower courts (indeed, administrative due process hearings) with regard to precedence, we believe that practitioners will be well served to have exposure to emerging issues (often decisions by hearing officers and lower courts). We also disagree with his notion that our field will benefit from legally pure articles that offer nothing beyond straight reporting of legal findings (as he often does in his articles) and leave the heavy work of drawing implications to the reader. Instead, we believe that providing the appropriate context and linkages that inform and indeed advance educational practice is most useful to researchers and practitioners in education.We are, however, confounded by his claim that our identification of critical con- cerns to the field of educating students with E/ BD was questionable. …