Educational inequality and the paradox of dis/Ability rights in a schooled society: moving towards an intersectional discursive, material, and emotive approach*

Abstract

ABSTRACT In this re-review, we discuss a global-wide paradox of disability rights that claims adherence to human and civil rights frameworks while cultural, linguistic, racial, and ethnic disparities in special education outcomes remain unaddressed. We propose a multi-dimensional framework for understanding how the described inequalities persist, despite legal protections. First, we challenge the assumption that human and civil rights frameworks are sufficient for ensuring the rights of students with disabilities are protected. We assert that a paradox of rights in a “schooled society” allows for the inequality to persist under the guise of legal protections. Second, we argue that current legal frameworks do not adequately recognise constructs of ableism and the intersectionality of culture, affect, language, race and ethnicity within special education law – which results in inequities in special education identification, placement, services, discipline and post-school outcomes across contexts. Lastly, we argue that a misguided focus on technical compliance and procedural monitoring of dis/Ability rights is dismissive of the lived experiences, emotions, feelings and affects of students. We situate our critique within the United States. We end with suggestions for the reconceptualisation of legal rights which (a) reject pathologised ideas of difference rooted in medical models of difference and ability by leaning into a capabilities approach, (b) recognise ableism and the intersectionality of culture, affect, language, race and ethnicity within dis/Ability law at the macro (legal), meso (organisational) and micro (student and teacher) levels and (c) utilise a critical discourse analysis to provide an intersectional, discursive, emotive and material lens.