CONTENTS INTRODUCTION I. CAUSE LAWYERS AND SOCIAL MOVEMENTS' DISCONTENTS II. INTERVIEWS AND INTERVIEWEES A. Origin Stories B. Economics of Practice C. Selection of Cases and Other Projects D. Comparison to Disability Cause Lawyers III. CONNECTIONS TO SOCIAL MOVEMENTS AND SOCIAL MOVEMENT ORGANIZATIONS A. Educational Disability Rights as a Social Movement B. Involvement with Social Movement Organizations C. The Role of Professional Organizations D. Comparison to Disability Cause Lawyers IV. STRATEGIES AND TACTICS A. Class Actions and Test Cases B. Amicus Briefs C. Nonlitigation Activities D. Media and Public Relations E. Comparison to Disability Cause Lawyers CONCLUSION: SPECIAL EDUCATION CAUSE LAWYERS AND (OTHER) DISABILITY CAUSE LAWYERS
INTRODUCTION
In Disability Cause Lawyers, Michael Waterstone, Michael Ashley Stein, and David Wilkins reported on thirteen in-depth interviews with leading disability rights lawyers, seeking to determine whether the work of these individuals resembled that of lawyers in other fields who had been studied by scholars of cause lawyering. (1) Dean Waterstone and his coauthors described what the disability lawyers did in their professional lives and how they did it. They noted that in many respects the disability cause lawyers acted the same way as other cause lawyers, a category they had previously defined as attorneys "who spend a significant amount of professional time designing and bringing cases" that promote social change, and who have strong connections with social movements and social movement organizations. (2) But they also pointed out ways in which the disability lawyers' work departed from that of cause lawyers in other fields, including the disability attorneys' avoidance of some practices that the literature on cause lawyering has criticized. (3)
The goal of this study is to determine whether cause lawyers who specialize in special education work conform to the picture of the disability cause lawyers presented by Waterstone and his coauthors and to learn whether the special education lawyers, like the attorneys surveyed in Disability Cause Lawyers, manage to avoid the potential problems of cause lawyering. It is the first study of its kind regarding lawyers who view educational rights for children with disabilities as a social cause and who see themselves as contributing to the movement for educational rights for individuals who are disabled.
The emergence of disability cause lawyers was a signal event. Early work by Professors Stein, Waterstone, and Wilkins suggested that a reason Supreme Court litigation on disability rights issues was often unsuccessful for claimants was that the lawyers who litigated the cases were not specialists in the field and had limited experience with civil rights work in general. (4) Advocates in other areas of civil rights typically were cause lawyers, who sought to promote social change and had strong connections with social movements and social movement organizations. (5)
Like disability cause lawyering, cause lawyering for education of children with disabilities is not new. Even before the passage of the Education for All Handicapped Children Act of 1975, (6) lawyers brought systemic litigation to advance the educational rights of children with intellectual disabilities and other disabling conditions. Lacking an enforceable disability education statute to rely upon, they brought claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, achieving major successes in the courts. (7) These lawyers practiced in a variety of settings, including legal aid organizations, law school clinics, and private firms. Specialists in civil rights work with connections to organizations of parents of disabled children brought fundamental right-to-education cases such as Pennsylvania Association for Retarded Children v. Pennsylvania (PARC) (8) and Mills v. Board of Education (Mills). (9) In the period following passage of the 1975 Act (retitled in 1990 as the Individuals with Disabilities Education Act, or "IDEA"), (10) cases that achieved major victories for the education of disabled persons were brought by sophisticated advocates with strong ties to the disability rights movement and movement organizations. (11) But general practitioners who lacked outside support litigated many cases as well, including some cases with far-reaching implications. (12)
This Essay presents findings from eight in-depth interviews of leading special education cause lawyers. It concludes that lawyers deeply engaged in the cause of promoting educational rights of children with disabilities, like other disability cause lawyers, confront economic challenges, ever-skeptical judges, and a social movement organized, to the extent that it is organized, largely on the basis of disability categories. But like the other disability cause lawyers, they also avoid practices that some students of cause lawyering have criticized, such as being excessively oriented towards paper victories in court, and engaging too much with legal elites and not enough with the constituents of the social movement they seek to advance. (13) This paints a picture of socially engaged special education law practice that is not without its struggles, but is also not guilty of substituting lawyerly achievement for contributions to the educational well-being of clients and the social movement for educational rights for children with disabilities. One side effect of this new appraisal of the world of special education advocacy may be to elevate the visibility of special education practice and perhaps even draw some law students into careers in the field, an infusion of talent and energy that would be welcome.
This Essay proceeds in four parts. The first takes up the topic of cause lawyers and the scholarly context of the Essay, noting the critiques of cause lawyering, the response to the critiques regarding disability cause lawyers, and the emerging concept of movement lawyering. Part II describes the methods of the study and presents its findings concerning the lawyers' backgrounds, the economics of their practice, and their process for selecting cases and other projects. Part III goes into the social movement for educational rights of children with disabilities, describing the movement itself and the lawyers' involvement with social movement organizations and other groups. Part IV discusses the approaches of the lawyers to their actual practice: how they make decisions about filing class actions and test cases, writing amicus briefs, participating in legislative and other policy work, and making use of media resources. In each part, the Essay draws comparisons to the work of the other disability cause lawyers. The Conclusion very briefly summarizes the research and how the results compare to those of the Disability Cause Lawyers study.
I. CAUSE LAWYERS AND SOCIAL MOVEMENTS' DISCONTENTS
Scholars have typically coupled descriptions of cause lawyering with criticisms or defenses, or sometimes both. Most recently, a few writers have taken off from the critiques and responses of cause lawyering to develop an innovative idea dubbed "movement lawyering." The movement lawyering concept is new enough that evaluating special education cause lawyering in its framework may be premature. Nevertheless, some observations about cause lawyering's criticisms and defenses are in order, as is a word about the new direction toward movement lawyering.
A number of sources summarize the legal literature's critiques of cause lawyering, particularly when it is focused on litigation. Professors Cummings and Rhode noted a dozen years ago that there are two basic criticisms of public interest litigation: that "litigation cannot itself reform social institutions," and that "over-reliance on courts diverts effort from potentially more productive political strategies and disempowers the groups that lawyers are seeking to assist." (14) As they summarize the critique, "The result is too much law and too little justice." (15) Much of the criticism stretches back to even before the fundamental writings of Austin Sarat and Stuart Scheingold, (16) who collected and analyzed research about cause lawyers, and took up the complaint that lawyers dominate social movements. (17) They collected sources raising provocative challenges to the received view that legal work was both integral to, and highly successful in, the campaign for African American civil rights. (18) Their writing put forward responses to the critiques, presenting a balanced but generally favorable view of cause lawyers' work. (19)
The Disability Cause Lawyers article summarized the cause lawyer critique and applied it to the lawyers they studied. They identified the critical threads as lawyers (1) being excessively court centered, (2) diverting movement resources, and (3) inducing movements to become too dependent on elites. (20) They concluded that the lawyers they studied were generally successful at avoiding these problems. (21) As the report of the interviews of special education lawyers in this Essay will demonstrate, those studied here appear to have been similarly successful and have adopted many of the same tactics and methods that disability cause lawyers have to avoid the perceived problems of cause lawyering.
Some recent work has pivoted from more traditional studies of cause lawyering to what has been termed "movement lawyering." (22) The idea of this model is to use advocacy to build the power of social constituencies with strategies that integrate legal and political efforts. (23) Hence, the focus is less on things such as judicial or even legislative victories, and more on changing power relations in society. Movement lawyers enmesh themselves in a community but may eschew representing specific client organizations; they are content to stay in the background, trying to demystify the law and promote collective activity...
