Professional_and_Ethical_Compliance_Code_for_Behavior

Professional and Ethical Compliance Code for Behavior Analysts

BEHAVIOR ANALYST CERTIFICATION BOARD® =

The Behavior Analyst Certification Board’s (BACB’s) Professional and Ethical Compliance Code for Behavior Analysts (the “Code”) consolidates, updates, and replaces the BACB’s Professional Disciplinary and Ethical Standards and Guidelines for Responsible Conduct for Behavior Analysts. The Code includes 10 sections relevant to professional and ethical behavior of behavior analysts, along with a glossary of terms. Effective January 1, 2016, all BACB applicants and certificants will be required to adhere to the Code.

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In the original version of the Guidelines for Professional Conduct for Behavior Analysts, the authors acknowledged ethics codes from the following organizations: American Anthropological Association, American Educational Research Association, American Psychological Association, American Sociological Association, California Association for Behavior Analysis, Florida Association for Behavior Analysis, National Association of Social Workers, National Association of School Psychologists, and Texas Association for Behavior Analysis. We acknowledge and thank these professional organizations that have provided substantial guidance and clear models from which the Code has evolved.

Approved by the BACB’s Board of Directors on August 7, 2014.

This document should be referenced as: Behavior Analyst Certification Board. (2014). Professional and ethical compliance code for behavior analysts. Littleton, CO: Author.

Contents

1.0 1.01 1.02 1.03 1.04 1.05 1.06 1.07

2.0 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15

3.0 3.01 3.02 3.03 3.04 3.05

4.0 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11

Responsible Conduct of Behavior Analysts Reliance on Scientific Knowledge Boundaries of Competence Maintaining Competence through Professional Development Integrity Professional and Scientific Relationships Multiple Relationships and Conflicts of Interest Exploitative Relationships

Behavior Analysts’ Responsibility to Clients Accepting Clients Responsibility Consultation Third-Party Involvement in Services Rights and Prerogatives of Clients Maintaining Confidentiality Maintaining Records Disclosures Treatment/Intervention Efficacy Documenting Professional Work and Research Records and Data Contracts, Fees, and Financial Arrangements Accuracy in Billing Reports Referrals and Fees Interrupting or Discontinuing Services

Assessing Behavior Behavior-Analytic Assessment Medical Consultation Behavior-Analytic Assessment Consent Explaining Assessment Results Consent-Client Records

Behavior Analysts and the Behavior-Change Program Conceptual Consistency Involving Clients in Planning and Consent Individualized Behavior-Change Programs Approving Behavior-Change Programs Describing Behavior-Change Program Objectives Describing Conditions for Behavior-Change Program Success Environmental Conditions that Interfere with Implementation Considerations Regarding Punishment Procedures Least Restrictive Procedures Avoiding Harmful Reinforcers Discontinuing Behavior-Change Programs and Behavior-Analytic Services

Contents, continued

5.0 5.01 5.02 5.03 5.04 5.05 5.06 5.07

6.0 6.01 6.02

7.0 7.01 7.02

8.0 8.01 8.02 8.03 8.04 8.05 8.06

9.0 9.01 9.02 9.03 9.04 9.05 9.06 9.07 9.08 9.09

Behavior Analysts as Supervisors Supervisory Competence Supervisory Volume Supervisory Delegation Designing Effective Supervision and Training Communication of Supervision Conditions Providing Feedback to Supervisees Evaluating the Effects of Supervision

Behavior Analysts’ Ethical Responsibility to the Profession of Behavior Analysts Affirming Principles Disseminating Behavior Analysis

Behavior Analysts’ Ethical Responsibility to Colleagues Promoting an Ethical Culture Ethical Violations by Others and Risk of Harm

Public Statements Avoiding False or Deceptive Statements Intellectual Property Statements by Others Media Presentations and Media-Based Services Testimonials and Advertising In-Person Solicitation

Behavior Analysts and Research Conforming with Laws and Regulations Characteristics of Responsible Research Informed Consent Using Confidential Information for Didactic or Instructive Purposes Debriefing Grant and Journal Reviews Plagiarism Acknowledging Contributions Accuracy and Use of Data

10.0 Behavior Analysts’ Ethical Responsibility to the BACB 10.01 Truthful and Accurate Information Provided to the BACB 10.02 Timely Responding, Reporting, and Updating of Information Provided to the BACB 10.03 Confidentiality and BACB Intellectual Property 10.04 Examination Honesty and Irregularities 10.05 Compliance with BACB Supervision and Coursework Standards 10.06 Being Familiar with This Code 10.07 Discouraging Misrepresentation by Non-Certified Individuals

1.0 Responsible Conduct of Behavior Analysts.

Behavior analysts maintain the high standards of behavior of the profession.

1.01 Reliance on Scientific Knowledge. Behavior analysts rely on professionally derived knowledge based on science and behavior analysis when making scientific or professional judgments in human service provision, or when engaging in scholarly or professional endeavors.

1.02 Boundaries of Competence.

(a) All behavior analysts provide services, teach, and conduct research only within the boundaries of their competence, defined as being commensurate with their education, training, and supervised experience.

(b) Behavior analysts provide services, teach, or conduct research in new areas (e.g., populations, techniques, behaviors) only after first undertaking appropriate study, training, supervision, and/or consultation from persons who are competent in those areas.

1.03 Maintaining Competence through Professional Development.

Behavior analysts maintain knowledge of current scientific and professional information in their areas of practice and undertake ongoing efforts to maintain competence in the skills they use by reading the appropriate literature, attending conferences and conventions, participating in workshops, obtaining additional coursework, and/or obtaining and maintaining appropriate professional credentials.

1.04 Integrity.

(a) Behavior analysts are truthful and honest and arrange the environment to promote truthful and honest behavior in others.

(b) Behavior analysts do not implement contingencies that would cause others to engage in fraudulent, illegal, or unethical conduct.

(c) Behavior analysts follow through on obligations, and contractual and professional commitments with high quality work and refrain from making professional commitments they cannot keep.

(d) Behavior analysts’ behavior conforms to the legal and ethical codes of the social and professional community of which they are members. (See also, 10.02a Timely Responding, Reporting, and Updating of Information Provided to the BACB)

(e) If behavior analysts’ ethical responsibilities conflict with law or any policy of an organization with which they are affiliated, behavior analysts make known their commitment to this Code and take steps to resolve the conflict in a responsible manner in accordance with law.

Professional and Ethical Compliance Code for Behavior Analysts

1.05 Professional and Scientific Relationships. (a) Behavior analysts provide behavior-analytic services only in the context of a defined, professional,

or scientific relationship or role. (b) When behavior analysts provide behavior-analytic services, they use language that is fully

understandable to the recipient of those services while remaining conceptually systematic with the profession of behavior analysis. They provide appropriate information prior to service delivery about the nature of such services and appropriate information later about results and conclusions.

(c) Where differences of age, gender, race, culture, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status significantly affect behavior analysts’ work concerning particular individuals or groups, behavior analysts obtain the training, experience, consultation, and/or supervision necessary to ensure the competence of their services, or they make appropriate referrals.

(d) In their work-related activities, behavior analysts do not engage in discrimination against individuals or groups based on age, gender, race, culture, ethnicity, national origin, religion, sexual orientation, disability, language, socioeconomic status, or any basis proscribed by law.

(e) Behavior analysts do not knowingly engage in behavior that is harassing or demeaning to persons with whom they interact in their work based on factors such as those persons’ age, gender, race, culture, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status, in accordance with law.

(f) Behavior analysts recognize that their personal problems and conflicts may interfere with their effectiveness. Behavior analysts refrain from providing services when their personal circumstances may compromise delivering services to the best of their abilities.

1.06 Multiple Relationships and Conflicts of Interest.

(a) Due to the potentially harmful effects of multiple relationships, behavior analysts avoid multiple relationships.

(b) Behavior analysts must always be sensitive to the potentially harmful effects of multiple relationships. If behavior analysts find that, due to unforeseen factors, a multiple relationship has arisen, they seek to resolve it.

(c) Behavior analysts recognize and inform clients and supervisees about the potential harmful effects of multiple relationships.

(d) Behavior analysts do not accept any gifts from or give any gifts to clients because this constitutes a multiple relationship.

1.07 Exploitative Relationships.

(a) Behavior analysts do not exploit persons over whom they have supervisory, evaluative, or other authority such as students, supervisees, employees, research participants, and clients.

(b) Behavior analysts do not engage in sexual relationships with clients, students, or supervisees, because such relationships easily impair judgment or become exploitative.

(c) Behavior analysts refrain from any sexual relationships with clients, students, or supervisees, for at least two years after the date the professional relationship has formally ended.

(d) Behavior analysts do not barter for services, unless a written agreement is in place for the barter that is (1) requested by the client or supervisee; (2) customary to the area where services are provided; and (3) fair and commensurate with the value of behavior-analytic services provided.

2.0 Behavior Analysts’ Responsibility to Clients.

Behavior analysts have a responsibility to operate in the best interest of clients. The term client as used here is broadly applicable to whomever behavior analysts provide services, whether an individual person (service recipient), a parent or guardian of a service recipient, an organizational representative, a public or private organization, a firm, or a corporation.

2.01 Accepting Clients.

Behavior analysts accept as clients only those individuals or entities whose requested services are commensurate with the behavior analysts’ education, training, experience, available resources, and organizational policies. In lieu of these conditions, behavior analysts must function under the supervision of or in consultation with a behavior analyst whose credentials permit performing such services.

2.02 Responsibility.

Behavior analysts’ responsibility is to all parties affected by behavior-analytic services. When multiple parties are involved and could be defined as a client, a hierarchy of parties must be established and communicated from the outset of the defined relationship. Behavior analysts identify and communicate who the primary ultimate beneficiary of services is in any given situation and advocate for his or her best interests.

2.03 Consultation.

(a) Behavior analysts arrange for appropriate consultations and referrals based principally on the best interests of their clients, with appropriate consent, and subject to other relevant considerations, including applicable law and contractual obligations.

(b) When indicated and professionally appropriate, behavior analysts cooperate with other professionals, in a manner that is consistent with the philosophical assumptions and principles of behavior analysis, in order to effectively and appropriately serve their clients.

2.04 Third-Party Involvement in Services.

(a) When behavior analysts agree to provide services to a person or entity at the request of a third party, behavior analysts clarify, to the extent feasible and at the outset of the service, the nature of the relationship with each party and any potential conflicts. This clarification includes the role of the behavior analyst (such as therapist, organizational consultant, or expert witness), the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.

(b) If there is a foreseeable risk of behavior analysts being called upon to perform conflicting roles because of the involvement of a third party, behavior analysts clarify the nature and direction of their responsibilities, keep all parties appropriately informed as matters develop, and resolve the situation in accordance with this Code.

(c) When providing services to a minor or individual who is a member of a protected population at the request of a third party, behavior analysts ensure that the parent or client-surrogate of the ultimate recipient of services is informed of the nature and scope of services to be provided, as well as their right to all service records and data.

(d) Behavior analysts put the client’s care above all others and, should the third party make requirements for services that are contraindicated by the behavior analyst’s recommendations, behavior analysts are obligated to resolve such conflicts in the best interest of the client. If said conflict cannot be resolved, that behavior analyst’s services to the client may be discontinued following appropriate transition.

2.05 Rights and Prerogatives of Clients.

(a) The rights of the client are paramount and behavior analysts support clients’ legal rights and prerogatives.

(b) Clients and supervisees must be provided, on request, an accurate and current set of the behavior analyst’s credentials.

(c) Permission for electronic recording of interviews and service delivery sessions is secured from clients and relevant staff in all relevant settings. Consent for different uses must be obtained specifically and separately.

(d) Clients and supervisees must be informed of their rights and about procedures to lodge complaints about professional practices of behavior analysts with the employer, appropriate authorities, and the BACB.

(e) Behavior analysts comply with any requirements for criminal background checks.

2.06 Maintaining Confidentiality.

(a) Behavior analysts have a primary obligation and take reasonable precautions to protect the confidentiality of those with whom they work or consult, recognizing that confidentiality may be established by law, organizational rules, or professional or scientific relationships.

(b) Behavior analysts discuss confidentiality at the outset of the relationship and thereafter as new circumstances may warrant.

(c) In order to minimize intrusions on privacy, behavior analysts include only information germane to the purpose for which the communication is made in written, oral, and electronic reports, consultations, and other avenues.

(d) Behavior analysts discuss confidential information obtained in clinical or consulting relationships, or evaluative data concerning clients, students, research participants, supervisees, and employees, only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters.

(e) Behavior analysts must not share or create situations likely to result in the sharing of any identifying information (written, photographic, or video) about current clients and supervisees within social media contexts.

2.07 Maintaining Records.

(a) Behavior analysts maintain appropriate confidentiality in creating, storing, accessing, transferring, and disposing of records under their control, whether these are written, automated, electronic, or in any other medium.

(b) Behavior analysts maintain and dispose of records in accordance with applicable laws, regulations, corporate policies, and organizational policies, and in a manner that permits compliance with the requirements of this Code.

2.08 Disclosures.

Behavior analysts never disclose confidential information without the consent of the client, except as mandated by law, or where permitted by law for a valid purpose, such as (1) to provide needed professional services to the client, (2) to obtain appropriate professional consultations, (3) to protect the client or others from harm, or (4) to obtain payment for services, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. Behavior analysts recognize that parameters of consent for disclosure should be acquired at the outset of any defined relationship and is an ongoing procedure throughout the duration of the professional relationship.

2.09 Treatment/Intervention Efficacy.

(a) Clients have a right to effective treatment (i.e., based on the research literature and adapted to the individual client). Behavior analysts always have the obligation to advocate for and educate the client about scientifically supported, most-effective treatment procedures. Effective treatment procedures have been validated as having both long-term and short-term benefits to clients and society.

(b) Behavior analysts have the responsibility to advocate for the appropriate amount and level of

service provision and oversight required to meet the defined behavior-change program goals. (c) In those instances where more than one scientifically supported treatment has been established,

additional factors may be considered in selecting interventions, including, but not limited to, efficiency and cost-effectiveness, risks and side-effects of the interventions, client preference, and practitioner experience and training.

(d) Behavior analysts review and appraise the effects of any treatments about which they are aware that might impact the goals of the behavior-change program, and their possible impact on the behavior- change program, to the extent possible.

2.10 Documenting Professional Work and Research.

(a) Behavior analysts appropriately document their professional work in order to facilitate provision of services later by them or by other professionals, to ensure accountability, and to meet other requirements of organizations or the law.

(b) Behavior analysts have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with best practices and the law.

2.11 Records and Data.

(a) Behavior analysts create, maintain, disseminate, store, retain, and dispose of records and data relating to their research, practice, and other work in accordance with applicable laws, regulations, and policies; in a manner that permits compliance with the requirements of this Code; and in a manner that allows for appropriate transition of service oversight at any moment in time.

(b) Behavior analysts must retain records and data for at least seven (7) years and as otherwise required by law.

2.12 Contracts, Fees, and Financial Arrangements.

(a) Prior to the implementation of services, behavior analysts ensure that there is in place a signed contract outlining the responsibilities of all parties, the scope of behavior-analytic services to be provided, and behavior analysts’ obligations under this Code.

(b) As early as is feasible in a professional or scientific relationship, behavior analysts reach an agreement with their clients specifying compensation and billing arrangements.

(c) Behavior analysts’ fee practices are consistent with law and behavior analysts do not misrepresent their fees. If limitations to services can be anticipated because of limitations in funding, this is discussed with the client as early as is feasible.

(d) When funding circumstances change, the financial responsibilities and limits must be revisited with the client.

2.13 Accuracy in Billing Reports.

Behavior analysts accurately state the nature of the services provided, the fees or charges, the identity of the provider, relevant outcomes, and other required descriptive data.

2.14 Referrals and Fees.

Behavior analysts must not receive or provide money, gifts, or other enticements for any professional referrals. Referrals should include multiple options and be made based on objective determination of the client need and subsequent alignment with the repertoire of the referee. When providing or receiving a referral, the extent of any relationship between the two parties is disclosed to the client.

2.15 Interrupting or Discontinuing Services.

(a) Behavior analysts act in the best interests of the client and supervisee to avoid interruption or disruption of service.

(b) Behavior analysts make reasonable and timely efforts for facilitating the continuation of behavior- analytic services in the event of unplanned interruptions (e.g., due to illness, impairment, unavailability, relocation, disruption of funding, disaster).

(c) When entering into employment or contractual relationships, behavior analysts provide for orderly and appropriate resolution of responsibility for services in the event that the employment or contractual relationship ends, with paramount consideration given to the welfare of the ultimate beneficiary of services.

(d) Discontinuation only occurs after efforts to transition have been made. Behavior analysts discontinue a professional relationship in a timely manner when the client: (1) no longer needs the service, (2) is not benefiting from the service, (3) is being harmed by continued service, or (4) when the client requests discontinuation. (See also, 4.11 Discontinuing Behavior-Change Programs and Behavior-Analytic Services)

(e) Behavior analysts do not abandon clients and supervisees. Prior to discontinuation, for whatever reason, behavior analysts: discuss service needs, provide appropriate pre-termination services, suggest alternative service providers as appropriate, and, upon consent, take other reasonable steps

to facilitate timely transfer of responsibility to another provider.

3.0 Assessing Behavior.

Behavior analysts using behavior-analytic assessment techniques do so for purposes that are appropriate given current research.

3.01 Behavior-Analytic Assessment.

(a) Behavior analysts conduct current assessments prior to making recommendations or developing behavior-change programs. The type of assessment used is determined by client’s needs and consent, environmental parameters, and other contextual variables. When behavior analysts are developing a behavior-reduction program, they must first conduct a functional assessment.

(b) Behavior analysts have an obligation to collect and graphically display data, using behavior-analytic conventions, in a manner that allows for decisions and recommendations for behavior-change program development.

3.02 Medical Consultation.

Behavior analysts recommend seeking a medical consultation if there is any reasonable possibility that a referred behavior is influenced by medical or biological variables.

3.03 Behavior-Analytic Assessment Consent.

(a) Prior to conducting an assessment, behavior analysts must explain to the client the procedure(s) to be used, who will participate, and how the resulting information will be used.

(b) Behavior analysts must obtain the client’s written approval of the assessment procedures before implementing them.

3.04 Explaining Assessment Results.

Behavior analysts explain assessment results using language and graphic displays of data that are reasonably understandable to the client.

3.05 Consent-Client Records.

Behavior analysts obtain the written consent of the client before obtaining or disclosing client records from or to other sources, for assessment purposes.

4.0 Behavior Analysts and the Behavior-Change Program. Behavior analysts are responsible for all aspects of the behavior-change program from conceptualization to implementation and ultimately to discontinuation.

4.01 Conceptual Consistency.

Behavior analysts design behavior-change programs that are conceptually consistent with behavior- analytic principles.

4.02 Involving Clients in Planning and Consent.

Behavior analysts involve the client in the planning of and consent for behavior-change programs.

4.03 Individualized Behavior-Change Programs.

(a) Behavior analysts must tailor behavior-change programs to the unique behaviors, environmental variables, assessment results, and goals of each client.

(b) Behavior analysts do not plagiarize other professionals’ behavior-change programs.

4.04 Approving Behavior-Change Programs.

Behavior analysts must obtain the client’s written approval of the behavior-change program before implementation or making significant modifications (e.g., change in goals, use of new procedures).

4.05 Describing Behavior-Change Program Objectives.

Behavior analysts describe, in writing, the objectives of the behavior-change program to the client before attempting to implement the program. To the extent possible, a risk-benefit analysis should be conducted on the procedures to be implemented to reach the objective. The description of program objectives and the means by which they will be accomplished is an ongoing process throughout the duration of the client-practitioner relationship.

4.06 Describing Conditions for Behavior-Change Program Success.

Behavior analysts describe to the client the environmental conditions that are necessary for the behavior-change program to be effective.

4.07 Environmental Conditions that Interfere with Implementation.

(a) If environmental conditions prevent implementation of a behavior-change program, behavior analysts recommend that other professional assistance (e.g., assessment, consultation or therapeutic intervention by other professionals) be sought.

(b) If environmental conditions hinder implementation of the behavior-change program, behavior analysts seek to eliminate the environmental constraints, or identify in writing the obstacles to doing so.

4.08 Considerations Regarding Punishment Procedures.

(a) Behavior analysts recommend reinforcement rather than punishment whenever possible. (b) If punishment procedures are necessary, behavior analysts always include reinforcement procedures

for alternative behavior in the behavior-change program. (c) Before implementing punishment-based procedures, behavior analysts ensure that appropriate

steps have been taken to implement reinforcement-based procedures unless the severity or dangerousness of the behavior necessitates immediate use of aversive procedures.

(d) Behavior analysts ensure that aversive procedures are accompanied by an increased level of training, supervision, and oversight. Behavior analysts must evaluate the effectiveness of aversive procedures in a timely manner and modify the behavior-change program if it is ineffective. Behavior analysts always include a plan to discontinue the use of aversive procedures when no longer needed.

4.09 Least Restrictive Procedures.

Behavior analysts review and appraise the restrictiveness of procedures and always recommend the least restrictive procedures likely to be effective.

4.10 Avoiding Harmful Reinforcers. Behavior analysts minimize the use of items as potential reinforcers that may be harmful to the health

and development of the client, or that may require excessive motivating operations to be effective.

4.11 Discontinuing Behavior-Change Programs and Behavior-Analytic Services.

(a) Behavior analysts establish understandable and objective (i.e., measurable) criteria for the discontinuation of the behavior change program and describe them to the client. (See also, 2.15d Interrupting or Discontinuing Services)

(b) Behavior analysts discontinue services with the client when the established criteria for discontinuation are attained, as in when a series of agreed-upon goals have been met. (See also, 2.15d Interrupting or Discontinuing Services)

5.0 Behavior Analysts as Supervisors.

When behavior analysts are functioning as supervisors, they must take full responsibility for all facets of this undertaking. (See also, 1.06 Multiple Relationships and Conflict of Interest, 1.07 Exploitative Relationships, 2.05 Rights and Prerogatives of Clients, 2.06 Maintaining Confidentiality, 2.15 Interrupting or Discontinuing Services, 8.04 Media Presentations and Media-Based Services, 9.02 Characteristics of Responsible Research, 10.05 Compliance with BACB Supervision and Coursework Standards)

5.01 Supervisory Competence.

Behavior analysts supervise only within their areas of defined competence.

5.02 Supervisory Volume.

Behavior analysts take on only a volume of supervisory activity that is commensurate with their ability to be effective.

5.03 Supervisory Delegation.

a) Behavior analysts delegate to their supervisees only those responsibilities that such persons can reasonably be expected to perform competently, ethically, and safely.

b) If the supervisee does not have the skills necessary to perform competently, ethically, and safely, behavior analysts provide conditions for the acquisition of those skills.

5.04 Designing Effective Supervision and Training.

Behavior analysts ensure that supervision and trainings are behavior-analytic in content, effectively and ethically designed, and meet the requirements for licensure, certification, or other defined goals.

5.05 Communication of Supervision Conditions.

Behavior analysts provide a clear written description of the purpose, requirements, evaluation criteria, conditions, and terms of supervision prior to the onset of the supervision.

5.06 Providing Feedback to Supervisees. a) Behavior analysts design feedback and reinforcement systems in a way that improves supervisee

performance. b) Behavior analysts provide documented, timely feedback regarding the performance of a supervisee

on an ongoing basis. (See also, 10.05 Compliance with BACB Supervision and Coursework Standards)

5.07 Evaluating the Effects of Supervision.

Behavior analysts design systems for obtaining ongoing evaluation of their own supervision activities.

6.0 Behavior Analysts’ Ethical Responsibility to the Profession of Behavior Analysis.

Behavior analysts have an obligation to the science of behavior and profession of behavior analysis.

6.01 Affirming Principles.

a) Above all other professional training, behavior analysts uphold and advance the values, ethics, and principles of the profession of behavior analysis.

b) Behavior analysts have an obligation to participate in behavior-analytic professional and scientific organizations or activities.

6.02 Disseminating Behavior Analysis.

Behavior analysts promote behavior analysis by making information about it available to the public through presentations, discussions, and other media.

7.0 Behavior Analysts’ Ethical Responsibility to Colleagues.

Behavior analysts work with colleagues within the profession of behavior analysis and from other professions and must be aware of these ethical obligations in all situations. (See also, 10.0 Behavior Analysts’ Ethical Responsibility to the BACB)

7.01 Promoting an Ethical Culture.

Behavior analysts promote an ethical culture in their work environments and make others aware of this Code.

7.02 Ethical Violations by Others and Risk of Harm.

(a) If behavior analysts believe there may be a legal or ethical violation, they first determine whether there is potential for harm, a possible legal violation, a mandatory-reporting condition, or an agency, organization, or regulatory requirement addressing the violation.

(b) If a client’s legal rights are being violated, or if there is the potential for harm, behavior analysts must take the necessary action to protect the client, including, but not limited to, contacting relevant authorities, following organizational policies, and consulting with appropriate professionals, and documenting their efforts to address the matter.

(c) If an informal resolution appears appropriate, and would not violate any confidentiality rights, behavior analysts attempt to resolve the issue by bringing it to the attention of that individual and documenting their efforts to address the matter. If the matter is not resolved, behavior analysts report the matter to the appropriate authority (e.g., employer, supervisor, regulatory authority).

(d) If the matter meets the reporting requirements of the BACB, behavior analysts submit a formal complaint to the BACB. (See also, 10.02 Timely Responding, Reporting, and Updating of Information Provided to the BACB)

8.0 Public Statements.

Behavior analysts comply with this Code in public statements relating to their professional services, products, or publications, or to the profession of behavior analysis. Public statements include, but are not limited to, paid or unpaid advertising, brochures, printed matter, directory listings, personal resumes or curriculum vitae, interviews or comments for use in media, statements in legal proceedings, lectures and public presentations, social media, and published materials.

8.01 Avoiding False or Deceptive Statements.

(a) Behavior analysts do not make public statements that are false, deceptive, misleading, exaggerated, or fraudulent, either because of what they state, convey, or suggest or because of what they omit, concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated. Behavior analysts claim as credentials for their behavior-analytic work, only degrees that were primarily or exclusively behavior-analytic in content.

(b) Behavior analysts do not implement non-behavior-analytic interventions. Non-behavior-analytic services may only be provided within the context of non-behavior-analytic education, formal training, and credentialing. Such services must be clearly distinguished from their behavior-analytic practices and BACB certification by using the following disclaimer: “These interventions are not behavior-analytic in nature and are not covered by my BACB credential.” The disclaimer should be placed alongside the names and descriptions of all non-behavior-analytic interventions.

(c) Behavior analysts do not advertise non-behavior-analytic services as being behavior-analytic. (d) Behavior analysts do not identify non-behavior-analytic services as behavior-analytic services on

bills, invoices, or requests for reimbursement. (e) Behavior analysts do not implement non-behavior-analytic services under behavior-analytic service

authorizations.

8.02 Intellectual Property.

(a) Behavior analysts obtain permission to use trademarked or copyrighted materials as required by law. This includes providing citations, including trademark or copyright symbols on materials, that recognize the intellectual property of others.

(b) Behavior analysts give appropriate credit to authors when delivering lectures, workshops, or other presentations.

8.03 Statements by Others.

(a) Behavior analysts who engage others to create or place public statements that promote their professional practice, products, or activities retain professional responsibility for such statements.

(b) Behavior analysts make reasonable efforts to prevent others whom they do not oversee (e.g.,

employers, publishers, sponsors, organizational clients, and representatives of the print or broadcast media) from making deceptive statements concerning behavior analysts’ practices or professional or scientific activities.

(c) If behavior analysts learn of deceptive statements about their work made by others, behavior analysts correct such statements.

(d) A paid advertisement relating to behavior analysts’ activities must be identified as such, unless it is apparent from the context.

8.04 Media Presentations and Media-Based Services.

(a) Behavior analysts using electronic media (e.g., video, e-learning, social media, electronic transmission of information) obtain and maintain knowledge regarding the security and limitations of electronic media in order to adhere to this Code.

(b) Behavior analysts making public statements or delivering presentations using electronic media do not disclose personally identifiable information concerning their clients, supervisees, students, research participants, or other recipients of their services that they obtained during the course of their work, unless written consent has been obtained.

(c) Behavior analysts delivering presentations using electronic media disguise confidential information concerning participants, whenever possible, so that they are not individually identifiable to others and so that discussions do not cause harm to identifiable participants.

(d) When behavior analysts provide public statements, advice, or comments by means of public lectures, demonstrations, radio or television programs, electronic media, articles, mailed material, or other media, they take reasonable precautions to ensure that (1) the statements are based on appropriate behavior-analytic literature and practice, (2) the statements are otherwise consistent with this Code, and (3) the advice or comment does not create an agreement for service with the recipient.

8.05 Testimonials and Advertising.

Behavior analysts do not solicit or use testimonials about behavior-analytic services from current clients for publication on their webpages or in any other electronic or print material. Testimonials from former clients must identify whether they were solicited or unsolicited, include an accurate statement of the relationship between the behavior analyst and the author of the testimonial, and comply with all applicable laws about claims made in the testimonial.

Behavior analysts may advertise by describing the kinds and types of evidence-based services they provide, the qualifications of their staff, and objective outcome data they have accrued or published, in accordance with applicable laws.

8.06 In-Person Solicitation.

Behavior analysts do not engage, directly or through agents, in uninvited in-person solicitation of business from actual or potential users of services who, because of their particular circumstances, are vulnerable to undue influence. Organizational behavior management or performance management services may be marketed to corporate entities regardless of their projected financial position.

9.0 Behavior Analysts and Research.

Behavior analysts design, conduct, and report research in accordance with recognized standards of scientific competence and ethical research.

9.01 Conforming with Laws and Regulations.

Behavior analysts plan and conduct research in a manner consistent with all applicable laws and regulations, as well as professional standards governing the conduct of research. Behavior analysts also comply with other applicable laws and regulations relating to mandated-reporting requirements.

9.02 Characteristics of Responsible Research.

(a) Behavior analysts conduct research only after approval by an independent, formal research review board.

(b) Behavior analysts conducting applied research conjointly with provision of clinical or human services must comply with requirements for both intervention and research involvement by client- participants. When research and clinical needs conflict, behavior analysts prioritize the welfare of the client.

(d) Behavior analysts plan their research so as to minimize the possibility that results will be misleading. (e) Researchers and assistants are permitted to perform only those tasks for which they are

appropriately trained and prepared. Behavior analysts are responsible for the ethical conduct of research conducted by assistants or by others under their supervision or oversight.

(f) If an ethical issue is unclear, behavior analysts seek to resolve the issue through consultation with independent, formal research review boards, peer consultations, or other proper mechanisms.

(g) Behavior analysts only conduct research independently after they have successfully conducted research under a supervisor in a defined relationship (e.g., thesis, dissertation, specific research project).

(h) Behavior analysts conducting research take necessary steps to maximize benefit and minimize risk to their clients, supervisees, research participants, students, and others with whom they work.

(i) Behavior analysts minimize the effect of personal, financial, social, organizational, or political factors

that might lead to misuse of their research. (j) If behavior analysts learn of misuse or misrepresentation of their individual work products, they

take appropriate steps to correct the misuse or misrepresentation. (k) Behavior analysts avoid conflicts of interest when conducting research. (l) Behavior analysts minimize interference with the participants or environment in which research is

conducted.

9.03 Informed Consent.

Behavior analysts inform participants or their guardian or surrogate in understandable language about the nature of the research; that they are free to participate, to decline to participate, or to withdraw from the research at any time without penalty; about significant factors that may influence their willingness to participate; and answer any other questions participants may have about the research.

9.04 Using Confidential Information for Didactic or Instructive Purposes.

(a) Behavior analysts do not disclose personally identifiable information concerning their individual or organizational clients, research participants, or other recipients of their services that they obtained during the course of their work, unless the person or organization has consented in writing or unless there is other legal authorization for doing so.

(b) Behavior analysts disguise confidential information concerning participants, whenever possible, so that they are not individually identifiable to others and so that discussions do not cause harm to identifiable participants.

9.05 Debriefing.

Behavior analysts inform the participant that debriefing will occur at the conclusion of the participant’s involvement in the research.

9.06 Grant and Journal Reviews.

Behavior analysts who serve on grant review panels or as manuscript reviewers avoid conducting any research described in grant proposals or manuscripts that they reviewed, except as replications fully crediting the prior researchers.

9.07 Plagiarism.

(a) Behavior analysts fully cite the work of others where appropriate. (b) Behavior analysts do not present portions or elements of another’s work or data as their own.

9.08 Acknowledging Contributions.

Behavior analysts acknowledge the contributions of others to research by including them as co-authors or footnoting their contributions. Principal authorship and other publication credits accurately reflect the relative scientific or professional contributions of the individuals involved, regardless of their relative status. Minor contributions to the research or to the writing for publications are appropriately acknowledged, such as, in a footnote or introductory statement.

9.09 Accuracy and Use of Data.

(a) Behavior analysts do not fabricate data or falsify results in their publications. If behavior analysts discover errors in their published data, they take steps to correct such errors in a correction, retraction, erratum, or other appropriate publication means.

(b) Behavior analysts do not omit findings that might alter interpretations of their work. (c) Behavior analysts do not publish, as original data, data that have been previously published. This does

not preclude republishing data when they are accompanied by proper acknowledgment. (d) After research results are published, behavior analysts do not withhold the data on which their

conclusions are based from other competent professionals who seek to verify the substantive claims through reanalysis and who intend to use such data only for that purpose, provided that the confidentiality of the participants can be protected and unless legal rights concerning proprietary data preclude their release.

10.0 Behavior Analysts’ Ethical Responsibility to the BACB.

Behavior analysts must adhere to this Code and all rules and standards of the BACB.

10.01 Truthful and Accurate Information Provided to the BACB.

(a) Behavior analysts only provide truthful and accurate information in applications and documentation submitted to the BACB.

(b) Behavior analysts ensure that inaccurate information submitted to the BACB is immediately corrected.

10.02 Timely Responding, Reporting, and Updating of Information Provided to the BACB.

Behavior analysts must comply with all BACB deadlines including, but not limited to, ensuring that the BACB is notified within thirty (30) days of the date of any of the following grounds for sanctioning status: (a) A violation of this Code, or disciplinary investigation, action or sanction, filing of charges, conviction

or plea of guilty or no contest (i.e., nolo contendere) by a governmental agency, health care organization, third-party payer or educational institution. Procedural note: Behavior analysts convicted of a felony directly related to behavior analysis practice and/or public health and safety

shall be ineligible to apply for BACB registration, certification, or recertification for a period of three (3) years from the exhaustion of appeals, completion of parole or probation, or final release from confinement (if any), whichever is later; (See also, 1.04d Integrity)

(b) Any public health- and safety-related fines or tickets where the behavior analyst is named on the ticket;

(d) A change of name, address or email contact.

10.03 Confidentiality and BACB Intellectual Property.

Behavior analysts do not infringe on the BACB’s intellectual property rights, including, but not limited to the BACB’s rights to the following: (a) BACB logo, VCS logo, ACE logo, certificates, credentials and designations, including, but not

limited to, trademarks, service marks, registration marks and certification marks owned and claimed by the BACB (this includes confusingly similar marks intended to convey BACB affiliation, certification or registration, or misrepresentation of an educational ABA certificate status as constituting national certification);

(b) BACB copyrights to original and derivative works, including, but not limited to, BACB copyrights to standards, procedures, guidelines, codes, job task analysis, Workgroup reports, surveys; and

(c) BACB copyrights to all BACB-developed examination questions, item banks, examination specifications, examination forms and examination scoring sheets, which are secure trade secrets of the BACB. Behavior analysts are expressly prohibited from disclosing the content of any BACB examination materials, regardless of how that content became known to them. Behavior analysts report suspected or known infringements and/or unauthorized access to examination content and/ or any other violation of BACB intellectual property rights immediately to the BACB. Efforts for informal resolution (identified in Section 7.02 c) are waived due to the immediate reporting requirement of this Section.

10.04 Examination Honesty and Irregularities.

Behavior analysts adhere to all rules of the BACB, including the rules and procedures required by BACB approved testing centers and examination administrators and proctors. Behavior analysts must immediately report suspected cheaters and any other irregularities relating to the BACB examination administrations to the BACB. Examination irregularities include, but are not limited to, unauthorized access to BACB examinations or answer sheets, copying answers, permitting another to copy answers, disrupting the conduct of an examination, falsifying information, education or credentials, and providing and/or receiving unauthorized or illegal advice about or access to BACB examination content before, during, or following the examination. This prohibition includes, but is not limited to, use of or participation in any “exam dump” preparation site or blog that provides unauthorized

access to BACB examination questions. If, at any time, it is discovered that an applicant or certificant has participated in or utilized an exam dump organization, immediate action may be taken to withdraw eligibility, cancel examination scores, or otherwise revoke certification gained through use of inappropriately obtained examination content.

10.05 Compliance with BACB Supervision and Coursework Standards.

Behavior analysts ensure that coursework (including continuing education events), supervised experience, RBT training and assessment, and BCaBA supervision are conducted in accordance with the BACB’s standards if these activities are intended to comply with BACB standards (See also, 5.0 Behavior Analysts as Supervisors)

10.06 Being Familiar with This Code.

Behavior analysts have an obligation to be familiar with this Code, other applicable ethics codes, including, but not limited to, licensure requirements for ethical conduct, and their application to behavior analysts’ work. Lack of awareness or misunderstanding of a conduct standard is not itself a defense to a charge of unethical conduct.

10.07 Discouraging Misrepresentation by Non-Certified Individuals.

Behavior analysts report non-certified (and, if applicable, non-registered) practitioners to the appropriate state licensing board and to the BACB if the practitioners are misrepresenting BACB certification or registration status.

Glossary

Behavior Analyst Behavior analyst refers to an individual who holds BCBA or BCaBA certification or an individual who has submitted a complete application for BCBA or BCaBA certification.

Behavior-Analytic Services Behavior-analytic services are those that are explicitly based on principles and procedures of behavior analysis (i.e., the science of behavior) and are designed to change behavior in socially important ways. These services include, but are not limited to, treatment, assessment, training, consultation, managing and supervising others, teaching, and delivering continuing education.

Behavior-Change Program The behavior-change program is a formal, written document that describes in technological detail every assessment and treatment task necessary to achieve stated goals.

Client The term client refers to any recipient or beneficiary of the professional services provided by a behavior analyst. The term includes, but is not limited to:

(a) The direct recipient of services; (b) The parent, relative, legal representative or legal guardian of the recipient of services; (c) The employer, agency representative, institutional representative, or third-party contractor for

services of the behavior analyst; and/or (d) Any other individual or entity that is a known beneficiary of services or who would normally be

construed as a “client” or “client-surrogate”.

For purposes of this definition, the term client does not include third-party insurers or payers, unless the behavior analyst is hired directly under contract with the third-party insurer or payer.

Functional Assessment Functional assessment, also known as functional behavior assessment, refers to a category of procedures used to formally assess the possible environmental causes of problem behavior. These procedures include informant assessments (e.g., interviews, rating scales), direct observation in the natural environment (e.g., ABC assessment), and experimental functional analysis.

Multiple Relationships A multiple relationship is one in which a behavior analyst is in both a behavior-analytic role and a non- behavior-analytic role simultaneously with a client, supervisee, or someone closely associated with or related to the client.

Public Statements Public statements include, but are not limited to, paid or unpaid advertising, brochures, printed matter, directory listings, personal resumes or curriculum vitae, interviews or comments for use in media, statements in legal proceedings, lectures and public presentations, social media, and published materials.

Research Any data-based activity designed to generate generalizable knowledge for the discipline, often through professional presentations or publications. The use of an experimental design does not by itself constitute research. Professional presentation or publication of already collected data are exempt from elements in section 9.0 (Behavior Analysts and Research) that pertain to prospective research activities (e.g., 9.02a). However, all remaining relevant elements from section 9.0 apply (e.g., 9.01 Conforming with Laws and Regulations; 9.03 Informed Consent relating to use of client data).

Research Review Board A group of professionals whose stated purpose is to review research proposals to ensure the ethical treatment of human research participants. This board might be an official entity of a government or university (e.g., Institutional Review Board, Human Research Committee), a standing committee within a service agency, or an independent organization created for this purpose.

Rights and Prerogatives of Clients Rights and prerogatives of clients refers to human rights, legal rights, rights codified within behavior analysis, and organizational and administrative rules and regulations designed to benefit the client.

Risk-Benefit Analysis A risk-benefit analysis is a deliberate evaluation of the potential risks (e.g., limitations, side effects, costs) and benefits (e.g., treatment outcomes, efficiency, savings) associated with a given intervention. A risk-benefit analysis should conclude with a course of action associated with greater benefits than risks.

Service Record A client’s service record includes, but is not limited to, written behavior-change plans, assessments, graphs, raw data, electronic recordings, progress summaries, and written reports.

Student A student is an individual who is matriculated at a college/university. This Code applies to the student during formal behavior-analytic instruction.

Supervisee A supervisee is any individual whose behavior-analytic services are overseen by a behavior analyst within the context of a defined, agreed-upon relationship.

Copyright © 2014 by the Behavior Analyst Certification Board,® Inc. (“BACB®”). Electronic and/or paper copies of part or all of this work may be made for personal, educational, or policymaking purposes, provided such copies are not made or distributed for profit or commercial advantage. All copies, unless made for regulatory or licensure purposes, must include this notice on the first page. Abstracting with proper credit is permitted, so long as the credit reads “Copyright © 2014 by the Behavior Analyst Certification Board,® Inc. (“BACB®”), all rights reserved.” All other uses and/or distributions in any medium require advance written permission of the BACB. To request permission complete the Copyright and/or Trademark Permission Request form.

https://www.bacb.com/copyright-and-or-trademark-permission-request-form/

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Chapter 31: Postmodernity and Global Cultures

“Getting” Contemporary Art

It’s ironic that many people say they don’t “get” contemporary art because, unlike Egyptian tomb painting or Greek sculpture, art made since 1960 reflects our own recent past. It speaks to the dramatic social, political and technological changes of the last 50 years, and it questions many of society’s values and assumptions—a tendency of postmodernism, a concept sometimes used to describe contemporary art. What makes today’s art especially challenging is that, like the world around us, it has become more diverse and cannot be easily defined through a list of visual characteristics, artistic themes or cultural concerns. Minimalism and Pop Art paved the way for later artists to explore questions about the conceptual nature of art, its form, its production, and its ability to communicate in different ways. In the late 1960s and 1970s, these ideas led to a “dematerialization of art,” when artists turned away from painting and sculpture to experiment with new formats including photography, film and video, performance art, large-scale installations and earth works. Although some critics of the time foretold “the death of painting,” art today encompasses a broad range of traditional and experimental media, including works that rely on Internet technology and other scientific innovations.

John Baldessari, I Will Not Make Any More Boring Art, 1971, lithograph, 22-7/16 x 30-1/16″ (The Museum of Modern

Art). Copyright John Baldessari, courtesy of the artist.

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Contemporary artists continue to use a varied vocabulary of abstract and representational forms to convey their ideas. It is important to remember that the art of our time did not develop in a vacuum; rather, it reflects the social and political concerns of its cultural context. For example, artists like Judy Chicago, who were inspired by the feminist movement of the early 1970s, embraced imagery and art forms that had historical connections to women. In the 1980s, artists appropriated the style and methods of mass media advertising to investigate issues of cultural authority and identity politics. More recently, artists like Maya Lin, who designed the Vietnam Veterans’ Memorial Wall in Washington D.C., and Richard Serra, who was loosely associated with Minimalism in the 1960s, have adapted characteristics of Minimalist art to create new abstract sculptures that encourage more personal interaction and emotional response among viewers. These shifting strategies to engage the viewer show how contemporary art’s significance exists beyond the object itself. Its meaning develops from cultural discourse, interpretation and a range of individual understandings, in addition to the formal and conceptual problems that first motivated the artist. In this way, the art of our times may serve as a catalyst for an on-going process of open discussion and intellectual inquiry about the world today.

Postmodern and Contemporary Architecture

Postmodern architecture began as an international style whose first examples are generally cited as being from the 1950s, but did not become a movement until the late 1970s and continues to influence present-day architecture. Postmodernity in architecture is generally thought to be heralded by the return of "wit, ornament and reference" to architecture in response to the formalism of the International Style. Michael Graves’s Portland Building from 1982 personifies the idea behind postmodernist thought. A reference to more traditional style is evident in the patterned column-like sections. Overt large-scale decorative elements are built into and onto the exterior walls, and contrasts between materials, colors and forms give the building a graphic sense of visual wit.

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Michael Graves, Portland Municipal Services Building, 1982, Portland, Oregon. Image by Steve Morgan, licensed

through Creative Commons.

We can see how architecture is actively evolving in the contemporary work of Frank Gehry and Zaha Hadid. Gehry’s work is famous for its rolling and bent organic forms. His gestural, erratic sketches are transformed into buildings through a computer aided design process (CAD). They have roots in postmodernism but lean towards a completely new modern style. They have as much to do with sculpture as they do with architecture. Seattle’s Experience Music Project is an example of the complexity that goes into his designs. Its curves, ripples and folds roll across space and the multi-colored titanium panels adorning the exterior accentuate the effect. It’s even designed for a monorail train to run through it!

http://www.zaha-hadid.com/home

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Frank Gehry, The Experience Music Project, 2000. Seattle Washington. West façade with the monorail passing

through. Image by: Cacophony. License: CC BY-SA 3.0.

Hadid’s designs use soft and hard geometry with lots of cantilever and strong sculptural quality. In 2004 Hadid became the first female recipient of the Pritzker Architecture Prize, architecture's equivalent of the Nobel Prize. Her work defines and influences architectural style in the 21st century. For example, her design for an inclined rail station in Innsbruck, Austria is futuristic, balancing abstract forms and ornament with utility.

Zaha Hadid, Norpark Rail Station, Innsbruck, Austria. 2004-2007. Image: Hafelekar. Licensed through Creative

Commons.

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Appropriation and Ideological Critique

Dangerous Art

In 2011, artist Ai Weiwei was arrested in China following a crack down by the government on so- called “political dissidents” (a specific category that the Chinese government uses to classify those who seek to subvert state power) for “alleged economic crimes” against the Chinese state. Weiwei has used his art to address both the corruption of the Chinese communist government and its outright neglect of human rights, particularly in the realm of the freedom of speech and thought. Weiwei has been successful in using the internet (which is severely restricted in China) as a medium for his art. His work is informed by two interconnected strands, his involvement with the Chinese avant-garde group “Stars” (which he helped found in 1978 during his time in the Beijing Film Academy) and the fact that he spent some of his formative years in New York, engaging there with the ideas of conceptual art, in particular the idea of the readymade. Many of the concepts and much of the material that Weiwei uses in his art practice are informed by post- conceptual thinking.

Ai Weiwei, Sunflower Seeds, 2010, one hundred million hand painted porcelain seeds (Tate Modern)

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Handpainted seeds (detail), Ai Weiwei, Sunflower Seeds, 2010, one hundred million hand painted porcelain seeds

(Tate Modern)

Weiwei has exhibited successfully in the West in many major shows, for example, the 48th Venice Biennale in Italy (1999) and Documenta 12 (2007). He also exhibited Sunflower Seeds (October, 2010) in the Turbine Hall in the Tate Modern. In this work, Weiwei filled the floor of the huge hall with one hundred million porcelain seeds, each individually hand-painted in the town of Jingdezhen by 1,600 Chinese artisans. Participants were encouraged to walk over the exhibited space (or even roll in the work) in order to experience the ideas of the effect of mass consumption on Chinese industry and 20th-century China’s history of famine and collective work. However, on October 16, 2010, Tate Modern stopped people from walking on the exhibit due to health liability concerns over porcelain dust.

Brilliant patterns

The Art of Kara Walker, a “PBS Culture Shock” web activity, tests the participant’s tolerance for imagery that occupies the nebulous space between racism and race affirmation. Though the activity gives the participant only two options at the end (whether or not to feature one of Walker’s silhouettes on the “Culture Shock” homepage), the activity explores the multiple and complex reactions Walker’s work elicits. Yet to focus solely on the controversy Walker’s art generates is a disservice to her artistic training and the strength of her art, especially in a stunning and absorbing installation like Darkytown Rebellion. Here, a brilliant pattern of colors washes over a wall full of silhouettes enacting a dramatic rebellion, giving the viewer the unforgettable experience of stepping into a work of art. Walker’s talent is not about creating controversy for its own sake, but building a world that unleashes horrors even as it seduces viewers.

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Kara Walker, Darkytown Rebellion, 2001, cut paper and projection on wall, 4.3 x 11.3m, (Musée d’Art Moderne

Grand-Duc Jean, Luxembourg) © Kara Walker

Identity and the Body

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Barbara Kruger, Untitled (Your gaze hits the side of my face), 1981

Has an artwork ever been more direct in acknowledging that the simple act of looking is a gendered (and gendering) act? “Your gaze hits the side of my face,” admonishes Barbara Kruger in Untitled (1981). The phrase is made stark and impersonal by arranging the words in a vertical stack, like those of a ransom note, to the left of a photograph of a female portrait bust in profile. Notice how the head is equally depersonalized; a stylized version in the classical tradition whose neck disappears into a block of stone, the suggestion here is that women are rendered inert in the act of being looked at. With an assumed male viewer — the subject of the possessive phrase “your gaze” — the subject of the portrait bust readily conforms to patriarchal fantasies of the passive female object. Kruger’s art is characterized by a visual wit sharpened in the trenches of the advertising world where the savvy combination of graphic imagery and pithy phrasing targeted a growing population of consumers in the post-World War II years. The portrait bust she uses for Untitled (Your gaze hits the side of my face) is a found picture, one of any number the artist would have encountered in her early career in graphic design. This included a stint at Mademoiselle magazine, whose glossy pages were a virtual catalogue of stereotypical images of femininity. In the late 1970s, Kruger began to choose for her photomontages images of women that were often heightened examples of such stereotypes to which her addition of text would, often humorously, expose and thereby deconstruct the supposed realism of such imagery.

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Barbara Kruger, Untitled (Questions), 1990/2018 (Geffen Contemporary; photo: rocor, CC BY-NC 2.0)

Much like the factory murals and posters of Russian avant-garde art, Kruger sought a broader audience outside the gallery. Her work would appear on billboards, train station platforms, bus stops, public parks, and even matchbook covers. In the early 2000s the street clothing brand Supreme acknowledged that Barbara Kruger was an inspiration for their logo, a white Futura font within a red box. Despite its critical stance toward the advertising industry, Kruger’s unique graphic style couldn’t help but ultimately become influential in packaging and product design.

Logo for the clothing brand Supreme

Did the promotional and publicity structures of a consumer society eventually absorb postmodernism and thereby render its critique neutral? Shirin Neshat’s photographic series Women of Allah examines the complexities of women’s identities in the midst of a changing cultural landscape in the Middle East—both through the lens of Western representations of Muslim women, and through the more intimate subject of personal and religious conviction. While the composition—defined by the hard edge of her black chador against the bright white background—appears sparse, measured and symmetrical, the split created by the weapon implies a more violent rupture or psychic fragmentation. A single subject, it suggests, might be host to internal contradictions alongside binaries such as tradition and modernity, East and West, beauty and violence. In the artist’s own words, “every image, every woman’s submissive gaze, suggests a far more complex and paradoxical reality behind the surface.” [1]

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Shirin Neshat, Rebellious Silence, Women of Allah series, 1994, black and white RC print and ink, photo by Cynthia

Preston ©Shirin Neshat (courtesy Barbara Gladstone Gallery, New York and Brussels)

Banality and Kitsch

Jeff Koons, Pink Panther, 1988, glazed porcelain, 104.1 x 52 x 48.2 cm (The Museum of Modern Art, New York)

(photo: LP, CC BY-NC-ND 2.0)

Imagine walking into an art gallery and seeing overgrown toys, or cartoon characters presented as sculpture. If, in 1988, you had wandered into the Sonnabend Gallery on West Broadway in New York City, this is indeed what you would have witnessed: it was an exhibition entitled “Banality” by New York artist Jeff Koons presenting some twenty sculptures in porcelain and polychromed wood. A glazed porcelain statue entitled Pink Panther belongs to that body of work. It depicts a smiling,

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bare-breasted, blond woman scantily clad in a mint-green dress, head tilted back and to the left as if addressing a crowd of onlookers. The figure is based on the 1960s B-list Hollywood star Jayne Mansfield—here she clutches a limp pink panther in her left hand, while her right hand covers an exposed breast. From behind one sees that the pink panther has its head thrown over her shoulder and wears an expression of hapless weariness. It too is a product of Hollywood fantasy—the movie of the same name debuted the cartoon character in 1963. The colors are almost antiquated; do they harken back to the popular culture of a pre-civil rights era as a politically regressive statement of nostalgia? And what about the female figure—posed in a state of deshabille (carelessly and partially undressed)? At a time of increased feminist presence in the still male-dominated art world this could only be perceived as a rearguard move. Or was Koons—a postmodern provocateur like no other—simply parodying male authority as he had done in some of his other work? Artists—postmodern artists—were supposed to counter the banality of evil that lurked behind public and popular culture, not giddily revel in it as Koons seemed to do. There appeared to be nothing serious about any of the works in the “Banality” exhibition: a life-sized bust of pop icon Michael Jackson and his pet monkey Bubbles; a ribbon-necked pig—especially egregious—in polychromed wood escorted by cherubic youths, two of which are winged. And of course Pink Panther, a work that seemed destined to insult rather than inform. It all seemed like kitsch posing as high art.

Jeff Koons, Michael Jackson and Bubbles, 1988, ceramic, glaze and paint, on view at Versailles, 2014 (photo: Jean-

Pierre Dalbéra, CC BY 2.0)

But postmodernism stopped short of fully embracing kitsch by insisting on a degree of self-aware critical distance. This is where Koons found a fault line that he fully exploited with works like Pink Panther. Hummel figurines and other popular collector’s items are the basis for the art in

https://www.tate.org.uk/art/art-terms/k/kitsch

https://flic.kr/p/5wNuTU

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“Banality.” Koons rendered these saccharine and sentimental little figural groupings—cartoonish emblems of childhood innocence—at a life-size scale as an assault upon sincerity but also as an assault upon taste, and it is here that even the most daring of postmodern advocates drew a line in the sand. Like the modernist distinction between art and an everyday object, Pink Panther challenged the distinction between an ironic appropriation of a mass-culture object and the object itself (seemingly without critical distance) thereby challenging the whole critical enterprise of postmodernism itself.

Ritual, spirituality, and transcendence

Left: Bill Viola, The Crossing, 1996, video/sound © Bill Viola (photo: stunned, CC BY-NC-SA 2.0); right: Bill Viola,

The Crossing, 1996, video/sound © Bill Viola (image: SFMOMA)

Bill Viola’s The Crossing is a room-sized video installation that comprises a large two-sided screen onto which a pair of video sequences is simultaneously projected. They each open in the same fashion: a male figure walks slowly towards the camera, his body dramatically lit from above so that it appears to glow against the video’s stark-black background. After several minutes he pauses near the foreground and stands still. He faces forward, staring directly into the lens, motionless. At this point the two scenes diverge; in one, a small fire alights below the figure’s feet. It spreads over his legs and torso and eventually engulfs his whole body in flames; yet, he stands calm and completely still as his body is immolated, only moving to raise his arms slightly before his body disappears in an inferno of roaring flames. On the opposite screen, the event transpires not with fire but with water. Beginning as a light rainfall, the sporadic drops that shower the figure build up to a surging cascade of water until it subsumes him entirely. After the flames and the torrent of water eventually retreat, the figure has vanished entirely from each scene, and the camera witnesses a silent and empty denouement. Between 1974 and 1976, Viola lived in Italy, where religious paintings and sculptures are often displayed in-situ, in the cathedrals for which they were commissioned. The continuing integration

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of historical art into contemporary public and religious life inspired Viola to design installations that mimicked the forms of devotional paintings, diptychs, predellas and altarpieces—formats that encourage intimate contemplation of religious icons. Later traveling throughout Japan and other parts of East Asia, Viola observed the same active level of engagement with art. In Tokyo, for instance, he witnessed museum visitors placing offerings at the feet of sculptural bodhisattvas or other religious statuary. For viewers, the experience of viewing Viola’s works need not be spiritually inscribed. In many cases, his works appeal to or reflect raw human emotions (the theme of his acclaimed exhibition The Passions) or universal life experiences. While The Crossing can be interpreted in light of a host of religious associations, the act of “self-annihilation” represented in the figure’s disappearance at each conclusion also serves as a metaphor for the destruction of the ego. In the artist’s words, this action “becomes a necessary means to transcendence and liberation,” [1] especially in the face of life’s inevitable unpredictability.

Histories, Real and Imagined

Refusing Style

“I can’t see it…is it me?” I watched a young woman step closer to the canvas titled, Uncle Rudi. She was now physically closer and she was looking hard, but the image kept its distance.

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Gerhard Richter, Uncle Rudi, 1965, oil on canvas, 87 x 50 cm (Lidice Gallery, Lidice, Czech Republic) used with

permission of the Gerhard Richter studio

Meaning in Gerhard Richter’s art can also keep its distance. The elusiveness of meaning is, in some ways, a central subject of Richter’s art. Since the early 1950s, Richter has painted a huge number of subjects in wildly conflicting styles. For most artists, one style emerges and evolves slowly, almost imperceptibly, over the course of their career. This is because artists often continue to work through problems that remain relevant and perhaps, because they achieve a degree of recognition and the market then demands that style. In other words, collectors often want what is known. Artists who abandon their signature style do so at some risk to future sales. Still, some artists do push in startlingly new directions. Willem de Kooning abandoned abstraction for the figure against the advice of his dealer, and Pablo Picasso famously pursued opposing styles simultaneously—think of his volumetric, even bloated Neoclassicism compared to the collages where he pressed flat every volume in sight. Uncle Rudi, the painting the woman had stepped closer to see, is painted in the grays of a black and white photograph. It is small and has the intimacy of a family snapshot. We see a young man smiling proudly and awkwardly. He is clearly self-conscious as he poses in his new uniform. One has the sense that a moment before he was talking to the person behind the camera, likely a friend or family member. Rudi would die fighting soon after the photograph that is the basis for this painting was taken. This is the artist’s uncle, the man his grandmother favored and the adult

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the young Richter was to model himself after. But nothing in this painting is clear. Not the relationship between the artist and his uncle, not the tension between Rudi’s innocent awkwardness and his participation in Nazi violence, not even in the relationship between the photograph and Richter’s painting. The artist has drawn a dry brush across the wet surface of the nearly finished painting, and by doing this, he obscures the clarity of the photograph, denying us the easy certainty we expect. Richter reminds us that Uncle Rudi, like all images, promise and then fail to bring us closer to the people, things or places represented.

Confronting Art History

Kehinde Wiley, Napoleon Leading the Army over the Alps, 2005, oil paint on canvas, 274.3 x 274.3 cm (108 x 108

in) (Brooklyn Museum of Art, New York) © Kehinde Wiley

In this large painting, Kehinde Wiley, an African-American artist, strategically re-creates a French masterpiece from two hundred years before but with key differences. This act of appropriation reveals issues about the tradition of portraiture and all that it implies about power and privilege. Wiley asks us to think about the biases of the art historical canon (the set of works that are regarded as “masterpieces”), representation in pop culture, and issues of race and gender. Here, Wiley replaces the original white subject—the French general-turned-emperor Napoleon Bonaparte (below)—with an anonymous black man whom Wiley approached on the street as part of his “street-casting process.” Although Wiley does occasionally create paintings on commission, he typically asks everyday people of color to sit for photographs, which he then

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transforms into paintings. Along the way, he talks with those sitters, gathering their thoughts about what they should wear, how they might pose, and which historical paintings to reference. Napoleon Leading the Army is a clear spin-off of Jacques-Louis David’s painting of 1800-01 (below), which was commissioned by Charles IV, the King of Spain, to commemorate Napoleon’s victorious military campaign against the Austrians. The original portrait smacks of propaganda. Napoleon, in fact, did not pose for the original painting nor did he lead his troops over the mountains into Austria. He sent his soldiers ahead on foot and followed a few days later, riding on a mule.

Left: Jacques-Louis David, Napoleon Crossing the Alps, 1803 version, oil on canvas 275 × 232 cm (Österreichische

Galerie Belvedere); right: Kehinde Wiley, Napoleon Leading the Army over the Alps, 2005, oil paint on canvas, 274.3 x 274.3 cm (108 x 108 in) (Brooklyn Museum of Art, New York)

Through his demonstration of extraordinary painting skill and his use of famous portraits, Wiley could be seen as wryly placing himself in line with the history of great master painters. Here, for example, he has signed and dated the painting just as David did, painting his name and the date in Roman numerals onto the band around the horse’s chest. Wiley makes another reference to lineage in the foreground where he retains the original painting’s rocky surface and the carved names of illustrious leaders who led troops over the Alps: NAPOLEON, HANNIBAL, and KAROLUS MAGNUS (Charlemagne). But Wiley also includes the name WILLIAMS—another insistence on including ordinary people of color who are often left out of systems of representation and glorification. Not only is Williams a common African-American surname, it hints at the imposition of Anglo names on black people who were brought by force from Africa and stripped of their own histories. License and Attributions

Chapter 31: Postmodernity and Global Cultures

“Getting” Contemporary Art
Postmodern and Contemporary Architecture
Appropriation and Ideological Critique

Dangerous Art
Brilliant patterns

Identity and the Body
Banality and Kitsch
Ritual, spirituality, and transcendence
Histories, Real and Imagined

Refusing Style
Confronting Art History

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Chapter 12: Craft and Design Media

Craft Media

Craft requires the specific skilled use of tools in creating works of art. These tools can take many forms: words, construction tools, a camera, a paintbrush or even a voice. Traditional studio crafts include ceramics, metal and woodworking, weaving and the glass arts. Crafts are distinguished by a high degree of workmanship and finish. Traditional crafts have their roots in utilitarian purposes: furniture, utensils and other everyday accoutrements that are designed for specific uses and reflect the adage that “form follows function”. But human creativity goes beyond simple function to include the aesthetic realm, entered through the doors of embellishment, decoration and an intuitive sense of design. In the two examples below, a homeowner’s yard gate shows off his metal smith skills, becoming a study in ornate symmetry. In another example, a staircase crafted in the Shaker style takes on an elegant form that mirrors the organic spiral shape representing the ‘golden ratio’.

Yard gate; metal, concrete and glass. Image used by permission.

http://www.metmuseum.org/works_of_art/collection_database/the_cloisters/the_hunters_enter_the_woods/objectview.aspx?page=1&sort=6&sortdir=asc&keyword=tapestry&fp=1&dd1=7&dd2=0&vw=1&collID=7&OID=70007563&vT=1&hi=0&ov=0

http://en.wikipedia.org/wiki/Shaker_furniture

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Shaker style staircase, Pleasant Hill, Kentucky. Photo by Jack Boucher, National Parks Service. Image is in the

public domain.

Utility is not the sole purpose of craft. The Persian carpet below has its use as a utilitarian object, but the craftsmanship shown in its pattern and design gives it a separate aesthetic value. The decorative element is visually stimulating, as if the artisan uses the carpet as simply a vehicle for his or her own creative imagination.

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Antique Tabriz Persian carpet. Licensed through Creative Commons

Quilts made in the rural community of Gee's Bend Alabama show a diverse range of individual patterns within a larger design structure of colorful stripes and blocks, and have a basis in graphic textile designs from Africa. Even a small tobacco bag from the Native American Sioux culture (below) becomes a work of art with its intricate beaded patterns and floral designs.

http://www.auburn.edu/academic/other/geesbend/explore/catalog/slideshow/index.htm

http://www.metmuseum.org/Collections/search-the-collections/50010533

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Tobacco pouch, Sioux Licensed through Creative Commons

The craftsmanship in glass making is one of the most demanding. Working with an extremely fragile medium presents unique challenges. Challenges aside, the delicate nature of glass gives it exceptional visual presence. A blown glass urn dated to first century Rome is an example. The fact that it has survived the ages intact is testament to its ultimate strength and beauty.

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Cinerary Urn, Roman. C. 1st century CE. Blown glass. National Archaeological Museum, Spain. Photo: Luis Garcia

Zaqarbal. Image is in the public domain.

Louis Comfort Tiffany introduced many styles of decorative glass between the late 19th and first part of the 20th centuries. His stained-glass window The Holy City in Baltimore Maryland has intricate details in illustrations influenced by the Art Nouveau style popular at the turn of the 19th century.

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Louis Comfort Tiffany, The Holy City, stained glass window, Brown Memorial Presbyterian Church, Baltimore,

Maryland. 1905. Image is in the public domain.

The artist Dale Chihuly has redefined the traditional craft of glass making over the last forty years, moving it towards the mainstream of fine art with single objects and large scale installations involving hundreds of individual pieces.

https://www.chihuly.com/

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Dale Chihuly, Saffron Tower. de Young Museum. San Francisco California. Image by Darren Kumasawa Liscense:

CC BY-NC-ND 2.0

Design Media

On any given day, you can look around your surroundings and come in contact with design. Information comes to you in many forms: the graphics on the front of a cereal box, or on the packaging in your cupboards; the information on the billboards and bus shelter posters you pass on your way to work; the graphics on the outside of the cup that holds your double latte; and the printed numbers on the dial of the speedometer in your car. Information is communicated by the numbers on the buttons in an elevator; on the signage hanging in stores; or on the amusing graphics on the front of your friend’s T-shirt. So many items in your life hold an image that is created to convey information. And all of these things are designed by someone.

https://www.flickr.com/photos/kumasawa/2611006234

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Times Square, New York, New York. Image by Terabass License CC BY-SA 3.0

Traditionally referred to as graphic design, communication design is the process by which messages and images are used to convey information to a targeted audience. Design itself is only the first step. It is important when conceiving of a new design that the entire workflow through to production is taken into consideration. And while most modern graphic design is created on computers, using design software such as the Adobe suite of products, the ideas and concepts don’t stay on the computer. To create in-store signage, for instance, the ideas need to be completed in the computer software, then progress to an imaging (traditionally referred to as printing) process. This is a very wide-reaching and varied group of disciplines.

Product Design

Product Design: The dictum “form follows function” represents an organic approach to three- dimensional design. The products and devices we use every day continue to serve the same functions but change in styles. This constant realignment in basic form reflects modern aesthetic considerations and, on a larger scale, become artifacts of the popular culture of a given time period. The two examples below illustrate this idea. Like Tiffany glass, the chair designed by Henry van de Velde in 1895 reflects the Art Nouveau style in its wood construction with organic, stylized lines and curvilinear form. In comparison, the Ant Chair from 1952 retains the basic functional form with more modern design using a triangular leg configuration of tubular steel and a single piece of laminated wood veneer, the cut-out shape suggesting the form of a black ant.

https://commons.wikimedia.org/wiki/File:New_york_times_square-terabass.jpg#/media/File:New_york_times_square-terabass.jpg

https://creativecommons.org/licenses/by-sa/3.0

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Henry van de Velde, Chair, 1895. Wood, woven fiber. Image is in the public domain.

Arne Jacobsen, Ant Chair, 1952. Steel and wood. Licensed through Creative Commons.

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Conditions and Products of the Industrial Age

Before the Industrial Revolution (1760-1840 in Britain) most aspects of design and all aspects of production were commonly united in the person of the craftsman. The tailor, mason, cobbler, potter, brewer, and any other kind of craftsman integrated their personal design aesthetic into each stage of product development. The Arts & Crafts movement emerged in the second half of the 19th century in reaction to the social, moral, and aesthetic chaos created by the Industrial Revolution. William Morris was its founder and leader. He abhorred the cheap and cheerful products of manufacturing, the terrible working and living conditions of the poor, and the lack of guiding moral principles of the times. Morris “called for a fitness of purpose, truth to the nature of the materials and methods of production, and individual expression by both artist and worker” (Meggs & Purvis, 2011, p. 160). These philosophical points are still pivotal to the expression of design style and practice to this day. Design styles from the Arts & Crafts movement and on have emphasized, in varying degrees, either fitness of purpose and material integrity, or individual expression and the need for visual subjectivity. Morris based his philosophy on the writings of John Ruskin, a critic of the Industrial Age, and a man who felt that society should work toward promoting the happiness and well-being of every one of its members, by creating a union of art and labor in the service of society. Ruskin admired the medieval Gothic style for these qualities, as well as the Italian aesthetic of medieval art because of its direct and uncomplicated depiction of nature.

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William Morris, Trellis. Designed 1862, first produced 1864. Morris & Company. Block-printed Wallpaper. Source: Metropolitan Museum of Art. License Public Domain

Many artists, architects, and designers were attracted to Ruskin’s philosophy and began to integrate components of them into their work. Morris, influenced by his upbringing in an agrarian countryside, was profoundly moved by Ruskin’s stance on fusing work and creativity, and became determined to find a way to make it a reality for society. This path became his life’s work.

Roycroft, Reclining Morris Chair. c.1903. Source: Wikimedia Commons License: CC0 1.0 Universal Public Domain

Dedication

In 1860, Morris established an interior design firm with friends based on the knowledge and experiences he had in crafting and building his home. He began transforming not only the look of home interiors but also the design studio. He brought together craftsmen of all kinds under the umbrella of his studio and began to implement Ruskin’s philosophy of combining art and craft. In Morris’s case, this was focused on making beautiful objects for the home. The craftsmen were encouraged to study principles of art and design, not just production, so they could reintegrate

https://www.metmuseum.org/art/collection/search/384020?searchField=All&sortBy=Relevance&showOnly=openAccess&ft=William+Morris&offset=20&rpp=20&pos=33

https://commons.wikimedia.org/wiki/File:Reclining_Morris_Chair_MET_235723.jpg

https://creativecommons.org/publicdomain/zero/1.0/deed.en

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design principles into the production of their products. The objects they created were made and designed with an integrity a craftsman could feel proud of and find joy in creating, while the eventual owner would consider these products on par with works of art (an existing example is the Morris chair above). The look of the work coming out of the Morris studio was based specifically on an English medieval aesthetic that the British public could connect to. The English look and its integrity of production made Morris’s work very successful and sought after. His organizational innovations and principled approach gained attention with craftsmen and artisans, and became a model for a number of craft guilds and art societies, which eventually changed the British design landscape.

Design and New Technologies

The look of graphic design changed through advancements in photography, typesetting, and printing techniques. Designers felt confident in exploring and experimenting with the new technologies as they were well supported by the expertise of the print industry. Designers began to cut up type and images and compose directly on mechanical boards, which were then photographed and manipulated on the press for color experimentation. As well, illustration was once again prized. Conceptual typography also became a popular form of expression.

Milton Glaser, I Love New York Logo. Source: Wikimedia Commons License: Public Domain

Milton Glaser, Dylan. 1966. Image by David License

CC BY 2.0

An excellent example of this expansive style can be found in the design output of New York’s Push Pin Studios. Formed by Milton Glaser and Seymour Chwast, Push Pin was a studio that created innovative typographic solutions — I♥NY— brand identities, political posters, books, and albums (such Bob Dylan’s album Dylan). It was adept at using and mixing illustration, photography, collage, and typography for unexpected and innovative visual results that were always fresh and interesting as well as for its excellent conceptual solutions. The influence of Push Pin and Late Modern is still alive and has recently experienced a resurgence. Many young designers have adopted this style because of its fresh colors, fine wit, and spontaneous compositions.

Design Today

https://commons.wikimedia.org/wiki/File:I_Love_New_York.svg

https://www.flickr.com/photos/bootbearwdc/3048848725/in/photolist-2g9oNoB-2g9pfdZ-5Dq9vk-4E18kT-2g9oQ2d-DxmN4q-8vQ5kV-HCKRVf-8ctRhD-4E1xsJ-e9zcdx

https://creativecommons.org/licenses/by/2.0/

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Apple Store, Opéra, Paris, France. Image by Florian License: CC BY-SA 2.0

The technological revolution of the 1990s brought the mobile phone and computer to every home and office and changed the structure of our current society much as manufacturing in the 1800s changed Britain and the Western world. As with the Industrial Revolution, the change in technology over the last 20 years has affected us environmentally, socially, and economically. Manufacturing has slowly been moved offshore and replaced with technology-based companies. Data has replaced material as the substance we must understand and use effectively and efficiently. The technological development sectors have also begun to dominate employment and wealth sectors and overtake manufacturing’s dominance. These changes are ongoing and fast- paced. The design community has responded in many novel ways, but usually its response is anchored by a look and strategy that reduce ornament and overt style while focusing on clean lines and concise messaging. The role of design today is often as a way-finder to help people keep abreast of changes, and to provide instruction. Designers are once again relying on established, historic styles and methods like ITS (International Typographic Style) to connect to audiences because the message is being delivered in a complex visual system. Once the technological shifts we are experiencing settle down, and design is no longer adapting to new forms of delivery, it will begin to develop original and unique design approaches that complement and speak to the new urban landscape. License and Attributions

https://commons.wikimedia.org/w/index.php?title=Special:Search&limit=20&offset=40&profile=default&search=Apple+Store&advancedSearch-current=%7B%7D&ns0=1&ns6=1&ns12=1&ns14=1&ns100=1&ns106=1#/media/File:Apple_Store,_Opéra_1.jpg

https://creativecommons.org/licenses/by-sa/2.0

https://en.wikipedia.org/wiki/International_Typographic_Style

Chapter 12: Craft and Design Media

Craft Media
Design Media

Product Design

Conditions and Products of the Industrial Age
Design and New Technologies
Design Today

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Chapter 30: Postwar Modern Movements

Mark Rothko, No. 16 (Red, Brown, and Black), 1958, oil on canvas, 8′ 10 5/8″ x 9′ 9 1/4″ (The Museum of Modern

Art) (photo: Steven Zucker, CC BY-NC-SA 2.0)

The New York School

The group of artists known as Abstract Expressionists emerged in the United States in the years following World War II. As the term suggests, their work was characterized by non-objective imagery that appeared emotionally charged with personal meaning. The artists, however, rejected these implications of the name. They insisted their subjects were not “abstract,” but rather primal images, deeply rooted in society’s collective unconscious. Their paintings did not express mere emotion. They communicated universal truths about the human condition. For these reasons, another term—the New York School—offers a more accurate descriptor of the group, for although some eventually relocated, their distinctive aesthetic first found form in New York City. The rise of the New York School reflects the broader cultural context of the mid-Twentieth Century, especially the shift away from Europe as the center of intellectual and artistic innovation in the West. Much of Abstract Expressionism’s significance stems from its status as the first American visual art movement to gain international acclaim.

Art for a world in shambles

Barnet Newman, an artist associated with the movement, wrote: “We felt the moral crisis of a world in shambles, a world destroyed by a great depression and a fierce World War, and it was impossible at that time to paint the kind of paintings that we were doing—flowers, reclining nudes, and people playing the cello.” [1]

https://www.flickr.com/photos/profzucker/3754016238/

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Barnett Newman, Vir Heroicus Sublimis, 1950-51, oil on canvas, 242.2 x 541.7 cm (The Museum of Modern Art,

New York)

Although distinguished by individual styles, the Abstract Expressionists shared common artistic and intellectual interests. While not expressly political, most of the artists held strong convictions based on Marxist ideas of social and economic equality. Many had benefited directly from employment in the Works Progress Administration’s Federal Art Project. There, they found influences in Regionalist styles of American artists such as Thomas Hart Benton, as well as the Social Realism of Mexican muralists including Diego Rivera and José Orozco. The growth of Fascism in Europe had brought a wave of immigrant artists to the United States in the 1930s, which gave Americans greater access to ideas and practices of European Modernism. They sought training at the school founded by German painter Hans Hoffmann, and from Josef Albers, who left the Bauhaus in 1933 to teach at the experimental Black Mountain College in North Carolina, and later at Yale University. This European presence made clear the formal innovations of Cubism, as well as the psychological undertones and automatic painting techniques of Surrealism. Whereas Surrealism had found inspiration in the theories of Sigmund Freud, the Abstract Expressionists looked more to the Swiss psychologist Carl Jung and his explanations of primitive archetypes that were a part of our collective human experience. They also gravitated toward Existentialist philosophy, made popular by European intellectuals such as Martin Heidegger and Jean-Paul Sartre. Given the atrocities of World War II, Existentialism appealed to the Abstract Expressionists. Sartre’s position that an individual’s actions might give life meaning suggested the importance of the artist’s creative process. Through the artist’s physical struggle with his materials, a painting itself might ultimately come to serve as a lasting mark of one’s existence. Each of the artists involved with Abstract Expressionism eventually developed an individual style that can be easily recognized as evidence of his artistic practice and contribution.

Action Painting

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Jackson Pollock, One: Number 31, 1950, 1950, oil and enamel paint on unprimed canvas, 269.5 x 530.8 cm (The

Museum of Modern Art, New York)

Artists of the New York School fall into two broad groups: those who focused on a gestural application of paint, and those who used large areas of color as the basis of their compositions. The leading figures of the first group were Franz Kline, Robert Motherwell, Willem de Kooning, Lee Krasner, and above all Jackson Pollock. Pollock’s innovative technique of dripping paint on canvas spread on the floor of his studio prompted critic Harold Rosenberg to coin the term action painting to describe this type of practice. Action painting arose from the understanding of the painted object as the result of artistic process, which, as the immediate expression of the artist’s identity, was the true work of art. Helen Frankenthaler also employed experimental techniques by pouring thinned pigments onto untreated canvas.

Helen Frankenthaler, Mountains and Sea, 1952, oil and charcoal on unsized, unprimed canvas (National Gallery of

Art Washington). Image by Steven Zucker CC BY-NC-SA 2.0

https://www.flickr.com/photos/profzucker/42863421452/in/photostream/

https://creativecommons.org/licenses/by-nc-sa/2.0/

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Color Field Painting

The second branch of Abstract Expressionist painting is usually referred to as Color Field painting. Two central figures in this group were Mark Rothko, known for canvases composed of two or three soft, rectangular forms stacked vertically, and Barnett Newman, who, in contrast to Rothko, painted fields of colour with sharp edges interrupted by precise vertical stripes he called “zips” (see Vir Heroicus Sublimis, 1950–51, above). Through the overwhelming scale and intense color of their canvases, Color Field painters like Rothko and Newman revived the Romantic aesthetic of the sublime.

Mark Rothko, No. 3/No. 13, oil on canvas (The Museum of Modern Art, New York) Image by Steven Zucker CC BY-

NC-SA 2.0

Robert Rauschenberg’s Combines and Assemblage

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Robert Rauschenberg, Canyon, 1959, oil, pencil, paper, metal, photograph, fabric, wood, canvas, buttons, mirror,

Is Canyon a painting or sculpture? Its upper half is a mass of materials that include bits of a shirt, printed paper, a squashed tube of paint, and photographs all seemingly held in place by broad slashes of house paint, while its lower half consists of a stuffed bald eagle with outstretched wings about to lift off from an opened box. The box seems to balance precariously upon a beam that tilts downward to the right; its end point meets the frame. As if that were not enough, that beams suspends a pillow dangling below the frame and squeezed in half by the cloth string that holds it.

Combines

Canyon belongs to a group of artworks called “Combines,” a term unique to this artist who attached extraneous materials and objects to canvases in the years between 1954 and 1965. What makes Robert Rauschenberg so significant for this period—the postwar years—is how he challenged conventional ways of thinking about advanced modern art; especially the art of “The New York School,” who were praised for their heroic abstraction. Rauschenberg’ s art violated the rules. Rauschenberg did know other artists who took a similar approach and challenged the narrow parameters of the formalists wing of the New York School and its rejection of popular culture and illusionism. His immediate circle included the painter Jasper Johns, the choreographer Merce Cunningham and the avant-garde composer John Cage. On the West Coast Edward Keinholz and Wallace Berman were creating artworks that would come to be called “Assemblage”—think collage on a large scale. In Paris, Arman, Jean Tinguley and Jacques de la Villeglé incorporated the debris of the city; junk and cast off commodities incorporated into artworks that became know

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as Nouveau réalism (New realism).

Jasper Johns, Flag, 1954-55 (dated on reverse 1954), encaustic, oil, and collage on fabric mounted on plywood,

three panels, 42-1/4 x 60-5/8″ /107.3 x 153.8 cm (The Museum of Modern Art, New York)

Edward Kienholz, Back Seat Dodge ’38, 1964, Paint, fiberglass and flock, 1938 Dodge, recorded music, and player, chicken wire, beer bottles, artificial grass, and cast plaster figures. ( Los Angeles County Museum of Art). Image by

Amaury Laporte CC BY-NC 2.0

https://www.flickr.com/photos/alaporte/31027224450/in/photolist-GrqswH-GrhVBb-PgLCRG-87gNTp-HiSVNs-HmPqTR-VUA3EP-GrhWdG-HmPtK2-M1m3mY-pV7LGo-HmPsL8-GrqrMX-GWzxGN-GWzaZE-Hdqyp3-Grq1Uv-289J6-GWze2w-HfKitR-GrhPY7-HiSSiS-pYxwQf-HdqsXG-pj7oTf-qfVrLD-GWzrMw-GWzqJE-pjkDn8-pYFvHr-HfKtMr-HiSRbG-Grq6vz-qg6rzR-GrqjP8-GrpZJp-GrqfSF-Grq8hR-HiSNLw-GrhFVU-HiSB67-HfKpgc-HmP6UP-7a5bDK-HiSt69-uJWAPy-egEDRj-28eg5rY-egEDjU-2hBFTHG/

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Canyon is more than an accumulation of debris, however. Note the skeins of paint, brushed, scribbled, clotted, dripping in the style of the abstract expressionists. Rauschenberg was also closely aligned with the New York School—particularly the older abstract expressionists—whose work he admired. But he nevertheless expressed a profound ambivalence towards this group: “There was something about the self-assertion of abstract expressionism that personally always put me off, because at that time my focus was as much in the opposite direction as it could be.”[2]

Robert Rauschenberg, Canyon (detail), 1959, oil, pencil, paper, metal, photograph, fabric, wood, canvas, buttons,

Pop Art

At first glance, Pop Art might seem to glorify popular culture by elevating soup cans, comic strips and hamburgers to the status of fine art on the walls of museums. But, then again, a second look may suggest a critique of the mass marketing practices and consumer culture that emerged in the United States after World War II. Andy Warhol’s Gold Marilyn Monroe (1962) clearly reflects this inherent irony of Pop. The central image on a gold background evokes a religious tradition of painted icons, transforming the Hollywood starlet into a Byzantine Madonna that reflects our obsession with celebrity. Notably, Warhol’s spiritual reference was especially poignant given Monroe’s suicide a few months earlier. Like religious fanatics, the actress’s fans worshipped their idol; yet, Warhol’s sloppy silk-screening calls attention to the artifice of Marilyn’s glamorous façade and places her alongside other mass-marketed commodities like a can of soup or a box of Brillo pads.

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Andy Warhol, Gold Marilyn Monroe, 1962, silkscreen on canvas, 6′ 11 1/4″ x 57″ (211.4 x 144.7 cm) (Museum of

Modern Art, New York)

Genesis of Pop

In this light, it’s not surprising that the term “Pop Art” first emerged in Great Britain, which suffered great economic hardship after the war. In the late 1940s, artists of the “Independent Group,” first began to appropriate idealized images of the American lifestyle they found in popular magazines as part of their critique of British society. Critic Lawrence Alloway and artist Richard Hamilton are usually credited with coining the term, possibly in the context of Hamilton’s famous collage from 1956, Just what is it that makes today’s home so different, so appealing? Made to announce the Independent Group’s 1956 exhibition “This Is Tomorrow,” in London, the image prominently features a muscular semi-nude man, holding a phallically positioned Tootsie Pop.

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Richard Hamilton, Just what is it that makes today’s home so different, so appealing?, 1956, collage, 26 cm × 24.8

cm (10.25 in × 9.75 in) (Kunsthalle Tübingen, Tübingen, Germany)

Pop Art’s origins, however, can be traced back even further. In 1917, Marcel Duchamp asserted that any object—including his notorious example of a urinal—could be art, as long as the artist intended it as such. Artists of the 1950s built on this notion to challenge boundaries distinguishing art from real life, in disciplines of music and dance, as well as visual art. Robert Rauschenberg’s desire to “work in the gap between art and life,” for example, led him to incorporate such objects as bed pillows, tires and even a stuffed goat in his “combine paintings” that merged features of painting and sculpture. Likewise, Claes Oldenberg created The Store, an installation in a vacant storefront where he sold crudely fashioned sculptures of brand-name consumer goods. These “Proto-pop” artists were, in part, reacting against the rigid critical structure and lofty philosophies surrounding Abstract Expressionism, the dominant art movement of the time; but their work also reflected the numerous social changes taking place around them.

Post-War Consumer Culture Grabs Hold (and Never Lets Go)

The years following World War II saw enormous growth in the American economy, which, combined with innovations in technology and the media, spawned a consumer culture with more leisure time and expendable income than ever before. The manufacturing industry that had expanded during the war now began to mass-produce everything from hairspray and washing machines to shiny new convertibles, which advertisers claimed all would bring ultimate joy to their owners. Significantly, the development of television, as well as changes in print advertising, placed new emphasis on graphic images and recognizable brand logos—something that we now take for granted in our visually saturated world.

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1950s Advertisement for the American Gas Association

It was in this artistic and cultural context that Pop artists developed their distinctive style of the early 1960s. Characterized by clearly rendered images of popular subject matter, it seemed to assault the standards of modern painting, which had embraced abstraction as a reflection of universal truths and individual expression.

Irony and Iron-Ons

In contrast to the dripping paint and slashing brushstrokes of Abstract Expressionism—and even of Proto-Pop art—Pop artists applied their paint to imitate the look of industrial printing techniques. This ironic approach is exemplified by Lichtenstein’s methodically painted Benday dots, a mechanical process used to print pulp comics.

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(L) Roy Lichtenstein, Girl with a Ball, 1961, oil on canvas, 60 1/4 x 36 1/4″ (153 x 91.9 cm) (Museum of Modern Art,

New York); (R) Detail of face showing Lichtenstein’s painted Benday dots)

As the decade progressed, artists shifted away from painting towards the use of industrial techniques. Warhol began making silkscreens, before removing himself further from the process by having others do the actual printing in his studio, aptly named “The Factory.”

Andy Warhol, Marilyn Diptych, 1962, acrylic on canvas, 2054 x 1448 mm (Tate) © The Andy Warhol Foundation for

the Visual Arts, Inc. 2015

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Andy Warhol, Campbell’s Soup Cans (detail), 1962. Synthetic polymer on canvas. Image by Steven Zucker CC BY-

NC-SA 2.0

Similarly, Oldenburg abandoned his early installations and performances, to produce the large- scale sculptures of cake slices, lipsticks, and clothespins that he is best known for today.

https://www.flickr.com/photos/profzucker/3754015526/in/photostream/

https://creativecommons.org/licenses/by-nc-sa/2.0/

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Claes Oldenburg, Clothespin, 1976, cor-ten steel, 14 x 3.73 x 1.37 m, Philadelphia (photo: Ellen Fitzsimons, CC:

BY-NC-SA)

Minimal Art and Earthworks

A reductive abstract art

Although many works of art can be described as “minimal,” the name Minimalism refers specifically to a kind of reductive abstract art that emerged during the early 1960s. At the time, some critics preferred names like “ABC,” “Boring,” or “Literal” Art, and even “No-Art Nihilism,” which they believed best summed up the literal presentation and lack of expressive content characterizing this new aesthetic. While scholars have recently argued for a broader definition of Minimalism that would include artists in a number of disciplines, the term remains closely linked to sculpture of the period.

https://flic.kr/p/dnUKDP

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Donald Judd, Untitled, 1969, ten copper units, each 9 x 40 x 31″ with 9″ intervals (Guggenheim Museum, New York)

Donald Judd’s Untitled (1969) is characteristic in its use of spare geometric forms, repeated to create a unified whole that calls attention to its physical size in relationship to the viewer. Like most Minimalists, Judd used industrial materials and processes to manufacture his work, but his preference for color and shiny surfaces distinguished him among the artists who pioneered the style.

Lack of apparent meaning

What most people find disturbing about Minimalism is its lack of any apparent meaning. Like Pop Art, which emerged simultaneously, Minimalism presented ordinary subject matter in a literal way that lacked expressive features or metaphorical content; likewise, the use of commercial processes smacked of mass production and seemed to reject traditional expectations of skill and originality in art. In these ways, both movements were, in part, a response to the dominance of Abstract Expressionism, which had held that painting conveys profound subjective meaning. However, whereas Pop artists depicted recognizable images from kitsch sources, the Minimalists exhibited their plywood boxes, florescent lights and concrete blocks directly on gallery floors, which seemed even more difficult to distinguish as “Art.” (One well-known story tells of an art dealer, who visited Carl Andre’s studio during the winter and unknowingly burned a sculpture for firewood while the artist was away.) Moreover, when asked to explain his black-striped paintings of 1959, Frank Stella responded, “What you see is what you see.” Stella’s comment implied that, not only was there no meaning, but that none was necessary to demonstrate the object’s artistic value.

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Frank Stella, The Marriage of Reason and Squalor, II, 1959, enamel on canvas, 230.5 x 337.2 cm (The Museum of

Modern Art)

Earthworks

Land art, earthworks (coined by Robert Smithson), or Earth art is an art movement in which landscape and art are inextricably linked, so in this way it is site-specific. It is also an art form created in nature, using organic materials such as soil, rock (bed rock, boulders, stones), organic media (logs, branches, leaves), and water with introduced materials such as concrete, metal, asphalt, or mineral pigments. Sculptures are not placed in the landscape; rather, the landscape is the means of their creation. Earth-moving equipment is often involved. The works frequently exist in the open, located well away from civilization, left to change and erode under natural conditions. Many of the first works of this kind, created in the deserts of Nevada, New Mexico, Utah or Arizona, were ephemeral in nature and now only exist as video recordings or photographic documents. Robert Smithson was an American land artist. His most famous work is Spiral Jetty (1970), a 1,500-foot long spiral-shaped jetty extending into the Great Salt Lake in Utah constructed from rocks, earth, and salt. It was entirely submerged by rising lake waters for several years, but has since re-emerged.

Introduction to Art Chapter 30: Postwar Modern Movements 439

Robert Smithson, Spiral Jetty, 1970. (Great Salt Lake, Utah) Image by Soren.harward License CC-BY-SA-2.0

Using rocks and earth, Smithson built a spiral-shaped relief in the lake bed. Best viewed from above, the piece is altered by the shifting waters over time and in this way is forever linked to the environment it was intended for. Christo Vladimirov Javacheff and Jeanne-Claude, known as Christo and Jeanne-Claude, are a married couple who created site-specific environmental works of art. Their works nearly always entail wrapping a large area of space or piece of architecture in a textile, and include the wrapping of the Reichstag in Berlin and the Pont-Neuf bridge in Paris, the 24-mile (39 km)-long artwork called Running Fence in Sonoma and Marin counties in California, and The Gates in New York City’s Central Park. The purpose of their art, they contend, is simply to create works of art for joy and beauty and to create new ways of seeing familiar landscapes.

https://commons.wikimedia.org/wiki/File:Spiral-jetty-from-rozel-point.png

https://creativecommons.org/licenses/by-sa/2.0/deed.en

Introduction to Art Chapter 30: Postwar Modern Movements 440

Christo and Jeanne-Claude, Wrapped Reichstag, 1971-95, © Christo (photo: Jotefa, CC BY-NC-SA 2.0)

Conceptual and Performance Art

Conceptual Art

In 1972 the De Saisset Art Museum at Santa Clara University in the San Francisco Bay Area gave the artist Tom Marioni several hundred dollars to help cover expenses for mounting an exhibition of his work at the institution. Instead of using the money to purchase art materials, Marioni bought an older model used car, a Fiat 750, which he carefully maneuvered into the museum for the opening of his show. The vehicle, parked on top of an oriental rug, formed the centerpiece for this exhibition, titled My First Car. Was this really art, or was it a scam to get the museum to pay for a car the artist wanted? After learning about the show, the University President concluded that it was more of the latter and ordered the show closed. Presumably he was put off by how My First Car profited Marioni without involving any technical skill or hard work on the part of the artist.

https://flic.kr/p/avxgH

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Tom Marioni, My First Car, 1972, De Saisset Gallery, Santa Clara, California (photo from Performance Anthology:

Source Book of California Performance Art, eds. Carl E. Loeffler and Darlene Tong)

Marioni’s work was in many ways typical of the late 1960s and early 1970s art practices that came to be known as Conceptual art. As the term suggests, Conceptual art placed emphasis upon the concept or idea, and deemphasized the actual physical manifestation of the work. Thus an artist did not need manual skill to produce his work, and in fact could get away with not making anything at all. Rather than being a mere prank (as many dismissed it at the time), Marioni’s work was a proposal for a new kind of art that deliberately disavowed art’s traditional role as a showcase for the creative genius and technical abilities of the artist.

https://books.google.com/books?id=lu7KPDCfcXMC&lpg=PA83&ots=Ma92nlZlTL&dq=saisset%20gallery%20marioni&pg=PA83#v=onepage&q=saisset%20gallery%20marioni&f=false

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Joseph Kosuth, One and Three Chairs, 1965, wood folding chair, mounted photograph of a chair, and mounted

photographic enlargement of the dictionary definition of “chair” (MoMA)

In the case of One and Three Chairs, by artist Joseph Kosuth, the central idea was to explore the nature of representation itself. We know instinctively what a “chair” is, but how is it that we actually conceive of and communicate that concept? Kosuth presents us with a photograph of a chair, an actual chair, and its linguistic or language-based description. All three of these could be interpreted as representations of the same chair (the “one” chair of the title), and yet they are not the same. They each have distinct properties: in actuality, the viewer is confronted with “three” chairs, each represented and experienced—read—in different ways. Today there are few female artists who are more visible to a wide range of international audiences than Yayoi Kusama, who was born in 1929 in Japan. Kusama is a self-taught artist who now chooses to live in a private Tokyo mental health facility, while prolifically producing art in various media in her studio nearby. Her highly constructed persona and self-proclaimed life- long history of insanity have been the subject of scrutiny and critiques for decades. Art historian Jody Cutler places Kusama’s oeuvre “in dialogue with the psychological state known as narcissism,” as “narcissism is both the subject and the cause of Kusama’s art, or in other words, a conscious artistic element related to content.”[3]

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Installation view, Infinity Mirror Room–Phalli’s Field (or Floor Show), (no longer extant) Castellane Gallery, New

York. 1965 (photo ©Eiko Hosoe)

In 1965, she mounted her first mirror installation Infinity Mirror Room-Phalli’s Field at Castellane Gallery in New York (above). A mirrored room without a ceiling was filled with colorfully dotted, phallus-like stuffed objects on the floor. The repeated reflections in the mirrors conveyed the illusion of a continuous sea of multiplied phalli expanding to its infinity. This playful and erotic exhibition immediately attracted the media’s attention.

Performance Art

Following World War II, performance emerged as a useful way for artists to explore philosophical and psychological questions about human existence. For this generation, who had witnessed destruction caused by the Holocaust and atomic bomb, the body offered a powerful medium to communicate shared physical and emotional experience. Whereas painting and sculpture relied on expressive form and content to convey meaning, performance art forced viewers to engage with a real person who could feel cold and hunger, fear and pain, excitement and embarrassment—just like them. Some artists, inspired largely by Abstract Expressionism, used performance to emphasize the body’s role in artistic production. Working before a live audience, Kazuo Shiraga of the Japanese Gutai Group made sculpture by crawling through a pile of mud. Georges Mathieu staged similar performances in Paris where he violently threw paint at his canvas. These performative approaches to making art built on philosophical interpretations of Abstract Expressionism, which held the gestural markings of action painters as visible evidence of the artist’s own existence. Bolstered by Hans Namuth’s photographs of Jackson Pollock in his studio, moving dance-like around a canvas on the floor, artists like Shiraga and Mathieu began to see the artist’s creative act as equally important, if not more so, to the artwork produced. In this light, Pollock’s distinctive drips, spills and splatters appeared as a mere remnant, a visible trace left over from the moment of creation. Shifting attention from the art object to the artist’s action further suggested that art existed in real space and real time. In New York, visual artists combined their interest in action painting with

https://www.wikiart.org/en/kazuo-shiraga

https://en.wikipedia.org/wiki/Georges_Mathieu#Painting_technique_and_execution

https://www.artsy.net/artwork/hans-namuth-jackson-pollock-1

Introduction to Art Chapter 30: Postwar Modern Movements 444

ideas of the avant-garde composer John Cage to blur the line between art and life. Cage employed chance procedures to create musical compositions such as 4’33”. In this (in)famous piece, Cage used the time frame specified in the title to bracket ambient noises that occurred randomly during the performance. By effectively calling attention to the hum of fluorescent lights, people moving in their seats, coughs, whispers, and other ordinary sounds, Cage transformed them into a unique musical composition.

Yoko Ono, Bed-in (Yoko Ono and John Lennon in bed at the Hilton hotel Amsterdam). 1969. Image by Eric Kock

CC0 1.0 Public Domain

Drawing on these influences, new artistic formats emerged in the late 1950s. Environments and Happenings physically placed viewers in commonplace surroundings, often forcing them to participate in a series of loosely structured actions. Fluxus artists, poets, and musicians likewise challenged viewers by presenting the most mundane events—brushing teeth, making a salad, exiting the theater—as forms of art. A well-known example is the “bed-in” that Fluxus artist Yoko Ono staged in 1969 in Amsterdam with her husband John Lennon. Typical of much performance art, Ono and Lennon made ordinary human activity a public spectacle, which demanded personal interaction and raised popular awareness of their pacifist beliefs.

Early Feminism

https://commons.wikimedia.org/wiki/File:John_Lennon_en_zijn_echtgenote_Yoko_Ono_op_huwelijksreis_in_Amsterdam._John_Lenn,_Bestanddeelnr_922-2302.jpg

https://creativecommons.org/publicdomain/zero/1.0/deed.en

Introduction to Art Chapter 30: Postwar Modern Movements 445

Judy Chicago, The Dinner Party, 1974–79, ceramic, porcelain, and textile, 1463 x 1463 cm (Brooklyn Museum)

The Dinner Party is a monument to women’s history and accomplishments. It is a massive triangular table—measuring 48 feet on each side—with thirty-nine place settings dedicated to prominent women throughout history and an additional 999 names are inscribed on the table’s glazed porcelain brick base. This tribute to women, which includes individual place settings for such luminary figures as the Primordial Goddess, Ishtar, Hatshepsut, Theodora, Artemesia Gentileschi, Sacajawea, Sojourner Truth, Susan B. Anthony, Elizabeth Cady Stanton, Emily Dickinson, Margaret Sanger, and Georgia O’Keeffe, is beautifully crafted. Each place setting has an exquisitely embroidered table runner that includes the name of the woman, utensils, a goblet, and a plate. What drove Chicago to embark on such a large and controversial feminist project? She was inspired, in part, by her pioneering work in feminist education. She started the Feminist Art Program at California State University, Fresno in 1970. The following year she founded the Feminist Art Program (FAP) at the newly established California Institute of the Arts (CalArts) with the abstract painter Miriam Schapiro. The galleries were still under construction when Chicago arrived at CalArts, so the FAP had their exhibition in an abandoned mansion that was slated to be demolished shortly after. The resulting installation, Womanhouse, was a testament to Chicago’s method of teaching, which begin with consciousness raising and then progressed to realizing a message through whatever medium was most suitable, whether it was performance, sculpture, or painting. In 1972, the artist Eleanor Antin decided she would make an “academic” sculpture: “I got out a book on Greek sculpture, which is the most academic of all….This piece was done in

https://www.brooklynmuseum.org/exhibitions/dinner_party

https://smarthistory.org/neo-babylonian/

https://smarthistory.org/hatshepsut/

https://smarthistory.org/san-vitale/

https://smarthistory.org/gentileschi-judith-slaying-holofernes/

https://smarthistory.org/georgia-okeeffe-the-lawrence-tree/

Introduction to Art Chapter 30: Postwar Modern Movements 446

the method of the Greek sculptors…carving around and around the figure and whole layers would come off at a time until finally the aesthetic ideal had been reached.” Of course she did no such thing—make an academic sculpture, that is. What she produced instead was a work entitled Carving: A Traditional Sculpture in which the typical marble or bronze medium of sculpture was replaced with a grid of 148 black and white photographs of the artist’s naked body. They are arranged in 37 vertical columns, corresponding to the number of days Antin spent following a diet plan proposed in a popular magazine for women. Each row consists of four photographs showing back, front, and side profiles, with a text panel at the bottom listing each day, time, and the artist’s weight. When first exhibited, the photographs were simply pinned to the wall, eschewing the conventional use of frames in the display of art.

Eleanor Antin, Carving: A Traditional Sculpture, 1972, 148 gelatin silver prints and text panels, each photograph

17.7 x 12.7 cm (The Art Institute of Chicago)

Carving: A Traditional Sculpture could be seen as one answer to the rhetorical question posed by art historian Linda Nochlin’s now famous essay published one year earlier: “Why Have There Been No Great Women Artists?” Nochlin’s argument was that the history of art included few women, not because there were few women artists of note, but because art history was an extension of a patriarchal system in which women were excluded from almost everything. The answer Nochlin proposed was not to simply re-insert women into history, but to scrutinize the very structure of history itself: to analyze the role of women within patriarchy, and by extension in the history of art.

http://www.artic.edu/aic/collections/artwork/144356

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Eleanor Antin, Carving: A Traditional Sculpture, 1972 (detail) (Henry Moore Foundation)

License and Attributions

https://www.henry-moore.org/whats-on/2016/09/28/eleanor-antin-carving-a-traditional-sculpture#gallery

Chapter 30: Postwar Modern Movements

The New York School

Art for a world in shambles
Action Painting
Color Field Painting

Robert Rauschenberg’s Combines and Assemblage

Combines

Pop Art

Genesis of Pop
Post-War Consumer Culture Grabs Hold (and Never Lets Go)
Irony and Iron-Ons

Minimal Art and Earthworks

A reductive abstract art
Lack of apparent meaning
Earthworks

Conceptual and Performance Art

Conceptual Art
Performance Art

Early Feminism

Introduction to Art Chapter 10: Time Based Media: Film, Video, Digital 105

Chapter 10: Time Based Media: Film, Video, Digital

Early Developments

With traditional film, what we see as a continuous moving image is actually a linear progression of still photos on a single reel that pass through a lens at a certain rate of speed and are projected onto a screen. We saw a simple form of this process earlier in the pioneering work of Eadweard Muybridge.

Eadweard Muybridge, Sequence of a Horse Jumping, 1904. Image is in the public domain

The first motion picture cameras were invented in Europe during the late nineteenth century. These early “movies” lacked a soundtrack and were normally shown along with a live pianist, organ player or orchestra in the theatre to provide the musical accompaniment. In the United States, film went from being a novelty to an art form with D. W. Griffith’s Birth of a Nation in 1915. Griffith presents a narrative of the Civil War and its aftermath but with a decidedly racist view of American blacks and the Ku Klux Klan. Film scholars agree it contains many new cinematic innovations and refinements, technical effects and artistic advancements, including a color sequence at the end. It had a formative influence on future films and has had a recognized impact on film history and the development of film as art. In addition, at almost three hours in length, it was the longest film to date (from Filmsite Movie Review: The Birth of a Nation). Unique to the moving image is its ability to unfold an idea or narrative over time, using the same elements and principles inherent in any artistic medium. Film stills show how dramatic use of

http://www.youtube.com/watch?v=a9UPOkIpR0A

http://www.silentfilmstillarchive.com/bank.htm

Introduction to Art Chapter 10: Time Based Media: Film, Video, Digital 106

lighting, staging and set compositions are embedded throughout an entire film.

Video Art

Video art, first appearing in the 1960s and 70s, uses magnetic tape to record image and sound together. The advantage of video over film is its instant playback and editing capability. One of the pioneers in using video as an art form was Doris Chase. She began by integrating her sculptures with interactive dancers, using special effects to create dreamlike work, and spoke of her ideas in terms of painting with light. Unlike filmmakers, video artists frequently combine their medium with installation, an art form that uses entire rooms or other specific spaces, to achieve effects beyond mere projection. South Korean video artist Nam June Paik made breakthrough works that comment on culture, technology and politics. Contemporary video artist Bill Viola creates work that is more painterly and physically dramatic, often training the camera on figures within a staged set or spotlighted figures in dark surroundings as they act out emotional gestures and expressions in slow motion. Indeed, his work The Greeting reenacts the emotional embrace seen in the Italian Renaissance painter Jacopo Pontormo’s work The Visitation below.

Jacopo Pontormo, The Visitation, 1528, oil on canvas. The Church of San Francesco e Michele, Carmignano, Italy. Image is in the public domain.

Digital Arts

Computers and digital technology have, like the camera did over one hundred and fifty years ago, revolutionized the visual art landscape. Some artists now use digital technology to extend the reach of creative possibilities. Sophisticated software allows any computer user the opportunity to create and manipulate images and information. From still images and animation to streaming digital content and digital installations, computers have become high tech creative tools. In a blending of traditional and new media, artist Chris Finley uses digital templates – software

https://poba.org/poba_portfolios/doris-chase-video-work/

http://www.artlex.com/ArtLex/ij/installation.html

https://www.khanacademy.org/humanities/ap-art-history/global-contemporary-apah/20th-century-apah/a/paik-electronic-superhighway

http://www.getty.edu/art/exhibitions/viola/silent_mtn.html

https://www.youtube.com/watch?v=Dg0IyGUVXaQ

Introduction to Art Chapter 10: Time Based Media: Film, Video, Digital 107

based composition formats – to create his paintings. The work of German artist Jochem Hendricks combines digital technology and human sight. His eye drawings rely on a computer interface to translate the process of looking into physical drawings. Digital technology is a big part of the video and motion picture industries with the capability for high definition images, better editing resources and more areas for exploration to the artist. The camera arts are relatively new mediums to the world of art, but their contributions are perhaps the most significant of all. They are certainly the most complex. Like traditional mediums of drawing, painting and sculpture they allow creative exploration of ideas and the making of objects and images. The difference is in their avenue of expression: by recording images and experiences through light and electronics they, on the one hand, narrow the gap between the worlds of the ‘real’ and the ‘imagined’ and on the other offers us an art form that can invent its own reality with the inclusion of the dimension of time. We watch as a narrative unfolds in front of our eyes. Digital technology has created a whole new kind of spatial dimension: cyberspace. License and Attributions

http://www.artnet.com/artists/chris-finley/

https://jochem-hendricks.de/eye-drawings/

Chapter 10: Time Based Media: Film, Video, Digital

Early Developments
Video Art
Digital Arts

Video: Is There a Difference Between Art and Craft?

https://youtu.be/tVdw60eCnJI

Video: William Morris - The Arts and Crafts Movement

https://youtu.be/CBq73yxha0o

Video: A Journey into the World of Charles and Ray Eames

https://youtu.be/w8rICo44kAE

Video: Abstract Expressionism - Why is that important? Looking at Jackson Pollock

https://youtu.be/NT0SHjOowLA

Video: Pop Art - Andy Warhol's Campbell Soup Cans

https://youtu.be/SdbOrNLcC0I

Video: The (Awesome) History of Animation

https://youtu.be/m4gBaZcBHkE

Video: Guerrilla Girls Talk the History of Art vs. the History of Power

https://youtu.be/FxBQB2fUl_g

Video: Fred Wilson: Beauty and Ugliness

https://youtu.be/sEPTJKLSpRo

https://doi.org/10.1177/1044207318799644

799644DPSXXX10.1177/1044207318799644Journal of Disability Policy StudiesStevenson and Correa research-article2018

Research Article

Applied Behavior Analysis, Students With Autism, and the Requirement to Provide a Free Appropriate Public Education

Bradley S. Stevenson, MTS, BCBA1 and Vivian I. Correa, PhD1

Abstract

Journal of Disability Policy Studies 2019, Vol. 29(4) 206–215 © Hammill Institute on Disabilities 2018 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/1044207318799644 jdps.sagepub.com

The prevalence of autism has been steadily rising over the previous decades. The diverse ways in which the disorder manifests in students and the free appropriate public education (FAPE) mandate of the Individuals With Disabilities Education Act (IDEA) requires that a student’s individualized education program (IEP) team tailor interventions to meet the unique educational needs of that student. Deciding on the most appropriate evidence-based intervention programs for students with autism can be complex. In fact, a frequent source of litigation is when families and school personnel disagree on the particular programming to be provided to students with autism. Often this litigation involves disagreement over the extent to which services should be based on the principles of applied behavior analysis (ABA). The purpose of this article is to review select case law to analyze how courts have ruled on whether schools must provide ABA services to meet FAPE requirement when families request those services, and to extrapolate implications for practice, including guidance to families and school personnel on how to work collaboratively to resolve conflicts surrounding ABA services.

Keywords autism, civil rights, law/legal issues, education, policy

The prevalence of autism has been steadily rising over the previous decades. When the Autism and Developmental Disabilities Monitoring Network, of the Centers for Disease Control and Prevention, first began tracking the rates in 2004, the prevalence of autism was one in 294 children. By 2002, this rate had risen to one in 151; in 2006, one in 111 children were affected; and in their most recent report in 2012, one in 68 children were estimated to have autism (Christensen et al., 2016). In addition to the pressure cre- ated by the rising prevalence rates, schools are challenged because of the difficulty in educating students with autism. Some of the best results come from intensive intervention programs (Virués-Ortega, 2010). However, this requires the dedication of significant resources. Furthermore, the diverse ways the disorder manifests in children means that every program must be individually tailored to the student, which requires a high level of expertise (Hill, Martin, & Nelson- Head, 2011).

Because autism is a category of disability under the Individuals With Disabilities Education Improvement Act (IDEA 2004), students classified as having autism are usu- ally assessed and placed in a school’s special education pro- gram. When a student is eligible under the IDEA (2004), the primary charge to school districts is to develop and imple-

appropriate public education (FAPE; 20 U.S.C. § 1401(9)). The FAPE mandate requires the student’s special education program (a) be provided at public expense; (b) meet the standard of the state educational agency; (c) include pre- school, elementary, or secondary education; and (d) be pro- vided in conformity with a student’s individualized education program (IEP).

These components of the FAPE mandate have been in place since the initial special education law, the Education for All Handicapped Children Act (EAHCA) was passed in 1975. Additional requirements have been added through subsequent amendments. For example, when the law was reauthorized as the Individuals With Disabilities Education Act (IDEA; 1990), the category of autism was added (20 U.S.C. § 1401[a](1)(A)(i)). In addition, in 2004, language was added that required IEP teams to base a special educa- tion student’s education and related services on peer- reviewed research to the extent practicable (20 U.S.C. § 1414[d](1)(A)(i)(IV)).

1University of North Carolina at Charlotte, USA

Corresponding Author: Bradley S. Stevenson, Melmark Carolinas, P.O. Box 77591, Charlotte, NC 28271, USA.

ment a special education program that confers a free Email: [email protected]

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mailto:[email protected]

207 Stevenson and Correa

One facet of the IDEA that has remained vague is the FAPE mandate. Congress intentionally refrained from pro- viding a substantive definition of FAPE, reasoning that what is appropriate must be determined on a case-by-case basis (Yell, 2016). However, a working definition came in 1982 when the U.S. Supreme Court interpreted the FAPE mandate in Board of Education of the Hendrick Hudson School District v. Rowley (1982), referred to as Rowley hereafter. This was the only Supreme Court decision on the FAPE mandate for decades, until the recent Endrew F. v. Douglas County School District (2017) case. As such, Rowley has been central to judicial interpretations of the FAPE mandate. It should be noted the Endrew F. v. Douglas County School District (2017) was issued after this review was conducted, and was, therefore, not included in this review. However, it is addressed in the “Discussion” section.

In the Rowley decision, the Supreme Court established several important legal precedents. First, a two-part test was developed to determine whether school districts fulfill the FAPE requirement. With prong one, the court asked whether the school district had complied with the procedures of the law. With the second prong, the court assessed whether the IEP was reasonably calculated to enable the student to receive some educational benefit. A second important prec- edent was that in disputes over educational methods, defer- ence should be given to the school districts because the courts lack the requisite knowledge and experience to decide these questions.

Despite the Supreme Court’s decision in Rowley, dis- agreements over the FAPE mandate have continued, becom- ing the most frequent source of litigation in special education (Yell, 2016). This increase is especially noticeable in cases concerning students with autism. Zirkel (2011) demon- strated this by comparing (a) the percentage of students with autism enrolled in special education and (b) the per- centage of FAPE and least restrictive environment (LRE; 20 U.S.C. § 141[a](5)) litigation concerning students with autism. Zirkel found that although students with autism comprised only 3.7% of students in special education, they accounted for nearly 45% of all the FAPE/LRE.

These disputes often occur in relation to families’ request for services based on the principles of applied behavior analysis (ABA; Hill et al., 2011). Cooper, Heron, and Heward (2007) defined ABA as “the science in which tac- tics derived from the principles of behavior are applied sys- tematically to improve socially significant behavior and experimentation is used to identify the variables responsible for behavior change” (p. 20). Put more simply, ABA is the practice of identifying environmental factors that influence a person’s behavior (e.g., challenging behavior, academic skills, language capabilities, adaptive skills), designing interventions targeting those factors, and demonstrating the interventions are responsible for the improvement.

In their seminal article, Baer, Wolf, and Risley (1968) identified seven dimensions of ABA. These were (a) applied, meaning it is focused on behaviors that will improve people’s lives; (b) behavioral, meaning the target behavior is objec- tively defined and directly measured; (c) analytic, achieved by experimentally demonstrating the intervention is respon- sible for the improvement; (d) technological, or described with sufficient detail to facilitate replication of the proce- dures; (e) conceptually systematic, which requires the inter- ventions and interpretations be consistent with the principles of behavior (e.g., positive reinforcement); (f) effective, meaning the intervention improved the target behavior; and (g) generality, which requires improvement to last over time, cross over to other environments, and affect other behaviors. This has led to the development of a plethora of interventions ranging from focused interventions (e.g., prompting strate- gies, discrete trial teaching, functional communication train- ing) to more comprehensive treatments (e.g., the Lovaas model, early start Denver model, verbal behavior programs).

Families often request ABA-based educational methods because of their documented effectiveness for individuals with autism. Studies have found ABA led to greater gains than comparison treatments in (a) cognitive, language, and adaptive scores (Howard, Sparkman, Cohen, Green, & Stanislaw, 2005); (b) intelligence, language, daily living skills, and social behavior (Remington et al., 2007); (c) intel- ligence, language, adaptive behavior, and autism diagnosis (Dawson et al., 2010); and (d) Autism Diagnosis Observation Schedule (Zachor, Ben-Itzchak, Rabinovich, & Lahat, 2007). Furthermore, Virués-Ortega (2010) conducted a com- prehensive meta-analysis of studies analyzing the effective- ness of ABA and found that intensive, long-term ABA intervention had medium to large effects for improving intellectual functioning, language, daily living skills, and social functioning for children with autism.

The controversy between parents and school districts regarding FAPE and the use of ABA has been occurring for decades. In 2000, Yell and Drasgow examined due process hearings and court cases concerning FAPE, in which par- ents sought to compel school districts to provide, fund, or reimburse them for services based on the Lovaas treatment program, which is based on the principles of ABA. After reviewing a total of 45 cases and hearings, the researchers found that decisions favored families for 76% of the cases, whereas school districts prevailed in 24%. In describing the reasons why school districts won, the authors cited they (a) followed procedural rules, (b) used research-supported practices, and (c) hired qualified staff to implement, and experts to assist with programming. The reasons districts lost cases were they (a) failed to inform parents of their pro- cedural rights and (b) used evaluations that did not address all areas of needs. Ultimately, Yell and Drasgow concluded the Lovaas cases helped to shift the interpretation of FAPE from procedural to substantive as more emphasis was put

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on the term “meaningful” educational benefit than in previ- ous cases.

Since Yell and Drasgow’s (2000) initial review, three other reviews have been published with results that have contradicted Yell and Drasgow’s finding that courts find for parents for the majority of cases. Due to the increased authority in federal decisions, Nelson and Huefner (2003) searched federal cases between 1997 and 2002. They found that school districts prevailed in 79% of cases. In discussing the findings, they described how courts deferred to schools regarding educational methods unless the district could not justify their decision or a severe procedural violation occurred. They also contrasted their findings from those of Yell and Drasgow, pointing out that parents are granted relief far less frequently than in Yell and Drasgow’s review.

That same year, Etscheidt (2003) reviewed all court decisions between 1997 and 2002. This resulted in schools winning 57% of cases. Three major reasons for the courts decisions to side for the schools were cited. These included (a) the alignment of the IEP with evaluation data, (b) quali- fications of the IEP team, and (c) the appropriateness of the method for achieving the proposed goals. Again, deference to schools regarding educational methods was noted, stat- ing families received their chosen method only if the school’s method was inappropriate.

Finally, Choutka, Doloughty, and Zirkel (2004) looked at cases through August 2001 concerning ABA more broadly, as opposed to simply the Lovaas method. They found courts were split in their findings for parents and districts. Choutka et al. listed four determining factors. These included (a) the testimony of expert witnesses, (b) appropriateness of IEP components, (c) adherence to procedural requirements, and (d) data collected.

Because of the complexity of educating students with autism and the general terms used to define FAPE, ongoing disagreement between families and school personnel regard- ing the need to use ABA to meet the requirements of an FAPE is not surprising. As such, reviews of case law are needed to determine how the law is being interpreted at a given point of time. Due to the fact that more than a decade has passed since the last review, it is important for an update. Therefore, the purpose of this article was to review federal case law where families of students with autism sought to compel school dis- tricts to provide, fund, or reimburse them for ABA services as part of the FAPE mandate. In addition, due process was sum- marized to put the cases into proper context, and implications for practice are made.

Method

Review of Due Process

When reviewing case law, it is important to understand the structure of the courts and how cases move through them. This is because different courts have different authority,

with higher court decisions being binding for lower courts within the higher court’s jurisdiction. As such, the influence of any court decision depends on the type of court. Osborne and Russo (2014) describe the course of due process in their chapter on dispute resolution. When a dispute occurs between a family and the school system, the school system is obligated to offer the services of an independent media- tor. If mediation is waived by the family, due process is initiated.

When administering due process, states can employ a “two-tier” or “one-tier” system. With a two-tiered system, due process begins with a hearing by the local school dis- trict, the decisions of which can be appealed and heard by an officer or panel at the state level and subsequently through the state or federal court system. In contrast, a one- tiered system does not have the local review. In a one-tiered system, due process begins with a review by the state department of education, and decisions can be appealed to state or federal courts.

If a state uses a two-tiered system, which most do not, the local school board must schedule a resolution session within 15 days of due process being requested. These sessions include the families, relevant IEP members, and a school board member. Resolution sessions can only be waived if both parties consent to it. If the dispute is not resolved within 30 days, a due process hearing is scheduled.

Due process hearings are overseen by an impartial hear- ing officer (IHO) supplied by the district. The IHO has the authority to apply the law and issue orders to either party. However, that authority is limited to the specifics of the case at hand. Broader school policies cannot be altered. For example, an IHO can order the district to fund an ABA pro- gram for the student in question, but cannot order the dis- trict to fund an ABA program for all students with autism.

If either party is unhappy with the decision of the IHO, they can appeal for state-level review. Alternatively, if the state has a one-tiered system as most do, due process begins at this level. State reviews are overseen by a state review officer or state review panel, typically of three or more, with similar authority to the IHO, in that, their decisions are lim- ited to the case at hand.

If there is a decision to appeal beyond the state review, it can be done through state courts (i.e., state trial court, state appellate court, state supreme court, U.S. Supreme Court) or federal courts (i.e., U.S. District Court, U.S. Circuit Court of Appeals, U.S. Supreme Court). Because the IDEA is a federal law, the decisions of federal courts have greater authority even when cases are heard by state courts.

The lowest levels of federal courts, and, therefore, the first to hear an appeal from a due process hearing, are the district courts. District courts are divided into 94 separate districts across the nation. These courts decide cases from their region based on established legal principles. Precedence from district courts are limited to their district,

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and, as such, district courts have little authority compared with the Supreme Court and appellate courts.

Appeals from the district courts go to the U.S. Courts of Appeals, which consists of 13 circuits distributed across the United States. Appellate court decisions set precedent for the district courts below them. For instance, decisions by the Fifth Circuit Court of Appeals are controlling for district courts in Texas, Louisiana, and Mississippi. Therefore, the appellate courts are second only to the Supreme Court in terms of authority regarding the IDEA and the FAPE mandate.

Appellate court decisions can then be appealed to the U.S. Supreme Court. The decisions of the Supreme Court set precedent for all other courts in the nation, and are, therefore, the most authoritative. Cases are heard on peti- tion for writ of certiorari, and the Supreme Court typically takes cases that have been heard by lower courts and there is a conflict in the lower courts’ decisions (e.g., two circuit courts deciding the same issue differently). However, rul- ings by the Supreme Court are rare as it is under no obliga- tion to hear an appeal.

Review of Case Law

To identify cases, a search of the Westlaw database was conducted for federal cases decided between December 3, 2004, and August 2016. The search terms used were applied behavior analysis, autism, and free and appropriate public education. Federal cases were prioritized due to the greater authority they carry. The starting point for the search was the day the IDEA (2004) was signed into law. This resulted in an initial identification of 91 decisions.

Inclusion and Exclusion Criteria

The focus of this review was to examine whether schools could be legally compelled to provide ABA services under the argument that denying a student with autism ABA vio- lated the FAPE mandate. As such, to be included in this review, decisions had to be disputes where (a) the student in question was diagnosed was autism, (b) the school district did not provide ABA as requested by the family, and (c) it was argued the lack of ABA prevented the student from receiving a FAPE. The deviations from the requested ABA program could be varied. Some examples include the school district not providing the requested ABA hours, electing to use another method, and/or not providing ABA services with fidelity. All these examples would be included in this review because the central argument to all of them is that a student with autism did not receive his or her FAPE as a direct result of lack of access to ABA.

However, decisions were excluded if the case did not address an argument that lack of access to ABA led to a denial of FAPE. For instance, if due process was initiated

under a different legal requirement than FAPE, such as a family arguing the student was not educated in his or her LRE, the case would be excluded. Similarly, if a family alleged a FAPE was not provided because of a lack of prog- ress, but attributed this process to some factor other than a lack of ABA (e.g., not providing one-to-one staffing), the decision would be excluded.

Last, only the final decisions were included. Therefore, if a decision was delivered by a district court, appealed to an appellate court, and the appellate court issued its own deci- sion, only the appellate court’s decision was included. Similarly, if an appellate court heard a case and remanded it back to a lower court for the final decision, then the final decision made by the lower court would be included. After applying the inclusion and exclusion criteria, 27 decisions remained for review.

Data Analysis

The included decisions were analyzed in the following way. First, studies were sorted in two ways. Decisions favoring schools were separated from decisions favoring families, and appellate court decisions were separated from district court decisions. Second, the background of each case was read to identify the reason due process was initiated (e.g., the district provided an alternative method to ABA, the requested hours were not provided). Third, the discussion was reviewed to identify the determining factors that led to the respective decisions (e.g., the district predetermined the educational method, administrative remedies were not exhausted). Last, the various factors that led to due process and determined decisions were reviewed to identify which factors occurred across which decisions. These factors were noted and used to make the data in Tables 1 and 2. Note that some cases appear in both Tables 1 and 2 as a court may recognize an arugment for one side, but still ultimately decide in favor of the other. For instance, with Sumter County School Dist. 17 v. Heffernan ex rel. TH (2010/2011) the court acknowledged the argument that students were entitled with a right to access, not a specific outcome, but still found in favor of the families because agreed upon ser- vices were not provided.

Results

Of 27 decisions included, nine were heard in an appellate court and 17 were heard in district courts. Of these cases, 17 (63%) involved disputes where school districts did not pro- vide requested ABA services at all, preferring another method (e.g., TEACCH); five (19%) involved disputes of the quality of ABA; two cases (7%) disputed the number of hours of ABA; in one case (4%), ABA services were dis- continued against the wishes of the parents; one case (4%) involved a dispute where the families desired compensatory

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Table 1. Arguments Favoring Schools.

Right to Defer to Procedural violations, Research-based Flawed Case access schools not substantive components case

Appellate courts E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ. X X X

(2013/2014) F.L. ex rel. F.L. v. New York City Dept. of Educ. X X

(2012/2014) M.H. v. New York City Dept. of Educ. (2010/2012) X X X X P.K. ex rel. S.K. v. New York City Dept. of Educ. X

(2011/2013)

(2010/2011) Sumter County School Dist. 17 v. Heffernan ex rel. TH X

T.P. ex rel S.P. v. Mamaroneck Union Free School Dist. X (2007/2009)

District courts Aaron P. v. Department of Educ., Hawaii (2011) X B.K. v. New York City Dept. of Educ. (2014) X X D.A.B. v. New York City Dept. of Educ. (2013) X X Joshua A. ex rel. Jorge A. v. Rocklin Unified School Dist. X X X X

(2008) K.S. ex rel. P.S. v. Fremont Unified School Dist. (2009) X X L.G. v. Wissahickon School Dist. (2011) X M.M. ex rel. A.M. v. New York City Dept. of Educ. X X X

Region 9 [Dist. 2] (2008) Parenteau v. Prescott Unified School Dist. (2008) X X X P.C. ex rel. J.C. v. Harding Tp. Bd. of Educ. (2013) X X X R.K. and D.K. v. Clifton Board of Education (2013) X S.B. v. New York City Department of Education (2016) X Seladoki v. Bellaire Local School Dist. Bd. of Educ. X X X

(2009) S.M. v. Hawai’i Dept. of Educ. (2011) X X X X Z.F. v. South Harrison Community School Corp. (2005) X X X

Table 2. Arguments Favoring Families.

Inappropriate Procedural led to Services not Case IEP Predetermined substantive violations provided

Appellate courts County School Bd. of Henrico County, Virginia v. Z.P. ex rel. X

R.P. (2003/2005) Deal v. Hamilton County Bd. of Educ. (2003/2005) X X X P.K. ex rel. S.K. v. New York City Dept. of Educ. [Region 4] X

(2011/2013) R.E. v. New York City Dept. of Educ. (2011/2012) X Sumter County School Dist. 17 v. Heffernan ex rel. TH

(2010/2011) District courts County School Bd. of Henrico County, Va. v. R.T. (2006) X Orange Unified School Dist. v. C.K. ex rel. A. Ki. (2012) X X S.B. v. New York City Department of Education (2016) X W.S. v. City School District of the City of New York (2016) X Young v. Ohio (2013) X

Note. IEP = individualized education program.

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services for years when ABA was not provided even though the families had not requested them; and, in a final case (4%), ABA was not provided because of a lack of availabil- ity of providers in the area. Courts decided in favor of schools in 61% (n = 17) of the cases and in favor of fami- lies in 41% (n = 11). The reason there were 28 cases and only 27 decisions was that one appellate court decision included two separate cases (M.H. v. New York City Dept. of Educ., 2010/2012).

Decisions Favoring Schools

When finding in favor of schools, judges cited one or more of the following reasons: (a) schools were required to pro- vide access to educational benefits, not guarantee the best possible outcome for students; (b) deference was given to schools regarding educational methods; (c) procedural vio- lations of IDEA only constituted a violation of FAPE if they directly led to substantive violations; (d) the components of a district’s method was based on peer-reviewed research; and/or (e) there was a fundamental flaw in the parents’ case. For a list of the cases supporting each argument, see Table 1.

Right to access education, not to the best outcome. The most common argument in decisions favoring schools who did not provide ABA was that students had a right to access some educational benefit, but no guarantee of any particular outcome. This meant that even if ABA was more effective than the method chosen by the district, it did not mean the district was compelled to use ABA, so long as they had rea- sonable cause to believe their chosen method would confer some educational benefit. This reason was cited in every decision that favored school districts, and is exemplified in E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ. (2013/2014), where the family withdrew their child from the public schools to enroll her in a program that used ABA exclusively. In that decision, the Fourth Circuit Court of Appeals wrote

A free appropriate public education must confer “some educational benefit” on the disabled child receiving services. Rowley, 458 U.S. at 200, 102 S.Ct. 3034. Such an education, however, need not “maximize each child’s potential”; the IDEA was concerned with equality of access rather than equality of outcome. (p. 6)

Deference to school districts regarding educational methods. Another common reason courts sided with school districts that did not provide the ABA services as requested was there was no guaranteed right to any one educational method, and in disputes over educational methods, deference should be given to the district. For instance, in Z.F. v. South Harrison Community School Corp. (2005), the district discontinued dedicated ABA programs when Z.F. entered kindergarten,

opting instead to provide a program that would use “school- based methodologies and curricula but would incorporate some ABA instructional methods” (p. 3). When the parents disputed this, arguing the exclusive use of ABA methods was needed to provide an FAPE, the Southern District Court of Indiana disagreed, writing “the courts have repeatedly recog- nized that they should generally defer to the decisions of the state and local educational agencies in such disputes” (p. 9), citing Rowley as precedent.

Procedural violations did not lead to substantive violations. One of the precedents Rowley set was that, in cases concerning FAPE, courts should first assess for procedural violations of the IDEA, and then assess for substantive violations. In sev- eral cases, procedural violations of the IDEA were docu- mented. However, courts still decided districts had met the FAPE mandate, provided the procedural violations did not directly lead to a substantive violation.

F.L. ex rel. F.L. v. New York City Dept. of Educ. (2012/2014) illustrates this clearly. In this case, the family enrolled F.L. in a private school that provided ABA because the district insisted on using the TEACCH method instead of ABA, did not create a transition plan, chose what they viewed as an inappropriate group placement, and commit- ted several procedural violations (i.e., failing to conduct a functional behavior assessment, not providing parental counseling, not including parents in school selection). The court found in favor of the district for the reasons described above. They also addressed the procedural violations, writ- ing that

While “[s]ubstantive inadequacy automatically entitles the parents to reimbursement,” . . . procedural violations do so only if they “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decision making process[,]” or “caused a deprivation of educational benefits.” (p. 3)

As such, even though procedural violations were acknowledged, because the procedural violations did not lead to substantive violations, they did not constitute a vio- lation of the FAPE mandate.

Components of district’s method based on peer-reviewed research. Although federal legislation has increasingly required educational methods be based on research, only one case in this review included a challenge to the district’s pro- gram on the basis that it was not based on peer-reviewed research (Joshua A. ex rel. Jorge A. v. Rocklin Unified School Dist., 2008). In this case, the district provided an eclectic approach, and one of the claims made by the family was this constituted a violation because the eclectic approach was not supported by peer-reviewed research, whereas ABA had an extensive body of evidence supporting it. The Eastern

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District Court of California disagreed, writing that even with the increased emphasis on research-based educational meth- ods, “It does not appear that congress intended that the ser- vice with the greatest body of research be used to provide FAPE” (p. 3). Because the district’s eclectic approach incor- porated components supported by research, the district met its FAPE obligation.

Flawed case. A final reason courts favored districts was when there was some inherent flaw in the parents’ case. This flaw could be procedural or substantive. For instance, one of the reasons the Fourth Circuit Court of Appeals dismissed the family’s claims in E.L. ex rel. Lorsson v. Chapel Hill- Carrboro Bd. of Educ. (2013/2014) was because the family had not exhausted their administrative options at the state level. For a substantive example, the Parenteau family alleged a violation of FAPE for not providing ABA services for an IEP year even though ABA services were never requested (Parenteau v. Prescott Unified School Dist., 2008).

Decisions Favoring Families

When courts found in favor of families, they cited one or a combination of the following: (a) The IEP was inappropri- ate, and the district knew this at the time of developing it; (b) decisions were predetermined prior to the IEP meeting; (c) procedural violations directly led to substantive violations; and/or (d) agreed upon services were not delivered. For a list of the cases supporting the various reasons, see Table 2.

IEP was inappropriate. The most common reason courts found in favor of families was the IEP was inappropriate for the student and the district had reason to know this when it was created. As such, the IEP was not reasonably calculated to provide educational benefit and could not provide a FAPE. For instance, in County School Bd. of Henrico County, Va. v. R.T. (2006), the parents sought tuition reimbursement for a private ABA school. The parents enrolled R.T. in this school because they felt the TEACCH method used by the district was inappropriate. The judge of the Eastern District Court of Virginia agreed, not because R.T. had a right to ABA, but because TEACCH was inappropriate. He wrote,

the preponderance of the evidence demonstrated that to learn attending skills, reduce the stimming, and learn imitation skills, R.T. required a highly structured, highly focused education methodology such as ABA therapy in which R.T. would receive intensive one-on-one instruction. The TEACCH program at Twin Hickory was not designed to, did not, and could not provide R.T. with this type of instruction. (p. 25)

Predetermination. A second reason courts found in favor of families was when the district predetermined what services would be provided. This violates the FAPE mandate because

it does not take the unique needs of the student into account. Deal v. Hamilton County Bd. of Educ. (2003/2005) is the most well-known example. In this case, the family sought reimbursement for the ABA-based education they provided him when the district refused to provide ABA services. The Sixth Circuit Court of Appeals found in favor of the family writing

The facts of this case strongly suggest that the School System had an unofficial policy of refusing to provide one-on-one ABA programs . . . The School System seemed to suggest, at oral argument, that it is entitled to invest in a program such as TEACCH and then capitalize on that investment by using the TEACCH program exclusively. But this is precisely what it is not permitted to do, at least without fully considering the individual needs of each child. (p. 15)

Procedural violations led to substantive violations. As noted earlier, procedural violations do not constitute a violation of FAPE if they do not lead to substantive violations. How- ever, one appellate court case and one district case found that procedural violations did lead directly to substantive violations because they prohibited the parents’ ability to meaningfully participate in the IEP process. In Orange Uni- fied School Dist. v. C.K. ex rel. A. Ki. (2012), the parents were seeking reimbursement for funding an ABA program when the district did not provide ABA services. One reason the Central District Court of California found in favor of the family was because the “district’s failure to include a spe- cial education teacher in the IEP team infringed Parents’ right to meaningfully participate in Student’s IEP formation process, thus constituting a denial of FAPE” (p. 6).

Agreed upon services not provided. In one final case, Sumter County School Dist. 17 v. Heffernan ex rel. TH (2010/2011), the district did not provide ABA services even though they agreed to in the IEP. Specifically, the IEP stated T.H. was to be provided 15 hr of ABA services. Although T.H. made some small gains, the Fourth Circuit Court of Appeals affirmed the lower court’s decision that a FAPE was not provided, writing

When the evidence of T.H.’s small improvements in a few tested areas is considered against the District’s conceded failure to provide the 15 hours of ABA therapy required by the IEP . . . the District’s failure to properly implement material portions of the IEP denied T.H. a FAPE for the 2005–06 school year. (p. 7)

Discussion

Designing and deciding the appropriate education for the very heterogeneous population of students with autism is, by itself, a complicated task. When this is coupled with an intentionally vague definition of FAPE provided by

213 Stevenson and Correa

Congress, it is understandable and even expected that dis- putes over the FAPE mandate are such a frequent source of litigation. Because the most recent review of case law related to ABA, students with autism, and the FAPE man- date was over a decade old (i.e., Choutka et al., 2004), there was a need to update this review.

Although the law may be ambiguous, court rulings on the issue provide guidance on how the FAPE mandate is interpreted, and the case law reviewed here has been consis- tent on a number of points. First, it was clear that students did not have a right to any particular method, including ABA. This was expressed through a couple of frequently cited justifications. For instance, because access to educa- tion was guaranteed but the outcome was not, districts have been under no obligation to provide the most effective methods. Also, in disputes over appropriate educational methods, courts generally deferred to the school district’s opinion. A second point that became clear was that courts would assess for procedural violations first and substantive violations second. However, for a procedural violation to constitute a violation of FAPE, it had to lead to a substan- tive violation. Third, a district’s program did not need to be based on peer-reviewed research so long as components of that method are research based. Fourth, if a family was able to clearly demonstrate a district’s program was inappropri- ate for their child and the district had reason to know this when the decision was made, it constituted a violation of the FAPE mandate. Fifth, making predetermined educational decisions or basing decisions on any factor other than the needs of the child constituted a violation of the FAPE man- date. Last, districts had to deliver the agreed upon services to the specifications listed in the IEP.

Many of these findings echo those of the previous reviews (Choutka et al., 2004; Etscheidt, 2003; Nelson & Huefner, 2003; Yell & Drasgow, 2000). For instance, pre- vious reviews noted the importance of the Rowley prece- dent, adequately evaluating students, and basing programs on documented needs. The significance of Rowley was noticed here as well, as many of the factors identified above came directly from the Rowley decision (i.e., right to access, not quality; deference to districts; two-pronged approach that assesses procedural violations and then sub- stantive violations). However, this review also identified new elements. This includes that predetermination vio- lates the FAPE mandate, a decision on the requirement for methods based on peer-reviewed research, and the fact that procedural violations need to result in substantive vio- lations to be considered a failure to provide an FAPE. In addition, the percentage of cases decided in favor of schools in this review (61%) was in contrast to Yell and Drasgow (2000), which found that schools prevailed in 24% cases, and to Nelson and Huefner (2003), which found that schools won 79% of cases. The results of this review found rates more similar to those found by

Etscheidt (2003), in which schools had a 57% win rate. This suggests courts tend to defer to schools, and that FAPE has not been elevated to a higher level, where “meaningful” is given more consideration as Yell and Drasgow (2000) suggested.

Endrew F. v. Douglas County School District (2017)

The interpretation of “meaningful” may change soon. As stated previously, the Rowley decision set the dominant precedent for courts interpreting the FAPE mandate for decades because it was the only relevant Supreme Court decision. That changed in 2017, after the cutoff for this review, when the Supreme Court issued a decision on Endrew F. v. Douglas County School District (2017). In this case, the parents of Endrew, a student with autism, were seeking reimbursement for the cost of a private school offering ABA services. They argued Endrew was denied an FAPE due to a lack of progress, as evidenced by the district using the same IEP goals and objectives from year to year.

The Tenth Circuit Court of Appeals held the Douglas County IEP met the FAPE requirement. They based this decision on language from Rowley stating that IEPs must provide “some educational benefit,” which they had long interpreted to mean any “educational benefit [that is] merely . . . more than de minimis” (p. 4). The Supreme Court dis- agreed, stating a different standard for educational benefit was needed in the Endrew case because of the differences between the students involved in the two cases. Amy Rowley was fully integrated into regular education, and though she may not have been reaching her full potential, test scores indicated she was performing better than her peers. Endrew, however, was not fully integrated into gen- eral education, and meeting grade level expectations was not a reasonable goal. Therefore, the Supreme Court clari- fied the standard for educational benefit, writing

A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances . . . The goals may differ, but every child should have the chance to meet challenging objectives. (p. 5)

Implications for Practice

The rulings in these cases have implications for school dis- tricts, families, and courts. For schools, the courts have shown there is no right to any method, including ABA, and they will generally defer to the district’s decision. However, this is based on the presumption that decisions on educa- tional methods are made to address the unique needs of that student. In cases where the schools base decisions on any- thing other than student needs, it has been interpreted as a

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violation of the FAPE mandate. This includes factors such as there not being qualified ABA providers in the area and not wanting to invest the resources to establish an ABA pro- gram. Therefore, decisions should only be based on what the IEP team believes is appropriate for the student.

Because decisions must be based on the unique needs of the student and IEPs should be calculated to provide educational benefit, schools should collect data prior to the creation of and throughout implementation of the IEP to drive decisions on educational methods. This is because these data can show the degree to which a student is pro- gressing with a particular method. Therefore, a school dis- trict can justify its decision to provide ABA or an alternative method based on the performance of the stu- dent, thus demonstrating the decision was made to meet that child’s needs. Incidentally, the behavioral data taken in ABA programs serve this function extremely well. However, there are no requirements that data replicate those found in ABA programs.

Third, IEP teams should take care to continually research and implement the most effective methods, even if their cur- rent methods are effective to some degree. Although an entire program does not need to be based on research, only the components of the program, methods still needed to be supported by peer-reviewed research on some level. In addition, the Endrew decision likely raises the amount of progress schools will be accountable for students with autism. Therefore, they should take care to use the most effective methods to increase the likelihood they meet this standard. Currently, ABA-based methods have the strongest evidence base (National Autism Center, 2015). Therefore, ABA should be considered by districts, and if the districts opt to not use ABA methods, an adequate rationale should be provided for why another method was selected.

With respect to families, it is recommended they keep careful data on their child’s educational programs. These include, but are not limited to, the child’s needs, interven- tions, progress, recommendations by experts, rationale for educational decisions, and discrepancies between those dif- ferent components (e.g., progress is lacking but interven- tions remain the same). This way if a family feels ABA is required to confer an FAPE, documentation can be provided to show a lack of progress with alternative methods, why those methods are not appropriate, when they became inap- propriate, and when the district had data indicating they were inappropriate. All these can be required to prove a FAPE was not provided, and the provision of ABA will facilitate a FAPE.

A second recommendation for families is to become familiar with federal laws, state laws, and relevant judicial decisions. Becoming familiar with the laws will inform families of what their rights are. Although this article has outlined the basics of federal law, one component of the federal definition of FAPE is it must conform to state

education policies, and state laws vary. Thus, it is important to review state laws too. Also, courts interpret the law in different ways. Becoming familiar with relevant court deci- sions will provide insight into how a case may be viewed in one’s relevant circuit. Families can access advocacy centers (e.g., Center for Parent Information and Resources, Parent Training and Information Centers, Autism Speaks) or the Wrightslaw website to help them understand their rights and locate support services.

Acknowledgments

We would like to thank Dr. Mitch Yell for his guidance through- out the development of this article. From initial conversations to his thorough edits, his efforts have been extremely valuable.

Authors’ Note

Bradley S. Stevenson is currently affiliated with Melmark Carolinas.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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