The Supreme Court’s Special-Ed Vouchers

(Guest post by Greg Forster)

Following up on Jay’s observations on the Forest Grove School District v. T.A. decision – not being a lawyer, I’m not going to dwell on this point. But it seems to have passed under the radar and I want to bring it out into the open so that others, who may be better qualified than I, may give it the debate it deserves.

For years, whenever I’ve explained that if the IEP procedure (over which schools have predominant control) does not deliver to students their IDEA rights, the only recourse parents have is a lawsuit, people have looked at me like I was nuts. They just stare with this dumbfounded look on their faces. The system can’t really be that crazy, can it?

The Supreme Court seems to have the same dumbfounded look on its face:

Having mandated that participating States provide a FAPE [free and appropriate public eduction] for every student, Congress could not have intended to require parents to either accept an inadequate public-school education pending adjudication of their claim or bear the cost of a private education if the court ultimately determined that the private placement was proper.

Now, as a psychological observation (which it is formally presented as being) this is farcical. Why couldn’t that have been Congress’s intention? Why assume Congress had pure and unsullied motivations when it created IDEA, rather than allowing the possibility – just as a possibility – that Congress knew darn well what it was doing, and decided to screw over children with special needs in order to serve its real constituents?

But, of course, while this is formally a psychological observation, it is serving the function of legal reasoning. What the court is really saying is that it would be fundamentally unjust – it would be a disgusting inversion of the fundamental function of the law – for Congress to deliberately legislate a right and then create a process desigend in a way that effectively denies relief to people if they are denied that right. So the court is entitled to assume that this was not Congress’s intention.

This takes us very rapidly into deep philosophical waters. Should the court interpret the law on the assumption that Congress does not intend to use the law as a cover-up to screw innocent people?

This, it seems to me, is one of the problems that motivates Scalia’s distaste for framing legal interpretation in terms of “original intent” rather than what he calls “original public meaning.” And I’ve always thought, without being an expert in the field, that “original public meaning” was a much more plausible standard for legal interpretation.

Does that explain Scalia’s dissent in this case?

Discuss among yourselves.

3 Responses to The Supreme Court’s Special-Ed Vouchers

  1. If Scalia is so concered with original intent, who does he focus on the fiscal implications (which the minority incorrectly calculated)? Shouldn’t the fiscal implications be a matter for policymakers to decide, not judges?

  2. Patrick says:

    No, Congress intended to require parents to either accept an inadequate public-school education or pay for an adequate private education with their own money. But that just means Congress is out to benefit their friends at the expense of everyone else.

    • Greg Forster says:

      Ah, but should the court implement the law on that basis? If not, what should it do instead? That’s the more difficult question.

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