Jay P. Greene's Blog

Reactions are beginning to pour in on the Forest Grove School District v. T.A. Supreme Court decision, which Greg and I wrote about last week.  Predictably and unfortunately, those reactions are informed by concerns for the financial burdens of the decision that are lacking in both facts and perspective. 

Even the dissenting opinion, written by Souter and joined by Scalia and Thomas, made a point of worrying about the costs:

The majority’s suggestion overlooks the terms of the IDEA process, the substantial procedures protecting a child’s substantive rights under the IDEA, and the significant costs of its rule. To start with the costs, special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20% of public schools’ general operating budgets. See Brief for Council of the Great City Schools as Amicus Curiae 22–23. The more private placement there is, the higher the special education bill, a fact that lends urgency to the IDEA’s mandate of a collaborative process in which an IEP is “developed jointly by a school official qualified in special education, the child’s teacher, the parents or guardian, and, where appropriate,the child.”Burlington, supra, at 368.

Just how much private placement is there?  How much does it really cost?  How big is this relative to total enrollment and expenditure in public schools?

As of 2007 there were 67,729 disabled students in private school at public expense who were there at the initiative of their parents.  That is 1.1% of the 5,978,081 students in special education and 0.14% of the 49,610,000 students in public education.  Theses percentages were not significantly different before 1997 when Congress amended the special education law in a way that the dissent believed would constrain burdensome private placements.  And Marcus Winters and I estimated that the total financial cost of private placement is less than a billion dollars and amounts to less than one-quarter of one percent of total public school spending. 

I understand that a billion dollars is a lot of money, but in a public education system spending more than $500 billion it is almost rounding error.  Souter, Scalia, and Thomas violate the Denominator Law, where it is required that all claims of “big” problems have to be put in perspective by including a denominator to show how large the problem really is given the full context.  As officers of the Court they should know that ignorance of the law is no excuse!

It’s also strange that Scalia and Thomas would join in a dissent that is based at least partially on concerns for the financial implications of their decisions.  I thought Scalia and Thomas believed in finding the original intent of the law.  A court ruling based on (false) fears of financial burdens of the law sounds like policymaking from the bench.

However, Debra Saunders, in a column on the decision at the San Francisco Chronicle, seems confused about what constitutes policymaking from the bench.  She writes: “the court arguably engages in policy-making when it tells districts how they must spend valuable education dollars.”  There is a federal law, IDEA, that tells schools how they must spend their money (along with the money they receive from the feds).  It says that all disabled students are entitled to a free appropriate public education.  It isn’t policymaking from the bench to say that students unreasonably denied appropriate services shouldn’t have to wait 2-3 years for the Courts to order the schools to provide those services.  The Courts can’t also provide a time machine, so we have to have a mechanism that handles what happens to kids while their parents fight with schools in the courts. 

In Forest Grove the Supreme Court said that parents should be able to take the risk of placing their children in private school and seeking reimbursement.  If the courts agree that the schools unreasonably denied services, then they can get reimbursed for their costs while they were waiting.  If the public schools were reasonable, then the parents are out the money. 

I agree with Debra Saunders that the facts in this specific case make it hard to understand how a lower court found that the public schools behaved unreasonably.  But the law isn’t about one set of facts; it applies to all instances.  If we pretend that the lower courts find that public schools denied a special education classification unreasonably, then obviously students would be denied their rights under IDEA if they had to wait 2-3 years for those services.

Debra goes on to violate the Denominator Law, writing: “It’s one of those nice people things. The government has expanded the notion of disability to the point of absurdity. But nice people refuse to look at the impending drain on public school budgets, or how one child’s boarding school tuition can mean that much less funding for all the other students’ educational needs.”  This was especially frustrating because I pleaded with her to report claims of financial burdens in context.  Besides quoting me, she chose to ignore my point and repeat her claims of burden with no basis to support it.

My colleague, Walter Olson, also has a post on Forest Groveon his blog, Overlawyerd.com.  While I disagree with Wally on this issue, I am sympathetic with his concerns.  Specifically, he notes that private placement is a remedy much more available to wealthy families than poor ones.  And he doubts the justice of disabled students having federally protected rights to an appropriate education while no one else does. 

I agree that rich kids have better access to this remedy than poor kids. That’s why I favor vouchers for special education, both to democratize this remedy and to better control costs. Vouchers control costs because the voucher is worth no more than would have been spent in public schools or private school tuition, whichever is less. Special ed vouchers also discourage over-identification of disabilities because schools would risk losing students when they classify students as disabled.

And I also agree that it is unclear why non-disabled students should have to wait in schools that fail to serve them appropriately while disabled students are entitled to find an appropriate education. But the solution is not to strip disabled students of that right.  The solution is to extend it to all students. Give vouchers to all students worth the amount that would be spent on them in public school (the amount would vary based on the cost of educating different kinds of students). If any student is unable to find what his family believes is an appropriate education, give them the resources to find it somewhere else.