Private school, the disabled-rights way

Last week the Supreme Court ruled 6-3 that the parents of an Oregon student diagnosed with ADHD and other problems could send him to an expensive private school and bill the government for the cost, even if he had not previously been enrolled in a public school special education program. San Francisco Chronicle columnist Debra Saunders discusses the case and quotes me on a couple of points:

Walter Olson of nailed the problem with the majority ruling when he opined in an e-mail, “The impulse to get a better shake for one’s kid is universal, but it’s disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools’ proffer of special-ed services before declaring them inadequate, which doesn’t seem to me to be too much to ask.” …

Noting that Souter’s dissent was joined by conservative Justices Antonin Scalia and Clarence Thomas, Olson noted, “I’m still trying to figure out why being progressive on this issue means siding with the private schools and affluent parents, while the conservative justices are the ones to defend the public school ideal of universal service.”

Saunders also quotes my distinguished Manhattan Institute colleague Jay Greene, who takes a different view. It’s worth noting, by the way, that parents of non-disabled students continue to have no right at all to obtain reimbursement for private alternatives should they decide the public schools are failing their kids. More: Tamar Lewin, New York Times; Zach Lowe, American Lawyer.

And: Scott Greenfield also takes a different view, and Jay Greene explains his reasoning further in comments and at his site.


  • Because they aren’t siding with private school, they are siding with a victim.

  • Plus the kid isn’t really disabled! He has “ADHD”

  • […] Overlawyered: Private School, the Disabled-Rights Way […]

  • Why Olson’s “Better Shake” Is Mostly For The Wealthy…

    When the Supremes decided Forest Grove v. TA last week, it struck me as a sound statutory interpretation decision, removing an unintended barrier from the path of children obtaining a free appropriate public education….

  • I’m a big fan of Overlawyered and Wally, but I differ with him on this one. The reason that the student in this case had not tried special education services in the public school prior to seeking a private placement is that the public school had denied him placement in special education. A lower court ruled that the denial of the disability classification was unreasonable.

    Let’s pretend that the lower court was right that the public schools were unreasonable in denying this student access to special education services (although I admit that given the facts in this specific case it is hard to see how the public schools were acting so unreasonably). If a student is unreasonably denied those services he can challenge the public schools in court and wait 2-3 years for an answer. What should be done while he waits?

    The Supreme Court ruled that the family should be able to assume the risk of seeking reimbursement for private school while they wait for the courts to decide if the public schools denied services unreasonably. If the courts decide that the public schools were reasonable then the family gets no reimbursement.

    It was already settled law that this is the procedure if students are classified as disabled but not appropriately served, but this case clarifies that the same applies if students are unreasonably denied a classification and therefore not appropriately served. As the SC pointed out, it made no sense to have this remedy apply if students are partially served but not if they are denied services altogether.

    And 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 but 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. I make this argument here:

    Sorry for the long comment, but I hope it spurs productive discussion.

  • @jay: I have no children, and I’m no fan of the waste and spending of the Public Schools, but I am opposed to vouchers for one reason:

    They give more “power” over how tax money is spent to people with children even though everyone pays the tax, children or not.

    Perhaps they should give vouchers to everyone, children or not, and you can choose to sell them if you don’t need them. Then I might go along with it.

    We don’t need more taxation without representation. At least now, if I choose to, I can join the school board, etc. I have no voice in some private school.

  • I should also add that, despite my flip comment about ADHD, I take ADHD medication as a 47 year-old adult. (Straterra and Ritalin). With my personal familiarity with this condition, I question the notion that a kid with ADHD shouldn’t be in public school with the rest of the kids.

    They were willing to teach him, so he certainly couldn’t have been that disruptive. So the real issue was the parents weren’t satisfied with his grades!

  • Jay,

    Dang it, I was all about to get mad and complain, but you went and said pretty much everything I thought.

    Even on vouchers.

    But let me add a few more points. First, in our entire society the richer and more well off will have an easier time getting justice and sometimes and even injustice. Why single out disabilities for particular ire?

    Second, no, i don’t know why it is progressive to support private education, but i don’t know why it is conservative to believe that the government is always right. The fact is that the schools likewise have a financial incentive not to find the kid disabled. And in my experience, which admittedly was largely before the ADA, the schools are extremely resistant to identifying let alone accommodating any disability however obvious. Especially if it is a learning disability.

    Seriously, for me, the misbehavior of our public schools when it comes to disabilities is the best argument for not letting them be in charge of my health care.

    Third, btw, ADD and ADHD exists. People who claim it is made up base it on reading a book, failing to understand that like alot of medical issues, one needs practical training that is never accurately captured in a book. There is frankly right now more evidence that those disorders are genetic than homosexuality being genetic. Indeed, studies have also shown an extremely high incidence of sleep disorders in people with those diagnosis, suggesting something about the underlying cause. They prove these disorders to exist time and again in court against a jury every bit as skeptical as the skeptics here.

    Really in general when it comes to learning disabilities, should we be surprised? In some ways our bodies are like machines. When one’s body is broken or malfunctioning, we call that a physical disability. And when a few wires are crossed in the computer, the brain, we call that a learning disability. The notion that we are all perfect and glitch-free is just plain silly, and against good logic. We should expect to see glitches like this in some people. Just because the person doesn’t limp around, or whatever, doesn’t mean their disabilities are not just as real and just as far beyond their control. And just as we don’t toss aside a person because they are blind or whatever, we shouldn’t consign a person to be a janitor all of their lives just because their minds are imperfect.

    Fourth, it is worth noting that a $5,000+ per year tuition is probably cheaper than the cost per pupil of public education in the relevant district. Certainly would be if we are talking about D.C.

    Fifth, its funny how in this discussion there is just about zero discussion about what the law actually says or even what the case is actually about. If you crack open the case and read it, you see an interesting statutory construction case where expressio unius literally cuts both ways and the courts have to figure out how to interpret this badly written statute. Certainly from a policy view, if a child is not getting the education they deserve, the parents should be allowed to take their children out of the school, send their children to a private school and stick the state for the bill.

    What the state here tried to say was that the parents could only stick the state with the bill if the child was given special education. So of course if the child very obviously needed special education and was being refused, according to the school the law should be read to say that when the parents self-help, they can never be reimbursed. Which is silly for two reasons. First, it rewards schools that fail the students the most. Second, not every disabled student needs special education. A paraplegic should be able to attend class with anyone else. So suppose a school said that they were not going to build wheelchair ramps and as a result that paraplegic student had to enroll in a private school because he literally physically couldn’t get into the school. According to the rule urged by the state in this case, if the parents enrolled him in a private school, they can’t be reimbursed. That is silly and for once the Supreme Court refused to go along with the silly interpretation of disability law.

    Now one thing to note is that the result of the IDEA legislation is that every student in every state receiving Federal Education dollars (which I believe is every state) has a right to a free and appropriate education. I have said myself for a long time that of course we should all have that right, but it doesn’t exist yet. But I find it weird that people complaint that these disabled students get this right. I am reminded of a wag commenting on the success of integration in Charlotte, NC (paragraphrasing): “It used to be that white people got a wonderful education and black people got a terrible one. But we fixed that. Now all children of all colors get a terrible education.” It’s darkly funny, but it highlights the point. It is not constructive to create equality by tearing everyone down equally. Instead everyone should be equally lifted up.

    If the republicans were smart they would smuggle a new provision into the next version of the IDEA stating that all children, regardless of whether they were disabled or not, were entitled to a free appropriate education. It would do exactly the same work as vouchers would, immediately. And I would love to see the democrats explain why they are voting against providing our children a free appropriate education.

  • Walter – It’s always good to get the facts straight. The parents couldn’t have tried the public school’s special ed. programs or services first because the district refused to acknowledge that the kid had an “educational” disability; refused to classify the kid as belonging to one of the 13 categories of special ed. disability, and refused to provide the kid with any special education or services at all. The kid, however, been failing bigtime in the district’s regular ed. program because he wasn’t acknowledged as disabled and wasn’t getting these programs and services.

    As the majority decision recognized, it would be perverse to refuse to allow parents to get the schooling and services their kids need privately when the school district will not acknowledge a disability while allowing parents to get district-paid private special ed. schooling when the district has provided some special ed. programs or services to a child, but these have proved to be documentably inadequate.

    And remember – the special ed. law is very specific that no child is entitled to a Cadillac, maximum-benefit program of special ed.; just one which allows him/her to obtain some benefit from school programs and services. In this case, the district wasn’t even providing a clunker … and the kid was sinking, rapidly. Had the district done the right thing well before the parents put the kid in a private program, it is unlikely that such an expensive program as the one involved in this case would ever have been necessary.

    Allowing parents to place children privately and go for district reimbursement when a district’s offerings have been substandard – or in this case, non-existant – keeps competition alive and well. One can only wish that all parents of kids with disabilities could have the option to choose the most appropriate special ed. program for their kids via vouchers, but since that’s unavailable in most states, these special ed. reimbursement cases are the only way to inject a little free market competition into the situation. In non-voucher states, the numbers of parents of kids with disabilities who are now home-schooling their children has been skyrocketing. Working class families and those who are middle class because both parents work just can’t afford this luxury.

    Dee Alpert, Publisher

  • Robert

    I truly don’t get your comment about vouchers. Like it or hate it, the benefits of free public education obviously only go to kids, at least on the k-12 level. That’s how it is in the current system.

    And, yeah, it empowers the parents, but, um, shouldn’t they be empowered? i remember an incident a while back when the principal decided to segregate the prom. A biracial girl said to the principal, “which prom am i supposed to go to.” He told her that her parents had made a mistake in concieving her. And i remember reading a heartbreaking article where the black parents, too poor to take their kids elsewhere, cried at the thought of their children going there.

    It is immoral to trap the poorest students in our failing education system. It is immoral to say that any person facing discrimination has no other choice. And if parents are empowered while avoiding that immorality, well then good.

  • A.W.:

    Public education benefits the public. I’m a big supporter of it. I think it’s a moral and ethical necessity to provide basic education to all. Just because a kid has rotten or poor parents doesn’t mean he should be doomed for life.

    However, if all taxpayers are paying for public education, then all taxpayers, should have an equal say in how the money’s being spent. That’s why I don’t like vouchers.

  • […] June 29, 2009 at 10:51 AM (Uncategorized) I think, in order to give validitiy to the efforts to improve public education in the US, at the very least public schools should be tried first. […]

  • So…sped kids get a private school education…while the gifted die of boredom in the advanced classes in the public school? BRILLIANT!!!

  • Patriot

    I said before if the republicans were smart they would change the wording of the IDEA to guarantee a free appropriate education to everyone. Then not just disabled kinds but all kids could leave the terrible public schools and foot them with the bill.