Asking SCOTUS To Soak Taxpayers For Private Special Ed

A couple of families in Massachusetts-- and fourteen anti-public ed states-- would like to have it both ways, and having lost their bid in lower courts, they would like the Supreme Court to back their play.

How did we get here?

Massachusetts does require public school systems to provide special education services for students with special needs, which is a heck of a gift to private schools to begin with. But because the state forbids the use of public funds for private religious schools, the rule comes with a requirement that the service be provided at the public school or at a neutral location. 

The plaintiffs are characterizing this requirement creates an undue burden. Students, they claim, lose instructional time, must miss instructional time during the day, and experience stigma for having to leave class (all of which would still be true if the services were provided at the private school). 

But the backers of the case also argue that this burden makes the rule "coercive." In the states' amicus brief, this line appears:

For opponents of school choice, that is the point—to leverage taxpayer dollars to coerce families into public schools by making private education the only setting in which benefits are forfeited,

There is, of course, a solution for this-- the private schools could hire their own special education teachers and provide the services themselves. But that would cost them money, so why not get the taxpayers to foot the bill instead. 

The irony of the states that have signed the letter of support is rich, because in many states, parents must waive their rights to any special education requirements in order to attend a private school. How they complain about rules that make "private education the only setting in which benefits are forfeited," is a mystery, because that is exactly what they allow at home.

A win for the plaintiffs would hit taxpayers not only with the bill for providing the services, but for whatever means are required to transport special ed teachers hither and yon to provide services. The plaintiffs, whose children have disabilities and attend Jewish day schools, find taking their children to get services "burdensome"; they would prefer that taxpayers and the public system bear that burden.

The case, Hellman v. Department of Elementary and Secondary Education, was decided back in March in the First Circuit Court of Appeals upheld a lower court ruling that this rule does not "ban or penalize private schooling or deprive meaningful access to it." Further, it rationally fits with "the legitimate state interest of providing special education services while complying with the Massachusetts Constitution’s prohibition on aiding private schools." The court also rejected Equal Protection and Privileges or Immunities claims.

Lead attorney for the plaintiffs is David Hodges, the "educational choice attorney" at the Institute for Justice. The Institute is yet another libertarian legal shop, founded with Koch brothers money in 1991. They've been in front of the Supremes for several landmark education cases, notably Espinoza v. Montana Department of Revenue and Carson v. Makin, both of which helped promote the notion that religious folks can't freely exercise their religion unless taxpayers help finance them. 

If SCOTUS agrees to hear this and decides for the plaintiffs (both of which are not the far-fetched possibilities, I wish they were), the result would create some real challenges for a field that already suffers from trouble filling positions. How many extra staff would a district have to hire to cover the "traveling" workload, and how many people would want that job? Such decision would amount to a very expensive unfunded mandate from the court. One wonders what the court would do when a district had to throw up its hands and declare, "We cannot fulfill this requirement because the number of qualified personnel we need are not available to us."