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." 

Do Special Ed Advocates Want To Use Students

Over at EdWeek, Alyson Klein examines one possible source of resistance to big changes in the Elementary and Secondary Education Act (aka ESEA, aka No Child Left Behind, aka NCLB).

The source is not a surprise, because we've seen it before. Klein says that some special education advocates are strongly opposed to removing the Big Time Testing component of ESEA.

Back in October, as the testing issue was beginning to heat up in Washington, the Consortium for Citizens with Disabilities, which includes the Council for Exceptional Children, the National Center for Learning Disabilities, Easter Seals and other organizations, sent a letter to the leaders of the House education committee opposing legislation that would have scaled back the number of tests required in the law. 

I'm not surprised. Every time I have written about the testing of students with special needs, I have heard from advocates who argue strenuously tat such testing be continued. The argument is always some variation of this one:

The NCLB law, which requires states to break out student achievement data by particular groups of students, including those in special education, "has provided so much good information we never had before about how students with disabilities are really performing," said Lindsay Jones, the director of public policy and advocacy for the National Center for Learning Disabilities.

There is also the occasional reference to how testing will help the students achieve-- Klein includes one such quote in her piece:

There is a great need for educators to have access to actionable, relevant, and timely information about student performance so that they can help students achieve. 

However, that sentence is followed by this one:

With transparent, easy-to-access, annual data on student performance, parents and educators are armed with the information needed to promote effective solutions to systemic issues at the school, district and policy levels. 

I have yet to see a convincing argument that The Big Test will help teachers help students with special needs. Most teachers of students with special needs have a huge battery of regular assessments that they already use. No-- the actual argument is this--

We need to have students with special needs to take these tests so that we can use the data points to help us lobby.

I do not doubt that in many, if not most, cases, we are talking about advocates with good intent, who truly want to find ways to get students with special needs the kind of support and resources that those students need and richly deserve.

Nevertheless, what we're advocating here is not testing for some direct, educational purpose. We are talking about using students to generate data for advocacy and lobbying purposes. We are talking about making students suffer through these tests so that their failure can be used to lobby for more resources. We are talking about punishing them with these tests so that somebody can go to a state capital and wave the results in some lawmakers' face.

There's a legitimate conversation to be had about whether these ends (appropriate resources blasted out of the steely grip of legislatures) justifies these ends (putting students through punitive and inappropriate testing), but to have it, we have to start by being honest. I can respect the desire to not have students with special needs disappear into a sea of collected data, but let's not pretending that generating disaggregated data serves any educational purpose. The people arguing that ESEA must keep the Big Test in place because of students with special needs are not advocating for something that has actual direct educational value. They want to use the students to make a point, and they need to be honest enough to say so.