Acton Commentary

There has to be a Better Way


This article originally appeared on TownHall.com

School districts around the country breathed a sigh of relief last week when the Supreme Court ruled on an arcane dispute involving the federal government's mandate for special education students. Under federal law, public schools are required to provide a “free, appropriate public education” to all students, regardless of disability. The dispute concerned which party, the school or the family, has the burden of proof in showing whether the plan is appropriate. Schools could see lots of dollars flying out their windows if parents could demand better services. But hidden in this case is a clue to a better solution. Since both sides are dissatisfied with the current system of satisfying the federal requirement to serve disabled students, there is room for a change that makes both parties better off.

I sympathize with both sides in this case. As a fiscal conservative, I understand the position of the Montgomery County School District. They are required by Federal law to provide individualized services for all disabled students. The Federal government provides some money to meet this requirement, but nowhere near the full cost. An Individualized Education Plan, or IEP, as required for disabled students, can be appealing to a smart parent with a difficult child. From the school's perspective, every parent who pops up with a disabled kid is a net drain. If the Court had ruled that an “appropriate” education means whatever the parents say it means, the schools' fiscal burden would be greatly increased.

At the same time, I sympathize with the parents. I am a veteran of many years worth of IEP's, going back to 1991, with the arrival of my first child. In the years since, I have also had several foster children go through the IEP process. I admire the anonymous wag who wrote a bit of doggerel in the style of Dr. Seuss, “I do not like these I-E-Ps. I do not like them, Geez-louise. I do not like them here or there. I do not like them anywhere.”

The school has to ration expensive special education services in some way. The school acts as a gatekeeper toward the parents, and not just toward parents who are trying to game the system. The schools have every incentive to make it hard for kids to qualify, even those who really are disabled. If the child does qualify, the school has every incentive to meet the federal requirement at least cost to itself. The schools have a tendency to put the child into the programs they have, even if those programs are not really suitable.

I've had the privilege of working with some wonderfully competent and helpful special educators. And I've had encounters that were a cross between an unresponsive HMO and a trip to the DMV. I sometimes felt like Joan of Arc, strapping on my armor to do battle.

The case considered by the Court began in 1997, when Jocelyn and Martin Schaffer placed their seventh grade son with qualifying disabilities, in the Montgomery County school system. They were not satisfied with the options offered by the county. They took their son out, placed him in a private school and asked the County for tuition reimbursement. The Supreme Court decided the parents are not entitled to reimbursement.

Think of it: these parents have been fighting over their son's schooling since 1997. He must have graduated by now. If his parents had waited for the County to come up with an appropriate plan, his education would have been flushed. That is the leverage the public schools have over the parents. The child's needs are immediate and the school can outlast the parents.

The special ed system is one that parents find unresponsive, and schools find expensive. These parents asked for full tuition reimbursement for a private school. What if instead, they asked not for tuition reimbursement, but for reimbursement for the amount of money the school would have spent on their child in the program originally proposed? Or, for that matter, what if they had asked for the average amount of money the school spends on children with their child's disability? The parents then could take that money and spend it on private schools or tutors, or whatever they felt was appropriate for their child.

The advantage for the parents is obvious: greater control over their child's education. But there are also advantages for the school. Instead of being on the hook for an undetermined amount of money to provide an “appropriate” education, they would have a fixed cost. Instead of having to be the gatekeepers to expensive programs, the teachers could actually tell parents which local programs would be most suitable for their particular child. I know for a fact that teachers feel they can't tell parents about private alternatives.

If they open their mouths about something that may be beneficial for the child, the school district could be liable for the cost. Instead of haggling with parents at endless meetings, teachers could be resources matching children with the full range of public and private services. Teachers could take pride in helping to find the most appropriate match for a particular child, rather than trying to cram all the kids into the programs they happen to have. Believe me, that aspect of the system can be as trying for the teachers as it is for the parents and children.

Yes, this policy would be the dreaded V-word: Vouchers. But special education vouchers could go a long way toward limiting the liability of school districts, as well as providing more truly appropriate education for more kids.

Sounds like a win-win situation to me.