SCHOOL VOUCHERS, SPECIAL EDUCATION, AND THE SUPREME COURT.

• Author: Tang, Aaron
• Position: ARTICLE

INTRODUCTION 339 I. A PRIMER ON PRIVATE SCHOOL VOUCHERS 347 A. A Brief History of Private School Vouchers 347 B. Vouchers in the Trump Administration 350 C. The Voucher Debate 352 1. Arguments In Favor 352 2. Arguments Against 355 II. UNILATERAL SPECIAL EDUCATION PLACEMENTS 361 A. The Burlington Trilogy 361 1. School Committee of Burlington v. Massachusetts Department of Education 362 2. Florence County School District v. Carter 364 3. Forest Grove School District v. T.A 365 B. Endrew F. 367 III. COMPARING VOUCHERS & UNILATERAL PLACEMENTS 370 A. Similarities 370 B. Differences 373 1. Unilateral Placements Are About Special Education 373 2. Unilateral Placements Are Smaller in Number 376 3. Unilateral Placements Require an Evidentiary Basis 378 IV. REVISITING OUR VIEWS ON SCHOOL VOUCHERS 381 A. Lessons For The Left 381 1. Anti-voucher Arguments That Don't Work: Resource Draining, Public Values, and Anti-Subordination 382 2. An Anti-voucher Argument That Might Work: What's Best for Kids 385 3. The Evidence on Vouchers Is Unclear 387 4. The Existing Policy Climate Is About Right 390 B. Lessons for the Right 392 1. The Trouble with Liberty Arguments 392 2. Some Qualifications on Voucher Support 394 CONCLUSION 397 INTRODUCTION

Consider two vignettes:

The President of the United States calls for an overhaul of the federal role in K-12 public education. Alongside reductions in federal spending on public schools, the President proposes to increase spending on a private school voucher grant program by $250 million. The program would support vouchers for students who opt out of the public school system, providing them up to $12,000 to offset the costs of attending a private school.

Dissatisfied with the quality of education their son is receiving at a local public elementary school, the child's parents transfer him to a private school. The private school charges $70,000 in tuition, roughly seven times greater than the public school's per pupil spending level. The parents demand reimbursement for this tuition from the school district, which the district denies. A court, however, sides with the parents and orders the district to pay.

Readers may know that the first story is no hypothetical. The Trump Administration has indeed proposed to ramp up federal support for state-run school voucher programs while cutting public school spending. (1) But it turns out the second story is also real. The student is a fourth-grader named Endrew F., whose parents removed him from a public school in Douglas County, Colorado to send him to an academy that specializes in the education of children with autism, and the court that sided with the parents' demand that public dollars be used to pay their son's private school tuition was the Supreme Court of the United States. (2)

These two stories unfolded at about the same time, during the spring of 2017. Yet public reaction to them--particularly on the left--could not have been more divergent. Progressives uniformly derided the President's attempt to transfer federal support for K-12 education from public schools to private schools. (3) By contrast, progressives lavished praise on the Supreme Court's decision in Endrew F.'s favor. (4) Comments made by Washington Senator Patty Murray, the ranking Democrat on the Senate Committee on Health, Education, Labor, and Pensions, are illustrative. On March 22, the day Endrew F. was decided, Senator Murray lauded the Supreme Court's ruling against the Douglas County School District because it held the district "accountable for providing students with disabilities meaningful educational benefit[s]." (5) Yet in a memo to her Senate colleagues issued on the same day, Senator Murray attacked the Trump Administration's school voucher proposal for "ignor[ing] the needs of students and families" and "mak[ing] it harder to educate students in public schools." (6)

Notwithstanding these opposing reactions, the stripped-down narratives above suggest that what is at issue in both instances may be more similar than is often thought. The question in both situations is whether parents should be allowed to take government funds that would otherwise be spent in public schools and redirect them to a private school of their choosing for the purpose of educating a child. The practices go by different names--the term "voucher" is used to describe proposals like the Trump Administration's, whereas the choice exercised by parents in the special education context is commonly known as a "unilateral placement." (7) But the net result is the same. Resources are taken out of the public school system and shifted to a private school through a process that ostensibly benefits children whose parents have the means and information to make the requisite choice, and that arguably leaves less advantaged children behind in the public schools.

Commentators in the legal academy and school reform community have yet to grapple with the similarities between these two contexts. Like trains along parallel tracks, school voucher programs and unilateral special education placements have chugged along separately, with no examination of what might be learned from their points of intersection. (8) For progressives--a camp in which I include myself--this oversight has been somewhat convenient, since the intellectual coherence of supporting private school choice for students with disabilities but no one else is not obvious. (9) Convenience, though, should not deter us from asking hard questions about whether our policy intuitions truly make sense.

This Article seeks to start that process of hard questioning. I ultimately suggest that a close examination of the Supreme Court's unilateral special education placement rulings has the potential to move much of the currently "stale" (10) debate over private school vouchers in new and possibly promising directions. In particular, I argue that to the extent liberals support the right of students with disabilities to publicly funded private school placements when the public schools fail them, such support undermines prominent lines of attack against school vouchers. These lines of attack include the claim that vouchers are inherently bad because they drain public schools of resources, (11) the argument that vouchers "undermine the public good" by disrupting the "transmission of social values that lead to social cohesion," (12) and the view that vouchers subordinate children whose parents lack the means to exercise choice on their behalf. (13) All of these arguments would be equally valid as attacks against unilateral special education placements. (14) So one cannot accept them unless one is willing to deny relief to children with disabilities like Endrew, whose public school expected him to make essentially no educational progress for three straight years (an expectation he quickly disproved once he transferred to a private school and made rapid gains). (15)

What remains for school voucher opponents, then, is the argument that vouchers are bad because they do not actually benefit children. (16) That may or may not be true as an empirical matter--there is some evidence in both directions (17)--but the important point to glean is that the objection is contingent. If the only sound basis for opposing vouchers lies in the data, then the ground rules for the voucher debate are much like those for any school reform proposal for which there is disputed evidence (such as class size reduction (18)): if the evidence changes, so too should our policy views. This means that taking the special education analog seriously may be bad news for some of progressives' favorite tropes against school vouchers, but it also has the liberating potential of lowering the stakes of the debate.

But the oft-held views of liberals are by no means the only casualty in this analysis. The traditional, conservative view in support of school vouchers is also informed by a close comparison with unilateral special education placements. For to the extent there exists a consensus in favor of the Supreme Court's unilateral placement rulings--a fact indicated by unanimous votes in three of the four opinions the Court has issued on the topici (19)--that consensus ought to yield in cases where parents seek public reimbursement for a private school placement that does not provide a beneficial education. (20) As a result, unless one believes judges should require public schools to reimburse parents for inferior private placements that fail to educate students with disabilities, absolutist pro-voucher arguments regarding the need to get "government out of the business of educating our children," (21) or the superseding value of parental liberty to choose a school, (22) should be taken off the table. The data, in other words, can cut both ways: just as liberals should be willing to accept vouchers if they benefit children, so should conservatives let them go if they do not.

The Article proceeds in four parts. Part I provides a primer on private school vouchers. It begins with a short discussion of the historical development of vouchers before moving to the modern-day policy arena, including a discussion of recent school choice proposals made by the Trump Administration. Part I concludes with an overview of the common arguments advanced by opponents and supporters of vouchers, arguments that will later be scrutinized in light of the Supreme Court's unilateral special education placement decisions.

Those decisions are the subject of Part II, which describes the three seminal cases in which the Supreme Court upheld and then expanded the right of parents to choose publicly funded private school placements for children with disabilities. Some commentators have recognized the importance of these cases--which I'll call the Burlington Trilogy, after the first case to recognize the right to a unilateral placement in 1985 (23)--for their ability to advance the educational opportunities available to...