Monday, June 11, 2018

School Vouchers, Special Education, and the Supreme Court

Aaron Tang has posted a new paper.  School Vouchers, Special Education, and the Supreme Court is forthcoming in the University of Pennsylvania Law Review.  His abstract provides:

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly-funded voucher to attend a private school—with the number growing each year—one recent survey found that just 37% of Americans support the practice while 49% oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it doesn’t.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular value-based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron-clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

Tang, in his usual fashion, offers a thorough analysis of vouchers.  He also, probably more than any other, seeks to find a middle ground and provides a great primer on the competing positions along the way.  I had once attempted a middle ground on charters, reasoning that they were empty vessels and we could make of them what we wished.  I, like Tang, reasoned that the facts rather than ideology alone should determine the course.  My analysis admittedly was not as thorough as Tang's, but my real failure was wishful thinking. 

I could see what was happening with charter schools and surveyed the trends in my scholarship, but I imagined a world in which charters could move in a different direction, particularly if they are empty vessels.  I also underestimated the ideology that was driving the charter movement.  Those pushing the policies were not interested in the facts or effective policy. They were interested in pushing an entirely different concept of public education.  Cutting deals with that devil is hard to survive.  The ideology almost necessarily wins when the earnest equal educational opportunity types agree to purportedly reasonable compromises.

I don't mean to suggest Tang makes my mistake.  He argues that "one’s support for vouchers should not depend on abstract arguments about resource draining, shared societal values, subordination, or parental liberty. It should turn on what the cold, hard data tells us about the impact of school vouchers on educational outcomes for disadvantaged students."  That is not far removed from a point I make in Preferencing Educational Choice: The Constitutional Limits. I acknowledge that the constitutional train on charters and vouchers has already left the station.  The argument that they are unconstitutional on their face is near implausible, so advocates should stop making it.  

I also argue, like Tang, that we have to look at the facts and look at them in particular jurisdictions. These facts reveal that there are a host of constitutional problems in certain locations.  The difference between Tang's work and mine is the frame of analysis.  Tang seems to ask whether vouchers work for the students receiving them.  I ask how vouchers and charters affect the local education system.  This is not just a question of money.  And it is not just a question of what is taught in those schools--whether private schools might promote the same public values as public schools, as Tang allows.  The question is whether the overall system becomes more segregated, more unequal, more stratified, or more underfunded.  

I believe the overall education system not the outcomes for some subset of individual students within it must be the frame of reference.  It is the one our state constitutional systems were committed to 150 years ago.  And it is an assault on that system, not individual outcomes, that is driving today's school choice and reform agenda.  

 

http://lawprofessors.typepad.com/education_law/2018/06/school-vouchers-special-education-and-the-supreme-court.html

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