School Vouchers, Special Education, and the Supreme Court

62 Pages Posted: 21 May 2018  

Aaron Tang

University of California, Davis - School of Law

Date Written: May 8, 2018

Abstract

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.

Keywords: school choice, school vouchers, education, education law, education policy, special education, supreme court, Endrew F., IDEA

Suggested Citation

Tang, Aaron, School Vouchers, Special Education, and the Supreme Court (May 8, 2018). University of Pennsylvania Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3175654

Aaron Tang (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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