Published: Friday, December 2nd, 2005
The U.S. Supreme Court last week made it sound as if it were strictly a narrow legal matter. However, in Schaffer v. Weast it set policies for thousands of school districts around the country, determined how millions of dollars will be spent and had a huge impact on what kind of services some 7 million disabled kids will receive from public schools. If you step back, that looks like judicial activism — setting policies and determining how taxpayers’ money is spent, traditionally legislative functions. Yet this case represents a kind of activism Congress invites when it performs in a perfunctory or incomplete manner. Back in 1974, you see, Congress passed the grand-sounding Individuals with Disabilities Education Improvement Act (IDEA), which has been updated several times, most recently in 2004. It requires school districts to provide a “free appropriate education” for students with a disability. Congress thinks it can pass such laws because the federal government provides about 3 percent of the funding for public schools. This law, however, is an unfunded mandate — an instance of Congress forcing local levels of government to do something Congress has decreed is wise without providing the funds to carry it out. The law is also vague. What is an “appropriate” education? Congress didn’t define it. In practice, parents of children with learning problems and disabilities work out a program for each student, ranging from a weekly session with a speech therapist to the district’s taxpayers paying for a full-scale residential program at a private facility. If there’s a disagreement a case can be brought before an administrative law judge. The parents of Brian Schaffer, who had been in private schools, disagreed with the Montgomery County, Md., school system about what their son needed when they put him in public school in the seventh grade. The case went back and forth through the courts. Justice Sandra Day O’Connor, writing for a 6-2 majority, decided the burden of proof (a legal concept more than an administrative one) lay with the person or institution complaining, as in civil legal cases. So the school district “won,” and the parents “lost.” This doesn’t mean parents will have no input in the future, but it strengthens the hand of the presumed experts in school districts. (Schaffer now is in college so it didn’t affect his junior high school curriculum.) That’s a defensible outcome. What’s significant, however, was that this was a case where all parties — especially Congress — were pleased to see the court perform an essentially legislative function and resolve confusion. So, Congress is still free to write high-sounding mandates about how other people’s money will be spent without having to sweat the details. The courts will come in and clean up their act.
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