The Court Shirks

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun
NY Sun
NEW YORK SUN CONTRIBUTOR

If one adds up all the salaries of the nine justices of the Supreme Court, it comes to something like $2 million a year — plus benefits, security, huge offices, and a private gymnasium. On top of that, each one of these berobed geniuses gets four or five assistants, and not just any assistants but the brightest assistants that can be found in all the law schools of the land. So you would think that some combination of the justices could be found to sort out the question of whether the hard-working taxpayers of New York City should be required to fork over their hard-earned cash to send the child of one of the city’s wealthiest citizens, Thomas Freston, to a private school of his choice because he doesn’t want his child, who has special educational needs, to have even to try the special needs education available in the public schools.

But no, in the case captioned New York City Board of Education v. Tom F., the Supreme Court of the United States, which in the good old days tossed off opinions like Marbury v. Madison and Gideon v. Wainwright like there was no tomorrow, turns out not to be up to it. Justice Kennedy was so punctilious that he recused himself (without deigning to explain the reason); the remaining eight justices split four to four. So, by default, the case will be left as it was decided by the riders of the Second Circuit of the United States Court of Appeals in Foley Square. That essentially means that Mr. F. — Thomas Freston, a founder of MTV and a former top executive of Viacom — will be reimbursed by the overburdened taxpayers of New York, but because the court was deadlocked and defaulted to the circuit riders, no precedent will be set, and school districts in the rest of the country seeking clarification of their obligations will be forced to start over again.

Tom F. was the first decision of the new term, and for the court to punt at this stage would be like a jury calling a mistrial before lunch on its first day of deliberations — and refusing to give interviews to the tabloids. About the only charitable view of the high bench’s action — or inaction — is that it recognized what an explosive case this could be and felt the circumstances weren’t right to use it to set a precedent in respect of school choice and vouchers. This is the lens through which we wrote about Tom F. in our earlier editorial, issued on February 27, when we said, this was a case to watch. “Many of those who can afford to get out of the government monopoly school system already opt out,” we noted. “Allowing the money to follow the student would expand that opportunity to the many who cannot afford it.”

Mr. Freston and his allies — and they are an impressive and serious group — resist the idea that this case is about vouchers in a larger sense. They want it viewed strictly as whether the Individuals With Disabilities Education Act, which is full of ambiguities, requires that a disabled child must first have tried the public schools and found them inadequate before the government is required to pay for him or her to attend a private school. We’re in the camp that reckons the “principle” for which Mr. Freston’s case could be the wedge is not simply that special needs students can be reimbursed when they opt out of public schools but that any and all students who want out of a public school system they deem inadequate can take their funding with them. That would have a positive impact on our public education as great as Brown v. Board of Education.

In an ideal society, the decision on school choice would be made not by any of the courts but by the legislature. But our legislatures have been so compromised by the teachers unions that few are looking to them to make matters right. So parents of hundreds of thousands of youngsters with needs every bit as compelling as those of children with disabilities are left without choices and are stranded in public school systems. It’s a situation that is going to take real leadership from the high court. And not only from the court, it seems, but within the high court. We find it hard to believe that the chief justice of the United States couldn’t have told his seven non-recused colleagues to go back to their gilded chambers and give it another try before sloughing this problem back on every school district and parent in the land.

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


The New York Sun

© 2025 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

or
By continuing you agree to our Privacy Policy and Terms of Use