The Blob Gets Whipped In Court

On February 15 the 2nd Circuit U.S. Court of Appeals handed down a sweeping victory for an independent Vermont high school, ending nine years of vindictive government legal action that should never have happened.

Derick was a severely handicapped 13 year old who had been passed through St. Johnsbury Middle School. Derick's mother wanted the boy to continue to the independent St. Johnsbury Academy. The Academy welcomes special education students, but it does have a requirement that students must be able to perform at or above the fifth grade level to be mainstreamed in regular classes. Derick wasn't even close.

The Academy offered its Individualized Service Program, where students without academic capabilities are taught (actually, cared for) outside of regular classrooms. Derick's mother, enthusiastically aided by Vermont Legal Aid, challenged this placement. The state education department's lawyers eagerly jumped into the case on the grounds that the Academy received tuition payments from public funds.

Before the administrative law judge hearing the case, the department declared that the position of the state of Vermont was - get this - that any high school admission standard relating to academic ability is inherently discriminatory and thus forbidden. This view was upheld in the federal district court, to which the Academy had appealed the administrative decision.

There, Judge William Sessions opined that "educational benefit should not be mistakenly equated with academic benefit alone", and denounced the notion of an "arbitrary grade level standard". He held that the burden of complying with the Federal special education law fell on the independent Academy, rather than on the public school district which had tuitioned Derick to the Academy. Judge Sessions issued a permanent injunction prohibiting the Academy from using the fifth grade requirement to keep special ed pupils out of mainstream academic courses. The Academy appealed.

The Second Circuit unanimously overturned Judge Sessions' ruling. That Court found that the Academy was an independent, private institution not subject to the Federal law, and that the responsibility for complying with that law fell on the St. Johnsbury School District. If Derick's mother and her Legal Aid lawyers insisted on mainstream placement, the school district would have to find a school which agreed to such placement. The Academy's fifth grade academic skills requirement was restored.

Stepping back from the legal ruling, it's worth taking a longer look at this episode. First, the boy in question had no academic skills and will never have any such skills. Absent the federal special ed law, which confers an enforceable right upon parents to demand a "free and appropriate public education" for their child, no one would ever have taken seriously the idea of "school" for Derick.

This case was not brought to advance Derick's educational opportunities. It was brought by Vermont Legal Aid solely to attack the independence and academic standards of the Academy. The Academy is a high-quality educational enterprise that has flourished since 1842. It has done so solely because parents wanting a quality education for their children choose to send their children to it. As such, its existence is a nagging reproach to the liberal public school Blob, which ardently defends government monopoly education against the competitive threat of independent schools and parental choice.

This is made crystal clear by the fact that even as the state department of education's lawyers aggressively opposed the Academy's fifth grade standard in federal court, the same department and board approved the Academy as a special education provider. Further, after the Legal Aid lawyers prevailed in federal district court, they and Derick's mother agreed in the course of the local special ed placement process that academic mainstreaming for Derick was wholly inappropriate.

The case is over. The Academy was fully vindicated. But the case cost Academy officials nine years of distraction and over $100,000 in legal fees and costs. The cost to taxpayers - federal, state, and local - was at least three times that amount. Thus does federally funded Vermont Legal Aid, aided and perhaps encouraged by our state education department, use taxpayer dollars to persecute an institution which refuses to knuckle under to what proved to be the state's illegal demands.

This case was about the Academy's independence and educational standards, and the Blob's determination to control - and constantly attack - every threat to its near-monopoly. St. Johnsbury Academy, a shining example of the success of parental choice in the educational marketplace, has won this battle. But there will probably be more, so long as the Blob, with its inexhaustible supply of taxpayer funds, continues to wage war against independence and choice.

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April 2001