After Viacom, Freston Makes Case for Special Ed

March 16 (Bloomberg) — There are weird lawsuits. And then there are truly weird lawsuits.

Into the latter class falls the legal battle between former Viacom Inc. chief Thomas Freston and New York's board of education over the right to have city money pay to privately educate his son, who has special needs. The Freston's suit, which the U.S. Supreme Court has agreed to hear, reminds us of all that's bad about the American tendency to litigate everything, especially when it comes to schools.

Freston was the executive behind the MTV music-video cable channel and its slogan of instant gratification, "I Want My MTV." He was ousted as chief executive officer at Viacom last year and got an $85 million package. Freston's name now pops up because of the Supreme Court news. What to make of it?

Setting aside the disparity between Freston's income and that of the average public-school parent — not so easy to do — we can discern a few arguments for the Freston action. After all, public schools often serve special-needs kids poorly. Why shouldn't an executive use his pedestal to pressure government into helping all children?

"While I was fortunate to have the means to provide such an opportunity for my child, many families are not able to," Freston said in a statement. Freston has gone to lengths to keep his son's name out of the public eye. He isn't seeking any new money, his lawyer says, and Freston's child is now grown.

Fighting Back

The case has been going on for years, and Freston originally did receive a cash settlement from the city that he donated to the private school his child attended, the Stephen Gaynor School, on the city's Upper West Side. Some of that cash even went to fund tutoring for public-school kids.

Eventually, however, the city tired of squabbles with Freston and making payments and fought back in federal court.

And it was right to do so, for there are troubling aspects to this case. Under federal statute, parents may request reimbursement for school costs if they find that the local district is unable to provide appropriate education. This implies at least trying out a public school. What Freston wants is full reimbursement for private-school tuition for families that never put a child in public school in the first place.

Though his lawyer says city delays in providing the right classroom motivated Freston, it is clear that Freston also presumed New York couldn't serve his child. This may not be accurate. The court documents show that the public schools eventually offered Freston's son a classroom with a low student-teacher ratio and speech therapy twice weekly at the Lower Lab School for Gifted Education in Manhattan.

The Public Pays

What was really at issue then for Freston was that he felt that kids like his son had a right to a Stephen Gaynor education. But it's not clear taxpayers ought to pay for that.

Also important is Freston's decision to ignore the costs he generated by his actions. Writing up a special curriculum for the Freston child took resources. Funding special ed takes resources. Even with federal money for special-needs children, New York can't afford too many kids like Freston's: tuition at Stephen Gaynor now runs in the $35,000 range.

But Freston isn't alone in his decision to sue over schooling. Litigation, including school litigation, is such a hobby in New York that the third-largest law office in Manhattan is the city's own law department.

Nationally, there is also a school-court problem. Ever since the days of Brown v. Board of Education, Americans have viewed lawsuits as the solution to local frustration. As Common Good, a nonprofit tort-reform group, points out, in recent years a high school basketball player in Alexander, Ohio, took his school to court for benching him for drinking alcohol. Another student in Sissonville, West Virginia, sued her teacher for a failing grade on a leaf project in advanced biology.

Providing Cover

Frivolous suits obscure the good ones. There is, for example, a legitimate argument to be made in state courts and legislatures for school vouchers that allow kids to take their school funding with them to the institution of their parents' choice.

Perversely, the voucher movement is providing cover for suits like Freston's because one can say that both are about "school choice." But the voucher lawsuits that are constantly in the courts and Freston's aren't the same. If you paid off all the special-ed tuitions at schools such as Stephen Gaynor, you would have insufficient money left over for vouchers for the average child.

And you can bet your last tuition dollar that there will be more children certified as special ed and greater demand for reimbursements if parents know they don't have to put their children into public schools for a second to get the money.

Freston might better devote his post-Viacom hours to getting Congress to pass a federal law about how to help special-needs kids. This avenue to reform is better than the courthouse steps.

The Supreme Court will probably hear the suit in October. Already the case reminds us of something. Legal action is like MTV, providing consolation, even instant gratification, for some: "I want my lawsuit." Only later do we find out how much a suit costs the rest of us.

(Amity Shlaes, a Bloomberg News columnist, is a visiting senior fellow at the Council on Foreign Relations. The opinions expressed are her own.)

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