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RUSH: The last caller we had in the previous hour, he went to school with Tom Freston, who started MTV, no longer there, but started MTV. ‘The United States Supreme Court this morning affirmed a lower court’s ruling that New York City must reimburse wealthy parents who sent their learning-disabled son to a private school before trying a program offered by the public schools. The justices issued a split 4-to-4 decision in the case, New York City Board of Education v. Tom F., meaning a lower court’s ruling in favor of the plaintiff, the former Viacom chief executive Tom Freston, stands. The decision was announced in a two-sentence statement issued by the court this morning. Because of the split ruling, the decision does not establish a precedent for similar cases in the future. Justice Anthony M. Kennedy did not take part in today’s decision. No explanation was given for Justice Kennedy’s absence from the case. Lawyers for New York City reacted negatively to the court’s decision. ‘We are very disappointed in the court’s ruling, as it detracts from schools’ abilities to work with parents for the best possible educational outcomes for children with disabilities,’ said Leonard Koerner, chief of the Appeals Division at the city’s Law Department. ‘Since this decision is not a precedent which would guide all U.S. public school districts, we are hopeful that the Supreme Court will resolve this important issue in the near future.’

In 1997, Mr. Freston’s son, then 8, was found to have difficulty with reading, although not math. The city offered him a spot at Public School 77, the city’s Lower Laboratory School for Gifted Education, which has classes for students with moderate disabilities. Mr. Freston instead sent his son to the Stephen Gaynor School on the Upper West Side. The city had contested Mr. Freston’s claim for reimbursement because city officials argued that the family did not give the Board of Education — also known as the Education Department — a sufficient chance to help his son. While the city is legally required to pay for private programs for disabled students when it cannot provide the services itself, the city argued that Mr. Freston chose not to use the public schools and therefore was not entitled to reimbursement. The city paid for two years at the Gaynor School but then stopped. A trial court ruled in favor of the city, but the United States Court of Appeals for Second Circuit reversed the ruling and ruled in favor of Mr. Freston. At issue in the case is a 1997 congressional amendment to the federal Individuals with Disabilities Education Act.’

Now, that story came out this afternoon, a little after noon. If you go to the New York Post on October 7th, three days ago, ‘A majority of Supreme Court justices appears to agree that New York City has no obligation to pay parents of special-ed kids for a private-school education – on demand. The city is defending itself against claims – asserted by MTV co-creator and former Viacom Chief Executive Thomas Freston and joined by the Justice Department – that special-ed families should be compensated for private-school expenses when they haven’t even tried public-school programs. The court didn’t seem to be buying it last week, and a good thing, too: If the litigants prevail, expect the numbers of allegedly disabled children to skyrocket.’ Now, this is a New York Post editorial. They clearly misread the case. What is mysterious here is that Anthony Kennedy was not part of it. The point of this 4-4 decision is it’s no decision, the ruling in the lower court stands, which in this case is the US court of appeals for the second circuit. So it boils down to this, as I understand it. By the way, there’s another companion story that I cannot find. Wait a minute, maybe I have it here. Just a second, folks. Yes. Yes. You gotta hear this in just a second as soon as it clears the print because this is nothing compared to what I’m going to tell you.

But apparently to the city, you know, public schools are public schools. You have a disabled kid, you go to the public school, the public school is paid for by the state and city, federal government in some cases, and that’s that. Mr. Freston said, (paraphrasing) ‘Nope, I want to send him to a special school, and they should pay, since they were going to pay anyway.’ And the city said, (paraphrasing) ‘Hell no, we’re not going to pay. You didn’t even try public education first.’ They did pay for two years, they canceled the payments; he sued them. To a lot of people the issue up here is, ‘Well, he’s got all the money in the world. Sure, he has a golden parachute from Viacom that was pretty ritzy. He didn’t do too badly as the president of MTV and Viacom,’ I forget what he was actually president of, ‘But he didn’t do too badly there, so if he can afford it, why can’t he pay for it?’ His point was, ‘Wait a minute, the law is the law here. The city pays for disabled kids. It doesn’t say anything about income in here.’ Now, you can look at it and say, ‘This is no different than some family that can afford health care but doesn’t buy it, and wants the state or the federal government to do it.’

Yeah, I think we essentially do have a bit of a problem here with a sense of entitlement on the part of everybody. I don’t think there’s any doubt about that. I worry about mob rule when 55 or more percent think that their neighbors ought to be buying their health care, and we’re heading to that number. We’re going to get mob rule aided and abetted by big government socialists in the Democrat Party. On the other hand, you do have the law here, and the guy’s wealth is irrelevant to it. He pays his taxes for those schools, but not the private school. He pays the taxes for the public schools, believe me, he pays. The taxes in New York, folks, it’s just unreal. I don’t know why anybody stays there. Actually, I do. So our caller said, ‘Will you join me in supporting Mr. Freston,’ for simply saying, ‘hey, just because I’m wealthy doesn’t mean I shouldn’t have access to the same thing everybody else has, as part of law.’ I totally understand the argument. But you gotta understand, Mr. Freston is a huge liberal, and you cannot take that out of the equation. He has to be a liberal or he wouldn’t be working at Viacom, for crying out loud. Viacom owns CBS, they own MTV, they own a bunch of stuff. You couldn’t be a conservative and found MTV. You’d have to be a liberal in order to operate MTV, and what it became, and what it stood for, and what it is now. So, he’s being consistent with who he is.

Let me grab this story on the printer back here. This is an Andrea Peyser piece in the New York Post on October the 8th, two days ago for those of you in Rio Linda. ‘Parents say it’s harder to get into than Harvard. It’s an elite, private Manhattan school that mainly takes kids of the rich, famous and well connected. Kevin Bacon and Kyra Sedgwick’s son went to the Churchill School, and a nephew attends. Artist and filmmaker Julian Schnabel’s son goes there. Designer Dana Buchman wrote a memoir about her daughter’s experience at the school, which caters to bright kids, grades kindergarten through 12, who’ve been declared learning disabled. But the thing that separates Churchill from the Daltons and Chapins is the price: It’s free. Rather — you, the taxpayer, fund private education for kids whose parents can afford the freight. Because 96 percent of Churchill’s 405 students get their tuition — $34,000 this year — picked up by the state and city. You buy these kids state-of-the-art facilities, plus class sizes that top out at 12. Of the 16 students whose parents write a fat check this year, most will ask for a refund — and get it. I asked Bacon to comment, but he said ‘no’ and hung up. Schnabel did not return a call.

‘Top political consultant Hank Sheinkopf, whose daughter attends for free, admitted it stinks rich kids primarily get a gratis private-school education. ‘What’s wrong … is that poor kids can’t get in,’ he said. ‘You have to hire an expensive lawyer. I’d like to see other people have this opportunity, too.’ For me, the whistle was blown on Churchill by a mom whose son is enrolled — against her wishes. In a fight with her wealthy doctor ex-husband to get their boy into a mainstream school, she handed me the Churchill directory. It reads like a society register. For every kid on it who lives in Brooklyn, there are perhaps 20 on Park Avenue, in Greenwich Village or on Sutton Place. Since 1999, the number of parents who get kids diagnosed with a disability, then apply for a private-school refund, is up enormously. The city paid more than $57 million for 3,675 kids whose cases were contested by the Ed. Department in the ’05-’06 school year.’

Now, if you put these three stories together, you find out that there’s a scam going on here with more and more parents claiming their kids are disabled to get them into this school, the Churchill school. This is not the same school as the school where Tom Freston’s kid goes. That’s the Stephen Gaynor School on the West Side. So the disabled children of the rich and powerful and the famous and the wealthy are having the state and city of New York’s taxpayers pay $34 grand a year in tuition to get ’em in. And the poor can’t get in. ‘The city is fighting against thousands of parents who never even try public schools before demanding a private-school refund. That’s the case with multimillionaire ex-Viacom chief Tom Freston, whose son attends another pricey Manhattan school. Freston is taking his case for a cash refund to the Supreme Court — ‘on principle.” And won. ‘Lawyer Neal Rosenberg is the chief go-to guy for getting your kid into a pricey school gratis. He claims a ‘100 percent success rate’ at Churchill. ‘I’ve never had a client who presented a disability just to get the Board of Ed to pay,’ he insisted. He disagrees that would-be Churchill kids should try public school first. ‘Why make their child a guinea pig?’ he said.’

So when you boil all this down, folks, what you have is two things. You offer something for free, and people are going to take it. I don’t care what their income level is; they’re going to take it. If they have to run a little bit of a scam, they’ll take it. The second thing is this is happening in New York. These are the same kind of people that will not send their kids to the public schools whether they’re disabled or not, will not do it, and they will fight school choice left and right so that you, who don’t have the kind of money they have, do not have the same access that they do. They want to keep it limited so that your kids are not polluting theirs by being in the same classroom.

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