Emory Law Journal Emory Law Journal
Volume 68 Issue 6
2019
Coerced Choice: School Vouchers and Students with Disabilities Coerced Choice: School Vouchers and Students with Disabilities
Claire Raj
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Recommended Citation Recommended Citation
Claire Raj,
Coerced Choice: School Vouchers and Students with Disabilities
, 68 Emory L. J. 1037 (2019).
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COERCED CHOICE: SCHOOL VOUCHERS AND STUDENTS
WITH DISABILITIES
Claire Raj
*
A
BSTRACT
The landscape of public education, once thought to be a core function of the
state, is shifting towards privatization. The appointment of Betsy DeVos as U.S.
Secretary of Education further cements this shift. In particular, DeVos intends
to vastly expand the availability of vouchers and tax credits that use public
dollars to fund private school tuition. The debate over this expansion and its
impact on traditional public schools has been polarizing and combative. Thus
far, commentators have framed vouchers as purely matters of choice and
increased educational opportunities. Drowned out in the debate are the voices
of students with disabilities. This Article reframes this conversation and reveals
that many students with disabilities may not have a choice at all.
This Article is the first to argue that voucher legislation, as applied to
students with disabilities, violates two principles of constitutional law: the
unconstitutional conditions doctrine and equal protection. First, some states
force students with disabilities to give up crucial federal and state educational
rights in exchange for vouchers. The unconstitutional conditions doctrine,
however, limits government’s authority to require individuals to forgo their
rights in exchange for a gratuitous benefit. Vouchers cross those limits, coercing
students into accepting a restriction of significant rights to escape failing public
schools. Second, equal protection requires that states sufficiently justify
legislation that targets particular groups for disadvantage. While states claim
that vouchers for students with disabilities are justified by better educational
outcomes, many states are, in fact, motivated by their desire to eliminate the
costs and burdens associated with educating students with disabilities in public
schools. Moreover, far from providing a benefit, vouchers have the potential to
resegregate students with disabilities—an ironic outcome given that federal
disability rights law was founded on the principle of inclusion for all children.
*
Assistant Professor, University of South Carolina School or Law.
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INTRODUCTION ........................................................................................... 1039
I. T
HE EXPLOSION OF SCHOOL CHOICE AND ITS IMPLICATIONS FOR
STUDENTS WITH DISABILITIES ......................................................... 1044
A. School Choice Gains New Momentum ................................... 1044
B. Federal Disability Rights Statutes in Private Schools ............ 1047
1. The Individuals with Disabilities Education Act .............. 1047
2. Section 504 of the Rehabilitation Act of 1973 .................. 1051
3. The Americans with Disabilities Act ................................ 1052
II. V
OUCHERS’ PRACTICAL EFFECTS FOR STUDENTS WITH
D
ISABILITIES .................................................................................... 1055
A. The Loss of Critical Legal Protections ................................... 1056
1. Substantive Guarantee of an “Appropriate” Education .. 1057
2. Parental Participation ...................................................... 1058
3. Disciplinary Protections ................................................... 1059
4. School Accountability ....................................................... 1060
B. A Tool of Resegregation ......................................................... 1062
1. Waiving the Presumption of Least Restrictive
Environment ..................................................................... 1063
2. Targeting Specific Categories of Disability ..................... 1065
3. Facilitating Exclusion ...................................................... 1066
III. C
ONSTITUTIONAL LIMITS ................................................................ 1068
A. The Unconstitutional Conditions Doctrine ............................. 1068
1. Principles of Unconstitutional Conditions ....................... 1070
2. The Unconstitutional Conditions Doctrine as a Framework
for Analyzing Vouchers .................................................... 1072
a. State Constitutional Rights ........................................ 1073
b. Federal Statutory Rights ............................................ 1075
3. Evaluating the Constitutionality of the Conditions on
Vouchers ........................................................................... 1077
a. Legitimacy of the Government Interest ...................... 1078
b. Coercive Nature of the Bargain ................................. 1084
B. The Equal Protection Clause .................................................. 1087
1. When Laws Fail Rational Basis Review ........................... 1088
2. Why Vouchers Fail Rational Basis Review ...................... 1092
IV. S
OLUTIONS ...................................................................................... 1096
A. Congressional Solutions ......................................................... 1096
B. State Legislative Solutions ...................................................... 1097
C. Judicial Solutions ................................................................... 1098
C
ONCLUSION ............................................................................................... 1098
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INTRODUCTION
The landscape of public education, once thought to be a core function of the
state, has been shifting towards privatization over the past decade. The 2016
election of Donald Trump and subsequent appointment of Betsy DeVos as U.S.
Secretary of Education further cemented this shift. In her first official policy
address, Secretary DeVos called for an expansion of school choice programs,
stating that “we must shift the paradigm to think about education funding as
investments made in individual children, not in institutions or buildings.”
1
In
particular, DeVos wants to vastly expand the availability of vouchers and tax
credits that use public dollars to fund private school tuition.
2
Though vouchers
have existed for decades, they have always operated at the periphery of
education reform efforts.
3
Over the past five years, however, states have
significantly expanded voucher or voucher-type programs.
4
DeVos’s mission
has been to supercharge these programs, taking them from the sidelines directly
to center field.
This shift is understandably generating contentious debates. Voucher
proponents believe market forces and increased parental choice will improve
educational options and outcomes.
5
Voucher opponents fear that such programs
will drain public schools of vital federal and state dollars and only further
exacerbate the education gap between the “haves” and “have-nots.”
6
Drowned
1
Erica L. Green, Betsy DeVos Calls for More School Choice, Saying Money Isn’t the Answer, N.Y.
TIMES (Mar. 29, 2017), https://www.nytimes.com/2017/03/29/us/politics/betsy-devos-education-school-choice-
voucher.html.
2
Id. Voucher programs essentially provide parents with state-funded coupons that they apply to reduce
tuition at private schools. NAT’L COUNCIL ON DISABILITY, SCHOOL CHOICE SERIES: CHOICE & VOUCHERS –
IMPLICATIONS FOR STUDENTS WITH DISABILITIES 1, 27 (2018). Tax credit programs provide tax incentives for
approved educational expense, including private school tuition. Id.
3
Jim Ryan, School Choice and the Suburbs, 14 J.L. & POL. 459, 459–60 (1998) (describing the
theoretical and social history of school voucher programs). The school choice movement is usually attributed to
a 1955 essay by Milton Friedman, The Role of Government in Education, in which he advocates the government
provide parents with vouchers that they can apply to certain eligible private schools. Who We Are: Our Legacy,
EDCHOICE, https://www.edchoice.org/who-we-are/our-legacy/ (last visited Mar. 26, 2019).
4
Forty states considered private school choice legislation in the 2014–2015 legislative year. THE
COUNCIL OF PARENT ATT’YS & ADVOCATES (COPAA), SCHOOL VOUCHERS AND STUDENTS WITH DISABILITIES:
EXAMINING IMPACT IN THE NAME OF CHOICE 1 (2016) [hereinafter COPAA REPORT].
5
JEFF SPALDING, THE SCHOOL VOUCHER AUDIT: DO PUBLICLY FUNDED PRIVATE SCHOOL CHOICE
PROGRAMS SAVE MONEY? 1–2, 39 (2014).
6
Memorandum from Senator Patty Murray (D-WA) and Senate Health, Educ., Labor, and Pensions
Minority Staff to Senate Colleagues (Mar. 22, 2017) (entitled Real Choice vs. False Choice: The Repercussions
of Privatization Programs for Students, Parents, and Public Schools) (arguing against school choice because it
“ignores the needs of students in rural areas without private school options, ignores the threats posed to students
with disabilities and students who may face discrimination, and ignores the parents who believe in their
communities and want their children to be able to attend strong public schools in their neighborhood”).
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out in the factious debates are the voices of students with disabilities. Yet,
vouchers have both significant and unique implications for these students.
In many instances, voucher programs attempt to roll back crucial legal
protections for students with disabilities and do so without making parents fully
aware of the far-reaching consequences.
7
First, several states demand that
students with disabilities waive important federal and state educational rights to
gain access to a voucher.
8
A recent federal report highlights the shocking levels
of misinformation about the loss of these rights.
9
Eighty-three percent of voucher
programs are either vague or silent about the resulting loss of educational rights
triggered upon acceptance of a voucher.
10
As a result, students with disabilities
can find themselves in a private school ill-equipped to meet their educational
needs, but unable to engage federal disability rights laws to demand more
appropriate supports or services.
11
These students can only hope that the private
school will voluntarily attempt to meet their educational needs.
Second, the proliferation of vouchers has the potential to resegregate
students with disabilities, a group who spent decades fighting for the right to be
integrated into regular education settings.
12
Prior to enacting sweeping federal
disability rights laws, students with disabilities were either cordoned off into
segregated educational settings or denied an education altogether.
13
New state
enacted voucher programs restrict eligibility by disability category, recreating
the decades-old problem of sorting students with disabilities into different
7
See generally U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL
ACTIONS NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH
DISABILITIES 1 (2017) (discussing the lack of information provided on protections available under the
Individuals with Disabilities Education Act to children in private schools).
8
Id. at 7–8, 24–26; see COPAA REPORT, supra note 4, at 20–26.
9
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS
NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 2
(2017).
10
Id.
11
See infra Section II.A.
12
See, e.g., Mills v. Bd. of Educ. of the D.C., 348 F. Supp. 866, 875 (D.D.C. 1972) (holding the District
of Columbia’s exclusion of children with disabilities from access to public education violated the Fourteenth
Amendment’s Due Process Clause); Pa. Ass’n for Retarded Children v. Pennsylvania, 343 F. Supp. 279, 302–
03 (E.D. Pa. 1972) (approving consent decree that enjoined Pennsylvania from denying education to students
who were “mentally retarded”).
13
See Honig v. Doe, 484 U.S. 305, 309 (1988) (“When the law was passed in 1975, Congress had before
it ample evidence that such legislative assurances were sorely needed: . . . congressional studies revealed that
better than half of the Nation’s 8 million disabled children were not receiving appropriate educational services.
Indeed, one out of every eight of these children was excluded from the public school system altogether, many
others were simply ‘warehoused’ in special classes or were neglectfully shepherded through the system until
they were old enough to drop out.”) (citing H.R. REP. NO. 94-332, pt. 2 (1975)).
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schools.
14
Even with more general voucher programs, the threat of segregation
remains because private schools are free to reject those students who need
something more than “minor adjustments” to access the school’s program.
15
Thus, when private schools reject these students, the effect is to leave those
particular students with disabilities in public schools. Were these students in
well-functioning public schools, the inability to leave this setting would be a
nonissue. But too often, not only are certain categories of students left behind,
they are left behind in failing public schools from which their peers are rapidly
fleeing.
16
Thus far, commentators have framed vouchers as purely matters of choice
and increased educational opportunities.
17
This Article reframes this debate to
demonstrate that many students with disabilities may not have a choice at all. To
the contrary, many students with disabilities will find their choices are limited
by a lack of private schools willing to admit them. Even when they are admitted,
private schools may not be able to properly serve their needs, or worse, may
segregate them into separate learning environments. Thus, rather than expanding
opportunities, states take advantage of students with disabilities’ compromised
situations and force them to give up their legal rights in exchange for vouchers
to attend schools that may be just as ill-equipped to meet their needs.
This Article analyzes the serious constitutional and statutory issues that the
current generation of vouchers raises for students with disabilities. It is the first
to apply two constitutional doctrines—unconstitutional conditions and equal
protection—to expose the illegality of such legislation.
The unconstitutional conditions doctrine stands for the proposition that the
government should not indirectly entice or coerce citizens to give up
constitutional rights when direct encumbrance of those rights would be
14
For example, Ohio’s Autism Scholarship Program limits eligibility to students diagnosed with Autism
who have a current Individualized Education Plan (IEP). OHIO REV. CODE ANN. § 3310.41 (West Supp. 2019);
see also NAT’L CONF. OF STATE LEGISLATURES, SCHOOL VOUCHER LAWS: STATE-BY-STATE COMPARISON
(2014), http://www.ncsl.org/documents/educ/StateByStateVoucherComparison.pdf.
15
34 C.F.R. § 104.39 (2018).
16
See infra Section II.B.
17
See, e.g., Wendy F. Hensel, Recent Developments in Voucher Programs for Students with Disabilities,
59 LOY. L. REV. 323, 324 (2013) (exploring developments in school choice for students with disabilities); Wendy
F. Hensel, Vouchers for Students with Disabilities: The Future of Special Education?, 39 J.L. & EDUC. 291, 293
(2010) (discussing the impact of vouchers on students with disabilities); Brad J. Davidson, Comment, Balancing
Parental Choice, State Interest, and the Establishment Clause: Constitutional Guidelines for States’ School-
Choice Legislation, 33 TEX. TECH L. REV. 435, 440 (2002) (discussing school choice in the context of the
Establishment Clause).
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prohibited.
18
The doctrine arises when the government offers a gratuitous
benefit, but conditions the benefit on the waiver of a constitutional right.
19
Voucher legislation does exactly that. It conditions access to vouchers for
students with disabilities on the waiver of state constitutional and federal and
state statutory rights. In doing so, states indirectly achieve ends that would
otherwise be illegal.
State constitutions, with virtual uniformity, require state governments to
provide each child with an equal or adequate education.
20
Federal statutes protect
against disability-based discrimination, ensure the supports and services
necessary for meaningful participation in school, and guarantee a substantive
right to a free appropriate public education (FAPE).
21
These statutes, and their
state analogs, effectively ensure equal access to the education that states are
constitutionally obligated to provide. Requiring students to waive these rights
thus requires them to waive crucial elements of their state constitutional right to
an education.
More specifically, when students with disabilities accept vouchers, they lose
protections under the Individuals with Disabilities Education Act (IDEA),
22
the
Americans with Disabilities Act (ADA)
23
and Section 504 of the Rehabilitation
Act of 1973 (Section 504).
24
Title II of the ADA and Section 504 do not apply
at all in private schools.
25
The IDEA, a legal juggernaut in public schools, has
extraordinarily limited application in private schools.
26
This loss of rights,
moreover, is not accidental. Many voucher programs explicitly require parents
to waive access to all federal statutory disability rights and state constitutional
rights.
27
Other states surely recognize the limitation of rights in private settings,
18
Edward J. Fuhr, The Doctrine of Unconstitutional Conditions and the First Amendment, 39 CASE
WESTERN RESERVE L. REV. 97, 97-98 (1989).
19
Id.; see infra Section III.A.
20
EMILY PARKER, 50-STATE REVIEW: CONSTITUTIONAL OBLIGATIONS FOR PUBLIC EDUCATION (2016),
https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf.
21
20 U.S.C. § 1412 (2012); 34 C.F.R. § 104.33 (2018).
22
20 U.S.C. § 1400.
23
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 328 (codified at 42 U.S.C.
§ 12101 (2012)).
24
Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355 (codified at 29 U.S.C. § 794
(2012)).
25
See 34 C.F.R. § 104.39; infra Section I.B.2.
26
See infra Section I.B.1.
27
See COPAA REPORT, supra note 4, at 3, 62–63 (Oklahoma, Florida’s McKay Scholarship, and Georgia
ask parents to revoke all IDEA); see also NAT’L COUNCIL ON DISABILITY, supra note 2, at 59 (“In the majority
of school voucher programs, when students use vouchers to attend a private school, they relinquish their rights
under IDEA, including the right to an IEP, FAPE, and procedural protections.”); infra Section II.A.
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but do not bother to inform parents.
28
Either way, when students enroll in a
private school that fails to meet their needs, they are left with few, if any, options.
They cannot sue the private school or the state for better services.
29
Rather, they
must simply suffer poor education or attempt to find a new school.
The unconstitutional conditions doctrine tests the fairness of this waiver of
rights in exchange for government benefits. The doctrine provides that
government cannot engage in such a trade unless the state demonstrates that its
interests in conditioning students’ rights outweigh the coercive nature of the
bargain.
30
State interests animating voucher legislation fail to justify this
encroachment on rights. The fiscal savings and improved educational outcomes
promised by states have not materialized in any substantial way and, in any
event, pale in comparison to the serious infringement of educational rights.
The Equal Protection Clause of the Fourteenth Amendment exposes a
second flaw with respect to vouchers and students with disabilities. It provides
that the government cannot deny its citizens equal protection of its laws.
31
Thus,
when the government seeks to enact laws that draw distinctions among people,
the government must justify its classifications with a sufficient purpose.
32
In the
context of vouchers, legislators have not advanced a sufficient purpose to treat
students with disabilities different from all others. To the contrary, some appear
to have acted with prohibited purposes.
While disability classifications only trigger rational basis review—a
decidedly low bar—voucher legislation fails to clear it.
The Supreme Court has
held that even under rational basis the state cannot unfairly target a group of
individuals for disfavored treatment.
33
Vouchers do just that. They strip students
with disabilities of their federal and state guarantees of equal educational
opportunity. They do so to rid the public education system of students whom the
state perceives as costly and administratively burdensome.
34
They send these
28
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS
NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 17–
20 (2017).
29
See infra Section II.A.
30
Fuhr, supra note 18, at 106–07.
31
U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”).
32
See City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985) (“The general rule
is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.”).
33
See, e.g., Romer v. Evans, 517 U.S. 620, 633 (1996); City of Cleburne, 473 U.S. at 450; Plyler v. Doe,
457 U.S. 202, 230 (1982); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537–38 (1973).
34
JOSH CUNNINGHAM, PRIVATE SCHOOL CHOICE FOR STUDENTS WITH DISABILITIES (2013),
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students to the private sector where federal antidiscrimination laws fail to protect
them and where the state has no further responsibility for their educational
outcomes.
35
While states are generally free to draw distinctions based on
disability, they are not free to do so when their animating purpose is to target a
group for disfavored treatment.
To fully explore vouchers’ impacts on students with disabilities, this Article
proceeds in four parts. Part I discusses the explosion of school choice legislation
in recent years and lays the groundwork for what the movement from public to
private schools means for students with disabilities. It also introduces the federal
statutes that protect rights of students with disabilities and examines the reach
of those statutes in private schools. Part II discusses negative policy implications
of voucher programs for students with disabilities, including a serious
curtailment of important statutory disability rights and the potential for
resegregation. Part III applies two constitutional doctrines—unconstitutional
conditions and equal protection—to theorize why voucher legislation, when
applied to students with disabilities, is unconstitutional. Part IV offers a simple
solution to the many problems raised by conditioning vouchers for students with
disabilities: prohibit such conditions. States should enact voucher programs that
give students with disabilities full access to state and federal laws enacted to
guard against disability discrimination.
I. T
HE EXPLOSION OF SCHOOL CHOICE AND ITS IMPLICATIONS FOR
STUDENTS WITH DISABILITIES
A. School Choice Gains New Momentum
“School choice,” a term broadly describing educational options outside of
traditional public schools, has been in existence for over sixty years.
36
But a
movement to expand school choice has recently exploded in popularity across
the country, with forty states considering private school choice legislation in the
2014–2015 legislative year alone.
37
States have enacted, or attempted to enact,
a variety of programs ranging from school vouchers that essentially provide
parents with coupons they can apply to reduce private school tuition, to
http://www.ncsl.org/documents/educ/lb-2111.pdf (“By shifting students with disabilities out of the public school
system, the administrative burden of tracking and reporting student progress is reduced at both the local and
state levels.”).
35
See infra Section III.B.3.
36
See generally Martha Minow, Confronting the Seduction of Choice: Law, Education, and American
Pluralism, 120 YALE L.J. 814 (2011) (tracing the origins of the school choice movement).
37
COPAA REPORT, supra note 4, at 6–7; Who We Are: Our Legacy, supra note 3.
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educational savings accounts that provide parents with public funds they can
deposit into a government-authorized savings account for use on tuition or other
education-related expenses.
38
Most programs restrict eligibility to low-income families or families whose
children are zoned for failing public schools.
39
A recent trend has emerged,
however, which significantly broadens eligibility in some voucher programs by
disposing of income eligibility caps.
40
Still, other school choice programs
restrict eligibility to only students with documented disabilities.
41
Regardless of
the target population, in large part the desire for more “school choice” is a
reflection of the long-term failings of certain poor-performing public schools.
42
Proponents of school choice see these programs as a way to give more families
access to higher quality private schools, but also as a way to minimize
government involvement and oversight in education.
43
Detractors see choice
programs as a way to redirect public money to private schools, the majority of
which are religious.
44
They view choice programs as siphoning off funding from
an already under-resourced public school system.
45
The incentives behind the recent school choice expansion are varied, and
while the school choice movement is generally associated with conservative
political leanings, its supporters can cross party lines. Generally, choice
advocates align with a conservative political ideology of limited government and
a reliance on free markets.
46
As voucher programs are typically accompanied by
few, if any, regulations and limited government oversight, they advance a
38
COPAA REPORT, supra note 4, at 6–7.
39
Id.
40
Indiana’s Choice Scholarship Program is one of the most expansive in the country in terms of
eligibility. KATHERINE CIERNIAK ET AL., THE INDIANA CHOICE SCHOLARSHIP PROGRAM: LEGAL CHALLENGES,
PROGRAM EXPANSION, AND PARTICIPATION 2 (2015); see also Ryan Ellis, Ted Cruz’s 529 Education Savings
Amendment to Tax Reform Is a Big Win for Families, FORBES (Dec. 4, 2017, 5:43 PM),
https://www.forbes.com/sites/ryanellis/2017/12/04/ted-cruz-529-education-savings-amendment-to-tax-reform-
is-a-big-win-for-families/#209ec7316c45 (“The Cruz amendment expands the use of 529 dollars for two
additional purposes—tuition for students in K-12 private and parochial schools, and costs related to
homeschooling a child. Up to $10,000 per year per child can be distributed for these purposes.”).
41
NAT’L CONF. OF STATE LEGISLATURES, supra note 14.
42
See Kevin Carey, How School Choice Became an Explosive Issue, ATLANTIC (Jan. 24, 2012),
https://www.theatlantic.com/national/archive/2012/01/how-school-choice-became-an-explosive-issue/251897/.
43
See id.
44
See id.
45
See id.
46
Alia Wong, Public Opinion Shifts in Favor of School Choice, THE ATLANTIC (Aug 21, 2018)
https://www.theatlantic.com/education/archive/2018/08/school-choice-gaining-popularity/568063/ (describing
overall increase in support for school choice programs and highlighting Republicans’ recent embrace of school
choice as a “key component of the party’s platform”).
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1046 EMORY LAW JOURNAL [Vol. 68:1037
conservative agenda of limited government.
47
Vouchers support parents’
decisions to determine the best educational fit for their children and place much
faith in parents’ ability to find an appropriate school for their children. As such,
they advance the idea that free markets and competition will improve the overall
quality of schools as schools compete for voucher dollars. Choice programs are
also supported by parents who are fed up with poor-performing public schools
and are purely interested in better educational opportunities for their children.
These parents may not buy into the conservative ideals of limited government
and free markets, but want better schools and are willing to engage with voucher
programs to secure that possibility.
48
The choice movement has also cleaved certain previously cohesive interest
groups into separate factions. One such group is parents of students with
disabilities. Vouchers present a unique conundrum for this group. On the one
hand, students with disabilities have some of the poorest educational outcomes
of any tracked cohort.
49
They consistently demonstrate weaker scores on
standardized tests and have lower graduation rates than their nondisabled
peers.
50
However, students with disabilities also have access to additional
federal rights through several laws that guarantee a substantive level of
education and prohibit disability discrimination.
51
Many school voucher
programs require that students with disabilities waive these rights as a condition
of accepting vouchers. Even when waivers are not explicitly required, the act of
accepting a voucher and enrolling in private school greatly limits one’s
protections under those laws.
The following section will lay out the basic framework of these federal
statutes and examine their implications on students with disabilities who use
vouchers to attend private school.
47
See generally NAT’L CONF. OF STATE LEGISLATURES, supra note 14 (listing major provisions of
voucher programs state by state).
48
See, e.g., Mandy McLaren, For Indiana Special-Education Students, Choice Comes at a Cost, WASH.
POST (Dec. 26, 2016), https://www.washingtonpost.com/local/education/for-indiana-special-education-
students-choice-comes-at-a-cost/2016/12/26/3b875480-c3bc-11e6-9a51-cd56ea1c2bb7_story.html?utm_term=
.ce3c533aa00f.
49
See STEPHEN LIPSCOMB ET AL., PREPARING FOR LIFE AFTER HIGH SCHOOL: THE CHARACTERISTICS
AND EXPERIENCES OF YOUTH IN SPECIAL EDUCATION: VOLUME 1: COMPARISONS WITH OTHER YOUTH xii
(2017).
50
Id.
51
See infra Section I.B.
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B. Federal Disability Rights Statutes in Private Schools
The IDEA, the ADA, and Section 504 govern schools’ interactions with and
obligations to students with disabilities.
52
These federal laws, in most cases,
provide more substantive rights than students with disabilities would otherwise
have if limited to state law.
53
Moreover, the federal laws exist to ensure that
students’ state constitutional rights to education are not hollow. Federal
disability rights statutes help ensure that students are provided with the special
education, related services and accommodations they need to access the general
education curriculum.
1. The Individuals with Disabilities Education Act
In 1975, Congress passed the Education for All Handicapped Children Act
(EAHCA) to “assure that all handicapped children have available to them . . . a
free appropriate public education which emphasizes special education and
related services designed to meet their unique needs, [and] to assure that the
rights of handicapped children . . . are protected.”
54
The EAHCA, now known
as the IDEA,
55
is essentially a grant-making statute that originated under the
Spending Clause.
56
When states agree to its terms, they receive federal dollars
to support the cost of special education services.
57
At the heart of the IDEA is the promise to provide all children with
disabilities a “free appropriate public education” in the least restrictive
environment, meaning in the regular education classroom with nondisabled
peers.
58
Schools provide FAPE through designing and implementing
individualized education programs (IEPs), a blueprint of special education
supports and related services.
59
If parents disagree about the content of the IEP
or any provision of FAPE, they have the right to present a complaint and ask
52
Individuals with Disabilities Education Act, Pub. L. No. 101-476, 104 Stat. 1103 (to be codified as
amended at 20 U.S.C. § 1400 (2018)); Rehabilitation Act of 1973, § 504, 29 U.S.C. § 729 (2012); Americans
with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 328 (codified at 42 U.S.C. § 12101 (2012)).
53
See PARKER, supra note 20.
54
Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, § 3(c), 89 Stat. 775 (codified
at 20 U.S.C. § 1401(c) (2012)). The EAHCA is technically an amendment to the 1970 Education of the
Handicapped Act (EHA), which had provided grants for states to provide special education services. Pub. L. No.
91-230 (1970).
55
20 U.S.C. § 1400.
56
The Tax and Spend Clause authorizes the federal government to spend money to support the “general
Welfare.” U.S. CONST. art. I, § 8, cl. 1.
57
20 U.S.C. § 1412(a).
58
Id. § 1400(d)(1)(A).
59
Id. § 1414(d).
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that an independent hearing officer review their allegations to determine whether
or not the school has complied with the IDEA’s requirements.
60
In addition,
parents must be invited to participate in designing an IEP to address their child’s
special education needs.
61
The Supreme Court recently confirmed that the IDEA confers a substantive
right to an “appropriate” education, and held that to meet its substantive
obligation under the IDEA, a school must offer an IEP “reasonably calculated
to enable a child to make progress appropriate in light of the child’s
circumstances.”
62
Parents can file a complaint whenever they feel that the school
has failed to live up to that obligation.
63
In contrast to the IDEA, students without disabilities only have those
educational rights granted to them through state constitutions.
64
While states
vary with respect to the robustness of their educational clauses, they typically do
not offer students, or their parents, the same level of due process rights found in
the IDEA.
65
Rather, regular education students have rights to notice and hearing
prior to suspension or revocation of their educational rights.
66
Importantly, the IDEA’s force is significantly restricted in private schools.
67
Thus, students with disabilities accepting vouchers for private schools lose
access to many of the law’s core protections. The IDEA’s reach in private school
is limited in two key ways. First, the law itself limits applicability in private
60
Id. § 1415(b)(6).
61
Id. § 1414(d)(1)(B).
62
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).
63
20 U.S.C. § 1415(b)(6) (2012).
64
PARKER, supra note 20. Students also have certain federal statutory rights to privacy, but they do not
have a federal guarantee to a substantive level of education. 20 U.S.C. § 1232g.
65
For example, South Carolina’s education clause reads as follows: “The General Assembly shall provide
for the maintenance and support of a system of free public schools open to all children in the State and shall
establish, organize and support such other public institutions of learning, as may be desirable.” S.C. CONST. art.
XI, § 3. The South Carolina Supreme Court has interpreted the clause to require the state to confer a “minimally
adequate education.” Abbeville Cty. Sch. Dist. v. State, 515 S.E.2d 535, 540 (S.C. 1999).
66
Goss v. Lopez, 419 U.S. 565, 584 (1975) (holding that a public school must conduct a hearing before
subjecting a student to suspension).
67
The IDEA distinguishes between unilateral parental placement in private school and public placement
in private schools. See 20 U.S.C. § 1412(a)(10)(A)–(B). The latter keeps states responsible for the provision of
FAPE, even when the child is in the private school setting. Id. § 1412(a)(10)(B); see also Mark C. Weber,
Services for Private School Students Under the Individuals with Disabilities Education Improvement Act: Issues
of Statutory Entitlement, Religious Liberty, and Procedural Regularity, 36 J.L. & EDUC. 163, 180 (2007).
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schools.
68
Second, private schools limit enrollment of students with
disabilities,
69
and nothing in the IDEA curtails this action.
A number of the IDEA’s protections either apply with less force or do not
apply at all in private schools. The state maintains its obligation, known as “child
find,” and must allocate a portion of federal IDEA funds to identify, locate, and
evaluate private school children who may be eligible for special education
services.
70
It has a second duty of consultation with the private school to plan
for the delivery of special education services to children with disabilities in
private schools.
71
However, students with disabilities who attend private schools
have no individual entitlement to special education services.
72
Parents who elect to enroll their children in private school forfeit their
children’s individual entitlements to special education services for the right to
“equitable” services.
73
The state remains responsible for child find, individual
evaluations, and IEP development for students with disabilities in private
schools, but are not responsible for the substantive provision of FAPE.
74
Consequently, parents who use vouchers to enroll their children in private
schools give up many rights under the IDEA, including the right to demand the
least restrictive educational environment for their children,
75
the right to
collaborate with school officials on their children’s IEPs, and the right to file a
complaint if they are unsatisfied with the amount or type of educational services
their children receive.
76
Further, parentally placed children in private schools are
not entitled to the same services they would have received had they remained in
68
20 U.S.C. § 1412(a)(10).
69
NAT’L COUNCIL ON DISABILITY, supra note 2, at 34 (“The National Coalition for Public Education
(NCPE) states that private schools accepting voucher funds do not adequately serve students with disabilities,
often denying them admission and subjecting them to inappropriate or excessive suspensions or expulsions.”).
70
States’ child find obligation exists for students in both public and private schools. 20 U.S.C.
§ 1412(a)(10)(A)(ii); 34 C.F.R. § 300.131(a)–(b) (2018).
71
34 C.F.R. § 300.130–.144.
72
“No parentally-placed private school child with a disability has an individual right to receive some or
all of the special education and related services that the child would receive if enrolled in public school.” Id.
§ 300.137(a).
73
Equitable services are determined through a consult with “private school representatives and
representatives of parents of parentally-placed private school children with disabilities during the design and
development of special education and related services.” Id. § 300.134.
74
Weber, supra note 67, at 182.
75
In St. Johnsbury Academy v. D.H., the U.S. Court of Appeals for the Second Circuit refused to
invalidate a private academy’s minimum mainstreaming performance requirement, ruling that private schools
do not have responsibility for the IDEA’s least restrictive environment (LRE) mandate. 240 F.3d 163, 170 (2d
Cir. 2001).
76
See, e.g., JOSE MARTIN, CURRENT LEGAL ISSUES INVOLVING ASSISTIVE TECHNOLOGY 38 (2017)
(parents filed due process complaint because they were unsatisfied with speech and language services offered
by the school).
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public schools.
77
In short, while the IDEA obligates states to identify and
evaluate students with disabilities in private schools, it limits this obligation to
equitable services and stops short of mandating an entitlement to special
education services.
78
Second, the IDEA does not mandate that private schools serve eligible
students with disabilities. Rather, private schools are free to reject those students
who they do not have the capacity to serve.
79
Public school districts, on the other
hand, operate under a “zero-reject” rule, as set forth in the IDEA and subsequent
case law, whereby they must accept all eligible children with disabilities
regardless of whether they currently have the capacity to serve them.
80
It is the
school district’s responsibility to find an appropriate placement or hire the
necessary staff to ensure a school can meet the needs of that individual child.
81
Private schools, facing no such obligation, often reject students with disabilities
when they feel that their current curricula and staff will not be able to meet the
child’s needs.
82
Nothing in the IDEA, or in other federal antidiscrimination laws
to be discussed in the following section, prevents private schools from engaging
in such exclusion.
77
“Parentally-placed private school children with disabilities may receive a different amount of services
than children with disabilities in public schools.” 34 C.F.R. § 300.138(a)(2); see also Fowler v. Unified Sch.
Dist. No. 259, 128 F.3d 1431, 1437 (10th Cir. 1997).
78
QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY THEIR PARENTS IN
PRIVATE SCHOOLS 6 (2011). Students with disabilities parentally placed in private schools have the right to
invoke due process only with respect to issues of identification. 34 C.F.R. § 300.131(a), (c); OFFICE OF SPECIAL
EDUC. & REHAB. SERVS., QUESTIONS AND ANSWERS ON SERVING CHILDREN WITH DISABILITIES PLACED BY
THEIR PARENTS IN PRIVATE SCHOOLS (2011) (stating that school districts have an obligation to provide
parentally placed private school students with disabilities the opportunity for equitable participation in the
services that the district has determined to make available to this population of children with disabilities in
private schools).
79
The IDEA only governs the provision of special education and related services a child would receive
if eligible under the statute. It does not, however, have any bearing on a private school’s admission policies. The
ADA and Section 504 prevent private schools from discriminating against students in their admissions; however,
both laws allow private schools to limit enrollment to students who can meet their “essential eligibility
requirements.” See 42 U.S.C. § 12131(2) (2012); 34 C.F.R. § 104.39(a)–(c).
80
Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 78–79 (1999) (holding that student who was
a quadriplegic, ventilator-dependent, and needed extensive nursing services was entitled to those services under
the IDEA); Timothy W. v. Rochester, N.H., Sch. Dist., 875 F.2d 954, 972–73 (1st Cir. 1989) (holding that a
severely handicapped child was entitled to special education and related services under the EAHCA regardless
of his ability to benefit from those services).
81
34 C.F.R. § 300.115(a)–(b).
82
ACLU Complaint at 23, ACLU v. State of Wisconsin, https://www.aclu.org/sites/default/files/field_
document/complaint_to_doj_re_milwaukee_voucher_program_final.pdf (last visited Mar. 26, 2019) (claiming
“[j]ust 1.6 percent of voucher students have a disability, compared to nearly 20% of [Milwaukee Public School]
students”).
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2. Section 504 of the Rehabilitation Act of 1973
Section 504 is a federal statute which prohibits discrimination against
persons with disabilities in any program receiving federal dollars, including
public and some private schools.
83
The statute is, however, more than just an
antidiscrimination law. It also confers a substantive right to an “appropriate
education”
84
and demands schools educate students with disabilities in the least
restrictive environment.
85
Like the IDEA, Section 504 requires schools to enact
procedural safeguards, including notice, the right to review records, and the right
to demand an impartial hearing.
86
Section 504 only applies to private schools if
they receive federal funding.
87
Private schools receive federal financial
assistance through a variety of programs, including the Every Student Succeeds
Act, which requires equitable participation of private school students and
teachers in certain programs specific to academic achievement and teacher
training.
88
Like the IDEA, Section 504 has vastly different applications when it comes
to public versus private schools. Private schools have more limited obligations
under Section 504 because they only need to accept students who meet the
“essential eligibility requirements” established by the schools.
89
Because private
schools generally establish more selective criteria than public schools, they can
lawfully restrict admission of students with disabilities who fail to meet their
criteria, so long as the criteria are based on legitimate academic policies.
90
83
Section 504 states, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (2012).
84
34 C.F.R. § 104.33(a)–(b). Section 504 defines appropriate education as those educational services that
are designed to meet the needs of students with disabilities “as adequately as the needs of [nondisabled
students].” Id.
85
Id. § 104.34.
86
Id. § 104.36.
87
“Federal financial assistance means any grant, loan, contract . . . or any other arrangement by which
the Department provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of
Federal personnel; or (3) Real and personal property or any interest in or use of such property . . . .” Id.
§ 104.3(h).
88
20 U.S.C. § 6320 (2012); CLARE MCCANN, NEW AM. EDUC. POLICY BRIEF, FEDERAL FUNDING FOR
STUDENTS WITH DISABILITIES: THE EVOLUTION OF FEDERAL SPECIAL EDUCATION FINANCE IN THE UNITED
STATES 16 (2014); National School Lunch Program (NSLP), U.S. DEP’T AGRIC., https://www.fns.usda.gov/nslp/
national-school-lunch-program-nslp (last updated Dec. 19, 2018); see also ONPE General Issues Frequently
Asked Questions Related to Nonpublic Schools, U.S. DEP’T EDUC., https://www2.ed.gov/about/offices/list/oii/
nonpublic/faqgeneral.html?src=preview#3 (last visited Mar. 26, 2019).
89
34 C.F.R. § 104.3(l)(4). Private schools are also free to reject those students who need something more
than “minor adjustments” to access the school’s program. Id. § 104.39(a).
90
St. Johnsbury Acad. v. D.H., 240 F.3d 163, 165–66 (2d Cir. 2001) (upholding private school’s refusal
to admit student with disabilities where student did not perform at or above grade level); Wendy F. Hensel, The
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Further, private schools have no obligation to provide students with disabilities
an appropriate education when the schools do not already offer programs
designed to meet those students’ needs.
91
While students with disabilities may
have access to private schools, those schools are not required to provide students
anything outside of “minor adjustments” to help them merely access, though not
necessarily benefit from, the curricula.
92
3. The Americans with Disabilities Act
The ADA extends the antidiscrimination protections of Section 504 to any
privately owned business or facility open to the public.
93
The law is broken into
four titles, with Title III being relevant to private schools.
94
Title III of the ADA
requires private schools to make reasonable accommodations to ensure that
students with disabilities are not excluded, denied services, segregated, or
treated differently than their nondisabled peers.
95
It extends to private schools
regardless of whether they receive federal funding; however, it specifically
exempts religious schools from coverage.
96
While Title III of the ADA applies to private, nonreligious schools, its
protections for students with disabilities are limited. Title III does not confer an
individual right to an appropriate education, thus it does not require schools to
develop IEPs for students with disabilities.
97
Rather, it only asks that covered
schools comply with more general antidiscrimination mandates imposed on all
public accommodations to ensure accessibility.
98
Further, the law allows schools
to claim exemptions when they can demonstrate that providing the
accommodation “would result in an undue burden.”
99
Thus, similar to Section
504, private schools are able to limit their obligations under the ADA by limiting
Limits of Federal Disability Law: State Educational Voucher Programs, 44 J.L. & EDUC. 199, 209–10 (2015).
91
34 C.F.R. § 104.39(a)–(c); Hensel, supra note 90, at 210.
92
34 C.F.R. § 104.39(a)–(c).
93
42 U.S.C. § 12101 (2012).
94
Id. § 12181. The other titles or subchapters of the ADA are as follows: Title I—Employment, Title II—
Public Services, Title IV—Miscellaneous Provisions. Id. §§ 12101–213.
95
Id. § 12182(b)(2).
96
The religious exemption only applies to religious schools that are controlled by religious organizations,
including places of worship. Id. § 12187; Marshall v. Sisters of Holy Family of Nazareth, 399 F. Supp. 2d 597,
605 (E.D. Pa. 2005).
97
42 U.S.C. §§ 12181–89; MAURICE WATSON ET AL., NAT’L ASS’N OF INDEP. SCH., AMERICANS WITH
DISABILITIES ACT AND INDEPENDENT SCHOOLS 1, 13 (2011).
98
DEP’T OF JUSTICE, WODATCH (PRIVATE SCHOOL) (1996).
99
42 U.S.C. § 12182(b)(2)(A)(iii).
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admission of students with disabilities, and invoking the undue burden
exception.
100
Title II of the ADA, which protects individuals with disabilities from
discrimination by public entities, is generally thought to reach only public, but
not private, schools.
101
However, there is some disagreement about the reach of
both Title II of the ADA and Section 504—with some scholars arguing that they
do apply to the administration of voucher programs and thus, to private
schools.
102
In 2011, in ACLU v. Wisconsin, the ACLU alleged discrimination by
Wisconsin’s Milwaukee Parental Choice Program in violation of Section 504
and Title II of the ADA, claiming that the voucher program illegally excluded
students with disabilities.
103
The U.S. Department of Justice agreed, finding the
state ultimately responsible for ensuring that discrimination is not present in the
administration of the program, “regardless of whether services are delivered
directly by a public entity or provided through a third party.”
104
However, as Professor Wendy Hensel astutely illustrates, the ACLU’s
complaint and subsequent Department of Justice finding marked a turning point
in the way courts and the Department of Education previously viewed the ADA
and Section 504’s reach in private schools.
105
The Department of Education had
previously found “federal civil rights laws, including Section 504, do not
directly apply to the private schools participating in the [voucher] program.”
106
At the heart of the matter is whether the federal government has authority to
compel private entities to comply with federal laws when federal dollars are not
100
But see Hensel, supra note 90, at 211 (stating that the ADA prohibits private schools from imposing
eligibility criteria that screens out students with disabilities from participation unless the criteria are necessary
to the provision of the schools’ services) (citing DEP’T OF JUSTICE, supra note 98, at 1–2).
101
42 U.S.C. § 12182(b)(2)(A)(iii).
102
Title II of the ADA applies to public schools and sets forth more robust rights, such as FAPE and the
LRE, similar to Section 504, but Title II does not apply to private entities. Id. § 12187. However, at least one
scholar has opined that since Congress has stated that Title II of the ADA should be interpreted consistently with
Section 504, the regulations developed under Section 504 that are applicable to private schools apply equally to
Title II of the ADA. Id. § 12134(b); Hensel, supra note 90, at 208.
103
The ACLU alleged (1) the Milwaukee school district tried to deter students with disabilities from
applying for vouchers, (2) private schools denied admission to students with disabilities who had obtained
vouchers, and (3) private schools expelled or otherwise forced students with disabilities to leave those schools.
ACLU Complaint, supra note 82, at 29–31.
104
Letter from Jonathan Fischbach, U.S. Dep’t of Justice, Civil Rights Div., Educ. Opportunities Section,
to Tony Evers, State Superintendent, Wis. Dep’t of Pub. Instruction 2 (Apr. 9, 2013) (“[Wisconsin’s] obligation
to eliminate discrimination against students with disabilities in its administration of the school choice program
is not obviated by the fact that the schools participating in the program are private secular and religious
schools.”).
105
Hensel, supra note 90, at 221–22.
106
Id. at 214.
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involved. Professor Hensel compellingly argues that neither Section 504 nor
Title II of the ADA apply to private schools through state-funded voucher
programs.
107
In her estimation, private schools are not turned into public
institutions simply by accepting vouchers from parents.
108
As such, the states’
obligations under the ADA and Section 504 are to ensure nondiscrimination in
the administration of vouchers. However, once parents apply those vouchers to
the private school of their choice, states are not obligated to ensure that private
schools comply with federal statutes.
109
Ultimately, as long as states ensure there
is “meaningful access” to voucher programs, the states have met their obligation
under federal laws.
110
The question of which federal laws can reach into private schools may
become a crucial one should the federal government seek to expand its role in
voucher programs. School choice has gained more momentum through the
Trump Administration’s appointment of Betsy DeVos as Education Secretary,
herself a long-time choice advocate.
111
President Trump’s proposed budget for
fiscal year 2018 included a $250 million allocation to the U.S. Department of
Education to study the impact of private school vouchers.
112
While the
Department of Education has denied any plans to fund a federal voucher
program, it has suggested that states applying for federal dollars to develop
school choice programs must adhere to federal law.
113
Thus, by accepting federal
funding, states may expose themselves to federal obligations tied to that
funding.
114
The following Part will explore federal laws’ current implications
for state-enacted voucher programs.
107
Id. at 213–16, 225.
108
Id. at 215.
109
Id.; see also Liberty Res., Inc. v. Phila. Hous. Auth., 528 F. Supp. 2d 553, 569–70 (E.D. Pa. 2007)
(holding that the State met its obligation under the ADA by providing meaningful access to a housing voucher
program and was not obligated to ensure that the private landlords complied with Title II of the ADA).
110
Alexander v. Choate set forth the meaningful access rule. The Court reasoned that the “Section 504
seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and
benefit from programs receiving federal assistance . . . [but it] does not . . . guarantee the handicapped equal
results . . . .” Alexander v. Choate, 469 U.S. 287, 304 (1985).
111
Betsy DeVos, Secretary of Education—Biography, U.S. DEP’T EDUC., https://www2.ed.gov/news/staff/
bios/devos.html?src=hp (last modified May 23, 2018).
112
Andrew Ujifusa, Ed. Dept. Has No Plans for a ‘Federal Voucher Program.’ Let’s Break that Down.,
EDUC. WK. BLOG (May 31, 2017, 6:20 AM), http://blogs.edweek.org/edweek/campaign-k-12/2017/05/federal_
voucher_program_no_plans_education_department.html.
113
Id.
114
The D.C. Choice Act is the only federally funded voucher program. COPAA REPORT, supra note 4, at
6.
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II. VOUCHERS’ PRACTICAL EFFECTS FOR STUDENTS WITH DISABILITIES
Many parents of a child with a disability perceive vouchers as a welcome
escape from a public school system that is failing to adequately meet the child’s
needs.
115
The willingness to accept a voucher is at times driven by both the
public school’s failings and a hope that a private school will be able to achieve
success.
116
Some parents may be unaware of the legal rights they shed when
accepting a voucher, but others are fully aware and knowingly accept the risks
to escape a failing public school system for the possibility of something better.
117
This exchange of federal educational rights for the gamble that private school
will prove better has the potential for enormous and far-reaching impacts.
First, students with disabilities who accept vouchers will lose access to
important federal protections designed to ensure their equal access to education.
Most significantly, many states further limit the IDEA’s already constricted
reach in private schools by forcing parents to waive their rights under the law as
a condition of accepting a voucher.
118
These mandated waivers serve to
indemnify states against any failure to provide educational services despite what
may be contained in federal and state laws.
119
Second, the proliferation of
vouchers has the potential to resegregate students with disabilities—the exact
outcome federal law sought to eliminate forty years ago. Despite voluminous
research demonstrating the effectiveness of inclusive educational settings,
120
voucher legislation fails to prioritize inclusion as a goal. Rather, many voucher
programs intentionally facilitate the resegregation of students with disabilities.
115
NAT’L COUNCIL ON DISABILITY, supra note 2, at 40 (“Focus group participants indicated that higher
expectations of school for students with disabilities were in fact one reason they decided to use a choice
program.”).
116
Id. at 41 (Parents in one study cited a variety of reasons for accepting vouchers to leave public schools
including, safer schools, respecting parental input, higher expectations for students with disabilities, and more
or better special education services).
117
Id. at 61 (“NCD research showed that state programs and private schools often fail to notify parents of
students with disabilities about their rights and about how those rights may be forfeited in voucher programs;
other parents received information but still felt unprepared to make a fully informed decision. Other parents felt
the voucher programs were worth any risks and knowingly gave up special education rights without concerns
about it.”).
118
Wisconsin, Tennessee, Colorado, Ohio, and the District of Columbia allow for partial IDEA rights,
while Oklahoma, Florida’s McKay Scholarship, and Georgia require parents to revoke all IDEA rights. Id. at 3.
Nevada, Utah, Arkansas, and Indiana are silent about rights. Id.
119
For example, an Iowa state statute reads as follows: “School districts and area education agency boards
shall make public school services, which shall include special education programs and services . . . available to
children attending nonpublic schools in the same manner and to the same extent that they are provided to public
school students.” IOWA CODE ANN. § 256.12(2)(a) (West 2012).
120
Larry G. Daniel & Debra A. King, Impact of Inclusion Education on Academic Achievement, Student
Behavior, and Self-esteem, and Parental Attitudes, 91 J. EDUC. RES. 67 (1997); Dianne L. Ferguson et al.,
Improving Education: The Promise of Inclusive Schooling, NAT’L INST. FOR URB. SCH. DEV. 1 (2000).
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The following section will first analyze how acceptance of a voucher triggers
the loss of critical legal protections for students with disabilities. It will then
explore the potential of broad-reaching voucher policies to resegregate students
with disabilities into separate schools and classrooms.
A. The Loss of Critical Legal Protections
Students with disabilities who enroll in private schools must reconcile this
decision with a significant curtailment of federal statutory rights. Students with
disabilities who accept vouchers to facilitate this enrollment often face even
more restrictions on those rights. The most aggressive voucher programs
eliminate all rights under the IDEA, Section 504 and the ADA, as well as state
constitutional rights to education.
121
For example, Arkansas’s Succeed
Scholarship Program for Students with Disabilities requires parents to “sign an
acknowledgement that, by enrolling a child in a private school, the
parent . . . waives the procedural safeguards granted by the IDEA.”
122
Students
who participate in Florida’s McKay Scholarship, which is limited to students
with disabilities who currently have IEPs in public schools, must agree to opt
out of all the IDEA’s due process rights.
123
But, even when parents are not asked to waive all their rights as a condition
of the voucher, none of the federal laws carry the same level of protections in
private schools as they do in public schools. Equally troubling, students often
waive federal protections without a complete understanding of what they are
giving up.
124
And no state makes any attempt to meaningfully inform parents of
the changes they tacitly accept when enrolling their child in a voucher program.
The various rights parents have across Section 504, the ADA, and the IDEA
are complex. Consequently, parents give up significant rights when electing a
voucher for a private school. The following section has distilled the loss of rights
into four categories: (1) a substantive guarantee of an “appropriate” education,
121
See, e.g., ARK. DEP’T OF EDUC., SUCCEED SCHOLARSHIP PROGRAM (2017) (explanatory PowerPoint),
https://arksped.k12.ar.us/documents/policyAndRegulations/SucceedScholarship/SucceedScholarshipProgramE
xplanatoryPowerPoint.pdf (last visited Mar. 26, 2019).
122
Id.
123
FLA. STAT. ANN. §§ 1002.39, 1002.421 (West Supp. 2019). Although Florida requires a waiver of
IDEA rights, this condition is not clear on the McKay Scholarship website. See McKay Scholarship, FLA. DEP’T
EDUC., http://www.fldoe.org/schools/school-choice/k-12-scholarship-programs/mckay/ (last visited Mar. 26,
2019). Other states explicitly include language stating that students who enroll under voucher programs will be
treated as unilateral parental placements in private schools. See, e.g., COPAA REPORT, supra note 4.
124
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS
NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 24–
29 (2017).
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(2) parental participation, (3) discipline protections, and (4) school
accountability. While all three statutes contain significant protections, the IDEA
provides the most robust framework of educational rights.
125
Consequently, the
following section will focus on the loss of IDEA rights, and will note any
significant differences as it relates to the rights contained in Section 504 and the
ADA.
1. Substantive Guarantee of an “Appropriate” Education
First, when students with disabilities accept vouchers, they put faith in
private schools’ promise to educate them and sign away the right to a substantive
guarantee of FAPE.
126
The Supreme Court has recently interpreted FAPE to
confer a substantive right to an education that is “reasonably calculated to enable
a child to make progress appropriate in light of the child’s circumstances.”
127
Public schools are tasked with crafting IEPs, highly structured blueprints of
special education, and related supports and services designed to accord FAPE.
128
IEPs take stock of where a child is both academically and functionally, and
describe the special education and supportive services to be provided so that the
child can reach annual goals.
129
When parents feel their school has failed to
confer FAPE, they can invoke the IDEA’s procedural protections and file a
complaint with an independent hearing officer.
130
The hearing officer is tasked
with reviewing parents’ complaints and deciding whether the school has met its
obligations under the IDEA.
131
Thus, students not only have a guarantee of
education designed to help them make progress, but parents also have a way to
enforce that guarantee.
IEPs are not required in private schools. Rather, private schools must craft a
“services plan” for parentally placed private school children with disabilities.
132
Services plans are far less structured than IEPs and only require a description of
125
See Perry A. Zirkel, An Updated Comprehensive Comparison of the Idea and Section 504/ADA, 342
WEST’S EDUC. L. REP. 886, 887–95 (2017) (outlining the framework of educational rights under the IDEA,
Section 504, and the ADA).
126
The IDEA mandates that public schools provide students with FAPE. 20 U.S.C. § 1412(a)(1)(A)
(2012). While the FAPE standard under the IDEA differs from that under Section 504 and Title II of the ADA,
all three grant students with disabilities a right to appropriate education and the ability to invoke due process
procedures should schools fail to deliver on that right. See 42 U.S.C. § 12182 (2012); 34 C.F.R. § 104.33(a),
(c)(4) (2018).
127
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).
128
See 20 U.S.C. § 1414(d) (outlining the substantive requirements of an IEP).
129
See id. § 1414(d)(1)(A)(i)(I).
130
See id. § 1415(b)(6).
131
See id. § 1415(f)(1)(A); Endrew F., 137 S. Ct. at 994.
132
34 C.F.R. § 300.132(b) (2018).
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the special education and related services that will be provided to the child.
133
Most importantly, parents who accept vouchers to enroll in private schools
waive their child’s individual right to special education under the IDEA.
134
They
do not have the right to invoke due process procedures and complain about the
type, amount, or quality of special education services.
135
2. Parental Participation
Second, parents who accept vouchers give up their statutory right to be
included in educational decisions made with respect to their child.
136
The IDEA
requires that schools ensure parental participation in IEP development.
137
Parents’ concerns are central to discussions about educational supports and
services for their children.
138
The law obligates schools to seek out parental
consent for evaluations and the provision of special education services as well
as provide notice any time the school wishes to make a change to the IEP or
refuses to make a change requested by the parent.
139
In short, parents have a
statutory right to a seat at the table whenever important decisions are being made
with respect to their children’s education.
140
In contrast, parents lose these statutory guarantees of participation when they
move their children to private schools. Of course, private schools may welcome
parents’ input and invite them to participate in decisions surrounding their
children’s education. But, there is no statutory guarantee of such invitations.
Should schools and parents disagree, and should the disagreement reach an
impasse, private schools are under no obligation to continue to engage with
parents. They can simply make unilateral decisions and if parents are unsatisfied,
their only recourse is to withdraw and enroll their child elsewhere.
133
See id. § 300.138.
134
Id. § 300.137(a) (“No parentally-placed private school child with a disability has an individual right to
receive some or all of the special education and related services that the child would receive if enrolled in a
public school.”).
135
Arguably, Section 504’s due process protections remain, but as discussed previously, Section 504’s
reach is limited to those private schools that accept federal funding, and, even where applicable, schools can
restrict enrollment to only those students who meet “essential eligibility requirements.” See 34 C.F.R. §§ 104.39,
300.137, 300.140.
136
Id. § 300.322.
137
20 U.S.C. §1415(b)(1) (2012) (providing “an opportunity for the parents of a child with a disability to
. . . participate in meetings with respect to the identification, evaluation, and placement of the child”).
138
See generally 20 U.S.C. §§ 1414(a)(1)(D)(i)(I)–(II), 1415(b)(3) (requiring parental consent in various
circumstances).
139
Id.
140
Id.; Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir. 1999)
(“Although the IDEA mandates individualized ‘appropriate’ education for disabled children, it does not require
a school district to provide a child with the specific educational placement that her parents prefer.”).
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The threat of withdrawal, in some cases, may be enough to incentivize
schools to work with parents towards mutually agreeable solutions, but not in
every case—and perhaps not in a case where the child exhibits challenging
behaviors that prove difficult to manage. In such scenarios, parents may struggle
to find a private school willing to provide the essential support, training, or
resources necessary to help manage challenging student behaviors. This
dilemma leads directly into another significant loss of rights: disciplinary
protections.
3. Disciplinary Protections
When children with disabilities accept a voucher and leave the public school
system, they forgo important protections around discipline. The IDEA requires
schools to take an extra step before enacting long-term suspension or expulsion
for a child with disabilities.
141
Schools must first determine whether the alleged
misconduct was rooted in disability before enacting long-term discipline.
142
If
behavior is found to be sufficiently tied to the disability, it is found to be a
“manifestation” of the disability and the school is prevented from enacting the
long-term discipline.
143
The goal instead is to modify the support and services
offered to the student in an effort to teach her how to change the unwanted
behavior.
144
No such protections exist for students with disabilities in private schools.
Rather, students with disabilities who are expelled from private school for
behaviors related to their disability have no recourse. Parents of children with
emotional disabilities or other disabilities that impact behavior must trust that
private schools will continue to work with their children to help them overcome
these challenges, rather than penalize them. Unfortunately, for some parents, this
has not been their experience.
145
Instead, private schools will admit students with
behavioral needs, but when behavior does not conform to school rules, rather
than address those needs, the child is expelled.
146
141
See 20 U.S.C. § 1415(k)(1)(E)(i)(I)–(II).
142
See id. Section 504 and Title II of the ADA require schools to engage in manifestation determinations
prior to enacting long-term suspensions or expulsions of qualifying students with disabilities. See S-1 ex rel. P-
1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981).
143
20 U.S.C. § 1415(k)(1)(E)–(F).
144
Id. § 1415(k)(1)(F).
145
Shayna A. Pitre, ‘School Choice’ — as Long as Your Child Doesn’t Have a Disability, HUFFINGTON
POST (July 13, 2014, 5:09 PM), https://www.huffingtonpost.com/shayna-a-pitre/school-choicetrue-choice-
_b_5318677.html (describing three stories of children with disabilities who were excluded from private schools
through voucher programs due to their disabilities).
146
MEG BENNER & REBECCA ULLRICH, CTR. FOR AM. PROGRESS, BETSY DEVOS’ THREAT TO CHILDREN
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4. School Accountability
Finally, vouchers severely limit accountability for special education services
on two fronts. First, individual parents are unable to invoke due process
procedures to hold private schools accountable for specific failures that relate to
their children. Second, most voucher legislation requires little to no oversight of
the private schools that receive public funding. The result: a systemic lack of
accountability.
147
The combined effect of the lack of systemic oversight and
inability of individual parents to hold private schools accountable is the
proliferation of rampant fraud and abuse of government funding in voucher
programs.
Once parents accept a voucher to enroll students in a private schools, they
lose the ability to invoke due process protections that would otherwise allow
them to lodge a complaint about the provision of special education services,
including type and adequacy of services.
148
Further, parents in public schools
can invoke the right to an expedited appeal of any decision to impose long-term
suspension or expulsion of their child.
149
Parents who enroll their children in
private schools have no such leverage.
This inability to hold private schools accountable has led to numerous
accounts of fraudulent private schools formed purely to take advantage of easy
access of public funding.
150
For example, Ohio’s Dragonfly Academy, a private
school ostensibly serving students with autism, closed abruptly when allegations
surfaced that staff were not certified and enrolled students were not receiving
WITH DISABILITIES (2017) (describing the story of a six-year-old kindergartener who was expelled from a private
school program she attended using a voucher due to behavioral problems stemming from gastrointestinal issues
and anxiety); see also COPAA REPORT, supra note 4, at 16 (“[M]embers indicate that some schools accept
children, get their voucher money, and then kick the child out for behavior or other reasons.”).
147
NAT’L COUNCIL ON DISABILITY, supra note 2, at 55 (“Compared to public school, there is little to no
oversight, aside from the minimum regarding health and safety. The GAO reports that of the 27 taxpayer-funded
private school voucher and education savings accounts programs studied by GAO in school year 2016-17, only
8 of these programs required private schools to comply with annual financial audits, meaning that the states
funding these schools often have no clear picture of where their investment is actually going.”); NAT’L EDUC.
ASS’N, POLICY BRIEF: SUBSIDIZING PRIVATE EDUCATION AT TAXPAYER EXPENSE 2 (2017) (finding that no state
voucher programs for students with disabilities has included accountability measures as robust as those contained
in the IDEA and the Every Student Succeeds Act (ESSA), formerly the Elementary and Secondary Education
Act (ESEA)); see McLaren, supra note 48 (describing the lack of oversight for the more than $1.3 million in
special education funding provided to private schools through Indiana’s school voucher program).
148
20 U.S.C. § 1415(a).
149
Id. § 1415(k)(4)(B).
150
Church/State FAQ: Dispelling the Myth of “School Choice”, FREEDOM FROM RELIGION FOUND.,
https://ffrf.org/outreach/item/22744-voucherfaq (last visited Mar. 26, 2019).
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any special education services.
151
Another private school in Florida was accused
of fraudulent Medicaid claims for one-to-one therapy that the children rarely or
never received.
152
Moreover, public laws mandating annual assessments and other
accountability and transparency structures in public schools do not necessarily
apply in private schools.
153
A recent audit by the GAO found that while many
private school choice programs have implemented some forms of academic
accountability measures, few have financial accountability structures in place.
154
The same audit found “[f]ew of the [fifteen] choice programs that are designed
specifically for students with disabilities have accountability mechanisms
related to special education and related services.”
155
Many programs failed to
disclose whether certain accreditation requirements were met or whether
teachers possessed sufficient specialized skills and training in providing special
education instruction.
156
Such information is critical for parents of students with
disabilities who want to ensure their children are taught by trained and
competent professionals.
State legislatures’ decisions to facilitate the transfer of public funds to
private schools with minimal oversight is particularly troubling when Congress
itself signaled its skepticism of the private sector’s ability to properly educate
151
Lisa Reicosky, Local School for Autistic Kids Abruptly Closes, CANTON REPOSITORY,
https://www.cantonrep.com/x1018081808/Local-school-for-autistic-kids-abruptly-closes (last updated May 4,
2012, 4:10 AM).
152
Scott Maxwell, Opinion, Shuttered ‘Choice’ School: Where’s the Accountability?, ORLANDO SENTINEL
(Feb. 28, 2017, 5:00 PM), http://www.orlandosentinel.com/opinion/os-florida-schools-voucher-accountability-
20170228-story.html.
153
Several federal laws mandate accountability and transparency in public schools including the ESEA,
which was reauthorized in 2015 through the ESSA. NAT’L COUNCIL ON DISABILITY, supra note 2, at 53 (“Almost
half of the voucher programs do not have any testing requirement or only have to provide parents with a progress
report about their children.”); see, e.g., 20 U.S.C. § 6841 (2012). The ESSA asks states to administer annual
assessments in reading and math in grades three through eight and once in high school. Id. States are also
obligated to report details about student outcomes. See id. § 6841(d). Some states require standardized testing in
private schools, but others do not. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL
CHOICE: FEDERAL ACTIONS NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR
STUDENTS WITH DISABILITIES 11, 14–15 (2017).
154
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS
NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 11,
14–15 (2017) (finding that two-thirds (eighteen of twenty-seven) of private choice programs include some
academic testing and reporting requirements, though only nine require administration of state’s standardized
test).
155
Id. at 12.
156
Id. at 23 (describing a family who was “surprised to learn that teachers providing special education
services to their child were not trained to provide those services” and a parent who reported “changing schools
because they learned aspects of their child’s disability could not be accommodated only after enrolling their
child in school”).
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students with disabilities without oversight.
157
The IDEA demands some level
of accountability with the local school districts who distribute federal funds to
private schools for the provision of special education services.
158
The required
oversight signals a legislative recognition that the private sector is not per se
better than the public system and cannot simply be left to its own devices.
Most state voucher programs, however, do not reflect this skepticism or even
a minimal effort to ward off potential problems.
159
Most forgo any form of
accountability when it comes to the provision of special education services. Even
the Milwaukee Parental Choice Program, the oldest and most well-established
school choice program in the country
160
is riddled with claims of fraud.
161
As
Wisconsin State Representative Mandela Barnes said, “[t]here’s government
money available for people who want to open up a building and call it a school.
All you have to do is get the children and all you have to do is come up with a
catchy slogan.”
162
By failing to call for any reasonable oversight of voucher
programs, state legislatures help create programs ripe for abuse and, at the same
time, strip parents of the ability to hold these flawed programs accountable.
B. A Tool of Resegregation
The second practical effect of vouchers as an education policy is the
potential that broad use of vouchers will lead to the resegregation of students
with disabilities.
163
This potential outcome is enormously troubling, particularly
when viewed against the history of the disability rights movement which fought
157
For example, Congress, through the IDEA, called for oversight of private schools by requiring private
schools to consult with the local school district about the child find process, the determination of proportionate
funds available to private school children, and provision of special education services. 20 U.S.C.
§ 1412(a)(10)(A)(iii).
158
34 C.F.R. § 300.132 (2018). It also requires that local school districts consult with private schools about
identification of students with disabilities at private schools as well the provision of special education and related
services to these children. Id. § 300.134.
159
See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL
ACTIONS NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH
DISABILITIES 34 (2017); COPAA REPORT, supra note 4, at 27–35.
160
SCHOOL CHOICE: WISCONSIN—MILWAUKEE PARENTAL CHOICE PROGRAM, EDCHOICE, https://www.
edchoice.org/school-choice/programs/wisconsin-milwaukee-parental-choice-program/# (last visited Mar. 26,
2019).
161
Meghan Dwyer & Stephen Davis, Voucher School Leader Indicted for Stealing Taxpayer Money
Spotted at New Choice School, FOX6NOW, http://fox6now.com/2016/02/11/voucher-school-leader-indicted-for-
stealing-taxpayer-money-spotted-at-new-milwaukee-choice-school/ (last updated Feb. 12, 2016, 11:10 AM)
(describing the indictment of Bishop Gregory L. Goner for using $100,000 per year of voucher funding to
allegedly lease Cadillacs for himself and his family).
162
Id.
163
See COPAA REPORT, supra note 4, at 17.
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tirelessly to end the exclusion of students with disabilities from public
schools.
164
Vouchers precipitate segregation in three distinct ways. First,
students with disabilities who enroll in private schools are at higher risk for
segregation. They lose the IDEA’s strong presumption favoring education in the
least restrictive environment (LRE) and thus are at risk for placement in
segregated settings within the private school without any recourse to challenge
such settings.
165
Second, many voucher programs target students by category of
disability. These programs facilitate the transfer of students with disabilities
from inclusive educational settings to segregated schools without access to
federal due process protections. Finally, to the extent broader voucher policies
prevent access to private schools for students with severe physical or mental
disabilities, such policies may aid the exodus of regular education students from
public schools, while leaving behind those students with disabilities who require
more costly supports and services to facilitate inclusion.
1. Waiving the Presumption of Least Restrictive Environment
Students with disabilities who enroll in private schools lose the IDEA’s
strong presumption favoring inclusive educational environments.
166
Without the
ability to enforce a right to LRE, students with disabilities can be segregated into
different classrooms or settings, without regard to whether such settings actually
improve educational outcomes.
167
Excluding students with disabilities from the
164
Id.
165
20 U.S.C. § 1412(a)(5) (2012). If Section 504 applies, through federal funding, then an LRE
requirement attaches; however, because private schools are permitted to restrict eligibility to only those students
who meet the “essential eligibility requirements,” they will necessarily screen out those students for whom
additional supports and services would be needed to ensure education in the regular classroom. 34 C.F.R.
§ 104.34(a) (2018); see also Molly L. ex rel. B.L. v. Lower Merion Sch. Dist., 194 F. Supp. 2d 422, 436–37
(E.D. Pa. 2002) (holding that Section 504 requires placement in the LRE that will provide a meaningful
educational benefit). While Title III of the ADA would apply to prohibit segregation, it, too, is undercut by its
exception permitting schools to claim that implementing the supports necessary for inclusion would present an
undue burden. COPAA REPORT, supra note 4, at 23–24. In short, both Section 504 and the ADA enable schools
to admit only those students for whom the general education classroom would be an appropriate setting with
minimal supports.
166
Cf. 20 U.S.C. § 1412(a)(5) (defining the LRE requirement). Inclusive education means educating
students with and without disabilities in the same classroom. See id.
167
To the extent that Section 504 and Title II of the ADA operate in private schools, both laws also contain
LRE mandates. 34 C.F.R. § 104.34(a) (2018). But as discussed previously, Title II does not apply to private
schools, and Section 504 only applies if the school has taken federal funding. Thus, LRE protections through
these laws are limited by the fact that these laws do not always operate in private schools. Cf. COPAA REPORT,
supra note 4, at 20–21, 25 (explaining that only “federally funded schools” must always adhere to these federal
protections).
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general education classroom ignores more than thirty years of research
demonstrating the advantages of inclusion.
168
Historically, students with disabilities who were segregated into alternative
learning environments experienced unequal educational opportunities.
169
Parents of these students fought tirelessly to gain the right to inclusive
educational environments.
170
Research demonstrates when students with
disabilities are included in regular education environments, they experience
improved academic, behavioral, and social outcomes.
171
Rather than assuming
students with disabilities are unable to achieve at the level of their peers, the
IDEA presumes just the opposite. It presumes that students with disabilities
should be achieving on grade level in all but the most severe cases of cognitive
impairment.
172
Consequently, the law strongly prefers inclusion to support the
goal of high expectations for students with disabilities.
173
But when students enter private schools, they lose the IDEA’s strong
presumption favoring inclusive education.
174
When in private schools, students
with disabilities can be removed to a segregated setting to receive all special
education services regardless of whether the segregated setting is warranted.
Crucially, segregated settings spurn the core promise of the IDEA, the very
168
20 U.S.C. § 1400(c)(5)(A)(i)–(ii); Wayne Sailor & Blair Roger, Rethinking Inclusion: Schoolwide
Applications, 86 PHI DELTA KAPPAN 503, 504 (2005) (“[T]he sum of available evidence overwhelmingly
supports integrated instructional approaches over those that are categorically segregated, regardless of the
categorical label or severity of the disability.”).
169
H. Rutherford Turnbull III, Legal Implications, in MAINSTREAMING EMOTIONALLY DISTURBED
CHILDREN 43, 45–46 (A.J. Pappanikou & James L. Paul eds., 1977) (stating that the mainstreaming preference
arises from unequal educational opportunities because of the frequent placement of children with special needs
in the worst facilities with the least capable teachers and poor funding, drawing a comparison to racial
segregation).
170
See generally Mark C. Weber, The Least Restrictive Environment Obligation as an Entitlement to
Educational Services: A Commentary, 5 U.C. DAVIS J. JUV. L. & POL’Y 147 (2001) (detailing an overview of
seminal cases involving the IDEA’s LRE requirement).
171
Jose Blackorby et al., Relationships Between the School Programs of Students with Disabilities and
Their Longitudinal Outcomes, in SEELS, SRI PROJECT P10656, WHAT MAKES A DIFFERENCE? INFLUENCES ON
OUTCOMES FOR STUDENTS WITH DISABILITIES 7-1–7-2, 7-7 (2007) (“Bivariate analyses show that, across
measures, students with disabilities who took more academic classes in general education settings had greater
academic success than peers who took fewer classes there.”); XUAN BUI ET AL., MD. COAL. FOR INCLUSIVE
EDUC., INCLUSIVE EDUCATION RESEARCH & PRACTICE 1, 3 (2010).
172
Mark C. Weber, A Nuanced Approach to the Disability Integration Presumption, 156 U. PA. L. REV.
PENNUMBRA 174, 186 (2007).
173
20 U.S.C. § 1400(c)(5)(A).
174
Section 504 and Title II of the ADA both contain inclusion mandates similar to the IDEA’s LRE
requirement. 28 C.F.R. § 35.103 (2018); 34 C.F.R. § 104.34 (2018); see also Letter to Michele Williams,
Advocates for Children’s Educ. (Mar. 14, 1994) (advising that Section 504’s educational setting regulation set
forth in § 104.34 is equivalent to the IDEA’s LRE provision and has the same effect of creating a presumption
in favor of inclusion).
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reason the statute was enacted—to put an end to the exclusion of students with
disabilities.
175
2. Targeting Specific Categories of Disability
Several voucher programs target a certain category of disability and provide
vouchers to attend schools specializing in the education of children with those
particular disabilities.
176
These programs facilitate resegregation on the basis of
disability category and ignore the IDEA’s core promise of inclusive education.
Such settings similarly reject Congress’s intent when enacting both the ADA
and Section 504—laws designed to prevent the exclusion of persons with
disabilities.
177
Some would argue that resegregation, if pursued by parents, is not only
appropriate, but may be preferred. For example, Ohio’s Autism Scholarship
Program allows parents of children with autism spectrum disorder to choose to
send their child to a private school specializing in education of autistic
children.
178
Schools or service providers eligible to participate in this program
must meet certain state requirements including maintaining a staff credentialed
to provide special education services.
179
Because the level of supports and
services needed by some children with autism are so great, specialized schools
staffed with people who are trained in the provision of these services seems like
an obvious answer.
180
There is, however, a crucial difference in the parents making individual
decisions to leave inclusive settings for more restrictive ones and school districts
sponsoring and potentially encouraging such movements en masse. While
highly segregated environments may be required for children with the highest
175
20 U.S.C. § 1400(c)(2); see also Honig v. Doe, 484 U.S. 305, 309 (1988).
176
NAT’L CONF. OF STATE LEGISLATURES, supra note 14 (listing Arizona’s Empowerment Scholarship
Account, Florida’s John M. McKay Scholarships for Students with Disabilities Program, Georgia’s Special
Needs Scholarship Program, Louisiana’s School Choice Pilot Program for Certain Students with
Exceptionalities, Mississippi’s Dyslexia Therapy Scholarships for Students with Dyslexia Program and Speech-
Language Therapy Scholarship for Students with Speech-Language Impairments programs, and Ohio’s Autism
Scholarship Program as several states that operate choice programs which limit eligibility to certain categories
of disability).
177
29 U.S.C. § 794 (2012); 42 U.S.C. § 12101 (2012).
178
OHIO REV. CODE ANN. § 3310.41 (West Supp. 2019); OHIO DEP’T OF EDUC., AUTISM SCHOLARSHIP
PROGRAM, https://education.ohio.gov/Topics/Other-Resources/Scholarships/Autism-Scholarship-Program (last
modified Mar. 23, 2019).
179
OHIO DEP’T OF EDUC., supra note 178.
180
John McLaughlin, Opinion, Why Model Autism Programs Are Rare in Public Schools, SPECTRUM
NEWS (July 11, 2017), https://spectrumnews.org/opinion/viewpoint/model-autism-programs-rare-public-
schools/.
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levels of need, such decisions should still be taken with great care and should be
highly individualized. When states base voucher programs on categories of
disability, implicit in those programs is the assumption that all children with a
certain category of disability need separate learning environments. This
assumption is not only flawed but dangerous, as it has the potential to move
larger numbers of children into segregated settings.
3. Facilitating Exclusion
Where vouchers are being used as a broad education policy, legislatures
essentially decide that rather than fix failing public school systems, the state will
provide parents with the ability to leave that system. But for students with
disabilities, this is not always a viable option. Private schools are not obligated
to accept students with disabilities if they are unable to provide them an
appropriate education with only minor adjustments to their academic
program.
181
For those students for whom the impact of their disability is such
that they will need specialized educational instruction and related supports, a
private school is not an option. Consequently, these students are left languishing
in a failing public school, while those who can leave for more promising options.
As one scholar stated, “[t]he voucher program, which allows the most ambitious
families to exit the common schools, threatens the vision of a system in which
everyone is in the same boat and can only hope to improve his own situation by
working to improve the situation of all.”
182
Indiana illustrates the phenomenon of expanding voucher eligibility and
potential for exclusion of students with disabilities. The state prides itself on
having the largest educational voucher program in the nation, the Choice
Scholarship Program.
183
In the 2016–2017 school year, 34,299 students
participated, the highest enrollment since its inception in 2011.
184
Not
surprisingly, Indiana’s voucher program also has broad eligibility parameters.
185
While it was originally enacted for low-income students, today there are seven
“pathways” to eligibility and the income guidelines have gone up
181
34 C.F.R. § 104.39 (2018).
182
Charles Fried, Comment, Five to Four: Reflections on the School Voucher Case, 116 HARV. L. REV.
163, 168 (2002).
183
Michelle Ye Hee Lee, Mike Pence’s Claim that Indiana has the Largest School Voucher Program,
WASH. POST (Aug. 12, 2016), https://www.washingtonpost.com/news/fact-checker/wp/2016/08/12/mike-
pences-claim-that-indiana-has-the-largest-school-voucher-program/?utm_term=.719bb854860d.
184
IND. DEP’T OF EDUC., OFFICE OF SCH. FIN., CHOICE SCHOLARSHIP PROGRAM ANNUAL REPORT:
PARTICIPATION AND PAYMENT DATA 7 (2017).
185
CIERNIAK ET AL., supra note 40.
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dramatically.
186
Further, Indiana’s education dollars follow the student, meaning
that when a student accepts a voucher and applies that money to a private school,
the student’s zoned public school loses those dollars.
187
Ultimately, a state like Indiana will eventually spend less money in public
schools as it diverts funding to private schools. Such a structure promises
massive budget shortfalls for public school systems. Because there are so many
fixed costs associated with public schools, including building maintenance,
teacher salaries, and transportation, public schools cannot simply cut costs to
account for shrinking budgets.
188
In fact, this shift of public dollars to private
schools is already keenly felt in some rural school districts.
189
Glimpsing at this coming trend, the effects of vouchers as a blanket
education policy has some scholars predicting a dire future for public education.
One scholar suggested:
Once a substantial number of students attend private schools, the
electorate will not want to support public education. Indeed, school
privatization decisions currently being made could greatly alter the
nature and structure of education in our nation, perhaps as significantly
as the common school movement did more than a century ago.
190
186
IND. DEP’T OF EDUC., supra note 184. The current income caps allow families at 200% of the federal
free and reduced lunch guidelines to participate (this equates to about $89,900 a year for a family of four), and
receive a scholarship for up to half of private school tuition. U.S. DEP’T OF HEALTH & HUMAN SERVS., OFFICE
OF THE ASSISTANT SEC’Y FOR PLANNING & EVALUATION, U.S. FEDERAL POVERTY GUIDELINES USED TO
DETERMINE FINANCIAL ELIGIBILITY FOR CERTAIN FEDERAL PROGRAMS, https://aspe.hhs.gov/poverty-guidelines
(last visited Mar. 26, 2019).
187
IND. CODE ANN. § 20-51-4-4(a)(2) (West Supp. 2018).
188
See Derek W. Black, Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the
Dwindling Commitment to Public Education, 94 WASH. U. L. REV. 423, 438–39 (2016) (discussing the growth
of voucher funding in the face of cuts to funding for traditional public schools). Several studies that assess the
financial impact of charter schools on public school districts provide important analogous insights and can help
predict the dangers of siphoning money away from traditional public schools. See, e.g., Robert Bifulco & Randall
Reback, Fiscal Impacts of Charter Schools: Lessons from New York, 9 EDUC. FIN. & POL’Y 103 (2014) (finding
“that charter schools can create fiscal impacts on school districts, particularly in districts with rapid growth in
charter schools and declining or stagnant enrollment bases); Helen F. Ladd & John D. Singleton, The Fiscal
Externalities of Charter Schools: Evidence from North Carolina 19 (Nat’l Ctr. for Analysis of Longitudinal Data
in Educ. Research, Working Paper No. 182, 2018) (finding large and negative fiscal effects of charter schools
on urban school districts in North Carolina).
189
Press Release, Senator Patty Murray, Statement by Senator Patty Murray on the Supreme Court
Voucher Decision (June 27, 2002), https://www.murray.senate.gov/public/index.cfm/2002/6/statement-by-sen-
patty-murray-on-the-supreme-court-voucher-decision; Vouchers Don’t Work in Rural Areas, NAT. COALITION
FOR PUB. EDUC., https://www.ncpecoalition.org/ruralvouchers (last visited Mar. 26, 2019).
190
Martha McCarthy, The Legal Status of School Vouchers: The Saga Continues, 297 WEST’S EDUC. L.
REP. 655, 671 (2013).
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Similarly, several disability rights advocacy groups fear that an expansion of
disability-targeted voucher programs will lead to discrimination, segregation,
and exclusion of students with disabilities.
191
Critically, voucher expansion presents more than just flawed education
policy; rather, such legislation represents government’s unconstitutional
burdening of individual rights. Voucher legislation burdens a particular group,
students with disabilities, under the guise of providing them a benefit. The
following Part will analyze vouchers under two legal theories—the
unconstitutional conditions doctrine and the Equal Protection Clause of the
Fourteenth Amendment. Both demonstrate the serious constitutional concerns
with school choice.
III. C
ONSTITUTIONAL LIMITS
Setting aside the questionable effectiveness of vouchers as an educational
policy with respect to students with disabilities, there remains the more central
concern of their legality. Voucher programs have been challenged under the First
Amendment’s Establishment Clause, which prohibits government sponsorship
of religion.
192
In that context, the Supreme Court held voucher programs that
provide funds directly to parents present a “true private choice” and thus, do not
violate the Establishment Clause.
193
While this constitutional question appears
settled, others remain. This section will analyze two additional constitutional
principles implicated by voucher legislation: (1) the unconstitutional conditions
doctrine, and (2) the Equal Protection Clause of the Fourteenth Amendment.
A. The Unconstitutional Conditions Doctrine
The unconstitutional conditions doctrine arises whenever the government
offers a gratuitous benefit, but conditions the benefit on the waiver of a
191
The National Education Association (NEA) issued a policy brief stating, “[v]ouchers would sacrifice
accountability and civil rights protections for children with special needs without improving the quality of
services, student achievement, or parental options. Policymakers should instead provide full funding for IDEA.”
NAT’L EDUC. ASS’N, POLICY BRIEF: VOUCHER SCHEMES: A BAD IDEA FOR STUDENTS WITH DISABILITIES 2
(2008).
192
See Zelman v. Simmons-Harris, 536 U.S. 639, 662–63 (2002) (holding that the voucher program did
“not offend the Establishment Clause”). The First Amendment’s Establishment Clause prohibits the government
from making any law “respecting an establishment of religion.” U.S. CONST. amend. I. While some government
action implicating religion is permissible, there remains some controversy around how much the Establishment
Clause tolerates. See generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (5th
ed. 2015).
193
Zelman, 536 U.S. at 662–63 (holding that a voucher program facilitated “true private choice” because
it gave funds directly to parents who could then choose where to commit those funds).
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constitutional right.
194
For example, the government might condition a tax
exemption on refraining from speech.
195
The tax exemption is a gratuitous
benefit that the government is not obliged to offer, but to take advantage of the
benefit, one must give up a right to speech. In some instances, such conditions
are permitted, but in other cases—such as when such a condition is considered
coercive—courts strike down the condition as unconstitutional.
196
As distilled
by the Supreme Court, the doctrine stands for the principle that the government
may not act indirectly to produce a result which it could not command
directly.
197
The Court has used the doctrine in the context of tax benefits,
healthcare, public employment, and business licenses.
198
It has been applied to
invalidate both federal and state laws that infringed upon federal and state
constitutional rights.
199
Voucher legislation conditions benefits on the waiver of federal and state
statutory rights and, in some instances, state constitutional rights.
200
Because
vouchers do not implicate federal constitutional rights, the federal
unconstitutional conditions doctrine is not controlling. Yet, the logic behind the
federal doctrine applies with equal force to the ways in which states condition
access to vouchers for students with disabilities. States ask these students to give
up both federal statutory rights and state constitutional rights to get access to a
voucher.
The following section will first outline key principles of the unconstitutional
conditions doctrine. Next, it will explain why the doctrine provides the right
framework for voucher legislation despite the absence of infringement on a
federal constitutional right. Finally, it will demonstrate that when the doctrine is
applied to analyze vouchers’ effects on students with disabilities, it becomes
194
CHEMERINSKY, supra note 192, at 1028.
195
Speiser v. Randall, 357 U.S. 513, 528–29 (1958) (holding that a statute denying tax exemption to those
who could not prove that they did not advocate violent overthrow of government was unconstitutional).
196
Compare Rust v. Sullivan, 500 U.S. 173, 200 (1991), with Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 841–42 (1995); see also CHEMERINSKY, supra note 192, at 1032.
197
See Speiser, 357 U.S. at 526. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102
HARV. L. REV. 1413, 1415 (1989).
198
Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545 (1983) (tax benefits); Mem’l Hosp.
v. Maricopa Cty., 415 U.S. 250, 257–58 (1974) (healthcare); Perry v. Sindermann, 408 U.S. 593, 597 (1972)
(public employment); Frost & Frost Trucking Co. v. R.R. Comm’n of Cal., 271 U.S. 583, 595 (1926) (business
license).
199
See State v. Bennett, 867 N.W.2d 539, 543 (Minn. Ct. App. 2015) (holding Minnesota’s test-refusal
statute does not violate the unconstitutional conditions doctrine by imposing a criminal penalty on a person who
has been arrested for driving while impaired and has refused to submit to a breath test), cert. denied, 136 S. Ct.
2542 (2016); supra notes 197–98.
200
Nine of the fifty state constitutions require public education for students with disabilities. PARKER,
supra note 20, at 1.
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clear that states cannot lawfully condition access to vouchers on the waiver of
affirmative federal statutory rights and state constitutional rights to education.
1. Principles of Unconstitutional Conditions
While the Supreme Court has not always been clear and consistent in its
application of the unconstitutional conditions doctrine, three basic principles run
through the Court’s precedent.
201
First, the doctrine is only implicated when the
government attempts an action that would otherwise infringe on constitutional
rights.
202
More specifically, the government indirectly infringes on a
constitutional right by asking an individual to voluntarily give up that right.
203
Because the government cannot take the right away directly, it asks citizens to
forgo the right.
204
If the government could take away or curtail the right directly,
the fact that the waiver of the right is attached to a government benefit is
irrelevant and there is no unconstitutional conditions problem.
205
Second, even
if there is a potential infringement of a constitutional right, the state may justify
the infringement by showing a relationship between the government’s interest
in imposing the condition and the constitutional right in question.
206
To do so,
the government must demonstrate that it has a legitimate interest that outweighs
201
Dolan v. City of Tigard, 512 U.S. 374, 407 n.12 (1994) (“Although it has a long history . . . the
‘unconstitutional conditions’ doctrine has for just as long suffered from notoriously inconsistent application; it
has never been an overarching principle of constitutional law that operates with equal force regardless of the
nature of the rights and powers in question.”); see also Sullivan, supra note 197, at 1416.
202
Edward J. Fuhr, The Doctrine of Unconstitutional Conditions and the First Amendment, 39 CASE
WESTERN RESERVE L. REV. 97, 98 (1988) (“This doctrine posits that a condition attached to the grant of a
governmental benefit is unconstitutional if it requires the relinquishment of a constitutional right. The doctrine
has been used to invalidate conditions affecting interests protected by the first, fourth, fifth, and fourteenth
amendments.”).
203
Id. at 98–99; Sullivan, supra note 197, at 1421–22 (“Unconstitutional conditions problems arise when
government offers a benefit on condition that the recipient perform or forego an activity that a preferred
constitutional right normally protects from government interference. The ‘exchange’ thus has two components:
the conditioned government benefit on the one hand and the affected constitutional right on the other.”).
204
See Sullivan, supra note 197, at 1421–22.
205
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 70 (2006) (holding that under
the Solomon Amendment the federal government could constitutionally withhold funding from universities if
they refuse to give military recruiters access to school resources).
206
In cases that apply the unconstitutional conditions doctrine to property, and specifically the concept of
eminent domain, the Supreme Court has held that
[u]nder the well-settled doctrine of “unconstitutional conditions,” the government may not
require a person to give up a constitutional right—here the right to receive just compensation
when property is taken for a public use—in exchange for a discretionary benefit conferred by the
government where the benefit sought has little or no relationship to the property.
Dolan, 512 U.S. at 385 (citing Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Bd. of Educ. of Twp.
High Sch. Dist. 205, 391 U.S. 563, 568 (1968)).
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the particular right at issue.
207
Third, the government’s attempt to condition the
right in exchange for the benefit cannot be coercive.
208
In short, the doctrine forbids the government from unduly pressuring
someone into forfeiting a constitutional right, regardless of whether the person
ultimately agrees to give up their right in exchange for the benefit.
209
The focus
is on the coercive nature of the bargain itself, rather than the end result, and does
not turn on the gratuitous nature of the benefit.
210
In fact, as the Court has noted,
“virtually all of our unconstitutional conditions cases involve a gratuitous
governmental benefit of some kind,” including tax benefits, healthcare, and
public employment, yet the issue does not turn on whether or not the government
is obligated to provide the benefit.
211
Judges have, on occasion, invoked the unconstitutional conditions doctrine
to analyze state legislation that infringes on state constitutional rights. For
instance, the Ninth Circuit Court of Appeals has identified three factors it will
analyze when a government entity seeks to condition the receipt of a public
benefit on a waiver of a California state constitutional right.
212
The government
must establish the following: “(1) the conditions reasonably relate to purposes
sought by the legislation which confers benefit; (2) the value accruing to the
public from imposition of those conditions manifestly outweighs any resulting
impairment of constitutional rights; and (3) there are no alternative means less
subversive of constitutional right” that could achieve the same purpose.
213
As
with the federal unconstitutional conditions doctrine, the purpose of this state
doctrine is to analyze the relationship between the legislation and the behavior
207
Lorenz v. State, 928 P.2d 1274, 1283–84 (Colo. 1996) (holding that a statute prohibiting certain elected
and appointed officials from holding gaming licenses did not impose an unconstitutional condition on the right
to ballot access or the right to hold public office because the restriction imposed only a limited burden on ballot
access, right to public office, and voters’ ability to exercise preferences, which was outweighed by the State’s
substantial interest in avoiding corruption and appearance of corruption in the gaming industry and local
government).
208
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013) (“In so holding, we have
recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting
a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated
rights by coercively withholding benefits from those who exercise them.”).
209
Id.
210
Id. at 608 (“We have repeatedly rejected the argument that if the government need not confer a benefit
at all, it can withhold the benefit because someone refuses to give up a constitutional right.”).
211
Id. at 608 (citing Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545 (1983) (tax
benefits); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974) (healthcare); Perry v. Sindermann, 408 U.S. 593
(1972) (public employment); United States v. Butler, 297 U.S. 1, 71 (1936) (crop payments); Frost & Frost
Trucking Co. v. R.R. Comm’n of Cal., 271 U.S. 583, 592–93 (1926) (business license)).
212
Sanchez v. Cty. of San Diego, 464 F.3d 916, 930 (9th Cir. 2006), cert. denied, 128 S. Ct. 649 (2007).
213
Id.
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the government is seeking to compel. In California, for example, the government
bears the heavy burden of demonstrating the practical necessity for limitation of
the state constitutional right.
214
Other state courts have applied the doctrine to
help analyze state laws that affect state constitutional due process rights
215
and
the right to be free from unreasonable searches and seizures.
216
While the
doctrine may not be a frequent player in state courts, precedent exists
demonstrating its value in testing the limits of state-imposed conditions on state
constitutional rights.
2. The Unconstitutional Conditions Doctrine as a Framework for
Analyzing Vouchers
The unconstitutional conditions doctrine provides a powerful framework for
analyzing the position in which some voucher programs place students with
disabilities: they compel students to waive their federal statutory and state
constitutional educational rights in exchange for escaping public schools that
may already be violating their rights. As with other infringements on rights, here
the doctrine can be used to analyze the relationship between voucher legislation
and the behavior the government is seeking to compel—the relinquishment of
educational rights.
While scholars differ about the purpose of the doctrine and whether a
unifying theory exists such that it can be applied consistently across all contexts,
one principle offered by Professor Kathleen Sullivan is particularly salient in the
voucher context.
217
Sullivan suggests the doctrine is most important in regard to
“preferred liberties.”
218
Essentially, preferred liberties simply cannot be
sacrificed. Without the doctrine, the government is subject to nothing more than
214
Id.
215
Gonya v. Comm’r, N.H. Ins. Dep’t, 899 A.2d 278, 282 (N.H. 2006) (applying an unconstitutional
conditions analysis to a state regulation seeking to restrict New Hampshire’s constitutional right to redress
actionable injuries).
216
Univ. of Colo. ex rel. Regents of the Univ. of Colo. v. Derdeyn, 863 P.2d 929, 946 (Colo. 1993)
(conditioning participation in intercollegiate sports at a state university on “voluntary consent” to random
suspicionless drug testing was a violation of the unconstitutional conditions doctrine); State v. Bernard, 859
N.W.2d 762, 767 (Minn. 2015) (holding a warrantless breath test that defendant refused would not have been an
unconstitutional search because it would have been a valid search incident to a lawful arrest); State v. Bennett,
867 N.W.2d 539, 543 (Minn. Ct. App. 2015), cert. denied, 136 S. Ct. 2542 (2016).
217
Professor Kathleen Sullivan recommended courts use the doctrine to scrutinize the distribution of
power “between government and rightholders . . . , constitutional rights among rightholders,” and “to the extent
that a condition discriminates de facto between those who do and do not depend on a government benefit, [to]
create a de facto caste hierarchy in the enjoyment of constitutional rights.” Sullivan, supra note 197, at 1490.
218
Id. at 1419. Professor Sullivan opines that the doctrine is helpful in “identif[ying] a characteristic
technique by which government appears not to, but in fact does burden those liberties, triggering a demand for
especially strong justification by the state.” Id.
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rational basis review, even though the effect of its action is to limit citizens’
access to “preferred liberties.”
219
Under rational basis review, the government
can successfully put forth virtually any justification to demonstrate a
constitutionally permissible need for its proposed restriction of rights.
220
The
unconstitutional conditions doctrine serves as an important limit. The doctrine
asks whether the government’s gratuitous benefit, when conditioned on the
relinquishment of a particularly important right, demands stronger justification
than the minimum required under rational basis review.
221
The need for the
higher standard is based in part on the importance of the right at issue.
Public education is a right so central to the functioning of our democratic
society that it simply cannot be sacrificed on a whim. As the following sections
describe, students with disabilities have both state constitutional and federal
statutory rights to education. The unconstitutional conditions doctrine provides
a useful framework for weighing the competing interests at issue in legislation
that seeks both to condition these educational rights and relieve the state from
the obligation to provide public education.
a. State Constitutional Rights
All fifty state constitutions contain a right to education.
222
While the exact
nature of the right differs by state, for purposes of this analysis, the important
point is that access to public education generally implicates a state constitutional
right. As such, conditions on that right should be subject to the unconstitutional
conditions doctrine. While no state has applied the unconstitutional conditions
doctrine to education, several state courts have applied the doctrine to
infringements of other state constitutional rights.
223
Thus, a similar analysis
should presumptively apply to state voucher programs that condition access to
waiver of the state’s responsibility to fulfill the right to an education.
Moreover, education ranks among the most important rights in our
democracy.
224
Several state supreme courts have held education to be a
fundamental right under their respective state constitutions.
225
Others have
219
See id. at 1425.
220
See infra Section III.B.1.
221
Sullivan, supra note 197, at 1425.
222
PARKER, supra note 20.
223
See supra notes 212–216 and accompanying text.
224
See generally Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (“[E]ducation is perhaps the
most important function of state and local governments.”).
225
See, e.g., Serrano v. Priest, 557 P.2d 929, 957–58 (Cal. 1976) (finding education to be a fundamental
right and deeming California’s school finance system to be unconstitutional); Horton v. Meskill, 376 A.2d 359,
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simply declared students to have a constitutional right to a quality education.
226
All are premised on a similar rationale that values education as a core democratic
right. As described by Kentucky’s Constitution, “the education of young people
is essential to the prosperity of a free people.”
227
Vouchers ask students with
disabilities to give up this elemental right—a state constitutional right to a
system of publicly funded education.
228
Precedent makes clear that the state cannot directly undermine the right to
education. It cannot make students’ access to it depend on where they live, how
rich their districts are, or the special needs a student may have.
229
A few cases
have gone so far as to say that this right is not even conditioned on the students’
good behavior.
230
Even when students engage in serious misbehavior, the state
372–74 (Conn. 1977) (holding education to be a fundamental right based on state compulsory attendance laws
and Connecticut state constitutional provisions); see also Robyn K. Bitner, Note, Exiled from Education: Plyler
v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions, 101 VA. L. REV. 763, 768
(2015).
226
Robinson v. Cahill, 303 A.2d 273, 294 (N.J. 1973) (finding New Jersey’s system of financing public
education violative of the state’s constitutional mandate to provide for “equal educational opportunity”);
Leandro v. State, 488 S.E.2d 249, 254 (N.C. 1997) (right to education provided in state constitution is qualitative
and encompasses right to “sound basic education . . . preparing students to participate and compete in the
society”); Abbeville Cty. Sch. Dist. v. State, 515 S.E.2d 535, 540 (S.C. 1999) (holding South Carolina’s
Constitution “require[d] the General Assembly to provide the opportunity for each child to receive a minimally
adequate education”); Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979) (holding West Virginia Constitution
education clause provided a fundamental right to education); Washakie Cty. Sch. Dist. No. One v. Herschler,
606 P.2d 310, 337 (Wyo. 1980) (finding a state system of local property taxes unconstitutional under equal
protection). Not all states have adopted this posture. See, e.g., Lewis E. v. Spagnolo, 710 N.E.2d 798 (Ill. 1999)
(holding education was not a fundamental right under Illinois state laws); State ex rel. Shineman v. Bd. of Educ.,
42 N.W.2d 168, 170 (Neb. 1950) (holding education was not a fundamental right under the Nebraska
Constitution).
227
Rose v. Council for Better Educ., 790 S.W.2d 186, 205–06 (Ky. 1989) (holding that four justifications
existed for treatment of education as a fundamental right: “1) The education of young people is essential to the
prosperity of a free people. 2) The education should be universal and should embrace all children. 3) Public
education should be supervised by the State, to assure that students develop patriotism and understand our
government. 4) Education should be given to all—rich and poor—so that our people will be homogeneous in
their feelings and desires.”).
228
All fifty states contain an education clause in their constitution. PARKER, supra note 20. Nine states
contain an additional clause specifically addressing students with disabilities. Id. Such disability-focused
educational clauses vary with respect to categories of disability covered as well as substantive rights granted.
See, e.g., NEB. CONST. art. VII, § 11.
229
Horton v. Marshall Pub. Sch., 769 F.2d 1323, 1324, 1334 (8th Cir. 1985) (holding the school district’s
application of “domicile requirement” to deny enrollment to minor children whose parent or guardian was not
living in the district violated Due Process and Equal Protection Clauses); Claremont Sch. Dist. v. Governor, 703
A.2d 1353, 1360 (N.H. 1997) (holding a “system of financing public education” through school taxes assessed
in school districts was disproportionate and unreasonable within the meaning of a constitutional provision
requiring proportional tax assessments and state-funded public schools).
230
Cathe A. v. Doddridge Cty. Bd. of Educ., 490 S.E.2d 340, 350–51 (W. Va. 1997) (holding that only in
extreme cases and through strict scrutiny review could a child taken out of a regular school for disciplinary
reasons be denied all public education opportunities).
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remains obligated to provide for their education.
231
In fact, complete
deprivations of education are typically subject to heightened scrutiny.
232
The
notion that the state might ask a student to waive this right to education and
achieve indirectly what it cannot achieve directly is contrary to the right itself.
Yet, this is exactly what state voucher programs seemingly attempt to do—shed
state obligations to educate students with disabilities. Thus, the unconstitutional
conditions doctrine and the logic behind it are necessary to ensure limits on
states’ behavior when the state constitutional right to education is at issue.
b. Federal Statutory Rights
In addition to state constitutional rights to education, students with
disabilities have rights under federal statutes.
233
These federal statutory rights
are meant to support students’ ability to access their state constitutional right to
education.
234
But, importantly, federal statutes also confer a substantive right to
FAPE.
235
In this respect, the federal statutes play a dual role. They bestow
students with disabilities a substantive right to FAPE and they ensure students
with disabilities are given necessary special education and related supports they
require to access their state constitutional right to education.
236
As with the state constitutional right to education, in many cases students
with disabilities are asked to give up federal statutory protections in exchange
for a voucher.
237
These federal rights include not only their substantive right to
231
Id. at 350.
232
Id.
233
See supra Section I.B. All states must adopt their own state regulations to enforce the terms of the
IDEA. Some states provide students with disabilities additional rights through state statutes. See, e.g., MASS.
GEN. LAWS ANN. ch. 71B, §§ 1–16 (West 2009). This state law guarantees a “free and appropriate public
education in the least restrictive environment” to all school-aged children (ages 3 to 21) regardless of disability.
Id. §§ 1–2. Any child who qualifies for special education services will receive services specified in an IEP. Id.
§ 3. A team of interested parties, which could include educators, parents, physicians, and advocates, develops
the plan. Id. The law also mandates support for children with disabilities who may be bullied. Id.
234
20 U.S.C. § 1400(c) (2012) (describing that prior to enactment of the EAHCA of 1975, the educational
needs of millions of children with disabilities were not being met because they were effectively excluded from
school, thus these children were denied their state constitutional right to education. The EAHCA was enacted to
prevent such exclusion of children with disabilities from their state constitutional right to education); see also
Mills v. Bd. of Educ. of the D.C., 348 F. Supp. 866, 875 (D.D.C. 1972); Pa. Ass’n for Retarded Children v.
Pennsylvania, 343 F. Supp. 279, 302–03 (E.D. Pa. 1972) (approving consent decree that enjoined Pennsylvania
from denying education to students who were “mentally retarded”).
235
20 U.S.C. § 1412(a)(1). See generally Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137
S. Ct. 988, 995–96 (2017) (affirming that the IDEA required states to confer a “substantively adequate program
of education”).
236
20 U.S.C. § 1400(d); 29 U.S.C. § 794 (2012).
237
NAT. COUNCIL ON DISABILITY, CHOICE & VOUCHERS – IMPLICATIONS FOR STUDENTS WITH
DISABILITIES 24 (2018), https://ncd.gov/sites/default/files/NCD_Choice-Vouchers_508_0.pdf.
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FAPE, but also the right to be free from segregated learning environments, and
the right to invoke due process to complain about the loss of such rights.
238
Some
voucher programs require parents to explicitly waive their rights to invoke
federal statutory protections for students with disabilities as a condition of
acceptance of the voucher.
239
For example, under the Succeed Scholarship
Program for Students with Disabilities in Arkansas, parents must “sign an
acknowledgement that, by enrolling a child in a private school, the
parent . . . waives the procedural safeguards granted by the IDEA.”
240
While the unconstitutional conditions doctrine has never been applied to
federal statutory rights, the nature of these particular federal rights and the close
connection to a state constitutional right provides a compelling basis for
applying the same analysis. As a practical matter, it is simply impossible to
disentangle the federal statutory rights from the state constitutional right to
education. The federal rights facilitate the delivery of the state constitutional
right, and voucher programs ask students to give up both.
241
Thus, ceding
statutory rights under the IDEA, Section 504, and the ADA equates to the loss
of the state constitutional right to education.
More specifically, these federal disability laws ensure equality of access to
education.
242
Without such guarantees in place, students with disabilities lose
the tools they may require to meaningfully engage with curricula.
243
And without
protections of the federal laws, a state constitutional right to education can
become meaningless. By virtue of the loss of rights under the federal statutes
that were enacted to guarantee equal access to education, students with
disabilities also lose their ability to access their state constitutional right to
education. States should no more be able to require students to waive their state
constitutional right to education than states should be able to require students to
waive the predicates to receiving full access to the state constitutional right.
Just as with restrictions on states’ constitutional rights to education, the
condition on federal statutory rights is an attempt to compel a result which the
238
20 U.S.C. §§ 1412(a)(5), 1415.
239
NAT. COUNCIL ON DISABILITY, supra note 237, at 59.
240
ARK. DEP’T OF EDUC., supra note 121.
241
NAT. COUNCIL ON DISABILITY, supra note 237, at 65 (“[F]ederal IDEA rights, as a general rule, have
not been viewed as being extended to children and youth with disabilities who participate in voucher
programs.”).
242
See Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748-50 (2017) (discussing how the IDEA
Section 504, and the ADA protect students’ interests).
243
Students lose the right to FAPE individualized supports and services, the right to be placed in inclusive
environments with nondisabled peers, and the right to invoke due process protections to enforce such rights. 20
U.S.C. § 1412.
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government could not otherwise achieve without violating the law.
244
In this
instance, when parents accept conditions on access to federal statutes, states are
no longer responsible for providing FAPE or ensuring students with disabilities
are educated in inclusive environments.
245
States could not relinquish these
federal obligations without requiring such “voluntary” conditions. Rather, it is
only through enforcement of the condition attached to vouchers that states are
freed from these obligations.
As Professor Sullivan warns, government action of this sort can “alter the
balance of power between government and rightholders.”
246
Without the waiver,
students with disabilities have a significant number of legal protections that, in
effect, give them the power to control their education and ensure its quality. But
by asking students to waive those rights, states severely rebalance that power.
They essentially force students with disabilities to indemnify the government for
its failure to provide them with educational benefits. And interestingly, it is only
with regard to this subpopulation that states pursue such a broad waiver, raising
the possibility that the states’ true interest is in extinguishing the rights
themselves, not pursuing some other legitimate purpose.
Assuming now that the unconstitutional conditions doctrine is a proper tool
with which to analyze vouchers as applied to students with disabilities, the final
section will evaluate the constitutionality of vouchers using the doctrine.
3. Evaluating the Constitutionality of the Conditions on Vouchers
As a general principal, states are not free to eschew either state or federal
obligations. The question presented here is whether they can do so by imposing
conditions on vouchers.
247
Once a right has been conditioned, the primary
questions under the unconstitutional conditions doctrine are (1) the legitimacy
of the government interest and (2) the coercive nature of the bargain. While a
court may be more willing to apply the unconstitutional conditions doctrine
when the states’ constitutional rights to education are implicated than when only
federal statutory rights are in play, the analysis is the same in either scenario.
244
States could not ordinarily refuse to comply with federal and state statutes providing for the education.
See COPAA REPORT, supra note 4, at 20–25.
245
20 U.S.C. § 1400(d); 29 U.S.C. § 794.
246
Sullivan, supra note 197, at 1490. Sullivan recommends courts use the doctrine to scrutinize any
government condition that threatens to skew the balance of power between the government and the people
holding the right, or the distribution of rights among people, to create a de facto “caste hierarchy in the enjoyment
of constitutional rights.” Id.
247
“It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed
directly.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 59–60 (2006).
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Thus, the following section will discuss the analysis under both without drawing
distinctions between state constitutional rights and federal statutory rights to
education.
a. Legitimacy of the Government Interest
The Supreme Court has looked to the legitimacy of the government interests
at issue when the government seeks to entice a waiver of a constitutional right.
For instance, in Lorenz v. State,
248
the Court held that a statute prohibiting certain
elected and appointed officials from holding gaming licenses did not impose an
unconstitutional condition on the right to hold public office because the
restriction imposed was outweighed by the state’s substantial interests in
avoiding corruption and the appearance of corruption in the gaming industry and
local government.
249
In the criminal law context, the Court has upheld the
practice of impeachment on cross-examination of a defendant despite its
infringement on the Fifth Amendment privilege against self-incrimination
because of the interest it serves—strengthening the reliability of the criminal
process.
250
In the property law context, the Court held that a California public
land commission could not, without paying compensation, condition permission
to rebuild a house on the property owners’ transfer of a public easement across
beachfront property.
251
Looking to the underlying interest at issue, the Court
found “[t]he evident constitutional propriety” of prohibiting a land use
“disappears . . . if the condition substituted for the prohibition utterly fails to
further the end advanced as the justification for the prohibition.”
252
Finally, in
Legal Services Corp. v. Velazquez, the Court held that a federal grant restriction
on funds to legal services nonprofits, prohibiting lawyers from challenging
welfare laws, was an unconstitutional condition.
253
The Court warned that, “[w]e
must be vigilant when Congress imposes rules and conditions which in effect
insulate its own laws from legitimate judicial challenge.”
254
Per the Court’s analysis in unconstitutional conditions cases, a condition will
be considered legitimate if the competing state interest which induced the
condition is substantial.
255
A condition will fail to meet this standard if it “utterly
248
928 P.2d 1274 (Colo. 1996) (en banc).
249
Id. at 1285–86.
250
Brown v. United States, 356 U.S. 148, 156 (1958).
251
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831–32 (1987).
252
Id. at 836–37.
253
531 U.S. 533, 548–49 (2001).
254
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548 (2001).
255
See supra Section III.A.1.
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fails to further the end advanced as justification.”
256
With respect to vouchers
and students with disabilities, state governments’ self-described interests fall
into three categories: (1) fiscal savings, (2) increased efficiencies, and (3)
improved educational outcomes. While the stated interests may seem innocuous
at first, each comes at great cost to students with disabilities and upon closer
inspection, the unstated but undeniable effect is to free the state of its obligation
to provide students with disabilities equal educational opportunities, an interest
surely not worthy of a substantial restriction on educational rights.
Fiscal savings is often cited by lawmakers and advocacy groups as a
rationale to support school voucher legislation.
257
Essentially, they claim a
savings occurs because it costs less to provide a voucher for a child to attend
private school than to educate that child in public schools.
258
Moreover,
legislators claim this savings is recouped at higher levels with respect to students
with disabilities because this cohort cost twice as much to educate.
259
Costs
associated with educating students with disabilities has long strained state
education budgets, in part because the IDEA places significant demands on
states in return for federal funding, but Congress has yet to fully fund the
program.
260
Since its enactment, the law has included a commitment to pay 40%
of the average per student cost for every special education student.
261
However,
currently the federal government provides local school districts with less than
20% of its promised commitment.
262
256
Nollan, 483 U.S. at 836–37.
257
SPALDING, supra note 5, at 39; Martin Lueken, How to Accurately Calculate the Fiscal Impact of
School Voucher Programs, EDCHOICE BLOG (Sept. 27, 2016), https://www.edchoice.org/blog/how-to-
accurately-calculate-the-fiscal-impact-of-school-voucher-programs/.
258
“The most relevant relationship in calculating the fiscal impact of school choice is the difference
between: (1) the amount of financial assistance (i.e., the voucher amount) provided to participants and (2) the
current cost of educating those students in the public school system. If the average voucher amount is less than
the average per-student educational cost, a savings is realized for those students that use a voucher to leave a
public school to enroll in a private school.” SPALDING, supra note 5, at 1.
259
Id. at 12. One advocacy group even praised Arizona and Louisiana’s policy of offering a voucher worth
less than the amount the state would otherwise spend on educating a student with a disability in a public school
precisely because of the fiscal savings. CUNNINGHAM, supra note 34.
260
See 231 Nat’l Educ. Ass’n (NEA), Background of Special Education and the Individuals with
Disabilities Education Act (IDEA): The 2004 IDEA Reauthorization Bill, http://www.nea.org/home/19029.htm
(last visited Mar. 26, 2019).
261
Background of Special Education and the Individuals with Disabilities Education Act (IDEA): The
2004 IDEA Reauthorization Bill, NAT’L EDUC. ASS’N, http://www.nea.org/home/19029.htm (last visited Mar.
26, 2019).
262
Id. (noting that in 2004 the “average per student cost [was] $7,552 and the average cost per special
education student [was] an additional $9,369 per student, or $16,921. Yet, in 2004, the federal government [was]
providing local school districts with just under 20 percent of its commitment rather than the 40 percent specified
by the law”).
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Setting aside for the moment the active debate over whether such cost
savings is actually realized through voucher legislation,
263
the relevant question
for purposes of the unconstitutional conditions analysis is whether fiscal savings
justifies the infringement of educational rights. The argument falls flat for two
reasons. First, state governments need not condition the rights of students with
disabilities to enact voucher legislation. Thus, assuming such legislation
provides a fiscal savings, they could still enact it without restricting students’
rights under federal and state laws. In short, the ends are not necessary to justify
the means.
Second, given the historical weight accorded to the nature of educational
rights, including the fact that such rights are embedded in all fifty state
constitutions,
264
it seems unlikely that fiscal concerns alone would permit
governments to condition voucher legislation on a waiver of access to
educational rights. This is particularly true given that such a condition is not a
necessary component to enacting such legislation. If the state needs the
education system to reduce or control costs, one would expect the state to pursue
that through efficiency within the system, not by removing individuals from the
system itself.
In some states, voucher programs have gotten so big that they are causing
deficits in state education budgets.
265
The savings resulting from vouchers are
not actually recouped in the public school system, but rather recouped by the
state budget more broadly.
266
It is at least arguable that states enacting voucher
263
One of the largest pro-voucher interest groups, the Friedman Foundation for Educational Choice,
authored a report claiming a cumulative total savings of $1.7 billion dollars from school voucher programs
between 1991 and 2011. SPALDING, supra note 5, at 12. The report claimed that students with special education
needs cost school districts on average twice as much as regular education students. Id. at 12, 39; see also U.S.
Dep’t of Educ., Educ. Res. Info. Ctr. (ERIC), Jeopardizing a Legacy: A Closer Look at IDEA and Florida’s
Disability Voucher Program 8–10 (2003). Yet, compare the Department of Education Report with the current
calls for a halt to Indiana’s voucher program, where the Indiana state superintendent stated, “[f]or too long,
Indiana has diverted funding from public schools without studying the impact on our traditional school system.
It is time for our state legislature to fully study the fiscal and academic impacts that the school voucher system
is having on Indiana’s education system.” Claire McInerny, School Voucher Program Cost State $18 Million
More than Previous Year, WFYI INDIANAPOLIS (July 19, 2016), http://www.wfyi.org/news/articles/school-
voucher-program-cost-state-18-million-more-than-previous-year.
264
See PARKER, supra note 20.
265
See Valerie Strauss, What Taxpayers Should Know About the Cost of School Choice, WASH. POST (Jan.
26, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/01/26/what-taxpayers-should-know-
about-the-public-cost-of-school-choice/?noredirect=on&utm_term=.6b9f9a36690c.
266
Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher
Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703, 721 (2015). Mead argues
that where state constitutions require a duty to provide uniform education, voucher programs that siphon off
money from public schools may at some point violate state constitutional obligation to provide for public
education. Id. at 704–05, 714.
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programs that drain state coffers of education funding are in danger of running
afoul of their commitment to provide for a system of public education.
267
In these
states the justification of fiscal savings is in tension with a duty to provide a
uniform system of public education.
268
Consequently, fiscal savings may not be
a legitimate legislative goal if it comes at the expense of meeting the states’
constitutional obligations to provide a public system of education.
A second legislative interest advanced for the creation of vouchers is
efficiency. The National Conference of State Legislatures has lauded voucher
programs’ ability to both cut costs and ease the administrative burden of
compliance with the IDEA. “By shifting students with disabilities out of the
public school system, the administrative burden of tracking and reporting
student progress is reduced at both the local and state levels.”
269
Schools have a
number of reporting requirements that they must meet in order to comply with
IDEA’s terms, and while efforts have been made to minimize these
requirements, they nonetheless place significant demands on school districts.
270
When students accept vouchers to attend private schools, the reporting
requirements are virtually extinguished.
271
States may have their own reporting
mandates built into their voucher legislation, but most states require only limited
reporting or none at all.
272
Another component of efficiency is schools’ ability to offer parents a direct
path into the private school system while avoiding costly litigation. The IDEA
empowers students and their parents to invoke due process procedures to file
complaints about the adequacy of FAPE.
273
If parents can prove the public
school denied their child FAPE, they may be able to seek tuition reimbursement
for a private school placement.
274
In fact, the robust nature of the IDEA’s due
267
Id. at 737.
268
Id. at 736–37.
269
CUNNINGHAM, supra note 34; see also SPALDING, supra note 5, at 2, 9–10.
270
20 U.S.C. § 1408 (2012).
271
Elise Helgesen Aguilar, A New Government Report Shows Private School Voucher Programs Fail to
Provide Information, Especially to Families of Students with Disabilities, AMS. UNITED FOR SEPARATION
CHURCH & ST. (Dec. 1, 2017), https://www.au.org/blogs/wall-of-separation/a-new-government-report-shows-
private-school-voucher-programs-fail-to. School districts must still track the number of students with disabilities
in private schools, but their data gathering for this cohort of students is greatly reduced per federal law.
272
Marie Rauschenberger, Resolving the Lack of Private-School Accountability in State-Funded Special
Education Voucher Programs, 2015 MICH. ST. L. REV. 1125, 1152–53 (2015).
273
See supra Part II.
274
20 U.S.C. § 1412(a)(10)(C)(ii); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 258–59 (2009)
(Souter, J., dissenting). Public perception of the frequency and costs of such claims on school districts may
overstate the actual cost. See JAY P. GREENE & MARCUS A. WINTERS, DEBUNKING A SPECIAL EDUCATION MYTH:
DON’T BLAME PRIVATE OPTIONS FOR RISING COSTS 67–68, 70 (2007) (comparing several articles featuring high
costs of individual students’ private school tuitions on public school districts, with data on actual numbers of
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process system has engendered calls from school superintendents to scale back
its force.
275
School districts, understandably, would prefer to limit the costs
associated with defending lawsuits, and many state legislatures see vouchers as
a way to limit those costs and head off litigation.
276
Voucher legislation offers
parents who are unhappy with the public school system a relatively direct
method of leaving it. Vouchers incentivize parents to forgo the potentially costly
and lengthy litigation to improve services in public schools for the more
immediate promise of better services in a private school.
While administrative efficiency in and of itself may be a legitimate goal,
when the purpose of efficiency is an end run around federal disability rights
legislation, that goal should face more scrutiny. The IDEA requires states to
submit reports to the Department of Education to ensure that states are fulfilling
their statutory obligations to students with disabilities.
277
A state’s desire to get
out from under these reporting requirements is essentially a desire to avoid or
outsource that obligation. Thus, the goal of efficiency is to push the costly and
administratively burdensome responsibility to educate students with disabilities
onto private actors, who are under no such reporting obligation.
Likewise, incentivizing parents to accept vouchers and waive due process
protections is inherently suspect. The condition merely operates as a way for the
students publicly placed in private schools). In 2004, only about 1.48% of students with disabilities were enrolled
in publicly funded private placements (amounting to 0.18% of the public school student population). Id.
275
Sasha Pudelski, AASA, Rethinking Special Education Due Process: A Proposal for the Next
Reauthorization of the Individuals with Disabilities Education Act 2 (2016). The School Superintendents
Association recently authored a report detailing the costs associated with defending due process claims and
recommending that a type of mandatory mediation (referred to as consultation) be implemented prior to the
filing of any lawsuit. Id. at 4. Among its findings based on a survey of 200 school superintendents, “the current
due process system continues to expend considerable school district resources and impedes the ability of school
personnel to provide enhanced academic experiences for all students with disabilities because it devotes the
district’s precious time and resources to fighting the legal actions of a single parent.” Id. at 2.
The average legal fees for a district involved in a due process hearing were $10,512.50. Districts
compelled to compensate parents for their attorney’s fees averaged $19,241.38. The expenditures
associated with the verdict of the due process hearing averaged districts $15,924.14. For districts
that chose to settle with a parent prior to the adjudication of the due process hearing, the
settlement costs averaged $23,827.34.
Id. at 3.
276
Nat Malkus & Tim Keller, Federal Special Education Law and State School Choice Programs, 18
Federalist Soc’y Rev. 22, 26 (2017) (“Where available, educational choice programs offer another path for
families that are dissatisfied with the IDEA-guaranteed IEP by giving them financial assistance to access
nonpublic educational alternatives. Importantly, they do this without subjecting parents to the costly and time-
consuming litigation or drawn-out due process procedures they would face under IDEA alone.”); see also
COPAA REPORT, supra note 4, at 13.
277
20 U.S.C. § 1414(d)(5)(B).
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state to insulate itself from legal challenges—an action the Supreme Court has
previously found violates the unconstitutional conditions doctrine.
278
When
viewed in this light, states appear to be using “efficiency” as a cloak for shedding
their statutory responsibilities towards students with disabilities.
Finally, state legislators and voucher proponents frequently claim that school
choice empowers parents to choose a school most effective for their child.
279
They claim that giving more parents the ability to choose the best performing
school will in turn improve the quality of schools for all children.
280
Thus, the
justification for shifting public funds into the private sector is the promise of
better schools for all children.
Recent research demonstrates otherwise. Several recent reports indicate that
at best voucher students show no improvement in student achievement, and at
worst such programs actually hurt student performance.
281
Here, the offered
goal—privatization of education to improve outcomes—does not square with
the actual result. As in prior cases where the Court imposed the unconstitutional
conditions doctrine, here the “condition . . . utterly fails to further the end
advanced as the justification.”
282
Thus, it is at least arguable that the condition
permits a restriction of civil rights in order to achieve an undesirable outcome.
In addition to weighing the state interest in enacting the condition, the
unconstitutional conditions doctrine tells courts to consider whether coercion
exists in the nature of the bargain between the condition and the benefit. The
following section will analyze whether coercion exists with respect to vouchers.
278
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 549 (2001).
279
Secretary of Education Betsy DeVos went so far as referring to opponents of school choice as “‘flat
Earthers’ who have ‘chilled creativity’ and held American students back.” Gregory Wallace, Education
Secretary: School Choice Opponents Have ‘Chilled Creativity’, CNN, http://www.cnn.com/2017/05/22/politics/
betsy-devos-school-choice-trump-budget/ (last updated May 22, 2017, 10:24 PM) (“‘They will be hurting the
children and families who can least afford it. If politicians in a state block education choice, it means those
politicians do not support equal opportunity for all kids,’ DeVos said.”).
280
NAT. COUNCIL ON DISABILITY, supra note 237, at 9.
281
Douglas N. Harris, Brown Ctr. on Educ. PolICy at Brookings, Why Managed Competition Is Better
than a Free Market for Schooling 2 (2017). Recent studies of voucher programs in Ohio and Louisiana show
voucher students perform worse than non-voucher students. DAVID FIGLIO & KRZYSZTOF KARBOWNIK, THOMAS
B. FORDHAM INST., EVALUATION OF OHIO’S EDCHOICE SCHOLARSHIP PROGRAM: SELECTION, COMPETITION,
AND PERFORMANCE EFFECTS 2 (2016) (finding decline in math scores that cannot be attributed to “setbacks that
typically accompany any change in schools”); Jonathan N. Mills et al., Educ. Research All. for New Orleans,
How Has the Louisiana Scholarship Program Affected Students? A Comprehensive Summary of Effects after
Two Years 2 (2016).
282
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987).
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b. Coercive Nature of the Bargain
Coercion, while central to the unconstitutional conditions doctrine,
283
remains difficult to precisely define.
284
Professor Mitchell Berman defines
coercion in this context as “state action that burdens exercise of a constitutional
right for the purpose of either discouraging or punishing assertion of that
right.”
285
States impermissibly burden a right if the purpose of the condition is
either punitive or meant to discourage the exercise of the right.
286
Critiques of such a limiting principle often point to the view that government
should be able to condition any benefit that it was not obligated to provide. But,
the Supreme Court has already rejected this greater-includes-the-lesser
argument as being a “facile generalization” that “obscure[s] the issue.”
287
Further, as Professor Berman opines, “it is entirely plausible that an individual
may be better off in a world in which the benefit at issue is withheld entirely
than in a world in which it is offered on a condition that she, but not others,
would reject.”
288
This hypothetical presents a realistic vision of the future for
students with disabilities who reside in states with expansive voucher
programs.
289
The Court has used coercion as a reason to strike down conditions that affect
First Amendment rights to freedom of speech, religion, and association. For
example, the Court suggested that a public college would violate a professor’s
freedom of speech if it declined to renew his contract because he was critical of
the college’s administration.
290
Most recently, the Supreme Court held that a
283
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 597 (2013).
284
Compare Sullivan, supra note 197 (arguing that coercion is not the correct lens through which to view
the Court’s analysis in these cases), with Mitchell N. Berman, Coercion Without Baselines: Unconstitutional
Conditions in Three Dimensions, 90 GEO. L.J. 1 (2001) (supplying a new framework in which coercion is one
piece of an unconstitutional conditions analysis, but also arguing that even noncoercive proposals may be
unconstitutional).
285
Berman, supra note 284, at 7.
286
Id. at 35.
287
Wieman v. Updegraff, 344 U.S. 183, 191 (1952).
288
Berman, supra note 284, at 18–19.
289
Florida has one voucher program with 31,499 participating students; Indiana has one voucher program
with 34,299 participating students; Ohio has five voucher programs with a total of 46,780 participating students;
and Wisconsin has four voucher programs with a total of 33,775 participating students. U.S. GOV’T
ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS NEEDED TO ENSURE
PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 39–42 (2017).
290
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that the absence of a contractual right to
reemployment did not defeat a professor’s claim that a public university’s decision not to renew his contract was
based on the professor’s public criticism of the university’s policies, and if true could violate the First
Amendment).
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federal statute placed an unconstitutional condition on the First Amendment by
requiring organizations that receive federal HIV- and AIDS-related funding to
adopt a policy explicitly opposing prostitution and sex trafficking.
291
In reaching
this conclusion, the Court closely scrutinized the purpose of the condition and
concluded that it did more than simply define the limits of government spending,
but rather sought to leverage funding to regulate speech.
292
The condition
“demand[ed] that funding recipients adopt—as their own—the Government’s
view on an issue of public concern.”
293
As applied to vouchers, conditions require students with disabilities to forfeit
educational rights under federal and state laws which impact their state
constitutional right to an education. Arguably, the animating purpose is to
discourage, and in fact limit, these students’ educational rights, which puts it
squarely within the definition of coercion. States will argue that the purpose of
the condition is merely to facilitate the use of vouchers for students with
disabilities to enter into better educational environments, namely private
schools. However, if courts pull back the curtain on voucher legislation, they
will likely find states’ reasoning hollow.
Voucher conditions limit rights in both direct and indirect ways, but with the
same result—unjustified encroachment of educational rights. First, several states
directly require students with disabilities to waive their right to special education
and related supports when they accept vouchers.
294
Such demands often put
parents in a position of choosing between a failing public school and the chance
of a better private school, but with no guarantee that the new setting will
ultimately prove any better. In such circumstances, the acceptance of a voucher
and its conditions does not represent a “true choice.” Rather, it often represents
the only prudent choice to escape a failing public school system. Second, states
indirectly limit rights by shrouding voucher conditions in secrecy, making it
unlikely that parents are fully aware of the effect of such conditions on their
children’s statutory rights.
295
In short, coercion exists because parents are not
made aware of the rights they are giving up, and even when they are aware,
many feel they have no reasonable choice but to give up those rights.
291
Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 208, 217 (2013).
292
Id. at 217.
293
Id. at 226. The Court has found coercion to exist in federal funding schemes when such programs are
“aimed at the suppression of dangerous ideas.” Speiser v. Randall, 357 U.S. 513, 519 (1958).
294
See supra Section II.A.
295
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-94, PRIVATE SCHOOL CHOICE: FEDERAL ACTIONS
NEEDED TO ENSURE PARENTS ARE NOTIFIED ABOUT CHANGES IN RIGHTS FOR STUDENTS WITH DISABILITIES 25
(2017).
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The majority of states fail to provide sufficient notice to fully explain
vouchers’ effects on educational rights.
296
A 2017 GAO report found 83% of
students enrolled in a private school program designed for students with
disabilities “were in a program that provided either no information about
changes in IDEA rights or provided information that . . . contained inaccuracies
about these changes.”
297
Parents may accept a voucher and enroll their child in
a private school without realizing that they have much more limited, if any,
control over the provision of special education services offered to their child.
Voucher advocates would likely argue that no coercion exists because
parents are not forced to accept vouchers. They can freely choose to engage with
vouchers or reject them. But parents who are unhappy with their public school
system are faced with the choice to either keep their child in the failing system,
fight against that system by invoking due process rights under federal statutes,
or accept a voucher and leave. Even where the public school is demonstrably
failing their child and flouting federal statutory law, parents bear the burden of
initiating costly and likely lengthy litigation to right those wrongs.
298
When
faced with this costly and tenuous victory, vouchers can present an enticing path
out of the morass. All parents need do is essentially indemnify the state of the
responsibility to educate their child. Thus, states offer parents a way to leave a
public school system that is currently failing their child, for the promise of a
school that may prove better. But, if the only way to ensure your child will enter
that school is to sign away protections, that bargain is the definition of coercion.
In all cases where parents of children with disabilities accept vouchers, they
give up significant rights to special education tailored to their child’s unique
needs. Acceptance of vouchers does not simply burden the free exercise of a
right, it prohibits it altogether. Further, in states where vouchers are expanding
and becoming the predominate education policy, the decision to decline a
voucher (and keep the IDEA protections intact) is also fraught with concerns.
Parents may be unhappy with the current public education option for their child,
but the choice to leave comes with an enormous risk. Like the hypothetical
scenario envisioned by Professor Berman, in a very real sense many parents
296
Id. at 1.
297
Id. at Highlights.
298
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 55, 62 (2005). See generally Eloise Pasachoff,
Special Education, Poverty, and the Limits of Private Enforcement, 86 NOTRE DAME L. REV. 1413 (2011)
(arguing that more attention should be placed on public enforcement, rather than private enforcement of
education statutes).
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would be better off if the voucher programs did not exist and instead states
increased commitments to improve public schools for all children.
299
B. The Equal Protection Clause
A second challenge to the constitutionality of vouchers may be found in the
Equal Protection Clause of the Fourteenth Amendment that sets forth: no State
shall “deny to any person within its jurisdiction the equal protection of the
laws.”
300
While states are free to enact laws that treat groups of people
differently, when they do so, they must identify a sufficiently important
objective to justify the discrimination.
301
Laws singling people with disabilities
out for different treatment must pass rational basis review—that is, they must be
rationally related to a legitimate government purpose.
302
Rational basis is the
most minimal level of review and only rarely have laws been declared
unconstitutional for failing to meet it.
303
Challengers bear the burden of
demonstrating the law does not meet any legitimate government purpose and
courts defer to government action with a strong “presumption of rationality that
can only be overcome by a clear showing of arbitrariness and irrationality.”
304
In a few groundbreaking cases, however, the Supreme Court has struck down
laws for failure to survive rational basis review. In those cases, the Court has
emphasized that while the government may pursue a limitless number of
legitimate goals under rational basis review, there is one purpose that is
presumptively invalid: targeting a particular group for disfavored treatment. In
these cases, the Court has been less deferential in its application of rational basis
review and unwilling to accept what might otherwise be legitimate goals. While
voucher laws appear to provide a benefit (not a cost) to students, it is at least
arguable that when applied to students with disabilities, the more invidious
purpose of such laws is to remove a costly, litigious, and thus disfavored group
of students from the public school system and alleviate the state’s burden of
educating them. This is precisely the type of illegitimate targeting that the Court
has found unconstitutional in other cases.
299
Berman, supra note 284, at 18–19.
300
U.S. CONST. amend. XIV, § 1.
301
City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985) (“The general rule is
that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally
related to a legitimate state interest.”).
302
Id. at 446 (holding that the intellectually disabled are not a “suspect class” triggering a higher level of
scrutiny).
303
See Richard B. Saphire, Equal Protection, Rational Basis Review, and the Impact of Cleburne Living
Center, Inc., 88 KY. L.J. 591, 611–12 (1999–2000).
304
Hodel v. Indiana, 452 U.S. 314, 331–32 (1981).
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1. When Laws Fail Rational Basis Review
The rational basis review is a notoriously low threshold for legislatures to
cross. The Supreme Court has held that where rational basis review is applicable
the government “need not ‘actually articulate at any time the purpose or rationale
supporting its classification.’”
305
Rather, “a classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong
presumption of validity.”
306
Despite this low threshold, the Supreme Court has
struck down a handful of laws under rational basis review for want of “legitimate
public purpose.”
307
When reviewing those holdings carefully, a common theme emerges. In each
case, the government purpose has been to single out the classified group for
disfavored treatment. In other words, treating some identifiable group differently
was not a byproduct of a government effort to reform welfare expenditures;
rather, the government’s purpose was actually to disfavor a particular group and
it did so through the restrictions on such programs.
308
And in each case, the Court
withheld the deference it typically accords the government and found the laws
failed to survive rational basis review. The Court struck down these laws despite
the fact that the government may have also had some other additional valid
justifications, such as fiscal savings.
309
Rather, in these instances, “the Court has
found that the only plausible way to characterize the challenged statute was as
an effort to disadvantage a group because of prejudice toward its members.”
310
City of Cleburne v. Cleburne Living Center, Inc. marks the first time the
Supreme Court engaged in an equal protection analysis based on a class of
intellectually disabled individuals.
311
There, the Court struck down a zoning
ordinance which excluded a group home meant for intellectually disabled
individuals.
312
The Court held that the intellectually disabled were not a suspect
class that required a higher level of judicial scrutiny.
313
Yet, the Court still found
that no rational basis existed for believing the group home would pose any
special threat to the city’s legitimate interests.
314
Even though the City was
305
Heller v. Doe ex rel. Doe, 509 U.S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U.S. 1, 15 (1992)).
306
Id. at 319.
307
City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985).
308
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537–38 (1973).
309
Plyler v. Doe, 457 U.S. 202, 227 (1982).
310
Saphire, supra note 303, at 608.
311
Id. at 610.
312
City of Cleburne, 473 U.S. at 450.
313
Id. at 442–43.
314
Id. at 448. The Court “did not question the legitimacy of [the] interests” offered by the city, but rather
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pursuing the generally legitimate interest of safety, the Court found the
ordinance was also motivated by “irrational prejudice” against the intellectually
disabled.
315
This particular prejudice and targeting of the group for disfavored
treatment rendered the ordinance unconstitutional.
316
In short, classifications
imposed on a disfavored group due to prejudice do not serve a legitimate
government interest and will fail to pass rational basis review.
317
In U.S. Department of Agriculture v. Moreno, the Supreme Court again
struck down legislation for want of a legitimate government purpose.
318
Petitioners brought a challenge against enforcement of an amendment to the
Food Stamp Act that made ineligible any household containing an individual
unrelated to any other member of the household.
319
The Court held the
amendment was not rationally related to the stated purposes of the Act or to any
legitimate governmental interest in minimizing fraud.
320
In Moreno, the Court
made plain that laws targeting disfavored groups violate equal protection, stating
“[f]or if the constitutional conception of ‘equal protection of the laws’ means
anything, it must at the very least mean that a bare congressional desire to harm
a politically unpopular group cannot constitute a legitimate governmental
interest.”
321
Most recently, in Romer v. Evans, the Supreme Court struck down a state
law that made it illegal for municipalities to pass laws protecting people from
discrimination based on sexual orientation.
322
The Court applied rational basis
review, acknowledging that it was “the most deferential of standards” but even
examined whether the banning “of the group home was . . . a rational way to further any of [those interests].”
Saphire, supra note 303. Unlike earlier rational basis review cases which were wholly deferential to legislatures,
in Cleburne, the Court examined whether the classification furthered the government’s proffered interest in some
rational way. Id. The Court’s unwillingness to defer to the government’s proffered interests led some
commentators to believe that the case stood for a new proposition, referred to as “rational basis with bite.” Gayle
Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 IND. L.J. 779, 793 (1987).
However, when the Court failed to extend this analysis to cases beyond Cleburne it became clear that the Court
did not create a new standard for laws affecting the intellectually disabled. United States v. Harris, 197 F.3d 870,
876 (7th Cir. 1999) (“With due deference to the congressional approach to legislation affecting the disabled, this
Court chooses to follow the lead of our fellow circuit courts and the direction indicated by the Supreme Court
to conclude that the disabled are not a suspect or quasi-suspect class. Therefore, we apply rationality review to
claims of discrimination made by persons in this class.”).
315
City of Cleburne, 473 U.S. at 450.
316
Id.
317
Id. at 449–50.
318
413 U.S. 528, 537–38 (1973).
319
Id. at 530.
320
Id. at 534.
321
Id.
322
517 U.S. 620, 635–36 (1996).
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so, insisted on “knowing the relation between the classification adopted and the
object to be attained.”
323
Thus, rather than deferring to the legislature’s proffered
justifications for the law, the Court sought to examine those justifications—a
step beyond what is typically required in rational basis review.
324
Because the
Court found no legitimate purpose in singling out a certain class of persons for
“disfavored legal status,” it struck down the law as violating the Equal Protection
Clause.
325
The Court went on to state, “[a] law declaring that in general it shall
be more difficult for one group of citizens than for all others to seek aid from
the government is itself a denial of equal protection of the laws in the most literal
sense.”
326
Finally, it is worth noting one additional case which sits at the intersection
of education and rational basis review—Plyler v. Doe.
327
In Plyler, the Supreme
Court held that a Texas law excluding a class of undocumented Mexican
children from access to public schools violated the Equal Protection Clause.
328
Because the undocumented immigrant children were not a suspect class and
education is not considered a “fundamental right,” the Court applied rational
basis review to analyze the law.
329
While the Court did not hold that laws
impacting education should be treated differently under an equal protection
analysis, it nonetheless could not disregard the fact that the law sought the
wholesale exclusion of a class of children from public schools. In discussing the
law’s impact on education, the Court said:
By denying these children a basic education, we deny them the ability
to live within the structure of our civic institutions, and foreclose any
realistic possibility that they will contribute in even the smallest way
to the progress of our Nation. In determining the rationality of [the
Texas statute], we may appropriately take into account its costs to the
Nation and to the innocent children who are its victims. In light of
these countervailing costs, the discrimination contained in [the Texas
statute] can hardly be considered rational unless it furthers some
substantial goal of the State.
330
Here, as with the previous cases, the Court was not willing to defer to
government interests when the goal of the legislation was to target a group for
323
Id. at 632.
324
Saphire, supra note 303, at 611 n.90.
325
Evans, 517 U.S. at 635–36.
326
Id. at 633.
327
457 U.S. 202, 230 (1982).
328
Id.
329
Id. at 223–24.
330
Id.
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disfavored treatment. Texas proffered cost savings as a legitimate government
interest, claiming the law would “preserv[e] the state’s limited resources for the
education of its lawful residents”
331
and argued that “undocumented children are
appropriately singled out for exclusion because of the special burdens they
impose on the State’s ability to provide high-quality public education.”
332
But
the Court rejected such interests, holding instead that the classification violated
the Equal Protection Clause because it failed to demonstrate how excluding a
class of children from public school was “reasonably adapted” to the purpose of
providing a high quality education for all children in public school.
333
In
justifying its holding, the Court cited to a previous case for the proposition that
the state may “not . . . reduce expenditures for education by barring [some
arbitrarily chosen class of] children from its schools.”
334
Plyler echoes the underlying theme of the previous cases: laws that seek to
target specific groups for disfavored treatment are inherently suspect—even
under rational basis review. Plyler may also instruct courts to review laws
circumventing rights to education more closely. While the Court did not hold
that education was per se different, a narrow reading of Plyler suggests that cost
may not always justify class-based denials of education. Arguably, what
Cleburne, Moreno, Romer, and Plyler have in common is the plaintiffs’ ability
to convince the Court that the legislation at issue unfairly targeted and
disadvantaged a certain group based on “irrational prejudice” or merely a “desire
to harm a politically unpopular group.”
335
Once such a showing was made, the
Court was less willing to give the state the deference it would otherwise accord
under a rational basis analysis. Rather, when plaintiffs were able to demonstrate
331
Id. at 227.
332
Id. at 229.
333
Id. at 230. “The State may borrow the federal classification. But to justify its use as a criterion for its
own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to ‘the
purposes for which the state desires to use it.’” Id. at 226 (citing Oyama v. California, 332 U.S. 633, 664–65
(1948) (Murphy, J., concurring)).
334
Id. at 229 (alteration in original) (citing Shapiro v. Thompson, 394 U.S. 618, 633 (1969)). In Thompson,
the Supreme Court held that a District of Columbia statute that denied welfare assistance to residents who had
not resided within their jurisdiction for at least one year preceding their application for welfare benefits was a
violation of the Equal Protection Clause. 394 U.S. at 621–22. Because the constitutional right in question
implicated the right to travel across state lines, a constitutional right, the Court applied strict scrutiny and thus
required the Government to show a compelling interest in order to uphold the law. Id. at 634. The Court held
that while the Government had a valid interest in limiting expenditures in public programs, such as public
education, it may not accomplish this purpose by “invidious distinctions between classes of its citizens.” Id. at
633. The Court went on to say that a state “could not, for example, reduce expenditures for education by barring
indigent children from its schools.” Id.
335
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
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that proposed laws targeted a group for “disfavored legal status,” deference to
previously legitimate state justifications, such as cost, fell flat.
336
Voucher legislation, under certain circumstances, would fail to pass rational
basis review for this very same reason. While voucher laws are seemingly
intended to benefit students with disabilities by providing them a choice to leave
the public school system, this choice comes at a significant cost—the waiver of
federal and state laws guaranteeing equal access to education. Rather than
receiving a benefit, students with disabilities suffer the loss of important rights.
In fact, the benefit of voucher laws is recouped by the state, who is released from
federal and state obligations to provide this cohort with equal educational
opportunities and is shielded from liability should vouchers fail to produce better
educational outcomes. Stripping students with disabilities of educational rights
serves no legitimate state purpose, but only insulates states from liability should
they run afoul of federal and state laws.
Most important, however, is that states may have another illicit motive—
limiting their duties to a costly and litigious cohort of students. As the following
section will demonstrate, voucher legislation targeting students with disabilities
may be animated by the states’ desires to limit their responsibility to this group,
and when viewed in this context, it is at least arguable that voucher laws target
students with disabilities for disfavored treatment.
2. Why Vouchers Fail Rational Basis Review
To overcome rational basis review, students with disabilities would need to
demonstrate that voucher legislation unfairly targets them for disfavored
treatment. They could make such a showing by demonstrating two points. First,
states’ proffered justifications for vouchers bear no relationship to the
infringement of students with disabilities’ rights under federal and state laws.
Second, states’ insistence on restricting the rights of students with disabilities is
motivated by two illegitimate goals: avoiding burdensome obligations of federal
laws, and shifting the responsibility of educating a costly and litigious group.
Voucher legislation singles out students with disabilities for disfavored
treatment by requiring that they relinquish important rights to education under
both state and federal laws.
337
And it does so to advance state interests that are
divorced from the legislation’s stated purpose. States claim the animating
principles behind vouchers are improved educational outcomes, fiscal savings,
336
Romer v. Evans, 517 U.S. 620, 633 (1996).
337
ARK. DEP’T OF EDUC., supra note 121.
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and facilitating parents’ ability to choose a school most appropriate for their
children.
338
All of these goals can be readily achieved without limiting students’
rights to equal educational opportunities. Yet, states ask students to waive their
educational rights, inducing dire consequences.
Students with disabilities must trust that the private school will have the tools
necessary to educate them even when their needs require deviations from the
norm. Should private schools fail in this regard, students with disabilities give
up the right to hold schools accountable. Essentially, voucher legislation
encumbers the rights of students with disabilities, and similar to the ordinance
in Romer v. Evans, makes it “more difficult for [them] than for all others to seek
aid from the government.”
339
Students without disabilities can be relatively sure
that they will be able to access a curriculum as delivered by the private school.
Because they do not require additional supports and services, they lose nothing
by forfeiting access to them. But a student who needs differentiated instruction,
and loses access to it, loses everything. Consequently, vouchers single out
students with disabilities for special and disfavored treatment.
Moreover, none of the states’ proffered reasons for enacting voucher
legislation (educational outcomes, free choice, fiscal savings) are related to the
restriction on rights for students with disabilities. States claim that vouchers
offer students with disabilities a way out of a public school system that is failing
to meet their needs.
340
They claim that vouchers offer a chance at better
educational outcomes. The most recent data analyzing student performance
under voucher programs is at best neutral, and at worst evidences poorer
performance in private school settings.
341
But even if the data painted a rosier
picture (finding students with disabilities had improved educational outcomes in
private schools), such a conclusion may still not warrant the restriction of federal
statutory rights enacted to prevent disability discrimination. The restriction of
access to laws designed to protect against disability discrimination and provide
equal educational opportunity is not necessary to the development of school
choice programs. If states are truly concerned about improved educational
outcomes for students with disabilities, then ensuring access to the federal
statutes that would guarantee them the tools they require to facilitate learning
would support that goal. Instead, the government claims that students with
338
See supra Section III.A.3.a.
339
517 U.S. at 633.
340
COPAA REPORT, supra note 4, at 19; EDCHOICE, THE ABCS OF SCHOOL CHOICE: THE
COMPREHENSIVE GUIDE TO EVERY PRIVATE SCHOOL CHOICE PROGRAM IN AMERICA 3 (2018), https://www.
edchoice.org/wp-content/uploads/2018/01/ABCs-of-School-Choice-2018-Edition-1.pdf.
341
See supra note 281 and accompanying text.
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disabilities should forgo federal protections because doing so would facilitate
improved educational outcomes. Just as in Cleburne, the governments’ proffered
interests are “so attenuated as to render the distinction arbitrary or irrational.”
342
Likewise, states claim that vouchers provide parents of students with
disabilities a way to choose a school that best fits the needs of their children. But
facilitating parents’ freedom to choose the right school for their children would
not be stymied by also ensuring their children’s rights were intact when enrolling
in those schools.
Finally, states claim that because vouchers cost less than educating students
with disabilities in public schools, their state budgets reap the savings from
enacting such programs. States would continue to recover those savings without
restricting rights. Further, while fiscal savings are generally viewed by courts as
a legitimate government interest, in those cases where plaintiffs have
demonstrated that legislation targeted their group for disfavored treatment, cost
was not found to be a sufficient goal to warrant such treatment.
343
Rather, at least
in the case where access to education was completely denied, the Court held that
the state may “not . . . reduce expenditures for education by barring [some
arbitrarily chosen class of] children from its schools.”
344
While voucher
legislation does not bar educational access entirely, it effectively makes it much
less certain that students with disabilities will have the supports and services
necessary to ensure they are able to access the curriculum as effectively as their
nondisabled peers. None of the states’ proffered reasons for vouchers would be
impugned by ensuring students with disabilities’ access to federal and state
rights meant to guarantee equal educational opportunity. In essence, the ends do
not justify the means.
Some could argue that private schools may be less willing to accept vouchers
if it means they will be responsible for providing supports and services necessary
to educate students with disabilities. But this criticism actually exposes an
ulterior motive for such legislation—states’ desire to divest themselves of the
obligation to a costly cohort of students. While state legislators publicly adopt
the mantle of free choice as the driving force behind voucher legislation, the real
motivator is the relinquishment of the responsibility to educate a costly and
litigious group of students. Thus, vouchers may appear to provide a benefit to
students with disabilities in the form of money to attend private schools, but
peeling back the curtain on such legislation reveals an entirely different set of
342
City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985).
343
See supra Section III.B.1.
344
Shapiro v. Thompson, 394 U.S. 618, 633 (1969); see also supra note 334 and accompanying text.
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animating principles, which shift the story told by voucher legislation from one
of free choice to one of dereliction of duties.
When students with disabilities are in public schools they have access to a
robust set of rights under the IDEA, the ADA, and Section 504.
345
The statutes
impose affirmative obligations on schools to convey both substantive and
procedural rights.
346
Meeting these obligations can be costly for states. Further,
when schools fail, students can invoke the federal laws to demand that schools
meet their obligations.
347
Such actions can be costly for school districts to defend
against.
348
Limiting students’ access to these laws alleviates this cost.
Because of the monumental deference paid to lawmakers under rational
basis review, some may believe that striking down voucher legislation under the
Equal Protection Clause is, to put it bluntly, a long shot.
349
But, if courts are
willing to recognize that the conversation around vouchers has been
misconstrued, rational basis may still have bite. When analyzing cases that have
failed to survive rational basis review, a new framework emerges. This
framework suggests that when groups are targeted for disfavored treatment,
courts should more carefully scrutinize the state’s proffered interests to
determine whether such interests are legitimate. Vouchers single out students
with disabilities for disfavored status, encumbering their educational rights, but
not the rights of their peers. Thus, vouchers are not simply about helping
students with disabilities get out of struggling public schools. They are about
shifting the burden of educating this costly group of students to the private
sector. Because the justification for such a significant encumbrance on
educational rights is so attenuated to the purpose of the legislation, vouchers
may be the rare type of classification that would, in fact, fail rational basis
review.
345
See supra Section I.B.
346
See supra Section I.B.
347
20 U.S.C. § 1415 (2012). Procedural safeguards include: an opportunity for parents to “examine all
records” concerning their child, to participate in meetings relating to “identification, evaluation, and educational
placement of the child,” to receive an independent educational evaluation of their child, to receive written prior
notice regarding proposals “to initiate or change,” or refusals “to initiate or change the identification, evaluation,
or educational placement of the child, or the provision of a [FAPE]” to the child. Id. § 1415(b)(1), (3).
Additionally, parents have an ability to pursue mediation, and to present a complaint “with respect to any matter
relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to
such child.” Id. § 1415(b)(5)–(6).
348
See supra note 275 and accompanying text.
349
As one scholar candidly summarized, “the conception of rational basis review as a ‘bulwark’ against
significant, and even unreasonable, discrimination seems more to reflect wishful thinking than a candid
assessment of Supreme Court doctrine.” Saphire, supra note 303, at 635.
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IV. SOLUTIONS
In many instances vouchers represent the privatization or elimination of
states’ constitutional obligations to provide for a system of public education.
State legislatures can lawfully decide to spend taxpayer money on such a system,
but if the goal is to provide better educational opportunities in the private sector
for all students, then states should require voucher-recipient private schools to
adhere to many of the requirements of the IDEA as well as the ADA and Section
504. Voucher legislation can more effectively address the inequities currently
borne by students with disabilities, but both federal and state governments must
first recognize the problems created by the current system and have the will to
fix it.
A. Congressional Solutions
The most impactful solution rests with the federal government. For the many
reasons discussed throughout this Article, voucher legislation unjustly burdens
the rights of students with disabilities. Congress could right this wrong with a
straightforward amendment to the IDEA. Congress should clarify that publicly
funded education programs (including vouchers) will be treated as public
placements for purposes of the IDEA.
350
Such treatment would ensure that
certain key responsibilities for the provision of special education services remain
with the state.
351
When the IDEA was enacted, Congress likely did not anticipate the
expansion of hybrid public–private placements, where public funds facilitate
placement at private schools. However, because the IDEA assigns states the task
of identifying all students with disabilities and providing FAPE, such
responsibility should remain with the state when public funds are used to
facilitate an educational placement. For example, under the IDEA, when a child
changes public school programs, through relocation or an intra-district magnet
school option, the state is still responsible for the provision of FAPE to the child,
350
In 1990, the U.S. Department of Education’s Office for Civil Rights issued a memorandum which
stated the agency’s interpretation that students who are placed in private schools through a voucher program are
considered to be parentally placed in private schools and, are thus, not fully covered by the IDEA’s protections.
U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, OCR STAFF MEMORANDUM 1 (1990); see also Letter from
Susan Bowers, Acting Deputy Assistant Sec’y for Civil Rights, and Patricia J. Guard, Acting Dir., Office of
Special Educ. Programs, U.S. Dep’t of Educ., to John W. Bowen, Att’y for Pinellas Cty. Sch. Bd. (Mar. 30,
2001), http://www.ed.gov/policy/speced/guid/idea/letters/2001-1/bowen3302001fape.doc (confirming that
federal civil rights laws “do not directly apply to the private schools participating” in Florida’s voucher program).
351
34 C.F.R. § 300.132 (2018).
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regardless of which publicly funded school she chooses.
352
So too, should the
state’s obligation continue when vouchers are used to place students in private
schools.
Because it would be impractical to expect that private schools would be
equipped to provide all the educational and supportive services necessary for all
types of disabilities, the onus for such provision should remain with the state. In
other words, the IDEA should be amended to clarify that when students use
public funds to attend private schools, the state cannot divest itself of the
responsibility to confer FAPE. Rather, the state would still be obligated to
monitor compliance of private schools “through procedures such as written
reports, on-site visits, and parent questionnaires.”
353
Such an amendment would
facilitate school choice, by allowing parents to select private schools if so
desired, but at the same time would keep the core components of the IDEA intact
such that students who accepted public funding to attend private schools could
be assured of meaningful access to education.
B. State Legislative Solutions
States that wish to enact voucher legislation should ensure that such laws
protect the rights of students with disabilities rather than obfuscate them.
Legislators should require private schools that accept vouchers to fully abide by
the IDEA, the ADA, and Section 504. Further, legislators should include
accountability structures such as participation in statewide assessment and
publicly available student performance data. State legislators should also
demand that voucher recipient schools be able to meet high standards for teacher
qualifications and require special education training or other certifications when
schools hold themselves out as providing special education programs.
Some states are moving in this direction, requiring private schools to meet
accreditation requirements and mandating nationally standardized testing.
354
But
even the states that have implemented accountability measures either explicitly
demand waivers of federal disability rights or remain silent on the voucher’s
effect on these rights.
355
Schools receiving public funds should not only be held
accountable for quality of instruction and for student performance outcomes, but
352
34 C.F.R. § 300.323.
353
34 C.F.R. § 300.147(a).
354
ARK. DEP’T OF EDUC., supra note 121. Arkansas’s Succeed Scholarship Program for Students with
Disabilities requires private schools to meet Arkansas State Board of Education accreditation requirements for
providing appropriate services for students with disabilities. Id.
355
Kevin P. Brady, The Paradox of State-Funded Private Choice Vouchers, Accountability Measures, and
Legal Protections for Students with Disabilities, 344 EDUC. L. REP. 635, 642 (2017).
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should also be prohibited from violating these students’ rights. Thus, states
should both include meaningful accountability measures in the voucher
programs as well as ensure that private schools that participate are, as a whole,
accessible to children with disabilities.
C. Judicial Solutions
Even if Congress and states fail to act, courts have the power and obligation
to achieve several of the foregoing goals. Courts could declare voucher programs
unconstitutional when evidence indicates that the state is using the program as a
solution to poorly funded and underperforming public schools, and conditioning
voucher access on waiver of federal and/or state educational rights.
When the only way to escape a failing public school system is to accept a
voucher that strips away constitutional and statutory rights, students are not
actually exercising free choice. They are forced into making a choice between
two evils. Such coercion should not stand under the unconstitutional conditions
doctrine, particularly where plaintiffs can demonstrate that the government
interests of saving money and improved educational outcomes are not met
through the enactment of vouchers. Further, if plaintiffs can reframe the debate
to demonstrate that vouchers in fact harm students with disabilities, courts
should also strike down such legislation under the Equal Protection Clause.
Courts should ensure that voucher programs do not divest students with
disabilities of their rights, but rather offer them a meaningful choice between
public or private school.
C
ONCLUSION
Giving parents the freedom to choose a school best suited to their child’s
needs is an easy concept to embrace. Parents, after all, are in the best position to
make educational decisions on behalf of their children. But the lure of choice is
lost when its effects on students with disabilities are exposed. For these students,
choice comes at a serious cost. They must also “choose” to give up the critical
state and federal rights that ensure their equal access to education. Without these
rights, students with disabilities have no guarantee that a private school will be
capable of meeting their unique educational needs. For those students who are
in public schools that are already failing to meet their needs, accepting a voucher
and relinquishing educational rights may feel like a coerced choice.
Voucher legislation ultimately violates principles of constitutional law by
unduly burdening students’ rights and unjustifiably targeting students with
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disabilities for disfavored treatment. Moreover, vouchers impose significant
costs on students with disabilities without adequate justification. If states are
sincerely concerned with providing students with disabilities more or better
educational options, they should enact voucher programs without conditions.
This would guarantee that a student with disabilities could walk into a private
school knowing that they would have the same opportunity at a meaningful
education as any other student. If states refuse to take action, then courts should.
If school choice legislation continues to expand, it must recognize the costs
currently imposed on students with disabilities and provide these students with
true, not coerced, choice.
