By Jessica Levin
Over half of the state programs providing vouchers for private schools are targeted to students with disabilities, and proposals for new or expanded voucher programs continue to be introduced in state legislatures across the country.
Given the growth of vouchers for students with disabilities, a recent report by the Government Accountability Office (GAO) about the impact of vouchers on special education rights is alarming. The report, Private School Choice: Federal Actions Needed to Ensure Parents Are Notified About Changes in Rights for Students with Disabilities, issued in November 2017, found the availability and accuracy of information provided by states to parents seriously lacking. Parents are often not informed that special education rights are drastically diminished when students with disabilities use vouchers to attend private school.
Students with disabilities enrolled in public school or placed in a private school by a local education agency have robust rights under the Individuals with Disabilities Education Act (IDEA). The centerpiece of the federal law is the right to a free appropriate public education (FAPE) with the individualized programs and services students need to access a FAPE.
In sharp contrast, students “parentally placed” in a private school – including those using vouchers – lose their right to FAPE and to receive some or all of the special education and related services public schools are legally obligated to provide under IDEA. These children also lose the right to be educated with their nondisabled peers to the maximum extent appropriate (the “least restrictive environment” requirement) and forfeit IDEA’s procedural protections against inappropriate discipline.
In enacting voucher programs, states do little or nothing to inform parents of the legal ramifications of using vouchers. Shockingly, the GAO report concluded that “in school year 2016-17, 83 percent of students enrolled in a [voucher] program designed specifically for students with disabilities were in a program that provided either no information about changes in IDEA rights or provided information that [the U.S. Department of] Education confirmed contained inaccuracies about these changes.”
Additionally, the GAO’s review of a national sample of the websites of private schools participating in voucher programs found that no more than half even mentioned students with disabilities. Fewer than a quarter of the websites for private schools participating in voucher programs designed specifically for students with disabilities provided information on key special education issues, such as the types of disabilities served by the schools and whether teachers were trained to work with students with disabilities.
The GAO report recommends federal action. First, Congress should consider requiring states to notify parents of the changes in federal special education rights when parents place their children in a private school. The IDEA does not currently require such notice, and the U.S. Department of Education (USED) has taken the position that it has no authority to do so. Second, USED should review the information states are currently providing on changes to legal rights and protections for students in voucher programs and work with states to correct inaccuracies.
The GAO report is a stark reminder that students with disabilities forfeit many legal rights and protections when they use a voucher for private school. In highlighting the serious lack of notice about these changes, the report provides compelling support for the case against authorizing or expanding voucher programs for students with disabilities. States should not be spending scarce public dollars on voucher programs that not only fail to serve students with disabilities, but also undermine their legal rights.
Jessica Levin, Esq., is an attorney at Education Law Center. ELC is a partner in Voucher Watch with Munger, Tolles & Olson LLP in Los Angeles.
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