//  4/17/17  //  Commentary

The new focus on privatizing public education to allow families more choice threatens to leave students with disabilities with no choice at all. The education and integration of students with disabilities depends, in large part, on the legal and constitutional obligations and centralized authority and responsibility of public school districts, and the obligations that come with federal funding to those districts.

The education of students with disabilities is covered by several federal laws:

  • The Americans with Disabilities Act (ADA) requires state and local education agencies and public schools to avoid discrimination on the basis of disability and to provide reasonable modifications when needed to allow their full participation. It also requires students with disabilities to be educated in integrated schools with their nondisabled peers when possible. The ADA also applies similar obligations to private schools, except religious schools. The ADA’s obligations are limited to those that are “reasonable” for the public district or private school and that do not fundamentally alter the educational program.
  • The Individuals with Disabilities Education Act (IDEA) provides federal funding to states and requires public schools to provide special education and related services to students with certain disabilities as needed to ensure they receive an appropriate public education in the least restrictive setting.
  • Section 504 of the Rehabilitation Act prohibits recipients of federal funding, including public schools, from discriminating on the basis of disability similarly to the ADA. It also requires public schools to provide education services to students with disabilities sufficient to ensure an appropriate education, similarly to the IDEA.

The education of students with disabilities in the current system is relatively inexpensive because most students with disabilities go to their local public schools. Therefore, there are often several students with disabilities in any school district who can share the same aide, special education teacher, or other special education services. Moreover, centralized resources of public school districts ensure that special education services are a relatively small percentage of the overall education budget. Federal IDEA funding to states and school districts further reduces the financial impacts. Educating students with disabilities in local district schools also ensures that students with disabilities have both a critical mass and plenty of opportunities to interact with students without disabilities.

Although charter schools are public schools subject to all the legal obligations of their districts, decentralization of public education through charter schools threatens both the education, and the integration, of students with disabilities. As decentralized charter schools replace public schools, students with disabilities should, in the absence of discrimination, also be dispersed across the decentralized schools. This reduces the opportunities for students with disabilities to share their special education resources. As a result, similar services will have to be duplicated at multiple schools, with increased costs to the district. This increased cost, as well as the perceived greater per-school budget impact, creates incentives to restrict students with disabilities to a few schools (often the few remaining traditional public schools).

Thus, while students without disabilities may have more choices, students with disabilities will have fewer, and less integrated, options. When public education funds are also drained to fund the charter schools, those segregated public schools will also likely be underfunded. Decentralized charter school management systems also reduce state and local government agencies’ ability to oversee, identify, and prevent discrimination in individual charter schools.

Voucher-based systems also raise these problems of decentralization and cost, and pose even greater threats to the education of students with disabilities. Voucher schools are private schools. Often they are religious schools. While vouchers are based on state funding, including the federal education funding given to the states, vouchers are usually given to the parents, rather than directly to the private schools. Therefore, it can be argued that the recipient schools are not recipients of federal financial assistance for purposes of the requirements of the IDEA or Section 504. Thus, private voucher schools may not be considered part of the public school system and may be subject only to the requirements of Title III of the ADA. Title III prohibits discrimination and requires reasonable modifications, but those requirements are limited to what is reasonable within the budget and resources of the particular private school, rather than the budget and resources of the public school district or state education system. Nor are they subject to the additional requirements of the IDEA. Moreover, the remedies for violations of Title III, which do not include damages, are unlikely to deter discrimination by private schools.

Religious schools are not even covered by the ADA. Therefore, if Education Secretary Betsy DeVos’ approach of allowing, or even requiring, states to provide vouchers to religious schools, is approved (it may be addressed by the Supreme Court), choices will be even fewer for students with disabilities.

States or school districts distributing vouchers continue to have obligations to ensure that students with disabilities receive special education and equal access to the voucher school program. They must do so by contractually requiring private voucher schools to accept obligations beyond those they would have absent the vouchers. They must also ensure that the vouchers for students with disabilities are funded sufficiently, and flexibly, to cover the costs of special education, related services, and reasonable modifications.

Few voucher programs have even attempted to meet these requirements to date. Even if they do, a district’s ability to ensure that independent private schools actually satisfy the district’s obligations will be limited by its funding, negotiating ability, political will, and oversight capabilities. These pressures, additional costs, and incentives for private schools to avoid admitting or accommodating students with disabilities are likely to result in students with disabilities being the only students left in the few remaining under-resourced public schools.

As public schools become the new institutions, the resulting segregation and limited education threatens to return us to the days when students with disabilities were out-of-sight and out-of-mind. It will undoubtedly result in litigation that is costly for both schools and parents. But such after-the-fact enforcement simply cannot make up for the educational damage that will be done to students with disabilities.

Students with disabilities do not have the time in their educational lives to let the public education system experiment with new approaches while they languish in more and more segregated, underfunded programs. The federal government, state education agencies, and school districts must address and resolve these issues and put in place substantial requirements, oversight systems, and strong enforcement mechanisms before implementing any charter or voucher system.

I am doubtful that they will be able to ensure that students with disabilities don’t lose their current rights in any such system. But failing to do so will result in students with disabilities being denied, not only school choice, but education itself.


President Trump's Assault on the Antiquities Act

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On Monday, President Trump announced that his administration was taking dramatic action to reduce the size of two national monuments in Utah. The President’s announcement is out of step with historical use of the Antiquities Act.

Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

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Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

Trump’s Newest Attack on the Rule of the Law

12/4/17  //  Commentary

Trump isn’t just reckless, and he doesn’t just seem to think he is above the law. He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.

David Sklansky

Stanford Law School