School Choice & Charters

Special Ed. Vouchers May Open Doors for Choice

February 27, 2012 9 min read
Fati Fuchs, center, walks her son, Christopher, and daughter, Carly, home from the bus stop in Gahanna, Ohio. The family is tapping into Ohio tuition-voucher programs to pay for special education services the children need, but don't get, at their private school.
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Meet voucher supporters’ new fellow strategists: students with disabilities.

Creating private school vouchers for special education students—programs that are largely unchallenged in court, unlike other publicly financed tuition vouchers—can be the perfect way to clear a path for other students to get school options, according to school choice proponents.

With this approach, “there is more success legislatively,” said Malcolm Glenn, a spokesman for the Washington-based American Federation for Children. The group advocates school choice, focusing its efforts on tuition vouchers and scholarship tax-credit programs.

“Our opposition is more worried about appearing that they’re standing in the way of special-needs kids’ getting a good education,” Mr. Glenn said. “We don’t really care [about] the reason they don’t oppose the legislation. If we can benefit from that reticence, ... we’re OK with that.”

At least seven states—Arizona, Florida, Georgia, Louisiana, Ohio, Oklahoma, and Utah—have voucher programs for students with disabilities, and some of those have multiple programs. At least another 10 state legislatures are considering new voucher offerings targeted at special education this legislative session.

In addition, Georgia lawmakers have proposed a change to their program this session that would make it simpler for students who want a voucher to qualify for one by waiving a requirement that a student has attended a Georgia public school in the prior year.

In an article published in November in the public-policy journal National Affairs, Marcus A. Winters, a senior fellow at the conservative, pro-school-choice Manhattan Institute, based in New York City, said it would be a poor decision to dismiss the strategy of using special education vouchers as a driver for the movement as a whole.

“But one of the fastest-growing types of school choice program does not fit the typical voucher mold,” Mr. Winters wrote in the article. “It is certainly a mistake, however, to overlook one of the most promising avenues for advancing school choice: voucher programs serving students with disabilities.”

Options Vary

Voucher programs for special education students are very different from state to state. Some states require students to have attended public school for at least a year or more before turning to vouchers to avoid subsidizing private school for families who already can afford it, but others don’t. In some programs, students using vouchers must take state assessments.

State Programs

Seven states already have private school voucher or tax-credit scholarship programs specifically designed for students with disabilities. Others this year are considering adding programs or expanding existing ones.


SOURCES: Education Week; State Education Departments

In other states, students don’t have to use the voucher for private school tuition at all and can instead put the money toward services such as speech and occupational therapy or applied behavior analysis, a therapy specifically for autism. Some states require private schools accepting vouchers to have licensed special education teachers, though many don’t. In most cases, the private schools can reject students they don’t want.

“This is the same playbook voucher proponents have used for 20 years. Twenty years ago, it was kids in so-called failing schools. Now, it’s special-needs students,” said Chris Thomas, the general counsel for the Arizona School Boards Association. “You have a group of parents that are not happy with the system. They’re sympathetic from a public relations perspective. You get that camel’s nose under the tent.”

The school boards association sued in September to end a program established earlier last year called the Arizona Empowerment Scholarship Account. Under the program, parents who sign up get a debit card loaded with 90 percent of what would have been the state’s allocation to the school district for their child. They can use the money for tuition, textbooks, therapy, or college classes while students are still in high school—or the money can be saved and used to attend college full time after graduation.

Mr. Thomas pointed out that Arizona lawmakers already have proposed similar scholarship-account programs for other groups of students, not just those with disabilities.

The school boards association, which joined with the Arizona Education Association and the Arizona Association of School Business Officials to sue the state education department, lost the first round of their legal challenge to the scholarship accounts.

A superior court ruled last month that the program does not violate the state constitution.

The state supreme court previously found another Arizona voucher program for students with disabilities unconstitutional, and Mr. Thomas said he is confident that the scholarship accounts will ultimately meet the same fate.

Joel Butler, a therapist, helps 10-year-old Carly Fuchs with her homework. A scholarship from Ohio’s Autism Scholarship Program helps pay for Carly’s after-school tutoring and therapy sessions. Proponents and critics of school choice programs say the growing number of state scholarship programs for students with disabilities could clear a path for other students to get the same sort of options.

“Arizona has one of the strongest statements in its constitution: No public money can go for private education, religious or otherwise,” he said. Just because the money goes into a debit-card account before it goes to private schools, he added, does not make the program any more legal.

The only other program with a pending legal challenge is Oklahoma’s Lindsey Nicole Henry Scholarships for Students with Disabilities. Several districts in the Tulsa area sued parents using the scholarships last year, with hopes that the program will eventually be found unconstitutional.

In states that prohibit tax dollars from being spent at educational institutions that have a religious affiliation, special education vouchers aren’t any more defensible, legally, than voucher programs for other students, said Richard Komer, a senior lawyer for the Arlington, Va.-based Institute for Justice.

“But it’s for, I’d say, largely social or political reasons that they don’t get challenged,” said Mr. Komer, whose organization is a libertarian public-interest law firm that supports vouchers and other forms of school choice. “The dynamics are very different when you’re talking about children with special needs, for a whole number of reasons.”

One of those reasons, he said, is “general paternalism": “We feel more sympathetic toward disabled kids and families of disabled kids. We’re more willing to accommodate and provide vouchers for them than run-of-the-mill kids.”

That sentiment bothered Lindsay Jones, the senior director for policy and advocacy services for the Arlington, Va.-based Council for Exceptional Children, which represents special educators, children with disabilities, and gifted children.

“It fundamentally disrespects children with disabilities. That viewpoint is discrimination. We would oppose [vouchers] on those grounds alone,” she said. “It’s not an attitude that shows respect for people with disabilities. They don’t need pity. They need respect.”

They also don’t need to have public funds diverted to private schools at a time when school district resources are already stretched thin, she said.

Parental Rights

Private school vouchers concern Ms. Jones for another reason, too. When parents use them, they lose their rights to participate actively in their child’s education and to object when they believe their child isn’t getting the educational services he or she is entitled to under the federal Individuals with Disabilities Education Act, also known as IDEA. The law entitles students to an education in the least-restrictive classroom setting. Every student with a disability is supposed to get a special plan, updated annually, that outlines learning goals and how to achieve them. When parents disagree with schools, the IDEA outlines specific options for them to challenge schools’ decisions.

Ben Cooper, a therapist working with the Fuchs family, helps Christopher with his homework. Because the private school Christopher attends doesn’t have a special education teacher on staff, the family is hoping a new tuition-voucher program in Ohio will pay for an aide to work extra hours in his classroom.

“I can’t imagine wanting to relinquish those rights,” Ms. Jones said.

She said many parents may not be aware that they are giving up those rights when they use a voucher to enroll their child in a private school.

Fati Fuchs, a mother of three in Gahanna, Ohio, has never sent her children to public school. She said she is comfortable with the education they are getting at St. Matthew School, a Roman Catholic school in her community that doesn’t meet state requirements to accept vouchers in part because there is no special education teacher on staff.

Ms. Fuchs uses Ohio’s Autism Scholarship Program, created in 2003, to pay for therapy and tutoring for her daughter, Carly, 10, who has autism. And she is signing up her older son, Christopher, 12, who has Down syndrome, for Ohio’s brand-new voucher program for all students with disabilities. She’d like to use the money to pay for additional hours for an aide for his classroom.

“You have to be smart about how you use the funding to best meet the needs of the child,” Ms. Fuchs said.

‘Not About the Students’

But if a private school or special program really is right for a student, then the student’s school district will put the student there, said Dennis Van Roekel, the president of the National Education Association. The teachers’ union has long opposed private school voucher programs.

Districts across the country enroll some students with disabilities in private programs, at the districts’ expense, Mr. Van Roekel said. In those cases, students with disabilities and their parents maintain all their federal rights under the IDEA.

“What we need to use are proven programs, not experiments in privatizations,” he said.

Mr. Van Roekel said Florida’s special education voucher program, the McKay Scholarships for students with disabilities, established in 1999, is an example of how vouchers with one intention can morph into something else. The state doesn’t require students to have attended public school before receiving a voucher, so participating in the program may not be indicating dissatisfaction with the public school system.

Last year, the state legislature expanded scholarship eligibility to 51,000 students who aren’t in special education. This group includes students with Section 504 plans—a population that could include students with allergies, asthma, attention deficit hyperactivity disorder, or other conditions that can impair learning. The state also has created a corporate tax-credit scholarship program for all students.

“They use it to open the door to vouchers to all of K-12,” Mr. Van Roekel said. “That so clearly demonstrates it’s not about the students. It’s about a shifting of public dollars into private coffers.”

Oklahoma created a voucher program for some low-income students about a year after it began offering scholarships for students with disabilities.

Meeting Needs

One of the groups behind the empowerment-scholarship-account idea in Arizona is the Phoenix-based Goldwater Institute, a conservative think tank.

The idea was tossed around at least seven years ago but didn’t get any traction until recently, said Jonathan Butcher, the institute’s education director. While the accounts do help further the school choice agenda, they also fill a legitimate need, he said.

“We call on public schools to be all things to every student. The fact is, kids have different needs. That’s a reality, especially kids with special needs,” Mr. Butcher said. “The idea is always to be conscious of students that have needs a traditional public school can’t meet specifically.”

Mr. Thomas of the Arizona school boards group said he sympathizes with parents of children with disabilities, who sometimes must battle school districts to get the services and setting they want for their children. But that doesn’t justify private school vouchers for these students, he said.

“I reject the notion completely that the special education system is broken,” Mr. Thomas said, “and that this is a solution if it were broken.”

Coverage of parent-empowerment issues is supported by a grant from the Walton Family Foundation, at
Nirvi Shah, Writer contributed to this article.
A version of this article appeared in the February 29, 2012 edition of Education Week as Special Ed. and Choice Ties Grow


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