Anyone watching U.S. Secretary of Education Betsy DeVos’ testimony Tuesday before a Senate education appropriations subcommittee heard some version of this statement secretary several times: “Schools that receive federal funds must follow federal laws.”
That was her response to questions about whether any school that receives federal money for vouchers would be allowed to discriminate by gender or by sexual orientation, for example.
My colleagues Arianna Prothero and Andrew Ujifusa have written about anti-bias provisions in state voucher programs more broadly, but I want to explore what federal law has to say about students with disabilities more specifically.
The answer, in a nutshell, as always: It’s complicated.
Why this matters now is that the Trump administration’s proposed education budget includes $250 million to pay for and to study private school vouchers. The program would not send federal dollars directly to private schools in the form of vouchers; instead, it would create a competitive-grant program for states to start voucher programs or expand the voucher programs they already have operating.
The Individuals with Disabilities Education Act
Currently, federal law states that parents who choose to enroll their children in private schools do not receive the Individuals with Disabilities Act protections that are granted to public school students. The IDEA is silent on vouchers, but many state voucher programs require parents to explicitly waive their rights to IDEA protections.
Private school students may be allowed to have publicly funded special education services, however. That’s because private schools are entitled to a proportionate share of the federal special education money that is sent to the school district where the private school is located. This is true even if the student lives outside the boundaries of that school district.
So, if private schools in a given district enroll 5 percent of all the identified disabled students, the district should spend 5 percent of its federal IDEA allocation on services for private school students with disabilities. That doesn’t guarantee that any individual student would get services, but it means that private schools are entitled to a small slice of the federal IDEA pie.
(This isn’t very much money, all told: The federal contribution to special education, about $12 billion, is around 15 or 16 percent of the estimated total cost. The rest of the money comes from local districts and states.)
As for the waiving of rights and protections, this troubles many parents and has been a rallying cry for advocates. If a private school can’t or won’t meet a child’s needs, the parent has little recourse other than to leave.
But this is true of the public school system as well, other parents say. The IDEA does grant parents the right to advocate for a better educational plan for their children. Also, public districts can be forced to pay private school tuition if that’s the only way that a student’s individual needs can be met. But many families say those protections guaranteed under the IDEA are not really available to them because don’t have the time, money, or inclination to enter into a protracted battle with a school district. So they say accepting a voucher or using an educational savings account is a better choice.
The ADA and Section 504
The other major federal disability laws affecting students are the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.
The ADA requires private schools to make reasonable accommodations for people with disabilities. This might include structural changes to a school building, or notetakers for students who need such services.
But religious entities are exempt from the ADA under federal law, as are schools operated directly by religious entities. Also, accommodations must not represent an undue burden on a school or a fundamental alteration of its program. (This Q&A document from the PACER center, a parent training and information center, goes into greater detail.)
Section 504 prevents schools that receive federal money from discriminating against students. But is a school that receives a voucher the “recipient” of federal funds? Or is the recipient really the family that takes the voucher and decides how to spend the money? The design of the program is key.
And some courts, such as the U.S. Circuit Court of Appeals for the 4th Circuit, have found that school districts are not required to offer even a share of services to private school students under Section 504. This makes Section 504 different from the IDEA. “The school board need not serve up its publicly funded services like a buffet from which [parents] can pick and choose,” the 4th Circuit wrote in its 2013 decision on D.L. v. Baltimore City Board of School Commissioners.
The pointed debate over vouchers and student rights is unlikely to end soon. Neither is the debate over the budget itself. But part of the murkiness of the issue comes from Congress—and that is the body that could resolve some of these issues, if it chose to do so.
A version of this news article first appeared in the On Special Education blog.