The Fallacy of Choice: The Destructive Effect of School Vouchers on Children with Disabilities

By Farrell, Ian; Marx, Chelsea | American University Law Review, January 1, 2018 | Go to article overview

The Fallacy of Choice: The Destructive Effect of School Vouchers on Children with Disabilities


Farrell, Ian, Marx, Chelsea, American University Law Review


Introduction

In a nationally televised interview on March 11, 2017, the U.S. Secretary of Education Betsy DeVos advocated for the benefits of voucher programs, also called "school choice" programs by Secretary DeVos and other proponents.1 School voucher programs have long been Secretary DeVos's signature policy initiative, predating her tenure in the Trump administration and stretching back to her leadership roles in non-profit organizations.2 School voucher programs allow qualifying students to attend private schools using public funds, in the form of "vouchers," to pay for part or all of the private school tuition. Critics of school vouchers contend that these programs cause funding flight from public school systems and divert public resources into the coffers of private-and overwhelmingly religious-organizations.3 Supporters of school vouchers claim that vouchers provide two benefits. First, they claim that vouchers increase freedom of choice in education by allowing parents to place children in the schools of their choosing, rather than in underperforming public schools. Second, school voucher proponents claim that vouchers increase competition and efficiency in education.4 School choice advocates also claim that vouchers are especially beneficial for students with disabilities. Advocates of voucher programs have made this claim so often that students with disabilities have been described as the "poster children" of the voucher movement.5 This claim is difficult to reconcile with the legal and practical effects of voucher programs on these vulnerable students. To participate in school voucher programs, students with disabilities are required to give up most, if not all, of their rights under federal law. Giving up these rights entails giving up access to resources that allow them to fulfill their educational potential. These students must also give up the federal right to be free from discrimination on the basis of their disability.

These forfeitures are far from insubstantial. To alleviate these hardships, Congress passed the Individuals with Disabilities Education Act (IDEA).6 The IDEA guarantees every child a "free appropriate public education."7 It contains comprehensive substantive and procedural mechanisms for delivering this right in a manner crafted to meet the individual needs of every student with a disability.8 Indeed, the prospect of a federal school voucher program comes at a time when the rights of students with disabilities under the IDEA are stronger than ever before. In 2017, the Supreme Court rejected the argument that the IDEA merely requires schools to provide a de minimis education.9 Instead, the Court read the IDEA as requiring schools to ensure students achieve appropriate progress in attainment of educational goals.10

This Article argues that existing school voucher programs have a profound negative effect on students with disabilities, and their parents, and that any future federal program modeled on state programs would be similarly detrimental. These parents have two options. One is a public school education with a legally enforceable guarantee of nondiscrimination and genuine educational advancement. The other is participation in a voucher program that permits participating schools to discriminate on the basis of disability-including by simply refusing to enroll students with a disability. A choice that comes with such a price tag is, of course, no true choice at all. For parents whose children have a disability, in other words, voucher programs' supposed freedom of choice is a mirage. Furthermore, school voucher programs cause funding flight that leaves public schools without the resources required to adequately provide for the demanding individuated needs of students with disabilities-further harming students with disabilities whose parents had no real choice but to keep them in underfunded public schools.11

This Article argues that a federal school voucher program would be, from a policy perspective, disastrous for students with disabilities. …

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