Tuesday, May 19, 2015

Special needs vouchers and federal law

In an article on special needs vouchers in today's Milwaukee Journal Sentinel, reporters Erin Richards and Jason Stein report that the "chief concern" of groups opposing such vouchers is that " [p]rivate schools are not obligated to follow federal disability laws."

While I am sure that critics of vouchers make this claim, it is not, strictly speaking, true. No private schools are subject to requirement that they provide what is known as a "FAPE" - a free and appropriate public education - as required by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). That makes sense. They aren't public schools. (They also aren't funded to provide it.)

But private schools may be subject to certain federal anti-discrimination mandates. They are not - although the Civil Rights Division of the U.S. Department of Justice apparently disagrees - subject to Title II of the Americans with Disabilities Act. That law requires public entities to accommodate persons with disabilities unless it would "fundamentally alter" the program offered by that public entity.

However, some private schools are subject to Title III of the ADA which imposes the same standard. Religious schools - which do comprise most schools participating in Wisconsin's school choice programs - are exempted from Title III, but even those schools may find themselves subject to a federal anti-discrimination norm. If they accept federal funds, they may be subject to the requirements imposed by section 504 of the Rehabilitation Act which requires accommodation if it can be achieved with "minor adjustments." The United States Department of Education, moreover, has taken the position that this "minor adjustment" standard applies generally to voucher schools.

Even if those schools accepting students with special needs vouchers were subject to no federal requirements, this does not mean that they would be "unaccountable." One would have to understand applicable state law requirements. It's hard to do that if you haven't seen the bill. "Federal" is not synonymous with "gold standard" or even, for that matter, "useful." Of course, parents would also have the ability to hold schools accountable. I understand that some people in the "helping  professions" may be skeptical of the ability of people to help themselves. (It would be bad for business.) I'm a bit more optimistic.

Cross posted at Purple Wisconsin

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