Coerced Choice: School Vouchers and Students With Disabilities

• Publication year: 2019

Coerced Choice: School Vouchers and Students with Disabilities

Claire Raj

COERCED CHOICE: SCHOOL VOUCHERS AND STUDENTS WITH DISABILITIES

Claire Raj^*

Abstract

The landscape of public education, once thought to be a core function of the state, is shifting towards privatization. The appointment of Betsy DeVos as U.S. Secretary of Education further cements this shift. In particular, DeVos intends to vastly expand the availability of vouchers and tax credits that use public dollars to fund private school tuition. The debate over this expansion and its impact on traditional public schools has been polarizing and combative. Thus far, commentators have framed vouchers as purely matters of choice and increased educational opportunities. Drowned out in the debate are the voices of students with disabilities. This Article reframes this conversation and reveals that many students with disabilities may not have a choice at all.

This Article is the first to argue that voucher legislation, as applied to students with disabilities, violates two principles of constitutional law: the unconstitutional conditions doctrine and equal protection. First, some states force students with disabilities to give up crucial federal and state educational rights in exchange for vouchers. The unconstitutional conditions doctrine, however, limits government's authority to require individuals to forgo their rights in exchange for a gratuitous benefit. Vouchers cross those limits, coercing students into accepting a restriction of significant rights to escape failing public schools. Second, equal protection requires that states sufficiently justify legislation that targets particular groups for disadvantage. While states claim that vouchers for students with disabilities are justified by better educational outcomes, many states are, in fact, motivated by their desire to eliminate the costs and burdens associated with educating students with disabilities in public schools. Moreover, far from providing a benefit, vouchers have the potential to resegregate students with disabilities—an ironic outcome given that federal disability rights law was founded on the principle of inclusion for all children.

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Introduction...........................................................................................1039

I. The Explosion of School Choice and Its Implications for Students with Disabilities.........................................................1044

A. School Choice Gains New Momentum ................................... 1044
B. Federal Disability Rights Statutes in Private Schools............ 1047

1. The Individuals with Disabilities Education Act .............. 1047
2. Section 504 of the Rehabilitation Act of 1973 .................. 1051
3. The Americans with Disabilities Act ................................ 1052

II. Vouchers' Practical Effects for Students with Disabilities....................................................................................1055

A. The Loss of Critical Legal Protections................................... 1056

1. Substantive Guarantee of an "Appropriate" Education 1057
2. Parental Participation...................................................... 1058
3. Disciplinary Protections ................................................... 1059
4. School Accountability ....................................................... 1060

B. A Tool of Resegregation ......................................................... 1062

1. Waiving the Presumption of Least Restrictive Environment ..................................................................... 1063
2. Targeting Specific Categories of Disability ..................... 1065
3. Facilitating Exclusion ...................................................... 1066

III. Constitutional Limits................................................................1068

A. The Unconstitutional Conditions Doctrine............................. 1068

1. Principles of Unconstitutional Conditions ....................... 1070
2. The Unconstitutional Conditions Doctrine as a Framework for Analyzing Vouchers .................................................... 1072

a. State Constitutional Rights ........................................ 1073
b. Federal Statutory Rights ............................................ 1075

3. Evaluating the Constitutionality of the Conditions on Vouchers ........................................................................... 1077

a. Legitimacy of the Government Interest ...................... 1078
b. Coercive Nature of the Bargain ................................. 1084

B. The Equal Protection Clause.................................................. 1087

1. When Laws Fail Rational Basis Review ........................... 1088
2. Why Vouchers Fail Rational Basis Review ...................... 1092

IV. Solutions......................................................................................1096

A. Congressional Solutions ......................................................... 1096
B. State Legislative Solutions ...................................................... 1097
C. Judicial Solutions ................................................................... 1098

Conclusion...............................................................................................1098

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Introduction

The landscape of public education, once thought to be a core function of the state, has been shifting towards privatization over the past decade. The 2016 election of Donald Trump and subsequent appointment of Betsy DeVos as U.S. Secretary of Education further cemented this shift. In her first official policy address, Secretary DeVos called for an expansion of school choice programs, stating that "we must shift the paradigm to think about education funding as investments made in individual children, not in institutions or buildings."¹ In particular, DeVos wants to vastly expand the availability of vouchers and tax credits that use public dollars to fund private school tuition.² Though vouchers have existed for decades, they have always operated at the periphery of education reform efforts.³ Over the past five years, however, states have significantly expanded voucher or voucher-type programs.⁴ DeVos's mission has been to supercharge these programs, taking them from the sidelines directly to center field.

This shift is understandably generating contentious debates. Voucher proponents believe market forces and increased parental choice will improve educational options and outcomes.⁵ Voucher opponents fear that such programs will drain public schools of vital federal and state dollars and only further exacerbate the education gap between the "haves" and "have-nots."⁶ Drowned

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out in the factious debates are the voices of students with disabilities. Yet, vouchers have both significant and unique implications for these students.

In many instances, voucher programs attempt to roll back crucial legal protections for students with disabilities and do so without making parents fully aware of the far-reaching consequences.⁷ First, several states demand that students with disabilities waive important federal and state educational rights to gain access to a voucher.⁸ A recent federal report highlights the shocking levels of misinformation about the loss of these rights.⁹ Eighty-three percent of voucher programs are either vague or silent about the resulting loss of educational rights triggered upon acceptance of a voucher.¹⁰ As a result, students with disabilities can find themselves in a private school ill-equipped to meet their educational needs, but unable to engage federal disability rights laws to demand more appropriate supports or services.¹¹ These students can only hope that the private school will voluntarily attempt to meet their educational needs.

Second, the proliferation of vouchers has the potential to resegregate students with disabilities, a group who spent decades fighting for the right to be integrated into regular education settings.¹² Prior to enacting sweeping federal disability rights laws, students with disabilities were either cordoned off into segregated educational settings or denied an education altogether.¹³ New state enacted voucher programs restrict eligibility by disability category, recreating the decades-old problem of sorting students with disabilities into different

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schools.¹⁴ Even with more general voucher programs, the threat of segregation remains because private schools are free to reject those students who need something more than "minor adjustments" to access the school's program.¹⁵ Thus, when private schools reject these students, the effect is to leave those particular students with disabilities in public schools. Were these students in well-functioning public schools, the inability to leave this setting would be a nonissue. But too often, not only are certain categories of students left behind, they are left behind in failing public schools from which their peers are rapidly fleeing.¹⁶

Thus far, commentators have framed vouchers as purely matters of choice and increased educational opportunities.¹⁷ This Article reframes this debate to demonstrate that many students with disabilities may not have a choice at all. To the contrary, many students with disabilities will find their choices are limited by a lack of private schools willing to admit them. Even when they are admitted, private schools may not be able to properly serve their needs, or worse, may segregate them into separate learning environments. Thus, rather than expanding opportunities, states take advantage of students with disabilities' compromised situations and force them to give up their legal rights in exchange for vouchers to attend schools that may be just as ill-equipped to meet their needs.

This Article analyzes the serious constitutional and statutory issues that the current generation of vouchers raises for students...