Reality over Ideology: A Practical View of Special Needs Voucher Programs

Author:Elizabeth Adamo Usman
Pages:53-96
 
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REALITY OVER IDEOLOGY:
A PRACTICAL VIEW OF SPECIAL NEEDS
VOUCHER PROGRAMS
ELIZABETH ADAMO USMAN*
I. INTRODUCTION
In many school systems across the country, children with disabilities
are not receiving the education that they are entitled to by law and need in
order to reach their full potential.1 Although there are certainly triumphant
examples of school systems that have succeeded in supporting students
with special needs,2 there are unfortunately far too many examples of
neglect, misunderstanding, and, ultimately, failure across the country.3
Into this struggling system emerges an expanding and difficult challenge
that only adds further pressure. Due to the growing numbers of children
diagnosed with Autism and the level of expertise required to deal with
many of the symptoms of this disorder, educating children with Autism has
become a particularly pressing issue for both the school systems and the
families of children with this disorder.4
Confronting this struggling system to which additional pressure is
being added, some state legislatures have proposed a dramatic rethinking
of how to most effectively educate children with special needs. A number
of state legislatures have moved forward with voucher programs that allow
the families of disabled students to forgo public school and instead use
public funds for a private school program that the family deems a better
alternative for the student’s needs.5 While most of these programs cover
Copyright © 2014, Elizabeth Adamo Usman.
*Assistant Professor of Legal Practice at the Belmont University College of Law in
Nashville, TN. I dedicate this article to Richard Adamo, my first and best professor. I also
offer my appreciation to Shea Agee, Brittany Dugas, Dayne Geyer, and Kristi Pickens for
their excellent research assistance. My thanks as always to Jeffrey Usman and Emmett
Usman.
1 See infra Part III.B and accompanying notes.
2 See infra Part III.A, C–D.
3 See infra Part III.B (discussing Utah’s Carson Smith Scholarship for Students with
Special Needs), III.F (discussing Louisiana’s School Choice Pilot Program for Certain
Students with Exceptionalities).
4 See infra Part II and accompanying notes.
5 See infra Part III and accompanying notes.
54 CAPITAL UNIVERSITY LAW REVIEW [42:53
children with disabilities generally, a small number of these proposals have
been Autism-specific.6
Much of the debate surrounding these programs has been politically
charged, with proponents of universal school voucher programs lauding
these programs and teacher’s associations posing opposition.7 There has
also been significant debate and division within the disability community
itself about the merits of these programs.8
The legal academy, however, has spent little time examining this
legislative solution to the disability education problem.9 Moreover, the
scholarly work that has engaged with this issue shares a fundamental flaw:
failure to recognize that an imperfect solution may still be the best solution
available.
This Article seeks to evaluate the advantages and disadvantages of
special needs voucher programs within the context of the reality facing
families of children with special needs. This Article will focus on how
these programs affect the education of children with Autism because it is
difficult to evaluate these programs without a more concrete context. This
Article focuses on the pressing problem associated with educating the
growing population of students with Autism, evidenced by the fact that
some proposed voucher programs are specifically targeted for and limited
to children with Autism.
Part II will give a brief definition of Autism Spectrum Disorders and
then describe the harsh reality that many families of children with Autism
face when trying to educate their children in public school systems.10 Part
III will survey the existing special needs voucher programs that have been
created in response to problems in the public school systems.11
With that context in mind, Part IV will examine commentators’
criticisms of special needs voucher programs and will strive to evaluate
those critiques without ignoring the reality that exists for children with
disabilities, such as Autism, in many public school systems around the
country.12 This Part will conclude that, while there are some valid
concerns, ultimately the programs still give children with disabilities,
6 See infra Part III.D and accompanying notes.
7 See infra Part VI and accompanying notes.
8 See Wendy F. Hensel, Vouchers for Students with Disabilities: The Future of Special
Education?, 39 J.L. & EDUC. 291, 294 (2010).
9 See id. at 293.
10 See infra Part II.
11 See infra Part III.
12 See infra Part IV.
2014] REALITY OVER IDEOLOGY 55
particularly children with Autism, and their families a better option than is
available to them in public school systems.
Part V will suggest that there is an underlying, fundamental reason that
opening up a private school option to children with serious special needs,
such as Autism, offers a better policy solution to this complex and growing
problem: because it allows both the school and the family of the child to
choose one another.13 This element of choice allows a beneficial and
trusting relationship to form between the school and the family, something
that is unfortunately missing in some public school systems that are
required to educate students with special needs. This overlooked and
unappreciated aspect of the relationship between the school and the family
is explored in a manner that illuminates the enormous significance that the
relationship plays in accomplishing the difficult task of providing an
appropriate individualized education.
Finally, Part VI will explain how the issue of special needs voucher
programs has created a debate among partisan interest-group politics and
will argue that politicizing the issue has turned what should be an open
exploration of a creative solution to a serious problem into a symbolic
battle of ideological purity.14
II. AUTISM AND PUBLIC SCHOOLS
To evaluate special needs voucher programs in purely theoretical terms
is to ignore the problems with the status quo that these programs are meant
to address. Instead, one must understand the reality facing many students
with Autism and their families in public schools across the country so that
the programs may be measured in comparison to the current situation. To
accomplish this end, Section A of this Part will briefly define Autism and
discuss how a diagnosis of Autism affects the student’s entire family.15
Section B will discuss the problems many students with Autism and their
families face in public schools across the country.16
A. Students with Autism and Their Families
The American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV)17 defines Autism as a
13 See infra Part V.
14 See infra Part VI.
15 See infra Part II.A.
16 See infra Part II.B.
17 The American Psychiatric Association continues t o revise its new Diagnostic and
Statistical Manual of Mental Disorders, the DSM-5. DSM-5: Implementation and Support,
(continued)

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