The implications of school choice for children with disabilities.

• Author: Wong, Mei-lan E.

Imagine two brothers, Mike and Tom. They both attend elementary school in a district that recently implemented a Magnet School Choice Program. Ideally, Mike and Tom, like all other children in the district, will have their choice of the seven elementary schools in their district. But Tom has a learning disability and a hearing impairment, and requires special teachers and resources available at only two schools. Therefore, although Mike can choose to attend any school in the district, only two schools can serve Tom's needs. While some readers will find this situation acceptable, others will find it an affront to principles of equality. Unfortunately, the courts and Congress have not provided any definitive answers to this dilemma.

Choice is a new beast. In 1975, when Congress adopted the Individuals with Disabilities Education Act,(1) no students were offered a choice among public schools. All students were assigned to schools that offered substantially the same educational programs. Today, however, the hot topic in education is choice: choice through vouchers for use at private schools; choice among public magnet schools; choice to give parents greater input in the process of educating their children. In light of this increasing focus on choice, it is surprising that advocates of choice-based reforms have not yet addressed the implications of their proposals for an important segment of school populations--students with disabilities.(2) In the past two decades, Congress and the federal courts have developed a substantial body of law governing the rights of children with disabilities in the realm of education. Proponents of school choice, however, have made little effort to demonstrate how choice schemes might comport with the policy goals of this body of law.

Once a state or local school district decides to offer students and parents a choice among schools, to what degree must it make the same choice available to students with disabilities? The dilemma for the student with disabilities lies in the choice between a desired academic program at one school and necessary special services at another. The choice system precipitates the dilemma of either preparing every school to accommodate students with disabilities or denying these children admission to certain schools.(3)

The central object of this Note is to bring attention to the equal access issues the school choice debate raises for children with disabilities. Any decision to implement school choice must take into account existing legal requirements for the education of children with disabilities. This Note is divided into three parts. Part I examines some of the reasons why choice is posited as a response to the ailments of our education system. I describe some basic attributes of the five types of choice proposals most frequently discussed in the school choice debate, including the private school voucher model and the public magnet school model. Part 11 discusses the legal requirements regarding the education of students with disabilities. I review case law leading to the enactment of federal legislation affecting children with disabilities--section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA)--and subsequent court decisions interpreting them. In particular, I focus on the "mainstreaming" and "least restrictive environment" requirements of the IDEA and the values that underlie them to demonstrate that they are not merely policy goals but mandates of federal law. Part III closely scrutinizes the possible incentives at work in a system of choice and explores the implications of choice-based reforms for the child with disabilities. I conclude that although courts would likely condone a carefully designed choice system, finding it compatible with the letter of section 504 of the Rehabilitation Act and the IDEA, even the most carefully designed choice system would have trouble complying with the spirit of these laws.

The IDEA is based on the principle that children with disabilities are entitled to the same educational opportunities as their nondisabled peers. But the IDEA holds states and local educational agencies, not individual schools, responsible for providing a "free appropriate public education" to all children with disabilities.(4) Moving decisionmaking power to the individual school level under a choice program creates a gap between who decides whether a school will offer special education and who federal law holds responsible for the education of children with disabilities. I argue that market pressures create a powerful disincentive for individual schools to provide special education programs. A choice school system that does not provide special education at every choice school does not provide children with disabilities equal access to the same educational opportunities as their nondisabled peers. Therefore, such a system violates the spirit of section 504 and the IDEA.

1. THE EMERGENCE OF CHOICE AS A MEANS OF SCHOOL REFORM

   The educational system in the United States is troubled. Concerns for the health of our educational system first gained national attention with the release of the report A Nation at Risk.(5) The report indicated that America's schools were "being eroded by a rising tide of mediocrity that threatens our very future as a Nation and a people."(6) According to the National Commission on' Excellence in Education, "[o]ur society and its educational institutions have lost sight of the basic purposes of schooling, and of the high expectations and disciplined effort needed to attain them."(7)

   Choice has recently emerged as one solution to the failings of the present system. Choice advocates argue that giving parents the ability to choose their children's schools will inject free market competition and greater democratic control into the management and design of schools, thereby breaking the current government monopoly on public education. This new competition will spur schools to unprecedented excellence. Proponents of choice further contend that if schools compete for their funding and students, as do other businesses, they will innovate and improve. A more efficiently run system and academic improvement will be the natural result.

   1. Objectives of Choice

      The primary objective of any choice plan is to improve schools--to maximize academic excellence. Although the current assumption is that every public school within a district provides roughly the equivalent education, in fact, tremendous inequalities exist among schools. Choice advocates argue that rather than passively accept the assignment of students to unequal schools, we should acknowledge and aspire to have differences in schools and allow parents and students to choose among them, thereby rewarding the good and weeding out the bad. As then Secretary of Education Lauro Cavazos explained:

      [Choice will] offer opportunities to inject vitality into the education

      system. [Choice] programs encourage teachers and principals to

      become innovators and to structure curriculum to meet high academic standards. They also involve parents in the school and encourage students to become learners.(8)

      The crux of choice plans is that schools are no longer assumed to be the same. Choice is meant to provide diversity within education. As school management decisions shift from the broader district level to the individual schools, each school provides its own special outlook and system of education to attract students to its classrooms. Difference among schools gives parents a reason to choose one over another. As Congressman Steve Bartless (R-Tex.) stated in a U.S. Department of Education report, choice systems provide a competitive marketplace for schools, "[s]o each school can offer a unique educational opportunity to all of its students and that will encourage students to come to school."(9)

      Advocates claim that choice will help achieve these goals in several ways. Proponents of choice focus first and foremost on parental involvement as a valuable contribution, as well as a mechanism of accountability.(10) Parents can provide valuable input into the formulation of the education program for their children.(11) Having a greater voice in their child's education gives parents a greater stake in the success of the school.(12) If a school does not meet their standards, parents can move their children to another school, taking their child's funding with them. As schools lose their monopoly and guaranteed enrollment, they will have a greater incentive to meet parents' demands for improvement.(13) Furthermore, under choice, the number of families involved in selecting their children's schools will expand.(14) Choice advocates believe that parental involvement will translate into greater parental commitment to schools and to their children's education.(15)

      Following this line of argument, the now famous team of John Chubb and Terry Moe propose choice and democratic control as the answer to the lack of consumer power over schools. In their view, today's schools are bureaucracies that were not designed to take into account the demands of their ultimate consumers, parents and children. Chubb and Moe posit that this lack of control accounts for our educational system's failure to meet the public's needs and wants.(16) Choice proponents believe that these proposals are necessary to change the structural and institutional problems of schools, which are now operating as dysfunctional public monopolies without market controls.(17) Because their interest lies in perpetuating themselves rather than in best serving their consumers, these monopolies are characterized by teacher job security, a guaranteed block of consumers, and publicly regulated curricula, rather than by innovation and improvement. Choice advocates fear that without competition to alleviate distortions, such as mismatched resources and needs, and without a check on schools' power, U.S...