School Vouchers and Students with Disabilities1
Policy Paper
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
Lex Frieden, Chairperson
April 15, 2003
EXECUTIVE SUMMARY
The enactment of the Individuals with Disabilities
Education Act (IDEA) codified the Constitution's guarantee of equal
protection under law for all children and youth with disabilities,
providing them with a free appropriate public education that meets
their education and related services needs in the least restrictive
environment. The implementation of IDEA has produced important improvements
in the quality and effectiveness of the education received by more
than six million children and youth with disabilities.
In recent years, a vigorous debate has emerged on
the use of educational vouchers to encourage greater choice to parents
and students in public education service delivery. Policy makers
have offered school choice and voucher proposals in the context
of the reauthorization of IDEA. Yet, no comprehensive examination
has been made of the general conditions that determine whether school
vouchers are an effective educational instrument for students with
disabilities.
The National Council on Disability's (NCD) School
Vouchers and Students with Disabilities policy paper provides
a rationale for assessing the issue of school vouchers, and contains
the following major findings:
1) IDEA rights, as a general rule, will not extend
to children and youth with disabilities who participate in voucher
programs. Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act will still apply to the administration of
the voucher program but not to most activities of the private school.
2) School choice and voucher options have expanded
slowly over the past decade and established beachheads in several
urban settings with mixed results from large-scale evaluative studies.
Special education has been left out of the process for the most
part, with the exception of the statewide Florida McKay Scholarship
Program, which may not provide a working model for extending vouchers
under reauthorized IDEA since it does not hold private schools of
choice to the same accountability requirements to which public schools
are held.
3) Because vouchers can only cover a portion of costs
of special education over and above the cost of private school tuition
in many cases, particularly for students with moderate, low-incidence
and severe disabilities, such programs may benefit only the affluent
who can afford to supplement vouchers to cover actual costs. Since
school districts will lose students and a proportion of state funds
due to transfers to private schools, it is possible that public
schools will be left to serve only poor students with more significant
disabilities, and at a reduced level of financial support.
4) The principle of school choice, and voucher programs
in particular, have not been adequately shown to be internally consistent
and mutually reinforcing with regard to the other three principles
of IDEA reauthorization (accountability for results, increasing
local flexibility, and a focus on what works) outlined by the U.S.
Department of Education (ED).
5) The type of structure, policies, and procedures
that are incorporated into a voucher program profoundly affect the
rights of students in that program, produce different legal issues,
and may also produce significantly different outcomes for those
in the program.
6) Since children receiving special education are
general education students, choice provisions such as those detailed
in the No Child Left Behind Act must also be extended to special
education students. As the U.S. Department of Education has pointed
out, the private schools of choice must be accessible and be able
to implement the IEP of the previous school.
Based on NCD's analyses, the following guiding questions
are recommended to policy makers for immediate consideration as
they explore the issue of whether vouchers should be used for students
with disabilities, particularly through the enactment of federal
legislation:
1) Whether private schools accepting vouchers for
students with disabilities should be held to the same standards
of accountability and compliance with IDEA as public schools serving
the same students?
2) Whether private schools accepting vouchers for
students with disabilities should provide evidence that they meet
and fully comply with the IDEA provisions for educating students
in the least restrictive environment (LRE)?
3) Whether a proposed voucher act would ensure that
parents of students under IDEA eligible to receive vouchers would
be provided with sufficiently detailed information concerning school
choice options addressed particularly to the need for specialized
supports and services needed to assure FAPE for their child, to
enable them to make a reasoned and informed choice?
4) Whether vouchers for students with disabilities
should be funded at a level sufficient to cover private school tuition
and excess educational costs for the least expensive private school
within a reasonable transportation distance that can provide all
necessary supports, services and accommodations required to provide
a FAPE to such students in the LRE?
5) Whether school districts losing students with vouchers
and/or schools accepting vouchers from students with disabilities
should provide accessible transportation to and from school, and
should be fully accessible environments for such students?
In addition to these guiding questions, NCD believes
that the U.S. Department of Education should conduct scientific
investigations of programs extending voucher options to students
with disabilities.
NCD concludes that policy makers and education leaders
have a major challenge ahead of them to ensure that any development
of school vouchers is based on the direct input of parents, positive
results for students with disabilities, sound empirical research
of its effectiveness as a policy option, and in accordance with
applicable federal (and state) law and civil rights regulations.
INTRODUCTION
This policy paper addresses the applicability and/or
efficacy of extending publicly funded school voucher options to
students with disabilities served under the Individuals with Disabilities
Education Act (IDEA). This paper will primarily focus on vouchers
that allow public education funds to be used by eligible participants
to attend private schools and the impact of such programs on the
education of students with disabilities. Other school choice options,
such as charter and magnet schools, will be discussed only as they
compare to and differ from voucher programs.
The number of publicly funded voucher programs created
primarily for general education students is steadily increasing
and is likely to accelerate. While only ten states plus Puerto Rico
currently have some variant on a voucher program, sixteen other
states introduced legislation during the 2002 session to create
some form of school voucher. Since the Supreme Court's decision
in Zelman v. Simmons-Harris (2002) removed what was widely
perceived to be the most formidable legal barrier to vouchers, more
states are likely to consider enacting voucher programs in 2003,
and are also likely to take advantage of the choice and flexibility
provisions of the No Child Left Behind Act of 2001 (NCLB). NCLB
is the first federally supported (though not mandated) program that
allows federal funds to purchase educational services from private
entities. As more voucher programs are initiated, students with
disabilities will be increasingly affected, especially if some of
the programs are created specifically for students in special education.
There are three ways in which voucher programs may
affect students with disabilities. First, students with disabilities
receive general education services as well as special education
and are generally entitled to participate in any and all regular
school programs available to students without disabilities. Thus,
voucher programs for general education students directly apply,
or should apply, to students with disabilities as well as those
without disabilities. Second, students with disabilities educated
within traditional public school settings may be indirectly affected
by changes in the resources or structure of the public school in
response to voucher initiatives. Finally, and most significantly,
voucher programs may be targeted specifically at students with disabilities
who need special education services.
Discussions about the reauthorization of IDEA in 2003
increasingly involve the possibility of extending school choice
options to students served under IDEA as a potential innovation
in educational services to this population. This developing conversation
has already engendered controversy, and will continue to do so.2
In June 2002, the President's Commission on Excellence
in Special Education released its final report (PCESE, 2002) in
which it laid out 33 specific recommendations, of which the most
controversial were expected to be those calling for the elimination
of short-term objectives in Individualized Education Programs (IEPs)
and the others having to do with vouchers.3 For example,
under a recommendation entitled, "Increase Parental Empowerment
and School Choice", the report suggests, "IDEA should increase informed
opportunities for parents to make choices about their children's
education. Consistent with the No Child Left Behind Act, IDEA funds
should be available for parents to choose services or schools, particularly
for parents whose children are in schools that have not made adequate
yearly progress under IDEA for three consecutive years" (p. 35).
In another section of the PCESE report, the Commission
linked its voucher recommendations to increase flexibility with
regard to the Least Restrictive Environment (LRE) requirements of
IDEA. "Federal policy should also provide the flexibility states
need in this area, including the flexibility to define Charter Schools'
local education agencies status in ways that maximize the capacity
of such schools to meet the needs of children with disabilities.
In addition, federal policy should make clear that families working
with IEP teams can choose charter schools and other choice options
that target students with disabilities, even if these offer relatively
restrictive environments, as long as those programs can appropriately
serve the student" (p. 39).
Since the PCESE Report was intended to provide a blueprint
for upcoming Congressional reauthorization of IDEA, these recommendations
bear careful scrutiny, given the intricate complexity of various
provisions of IDEA as these pertain to parents' rights. This is
especially true in light of recent comments of the U.S. Secretary
of Education, Rod Paige, who said, "Our goal is to align IDEA with
the principles of NCLB by ensuring accountability, more flexibility,
more options for parents, and an emphasis on doing what works
to improve student achievement." Unfortunately, there are few extant
applications of school choice models to special education from which
to examine results.
Finally, the PCESE made it clear that it intended
private schools serving students with disabilities to be held to
the same standards of accountability that apply to public schools.
"The Commission recommends greater flexibility
in using federal funds, allowing states to create parental choice
programs while preserving the student's basic civil rights. However,
we recommend that any such pro- grams also require schools and programs
to be held to the same account- ability requirements for public
schools, ensuring that students achieve excellent results." (p.
39).
The only relevant example of a voucher program for
individuals with disabilities, at present, is Florida's two-year-old
special education voucher program called the McKay Scholarship Program.
Under this program, which began in 2000, families of students with
disabilities may receive vouchers for the asking, regardless of
their schools' grade for performance as determined by the state.
These vouchers have a value equal to the existing, annual expenditures
for educating the student as estimated by the District, or the cost
of private school-of-choice tuition, whichever is the lesser amount.4
Apart from the two-year-old Florida experiment with the McKay Scholarship
Program, little is known about the utilization and effects of making
school choice vouchers available to students with disabilities,
particularly those with severe or extensive disabilities.
Lacking any basis in scientific evidence to recommend
for or against vouchers for students served under IDEA, it becomes
important to examine the evidence for success and failure of existing
general education voucher schemes as measured against their
stated purposes, and then to extrapolate from these experiments
to the particular statutory and programmatic requirements of educating
students with disabilities.
We proceed for this purpose, first by examining the
philosophical and ideological arguments for and against school choice,
and laying out a "roadmap" of extant choice/voucher options and
then examining the legal and statutory issues involved, including
those applicable to students served under IDEA. Next, we review
the available evidence from research investigations of those choice/voucher
models that have at least potential relevance for students with
disabilities. We conclude with a review of salient issues and a
set of recommendations for policymakers to consider in extending
choice/voucher options to families of students with disabilities.
BACKGROUND
Any educational reform effort should be prefaced by
a careful examination of the past. To understand the motivations
and goals of reform, we must know its history. It is only then,
in retrospect and through careful study, that we can truly evaluate
the efficacy of past reform efforts and the probable course of future
reform efforts. With this purpose in mind, we examine the history
of special education law and policy and the history of vouchers.
The History and Law of Special Education
IDEA and the Six Principles of FAPE
Congress first addressed the education of students
with disabilities in 1966 when it amended the Secondary Education
Act of 1965 to establish a grant program to assist states in the
"initiation, expansion, and improvement of programs and projects
. . . for the education of handicapped children." In 1970, that
program was replaced by the Education of the Handicapped Act (P.L.
91-230) that, like its predecessor, established a grant program
aimed at stimulating the States to develop educational programs
and resources for individuals with disabilities. Neither program
included any specific mandates on the use of the funds provided
by the grants; nor could either program be shown to have significantly
improved the education of children with disabilities. In the early
1970s, two federal court cases provided the first substantial steps
forward in the education of individuals with disabilities. Pennsylvania
Assn. for Retarded Children (P.A.R.C) v. Commonwealth (1971)
and Mills v. Board of Education of the District of Columbia
(1972) held against discriminatory exclusion practices of school
districts and opened up public schools to children with disabilities.
In 1974, Congress found these exclusionary practices
to be widespread. 1.75 million children with disabilities received
no educational services and an additional 2.5 million received an
inappropriate education. Congress responded with the passage of
Public Law 94-142, the Education for All Handicapped Children Act
of 1975 (EHA). The amended EHA, as with previous efforts, provided
federal funds for the education of children with disabilities. Unlike
prior grant programs, it included specific mandates regarding the
provision of services to individuals with disabilities. In enacting
the EHA, Congress intended that States would be held accountable
for providing a free appropriate public education (FAPE) to all
children with disabilities. The law contained provisions supporting
six principles to guarantee FAPE for all children with disabilities:
1). Zero Reject. Each school-aged person (student)
with a disability has a right to be educated and included in a system
of free appropriate public education (FAPE). Zero reject mandates
that no student with a disability will be explicitly or functionally
excluded from the provision of FAPE. IDEA supports the Zero Reject
principle in several ways. For example, IDEA mandates:
- An annual child census to identify, locate, and
evaluate children with disabilities
- The removal of physical barriers that impede access
to schools
- Procedures to address behavior problems that might
otherwise result in removal
- That educational services be continued even during
periods of suspension or expulsion
2). Nondiscriminatory Evaluation. Each student
suspected of having a disability must receive an unbiased, individualized
assessment that identifies (a) whether the student has a disability,
(b) whether the student needs special education services, and (c)
the strengths and needs of the student. The methods used for evaluation
must be multidisciplinary and discount socioeconomic, language,
and other factors unrelated to the student's educational success.
The results of the evaluation must form the basis of the plan for
the individualized education of each student with a disability.
3). Individualized and Appropriate Education. All
students with disabilities are entitled to a beneficial education.
Each student with a disability must receive appropriate special
education and related services that address his or her individual
strengths and needs as assessed by the nondiscriminatory evaluation.
An individualized education program (IEP) must be created that includes
provisions to ensure the child receives an appropriate education:
- A statement of the student's present levels of
educational performance
- A statement of how the student's disability affects
his or her involvement in the general curriculum
- A statement of measurable annual goals and short
term benchmarks
- A statement of the specific special education
and related services the child will receive
- A statement of the identified transition needs
of the student beginning at age 14
- A statement of how the student's progress will
be measured
4). Least Restrictive Environment. Each student
with a disability must be educated in the most inclusive setting
appropriate for that student. Students with disabilities must be
educated with children without disabilities in regular classrooms,
participate in the general curriculum, and be included in other
nonacademic activities with students who do not have disabilities
to the maximum extent possible. Special classes, separate schooling,
or other removal of students with disabilities from the general
education environment may occur only when the nature or severity
of the child's disability is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily. The student's IEP must also include an explanation
of the extent, if any, to which the child will not participate with
students in general education or in the general curriculum.
5). Procedural Due Process. The parents (or
other guardians) of each student with a disability have the right
to challenge the decisions of the school system and hold the school
district accountable for meeting their responsibilities with respect
to the other five principles of IDEA. Parental consent must be obtained
for pre-placement evaluation and for the child's initial placement
in special education. Parents must be given prior written notice
whenever the school proposes to change, or refuses to change, any
aspect of their child's educational plan, and of their procedural
due process rights. The procedural due process rights of parents
include, for example, their right to:
- Request an independent educational evaluation
- Access their child's educational records
- A due-process hearing to challenge school decisions
and resolve complaints
- Mediation to resolve disputes about their child's
education
- Appeal a due process hearing officer's decision
- Be reimbursed for attorneys' fees when they substantially
prevail in a hearing or in court
6). Parent/Student Participation. Because education
is made more effective when parents and students are included in
the process of designing and delivering special education, parents
and students have the right to participate in decisions about that
student's assessment, educational plan, and placement. Parents are
required members of the teams that carry out the nondiscriminatory
evaluation, determine eligibility for special education services,
develop the individualized education program, or make placement
decisions affecting their child. As members of the IEP team, parents
have the right:
- To receive advance notice of all IEP team meetings
- To have mutually convenient scheduling of the
meetings
- To have interpreters provided for deaf or non-English-speaking
parents
- To have their thoughts, preferences, and opinions
considered and generally be involved in the decision making process
The special education movement began as an offshoot
of the Civil Rights movement and Brown v. Board of Education,
but with the passage of the EHA, renamed the Individuals with Disabilities
Education Act in 1990 (IDEA), it expanded the definition of equality
for individuals with disabilities to include concepts of dual accommodations,
integration, entitlement to services, family empowerment, productivity,
accountability, and participatory-decision making.
Anti-discrimination Laws. Though unarguably
the most important law guiding special education, IDEA is not the
only statute that protects the educational rights of students with
disabilities. Section 504 of the Rehabilitation Act of 1973 and
Title II of the Americans with Disabilities Act prohibit schools
from discriminating against children with disabilities solely by
reason of their disability and require schools to provide reasonable
accommodations to students who need them in order to have equal
access to educational opportunities. They are civil rights statutes
intended to prevent discrimination and protect the right of persons
with disabilities to equal access, equal treatment, and equal opportunity.
While many proposed special education reforms would
not require an inquiry into the application of Section 504 and the
ADA to schools, vouchers prove a special case. Because vouchers
move students with disabilities outside the public system, it becomes
important to examine disability law with respect to non-public entities.
While Section 504 and the ADA are anti-discrimination statutes that
provide little in the way of educational entitlement when compared
with IDEA, both Section 504 and the ADA can apply to entities outside
the context of public schools. In other words, as extensions of
constitutional protections against discrimination, these laws are
in some ways more likely to follow voucher dollars wherever educational
reform may take them.
Recent and Future Reforms
The most recent major amendments to IDEA occurred
in 1997. The 1997 amendments documented the successes and failures
of past efforts to provide full educational opportunities to individuals
with disabilities and proposed new solutions to ensure that students
with disabilities would receive a free appropriate public education
(FAPE) designed to meet their unique needs and prepare them for
employment and independent living. But despite the breadth of the
'97 amendments, the basic purpose of IDEA to provide FAPE to all
children with disabilities, and its support for the six principles
to ensure this purpose, remain unchanged. The '97 amendments refined
and strengthened these principles with new understandings of cultural
responsiveness, positive behavioral interventions, and the needs
of students with disabilities who are transitioning out of school.
Since the inception of the modern age of special education,
with the enactment of the Individuals with Disabilities Education
Act 28 years ago, students with disabilities have witnessed incremental
educational gains. Specific accomplishments include increased access
to regular education, improved outreach to identify children who
need special education, and somewhat better rates of high school
graduation, college enrollment, and employment among students who
received special education compared to those served over the previous
decade. Yet these accomplishments exist only in comparison to prior
widespread exclusion of individuals with disabilities from general
education and neighborhood schools. Students with disabilities and
their parents still face numerous barriers to the free appropriate
public education (FAPE) promised by the Act. It is these unmet expectations
that have sparked discussion about the use of vouchers to reform
special education when IDEA is reauthorized in 2003.
Special education has embraced the six principles
of IDEA and the goal of FAPE for 28 years. They are deeply rooted
in the history of special education and the disability rights movement.
Future special education reforms, whether they include vouchers
or not, must be carefully measured in relation to their probable
impact on FAPE and their effect on the six principles of IDEA.
History of School Choice
The present wave of school reform efforts in America
can be roughly traced to the publication, in 1983, of A Nation
at Risk (Boyer, 1983). Against this backdrop of generally depressing
statistical trends in student performance, particularly in urban
settings, Congress and the Department of Education stimulated a
number of major reform efforts that continue today. These efforts,
collectively, can be generally grouped into three discreetly different
approaches: local investment strategies such as school-linked
service integration models; accountability/high-stakes assessment
models; and free-market models.
Of these urban education reform approaches, probably
the local investment strategies are least understood. The best known
of these models are the "Community School" (cf., Lawson & Briar-Lawson,
1998; Lawson & Sailor, 2000), the "Enabling Component" (Adelman
& Taylor, 2000), and the "Full Service School" (Dryfoos, 2000).
Although these models have been extensively disseminated (i.e.,
Schorr, 1999), there has been little controlled research against
which to assess efficacy, particularly with respect to special education
(Lawson & Sailor, 2000).
The most prolific class of school reform approaches
during this period has been the school accountability approaches
(cf., Newman, King, & Rigdon, 1997). With the emergence of standards-based
reform and high-stakes assessment in the latter part of the past
decade, accountability models are now prolific in America's cities.
Much of the support for this reform process has come from the Comprehensive
School Reform Demonstration project of the (former) Office of Educational
Research and Improvement branch (OERI) of the U.S. Department of
Education, often in partnership with numerous private philanthropic
organizations.
The third class of reform efforts, free-market models,
has emerged, in recent years, from the high-stakes assessment applications
under accountability models. Free market models of contemporary
school reform originated with a publication by economist Milton
Friedman (Friedman, 1955) nearly half a century ago. Friedman laid
out the case for a publicly financed, free market school choice
model for all that would provide parents with cash vouchers with
which to select among schools that would be operated by for-profit
or non-profit companies.
While free-market models are, at present, largely
linked to accountability, such as the activation of a school choice
option as an outgrowth of school failure, there are clear, emerging
trends that suggest the instantiation of school-choice and other
free-market models as independent, full-scale educational options
for all, but particularly aimed at urban schools.
This policy paper is wholly concerned with the applicability
of one option to children with disabilities that characterizes the
free-market class of reform models, namely school voucher options.
Discourse and Debate on Free-Market Reform Models
One of the most interesting features of the free
market reform models as a class is the extent to which they reach
directly into the core of traditional American values. In the opening
chapter of their book summarizing research on urban school choice
models, Howell & Peterson (2002) anchor the rhetoric of school-choice
firmly in the principles of liberty, equality, and freedom, particularly
as those are woven into the fabric of our Constitution and our early
political history. They correctly point to Dewey (1916) who, early
on recognized that public schools were an uncomfortable fit within
the liberal tradition as represented in the Declaration of Independence.
He reluctantly concluded that public (government assigned) schools
were needed to ensure that education would perpetuate democracy
and prevent the partition of society into separate social classes.
Over time, public schools become, ". . . increasingly uniform, centralized,
comprehensive and professional" (Howell & Peterson, 2002, p. 9).
By 2000, John Dewey's equality project had evolved into massive
structures that isolated schools from their communities.
When publicly financed and operated systems work
well and people are satisfied with their benefits, such as in the
case of many forms of public transportation, there is no particular
clamor for privatization or other change. When systems fail, however,
as in the case of urban schools, public sentiment swings toward
policies of reform. The process is wholly problematized when wholesale
shifts of public systems to radical alternatives occur in the absence
of supportive evidence that things will improve. Ernest Boyer drew
attention to these risks when he wrote, "We were especially troubled
that school choice, perhaps more than any other reform strategy,
has become so highly charged, so ideological. There's an intensity,
even a zealousness, in the debate on school choice that smothers
thoughtful discourse" (The Carnegie Foundation for the Advancement
of Teaching, 1992, p. xv). Advocates of choice and other free market
reform models will find much to appreciate, in the absence of evidence,
in Tooley, 2000; Coulson, 1999; Patrinos & Ariasingam, 1997; Tooley,
1999; West, 1994; Lieberman, 1989; Johnson, 2000; Goodman & Moore,
2001, to mention but a few.
On the other side of the rhetorical coin, see Henig,
1994; Fuller & Elmore, 1996; Berliner & Biddle, 1995; and Kozol,
1991; to name a few who stand in opposition to school choice models.
For the most up-to-date compilation of resources to appear as of
this writing, see Trends and Issues: School Choice, published
by the ERIC Clearinghouse on Educational Management of the College
of Education, University of Oregon.5
Early Developments in Private School Choice
An often forgotten aspect to the history of vouchers
is that practice actually preceded theory. The first program authorizing
the use of public dollars to fund private school education began
in Vermont in 1869. Title 16, Part 2, Chapter 21, § 822 of the Vermont
Statutes requires all school districts to maintain schools or reimburse
families for the cost to educate their child at an independent school.
A similar law was enacted in Maine in 1873. These programs still
exist today. Originally enacted to relieve small townships of the
burden of maintaining public schools, these choice provisions existed
decades before Friedman wrote about a free market educational system.
Efforts to launch the Friedman model of free enterprise
education failed to enlist public support at first, but other voucher
programs were created in response to Brown v. Board of Education
in 1954. In Virginia, legislators enacted "tuition grant" and
"scholarship" programs that allowed students to use state tax dollars
to pay tuition at any qualifying non-sectarian school, so students
could avoid attendance at desegregated schools. The courts quickly
dismantled these early voucher programs as their discriminatory
purpose made them plainly unconstitutional.
Friedman's theories were again thrust into the public
eye when President Richard Nixon's administration advocated a free-market
approach first conceived under President Lyndon Johnson. Despite
Presidential support, only one school district elected to create
a voucher program. The Alum Rock School District in California with
funding and promotion from the U.S. Office of Economic Opportunity,
tested a voucher model developed by Christopher Jencks and his colleagues
at Harvard (Sawhill & Smith, 1998). This program ceased in 1976
when federal funding ran out. A subsequent evaluation of the model
provided by the RAND Corporation failed to find any supportive evidence
for improved educational outcomes for either schools or students
in Alum Rock (Capell & Doscher, 1981).
Nixon's administration attempted to give the free-market
model an even greater boost in 1971 when it proposed "Parochiaid"
to provide public funds to private schools. This initiative was
short lived, however, as the U.S. Supreme Court unanimously decided
in Lemon v. Kurtzman 403 U.S. 602 (1971) that there were
three requirements for the constitutional use of public funds in
private schools. First, the distribution of funds to the private
school must support a secular purpose. Second, its main effect could
not be to advance or inhibit religion. Finally, and most significantly,
the use of the funds could not excessively entangle the state in
religion. Parochiaid was over before it began, and the private school
voucher movement stalled for the next twenty years. The constitutional
argument against vouchers was again strengthened in 1973, when the
Supreme Court found that tax benefits and tuition grant programs
available only to those attending private school had the primary
purpose of advancing religion (Committee for Public Education
v. Nyquist, supra, and Sloan v. Lemon 413 U.S. 825).
Even though the private school voucher movement would
not get a full head of steam again until the 1990s, free-market
supporters were not idle. Though his efforts were not successful,
President Ronald Reagan tried three times to introduce voucher legislation
during his terms in office. Minnesota also enacted a tax deduction
for parents of all elementary and secondary schoolchildren for public
and private educational expenses that was held to be constitutional
by the Supreme Court in 1983 because, unlike the program in Nyquist,
the Minnesota tax deduction applied to all parents (Mueller v.
Allen, 463 U.S. 388).
Finding it difficult to forward proposals for private
school vouchers, school choice advocates shifted their emphasis
to a more limited competition-based model: public school choice.
The change brought success, and in 1988 Minnesota enacted the first
statute authorizing public school choice, and other states quickly
followed suit. Widespread acceptance of the public school choice
model, which does not include vouchers for private schools, again
raised the possibility of free market approaches to school improvement
and paved the way for new efforts to promote private school vouchers
in the 1990s.
The Modern School Choice Movement
Interest in scaling up models of free-market school
reform to include private schools surged again in the early 1990s
in response to the publication of Politics, Markets and America's
Schools (Chubb & Moe, 1990). This publication by the Brookings
Institution argued the case for school choice on the basis of a
political agenda of the need to break the "monopoly" of urban public
schools, rather than on the basis of economics, as posited earlier
by Friedman (see also, Peterson, 1990). If it can be argued that
within America's urban environments, "white flight" and other socio-economic
forces have created a virtual monopoly on public education with
a practically guaranteed mediocre education at best, for those trapped
in the system (i.e., Cohen, 1990), then an argument for school-choice
takes on attractive features for those families affected (Peterson,
1990).
This political rationale for free market reform has
proven appealing to inner-city African American families, and is
credited with bringing about a rare example of common cause among
segments of society that occupy opposite ends of the liberal-conservative
continuum (Loomis, 1992). This evolving coalition of liberals and
conservatives around the issue of urban school choice gave rise
to several large-scale experiments of choice models. In 1990, Wisconsin
became the first State to pass legislation authorizing private school
vouchers. Other states such as Ohio followed their example and cities
such as Milwaukee, Cleveland, Dayton, and others, implemented the
experimental voucher programs. It is these early programs that today
provide us with the evaluative data with which to judge the success
of private school voucher models for the general education population.
As Wisconsin was the first state to enact private
school voucher legislation in the new era of school reform, it was
naturally the first state to have the constitutionality of its voucher
law challenged. While the lower state court initially ruled that
the voucher program violated the Establishment Clause, the Wisconsin
Supreme Court overturned that verdict in 1998, and applying the
three-prong test from Lemon, held the Milwaukee voucher program
to be constitutional. Yet shortly after that ruling, the Ohio voucher
program was ruled unconstitutional by the 6th Circuit Court.
The battle over the constitutionality of vouchers
pursuant to the Establishment Clause of the federal constitution
ended on June 27, 2002 when the Supreme Court overturned the 6th
Circuit Court's decision in Zelman. In Zelman the
Court ruled 5-4 that the Lemon test did not apply and that
the constitutionality of the Cleveland program rested on three facts:
(1) the program was neutral with regard to religion, (2) money flowed
to religious schools only through the decisions of parents, and
(3) the program offered genuine secular options to parents which
are unaffected by constitutional questions.
The 1990s also saw the beginning of numerous privately
funded voucher programs like the Indianapolis voucher program in
1991, Children First America in 1994 (CFA), and the Children's Scholarship
Fund in 1998 (CSF). Unlike the experimental programs such as the
one in Milwaukee, these voucher programs were privately funded.
Unhampered by the debates on the use of public funds, voucher programs
such as CFA and CSF grew quickly and used private funds to operate
dozens of affiliated voucher and scholarship programs around the
country and provided tens of thousands of students with money for
private school education.
Recent Development and Current Law
The years since the first experimental private school
voucher programs began have seen increasing interest in voucher
programs. Persistent reports about the inadequacies of public schools
have created a climate friendly to reform efforts, and the Bush
administration has shown itself to be strongly supportive of choice
initiatives. By the end of his first hundred days, Bush had already
signed legislation on education savings accounts (ESA) that allows
parents and other individuals to invest, tax free, up to $2,000
annually per child for private or public elementary and secondary
education. Previously ESAs were limited to funding higher education.
Recently, the Bush administration included 756 million dollars for
school choice programs and language in the omnibus budget bill to
establish a pilot voucher program in the Washington, D.C. School
District. The D.C. School Board reacted negatively to the proposal
suggesting that the administration was imposing vouchers on the
District without consulting the elected officials responsible for
the education of students in the District (San & Strauss, 2003,
p. 105).
Bush also signed into law the No Child Left Behind
Act (NCLB). While the NCLB does not include true private school
voucher options, it does include strong provisions supporting public
choice options for children in failing and unsafe schools, funding
for supplementary educational services for students in failing schools
that can be used to pay either public or private service providers,
and significant funding increases for charter schools.
Under Title I, section 1116(b)(E) of the NCLB, schools,
beginning with the 2002-2003 school year must offer public school
choice to their students if those schools are in their first or
second year of school improvement, in corrective action, or in a
planning year for restructuring. States are also mandated under
Title IX section 9532 to develop new reporting requirements under
school safety, and develop guidelines for identifying schools as
persistently dangerous so that a school choice option can be extended
for students who wish to transfer to a "safe" public school.6
Students who are victims of a violent crime at a school must also
be given a school choice option regardless of whether their school
is classified as persistently dangerous. Finally, under section
1116(e) of Title I, school districts may allow low-income students
who attend a school in its second year of school improvement to
receive publicly financed supplemental services provided by public
or private providers including faith-based organizations.
The choice provisions of the NCLB create challenges
for states to come into compliance even with respect to children
without disabilities. Students may not transfer into failing or
persistently dangerous schools under a choice plan, but urban districts
are likely to have limited space for transfer students in safe,
high performing schools. Since the mandate calls only for transfer
within a District, small or rural Districts may face serious challenges
due to a small number of available schools. Under some of the provisions
of the Act, families may find themselves required to arrange and
pay for their child's transportation after a choice option has been
exercised, as for example, in the case of a child moving from a
school under corrective action which subsequently makes progress
and goes off the corrective action list.
Since children receiving special education are also
students in general education, the NCLB also applies to students
with disabilities. Implementation difficulties may be aggravated
with respect to students who need special education services. In
June 2002, Secretary of Education Rod Paige sent a letter to states
and school districts providing guidance on meeting the choice provisions
in NCLB with respect to students with disabilities. The letter states,
"In offering choice to students with disabilities, school districts
may match the abilities and needs of a student with disabilities
to the possible schools that have the ability to provide the student
(a full and appropriate public education)."7 It goes
on to state that schools chosen must be accessible and be able to
implement the IEP drawn up by the previous school. The school of
choice will have the option of convening a new IEP team and constructing
a new IEP. The letter highlights the additional difficulties that
parents and districts may face in providing "choices" for students
with disabilities, and it also makes clear that the Bush administration
intends to extend choice options to students with disabilities.
Intentions aside, it is Governor Jeb Bush rather than
President George W. Bush who is leading the way in extending vouchers
to students in special education. In 2000, Florida became the first
state to create a voucher program specifically targeted toward students
with disabilities. While other voucher programs, indeed Florida's
own general education voucher program, have targeted specific groups
(primarily based on income or location in a sub-average school),
Florida's McKay voucher program is the first private school voucher
program to provide funds only to students with disabilities. It
is a statewide program that allows any child eligible to receive
special education to apply for the program and receive a voucher.
Considering the comments about vouchers in the report
published by the President's Commission on Excellence in Special
Education (PCESE, 2003), the Florida program could well be considered
as a model for any special education voucher plan introduced during
the reauthorization of IDEA. We therefore pay particular attention
to this program as we discuss the structure of voucher programs
and their potential impact on students with disabilities in the
following sections.
Constitutionality and the Future of Voucher Law
Voucher programs are on the rise, and the historically
most significant barrier to their constitutionality, the Lemon
test for violation of the Establishment Clause, has been replaced
by the rule in Zelman. Zelman's test lowers the constitutional
bar significantly and allows the majority of voucher programs to
pass constitutional muster, at least with respect to the Establishment
Clause. For the few programs that may not meet the courts' test,
Zelman clearly maps how they can be redesigned to address
any constitutional shortcomings.
While Zelman has resolved the basic Establishment
Clause dispute, the battle over the constitutionality of voucher
programs is not yet over. Instead, the next battles will most likely
be fought over state rather than federal constitutional provisions.
Most state constitutions have provisions forbidding government establishment
of religion, just as the federal constitution does, but over two
thirds of state constitutions use language that is much more stringent
than that of the federal constitution. Some even go beyond the establishment
of religion argument to specifically say that government funds may
not be used for any private school. Others prohibit spending public
funds "in aid of" or "to support or benefit" any religious school,
rather than simply saying the government cannot "establish religion."
A final category of state constitutional provisions forbids the
"compelled support of worship or [religious] instruction" or the
use of state money "appropriated for or applied to religious worship
or instruction."
These provisions in state constitutions provide local
voucher opponents with additional ammunition against programs in
their state. Indeed the Florida A+ voucher program (for regular
education) has twice been ruled unconstitutional at the trial court
level pursuant to the state's constitution. The first ruling was
a summary judgment and was overturned and remanded for a trial on
the merits. The trial on the merits again resulted in a finding
of unconstitutionality, but the decision has been appealed.
Some challenges to voucher programs have already
adopted this argument. In Chittenden Town School District v.
Vermont Department of Education, a Vermont Appellate Court held
the Chittenden School Board's extension of the state school choice
reimbursement program to sectarian secondary schools violated Vermont's
Constitution. It did not, however, base its decision on the establishment
clause language, but on the compelled support provision in the state
constitution that reads, "no person ought to, or of right can be
compelled to . . . erect or support any place of worship . . . ."
The Court reasoned that the issue hinged on "the choice of those
who are being required to support religious education, not the choice
of the beneficiaries of the funding." A Florida trial court reached
a similar conclusion in Holmes v. Bush, ruling that the clear
and unambiguous statement in the Florida constitution forbidding
public aid to religious institutions precluded any finding of constitutionality.
The State of Florida has appealed the decision.
One counter argument to these state constitutional
challenges, that the state constitutional provisions themselves
violate the federal constitution, is just beginning to be brought
before the courts. This argument is based on the historical motivation
behind the state constitutional provisions, or as voucher advocates
refer to them, the Blaire Amendments. Blaire Amendments are state
constitutional provisions that grew out of a movement in the 19th
Century against an increasing Catholic population and private school
system. Protestant hostility toward Catholics, it is argued, taints
these provisions with federally unconstitutional animus. The probable
success of this argument most likely rests on the swing vote of
Justice O'Connor since the four other "conservative" Justices (who
with O'Connor formed the majority in Zelman) have already
condemned such provisions.
Other challenges to voucher programs may be on the
horizon based on structural elements of individual programs. For
instance, voucher programs that do not allow religious schools to
participate may be challenged as violating the first amendment right
to free speech and free exercise of religion, but so far it seems
unlikely that the courts will favorably receive this argument. In
Strout v. Albanese, the Maine Supreme Court reasoned that
denying participation of religious schools in their state choice
program did not significantly burden the exercise of religious belief.
The 1st Circuit Federal Court of Appeal agreed in Bagley v. Raymond
School Department which held that parents had no right "to require
the taxpayers to subsidize that (sectarian) choice."
Private sectarian schools may also challenge other
choice programs by claiming that regulatory requirements on vouchers
(to protect civil rights or provide accountability) create a state
entanglement in religion and constitute a violation of the Establishment
Clause (this issue was not addressed in Zelman, but was mentioned
in the dissent). On the other hand, if the state tries to avoid
this issue by exempting religious schools from regulatory requirements,
non-religious private schools may claim that the exemption for religious
schools is unconstitutional because it is no longer "neutral" as
required in Zelman.
While these new structurally-based claims against
voucher programs are open questions that the courts have not yet
directly addressed, one result of these challenges is clear: they
cannot invalidate all voucher programs, only ones with particular
characteristics. Similarly, states that do not have constitutional
restrictions that impose any barrier greater than the federal constitution
are generally insulated from challenges based on state constitutional
provisions by the rationale behind Zelman. The ruling in Zelman
has changed the national legal climate with regard to voucher programs
and left little doubt that at least some states can constitutionally
enact at least some forms of a voucher program.
Special Education and Private School Choice
What is rarely recognized in most discussions about
special education vouchers is that IDEA itself provides for the
use of public monies to fund private school education in two specific
situations: (1) when parents find an appropriate private program
in response to a failure of the public school to provide one, and
(2) when the IEP team agrees on a private school placement. Additionally,
IDEA provides for limited supplemental services to children with
disabilities in "voluntary" private school placements. While the
"voluntary" placement provisions do not involve public funds being
given to private schools, it is important to note these provisions
because they apply to all children in private school settings and
presumably would apply to children with disabilities employing vouchers.
IDEA's Three Levels of Choice
The IDEA requires schools to provide a free appropriate
public education to all children with disabilities. If they do not,
parents have the right to seek an appropriate education elsewhere.
Courts require reimbursement to be provided to the parents for such
"forced" unilateral placements if the court finds that the public
school did not offer a child an appropriate education in the least
restrictive environment and a private placement does provide an
appropriate education. However, parents who choose to place their
children in private schools unilaterally (without the consensus
of the IEP team) take a risk in doing so. If the school district
is shown in court to have offered FAPE to the student or the private
school placement does not offer FAPE, then the parents must shoulder
the cost of the private school themselves, not to mention their
own attorneys' fees and court costs if they are not the primary
prevailing party in any related court case.
While this provision of IDEA may seem similar to programs
that provide vouchers to children in failing schools, there are
some significant differences. First, vouchers are generally provided
in such programs when the state finds that the school is failing.
IDEA requires the parents to go to court and get a ruling that authorizes
the use of the funds. Second, such voucher programs are based on
school performance; IDEA individualizes the inquiry for each student.
Third, vouchers are provided before the child is placed in the private
school; under IDEA parents usually have to pay for the private school
themselves and then seek reimbursement. Fourth, IDEA does not place
a limit on where the parents may go to seek an appropriate education
for their child when the public school has failed to do so. Instead,
it merely requires that the parents prove the program is appropriate.
Finally, IDEA doesn't place any monetary cap on the amount paid,
though there is some indication that the courts would only approve
expenses that seem reasonable given the situation.
IDEA also authorizes the use of private placements
to provide FAPE, to the extent such placements are consistent with
state law, when the IEP team agrees upon the private placement as
the most appropriate and least restrictive placement possible. In
other words, the IDEA does not prohibit states from authorizing
the provision of services to private school children with disabilities,
but still requires each placement decision to be done on an individual
basis for each child by his or her IEP team. Such placements are
considered to be "by the local school district" and therefore do
not abrogate the local agencies' responsibility to provide FAPE.
The primary differences between local school district
private placements and other proposals for special education voucher
programs are: (1) the IEP team, rather than parents alone, holds
the power of choice; (2) the public school district still has the
primary responsibility to provide FAPE; (3) the private school must
be chosen by the IEP team as a means for the public school to fulfill
its requirement to provide FAPE and all IDEA substantive and procedural
rights and requirements must still be met.
Finally, states must, to a limited extent, serve students
with disabilities whose parents have simply turned down the local
offer of FAPE and voluntarily enrolled their child in private schools.
The regulations provide that "each local education agency shall
provide special education and related services designed to meet
the needs of private school children [with disabilities] residing
in their district." While this requirement sounds like a broad extension
of IDEA into private school settings, it is only fully applicable
with regard to the identification and evaluation of children with
disabilities in private school settings. Other rights or entitlements
to services under this provision are significantly limited.
There are several limitations on the general obligation
of states to children who have been "voluntarily" placed in private
schools. These limitations state that: (1) public funds are only
available for supplemental services and not tuition, (2) the amount
expended for provision of services to private schools is limited
to a proportional amount of Federal funds made available under IDEA,
(3) a public agency may elect not to serve all children in its district,
(4) a public agency is not required to make the full range of IDEA
services available to those it has elected to serve, and (5) "voluntarily"
placed private school children are not entitled to FAPE.
The voluntary choice provision of IDEA is similar
to a voucher program in that the state government has the power
to allow or not allow private school choice and to select the limitations
of such choices to students and schools meeting specific criteria.
The IDEA regulations refer to such criteria as "eligibility." States
may define the terms "eligible student" and "eligible private schools"
to control which schools are available options for IEP placement
decisions for which students with disabilities. Since federal funds
provide only a small percentage of overall special education expenses,
it is clear that Congress did not intend to create an entitlement
to services for voluntarily placed students at private schools equivalent
to that provided at public schools.
Obviously, students with disabilities who are voluntarily
placed in private schools have a significantly watered-down entitlement
compared to those attending public schools, placed in private schools
by the local agency, or have the private placement "forced" upon
them by the failure of the local agency. The basic floor of responsibility
toward voluntarily placed students is, as stated by the Second Circuit
Court, "that where the cost of special services does not vary with
where they are provided, the IDEA and regulations regarding voluntary
private school students make little sense if such services may be
made available only in the public schools."
Constitutional Issues
One additional limitation placed on public funds for
special education services provided to students may result from
court cases on the Establishment Clause of the Constitution. Two
of the Establishment Clause cases leading up to the landmark decision
in Zelman v. Simmons-Harris dealt with challenges to the
provision of special education services to students at private religious
schools as allowed under IDEA. Zorbrest v. Catalina Foothills
School District involved a constitutional challenge to IDEA
based on provisions allowing a Tucson school district to subsidize
a sign-language interpreter for a deaf student attending a sectarian
school. In ruling the IDEA to be constitutional, the Supreme Court
framed the issue as a matter of neutrality and parent choice. Since
the program at issue distributed benefits to any student with a
disability without regard to the religious nature of the school
and the interpreter was present at the request of the parents, it
was a permissible use of public funds and did not involve the government
in religion. The Court held similarly in Agostini v. Felton
in 1985, which involved public school teachers providing special
education services at private religious schools.
In response to the decision in Zorbrest, the
reauthorization of IDEA in 1997 included a clarification that special
education and related services could be provided on the grounds
of private schools, including parochial schools. Despite the intentions
of Congress in passing this amendment, the Supreme Court's jurisprudence
with regard to the Establishment Clause still applies to IDEA funds
expended at public schools.
In cases of "forced unilateral" private school placement,
the parents by definition provide the choice mechanism by which
the federal funds make their way to the private school and would
probably be held Constitutional even with regard to placements at
parochial schools. Similarly, the decisions in Zorbrest and
Agostini argue strongly in favor of the Constitutionality
of the provisions providing for supplementary services for voluntarily
placed students, at least in most situations.
The same cannot be said for decisions by the IEP team
to pursue a private placement for an individual with a disability
if that placement is at a religious school. First of all, the placement
would fail the test in Zelman because it is, at least in
part, a decision of the local agency that moves the public funds
to the private religious school. Second, the provision of FAPE would
require intensive involvement (entanglement) in the operation of
the private religious school and thus fail the test in Lemon.
Application of Special Education. We have outlined
the law and history of special education and vouchers. With this
knowledge in hand, we can now examine the interaction between special
education law (IDEA, Section 504, and the ADA) and voucher programs;
but, to date, there are no court cases, federal statutes, or federal
regulations that specifically deal with students with disabilities
within the context of private school choice programs.
There are only three sources of information on how
the law deals with students with disabilities in voucher programs.
The first one, the Florida McKay Scholarship Program, was already
discussed. The second source is guidance from the Department of
Education in the form of letters of response to public inquiries.
The final source is state voucher laws creating private school choice
for general education children.
Guidance from the Department of Education.
In response to an inquiry about Florida's special education scholarship
program, the U.S. Department of Education said,
"if the FDE (Florida Department of Education) and
its local school districts have made FAPE available to eligible
children with disabilities in a public school but their parents
elect to place them in private schools through the Scholarship
Program, then such children are considered 'private school children
with disabilities' enrolled by their parents. Under IDEA, such
parentally placed private school students with disabilities have
no individual entitlement to a free appropriate public education
including special education and related services in connection
with those placements." Letter to Bowen 35 IDELR 129 (ED, March
2001)
There have not been any court cases nor is there any
direct statutory language in either the State of Florida Statutes
or the U.S. Code that provides any direct guidance on whether the
requirements of IDEA follow the voucher money and the student to
private school settings. The letter to Bowen is the only currently
existing interpretation of this legal issue, but the courts will
most likely follow the ED's interpretation if the interpretation
is ever actually challenged.
The letter to Bowen also discusses the application
of Section 504 and the ADA to private schools receiving vouchers
in Florida.
"As we understand it, . . . private schools are
not recipients of Federal funds and their programs and activities
are not federally assisted. Therefore, Federal civil rights laws,
including Section 504, do not directly apply to the private schools
participating in the Scholarship Program. Further, Title II of
the ADA does not directly apply, as the private schools are not
public entities."
The U.S. Department of Education interprets 504 and
the ADA to not apply to private schools participating in the Florida
McKay program. This interpretation for the McKay program was foreshadowed
by another letter from the ED to then Governor Tommy G. Thompson
of Wisconsin (Thompson letter) and concerned the Milwaukee voucher
program. It said substantially the same thing as the Bowen letter.
In the Bowen letter the ED puts three caveats on
the inapplicability of Section 504, the ADA and IDEA. First, it
notes that IDEA includes a process through which limited special
education services may be provided to students with disabilities
in private schools.
Second, the ED says that Section 504 and the ADA apply
to the State's administration of its voucher program. Administration
would potentially include eligibility, funding, monitoring (if done
by the State), information and dissemination, and maybe even admission
standards. The Bowen letter goes on by way of example to say that
"under Section 504 and Title II of the ADA, the SEA (State Education
Agency) must ensure that participating private schools do not exclude
a Scholarship Program student with a disability 'if the person can,
with minor adjustments, be provided an appropriate education within
the school's program.'" 34 CFR C 104.39(a). On the other hand, the
State would not be required to ensure that participating private
schools provided a free appropriate education to students with disabilities
in the least restrictive environment if the schools do not offer
programs designed to meet those needs. See 34 CFR Part 104, App.
A at 28.
Finally, the ED prefaces the inapplicability of IDEA
by saying "if the FDE (Florida Department of Education) and its
local school districts have made FAPE available to eligible children
with disabilities in a public school.." This suggests that parents
who choose to apply for the McKay Scholarship program because they
do not believe the public school has provided their child with a
Free Appropriate Public Education may still engage in due process
procedures and, if successful in proving that (1) the public school
did not provide FAPE and (2) the private school does, receive reimbursement
from the school district for any additional education costs incurred
as a result of the public schools failure to provide FAPE. If the
voucher covers the entire tuition cost, this may be a nominal sum;
but if the voucher only covers part of the tuition and related costs
(such as an aid provided at the parent's expense) than those monies
can be recovered.
We started out by saying that vouchers can affect
students with disabilities in three ways: as general education students
in general education voucher programs, as students in public schools
in districts where vouchers are available, and as students receiving
vouchers from programs designed specifically to offer choice to
students with disabilities. With respect to the law of special education,
there is little doubt that students with disabilities using a general
education voucher will not be able to call upon their IDEA rights
in a private school setting. They may, however, have certain rights
in the administration of the voucher program. Voucher programs for
general education must not be discriminatorily administered to children
with disabilities.
On the other hand, the law says almost nothing about
the rights for children with disabilities with regard to voucher
programs in which they are not participating or may even be trying
to participate. Whether or not such programs drain funds from the
public school coffers, the requirements for the school to provide
a free appropriate education to all students with disabilities remains
the same.
Individuals in voucher programs designed for special
education would generally retain the same legal protections afforded
to individuals with disabilities in general education voucher programs,
but there would be some differences in the effect of the law if
not its applicability. For example, it would be nearly impossible
to prove discrimination against individuals with disabilities in
a program designed exclusively for that same group, though discrimination
could still occur against children with certain disability classifications
(ADHD, SED, Autism, etc.).
Types of Free-Market Models of School Reform
To thoroughly examine the legal and policy issues
surrounding state voucher programs and special education, it is
important to recognize that there are many different ways in which
a voucher program can be organized. As previously mentioned, the
different structures, policies, and procedures that comprise each
existing and potential voucher program have a profound effect upon
both legal and practical issues for that program. Different structures
produce different legal issues and may also produce significantly
different outcomes. To recognize these differences, and their affect
upon special education law and children with disabilities, it is
necessary to discuss the different types of voucher program and
the different qualities that voucher programs may or may not incorporate.
Various attempts have been made to categorize the
variety of school choice programs offered or suggested. David Smole
of the Domestic Social Policy Division of the Congressional Research
Service identified six categories of school choice in an Issue Brief
for Congress (Smole, 2002). These are: 1) intradistrict public school
choice (i.e., magnet schools, alternative schools); 2) interdistrict
public school choice (i.e., special high school districts); 3) Charter
Schools (non-LEA operated; self-contained LEA charters; online "virtual"
charter schools); 4) Tax Subsidies (i.e., federal Coverdell ESAs;
school tuition organizations that provide "scholarships"); 5) subsidies
to private schools (i.e., contracted schools for special services,
from Districts); and 6) School Vouchers and Supplemental Education
Services (vouchers that can be used as full or partial tuition payments
in private schools). Only the last three of these options provide
a means by which public funds are expended for private school education,
or in other words, constitute a form of private school voucher program.
There are significant differences among the voucher
programs discussed so far, but there can also be significant variation
among programs in the same category. Levin (1990) for example, suggests
a further distinction should be made between "market choice" models
and "public choice" models. A market choice option provides vouchers
for access to private schools. Public choice systems offer choices
within the public domain, either within or across districts. Levin
argues that public choice models better reflect the Deweyian ideal
of social benefits for all, while the market choice model affords
greater private family benefits. The natural tension that exists
in a democracy between private benefits and the common good affords
some emerging standards against which to evaluate school-choice
programs independent of evidence for enhanced achievement or school
improvement resulting from competition. Levin (1990) writes, "Clearly
a voucher plan with 'compensatory' vouchers for the poor, no 'add-ons',
extensive provisions for transportation and information, and regulation
of admissions to assure participation of the poor will have vastly
different consequences than one which provides a uniform voucher
with parental 'add-ons', a poor information system, no transportation,
and a laissez-faire approach to admissions" (p. 260).
It is clear that no system of categorization can
truly accommodate the existing and potential variety of school choice
programs. Therefore, instead of creating a system of categories,
the range of possible structures and characteristics of various
programs should be identified and examined so that any voucher program,
existing or proposed, can be evaluated based on its structural characteristics.
The Structural Characteristics of Voucher Proposals
We have identified fifteen structural characteristics
based on the literature that will significantly affect the legality
and/or efficacy of a voucher program. These fifteen characteristics
can be organized into five questions: (1) Who can participate? (2)
What are the choice options? (3) How is funding handled? (4) What
are the accountability measures? And (5) how does it address barriers
to successful implementation? We now outline each of these questions
and the possible structural characteristics that answer them.
Who can participate?
The question of who can participate applies to both
students and schools. Most voucher programs have eligibility criteria
for both prospective students and schools. Program participation
can also be limited to a certain number of students. Who participates
and how many participate, along with the criteria for eligibility,
are the defining characteristics of a voucher program.
Student Eligibility. Besides the basic requirement
of state or local residency, many voucher programs including those
in Cleveland, Milwaukee, and Florida, have additional criteria for
student eligibility. These programs are thus targeted at particular
groups, usually those who are in at-risk populations or localities.
Cleveland and Milwaukee, for instance, only provide vouchers to
low income families (200 percent of the poverty level in Cleveland;
175 percent in Milwaukee). Florida's A+ program, on the other hand,
provides vouchers only to students in schools that have received
an "F" rating twice in the previous four years. Targeted programs
such as these attempt to promote social equity by providing vouchers
only to those who need them most. Other examples of targeted voucher
programs include those in Maine and Vermont that provide reimbursement
to families who live in districts that do not have a public school
system.
Florida's McKay Scholarship program for students in
special education is the only voucher program specifically targeted
to students with disabilities. Though it is unarguably a "targeted"
program since only children who need special education services
can qualify, it shares many similarities to universal systems in
that all students with disabilities throughout the state are eligible.
This also makes the McKay voucher program surprisingly large compared
to most targeted voucher programs currently in existence. In its
first year, the McKay program boasted 4,997 participants, more than
the combined enrollment in the Cleveland program (4,457 participants)
and the Florida A+ program (70 participants). It presently serves
8,644 students at a cost to taxpayers of $54.7 million (East, 2003).
Universal voucher programs, on the other hand, also
have its proponents, such as Milton Friedman. Universal voucher
advocates argue that targeted programs provide only limited motivation
for private school involvement, create only limited competition,
and thus, provide only limited benefits. Universal programs sometimes
take the form of tax credit programs for educational expenses rather
than true school vouchers, such as the non-refundable individual
tax credit in Illinois for 25 percent of educational expenses over
the first $250 spent at any public, private, or home school. The
credit provides a maximum of $500. Minnesota has had a similar tax
deduction since 1950 that provides up to $1,625 for students in
grades K-6 and $2,500 for students in grades 7-12.
School Eligibility. For every voucher, there
must be a place to spend it. Therefore, schools must be willing
to participate in the program. Constitutional issues about religious
schools, questions of effectiveness, and a need for adequate school
enrollment drive the creation of criteria for schools that wish
to participate in voucher programs and accept voucher students.
While Zelman has put to rest the primary reason
for excluding religious schools from participation in voucher programs,
state constitutional issues still may motivate some states or districts
to limit vouchers to private schools with no religious affiliation.
The Milwaukee program originally did not allow religious schools
to participate, and the program in Maine still only includes nonsectarian
private schools. Yet the constitutional issues may bite both ways
as the possibility exists that private religious schools will challenge
programs that "discriminate" against them.
To date the questions of effectiveness of private
schools that wish to enroll have generally been limited to questions
of capacity and convenience. With no proven system in place to monitor
or rate the effectiveness of private schools, most voucher programs
focus on whether the school takes children from all grades and whether
it is within the local or a neighboring school district. In the
more established programs such as the one in Cleveland, certain
prior year attendance requirements also apply.
The Milwaukee program requires each participating
private school to meet one of four basic standards: 70 percent of
students advance to the next grade level each year, 90 percent attendance
rate, 80 percent of students demonstrate significant academic progress,
or 70 percent of families meet parent involvement criteria. Obviously,
it is not very difficult for schools to meet only one of these standards.
Other than these meager efforts, the need to ensure that public
schools that participate are good schools seems to be left to market
forces such as parent discretion in most programs.
The Florida A+ program potentially goes the farthest
of any existing voucher program in requiring eligibility requirements
in that it subjects private schools to standards adopted by a nonpublic
school accrediting body which determines the strength and effectiveness
of its accountability provisions. The Florida program also requires
schools to demonstrate "fiscal soundness" in an effort to address
concerns about private schools going out of business and thus creating
high levels of transfer among schools. These types of accounting
requirements have become more popular among voucher programs. The
McKay program also requires fiscal soundness, but does not specifically
require submission to standards of an accrediting body.
The need to have an adequate number of schools participate
is probably still the most formidable factor influencing questions
about school criteria in voucher programs. This is particularly
true with regard to the participation of secular schools. Zelman,
after all, requires "real" secular choices be available for a voucher
program to be constitutional. Zelman also suggests an easy
way of padding the secular choices available to families if there
are not enough private secular schools available: allow the vouchers
to be used at other public schools. Another method of ensuring secular
options is to provide the option of a voucher for supplemental services
such as in the NCLB.
Maximums. Concerns about limited resources
and the high fixed costs of public schools have resulted in limitations
being placed on the number of students allowed to participate in
many voucher programs. Maximum enrollment limitations help to address
fears that voucher programs will drain the coffers of the public
schools or put a heavy burden upon taxpayers. Cleveland's program
depends upon the amount allocated by the legislature. Milwaukee's
allows no more than 15 percent of the total enrollment at public
schools to utilize vouchers. Other programs such as Florida's A+
program, the McKay Scholarships, and the voucher programs in Maine
and Vermont are limited only by the special circumstances they require
for eligibility.
What are the choice options?
Maximums completely remove the availability of choice
based on the voucher program for those who are not allowed to enroll.
This question deals with a similar issue: what are the limitations
on choice for those who qualify and are allowed to enroll in the
voucher program? There are three ways in which choice options may
be limited. First, what alternatives are provided or, in other words,
what different educational options are available to choose from?
Second, who determines whether the student is admitted to a private
school? Finally, how mobile are the vouchers or what geographical
limitations are placed on available choices?
Alternatives. As previously mentioned, students
must have schools at which to spend their vouchers and sufficient
secular choices must be available if a voucher program is to meet
the requirements of Zelman. While eligibility is one way
schools can be convinced to participate, overall availability of
alternatives is also determined by things such as location and the
voucher funding mechanisms (particularly how much and whether parents
can add on to the voucher amount). Other methods that states may
use to increase available alternatives include allowing vouchers
to be used for public as well as private school choice programs,
allow vouchers to go toward educational expenses for home schools
or supplementary services, provide tax credits or other legal/financial
incentives to attract new schools, or simply increase the number
of children in the program and thereby increase the market incentives
for schools to participate.
The availability of schools to participate in a voucher
program is one of the main reasons vouchers are touted as addressing
urban rather than rural school quality issues. Schools in rural
locations are unlikely to have the populations to support extensive
choices among public and private schools. On the other hand, the
reimbursement programs in Maine and Vermont apply mostly to rural
school districts that are too small to provide any public school
options. They provide choice by simply ignoring the potential geographical
and transportation barriers to a sufficient number of educational
options and instead attempt to create real choice by allowing parents
to seek educational services from practically any source. It is
likely that for practical reasons, families limit their selections
to schools that are nearby the communities in which they live.
Admission. Traditionally, private schools select
the students to attend their schools from available applicants.
This free market ideal, however, is a common concern among voucher
critics because it leaves the door open to segregation and discrimination.
If admission is determined solely by the private school, schools
could openly discriminate against voucher students on the basis
of religion, intelligence, English proficiency, behavior, economic
status, sex, and potentially even race or nationality.
Free market proponents would argue that the homogeneity
of some private schools provides families with a wider range of
options sensitive to particular cultural or educational preferences,
and admission standards will respond to the market incentives provided
by vouchers to provide good school options for all groups of voucher
students. This argument is not very convincing with respect to individuals
with severe disabilities, unless their voucher amounts adequately
reflect the costs of addressing each child's needs. Another suggestion
for retaining the broad range of cultural and educational options
created, in theory, by selective admission is to allow a small percentage
of participating schools to register for a voucher program as a
specialized school with particular admission requirements. Under
this approach the majority of schools would still not be allowed
to determine their own admission standards.
If protections against discrimination in the admission
of voucher students are established, what form should they take?
In Cleveland, Milwaukee, and Florida (A+ program) eligible students
apply for admission with respect to the number of slots made available
by each school. Students to fill those slots are then randomly selected
from the eligible applicants for each school. Another option is
to require schools to accept a certain proportion of students from
selected demographic groups.
While random admission or demographic selection may
eliminate certain kinds of discriminatory practices and protect
some groups, voucher programs such as the one in Cleveland still
explicitly allow "any school district board operating any schools
on Oct 1, 1989, admission to which was restricted to students possessing
certain academic, athletic, artistic, or other skill, may continue
to restrict admission to such schools." Discrimination on the basis
of ability doesn't receive the same amount of protection as discrimination
based on race, religion, or ethnicity. Schools that wish to institute
new restrictions (after Oct. 1989) may still do so if the state
board of education finds that the restriction will "generally promote
increased educational opportunities" for students in the district
and not "unduly restrict opportunities" for others. Such provisions
create concern about the sufficiency of the "choice" offered to
students with disabilities and whether they are receiving an equal
opportunity to participate in the program.
Neither method is used in the McKay Scholarship program.
The McKay scholarship program allows schools to exclude applicants
that they are not equipped to serve. It allows schools to specialize
in particular categories or classifications of disability such as
blindness or autism and to only accept students who have those disabilities.
This approach seems to fly in the face of past special education
efforts to implement the LRE requirements of IDEA, by integrating
children with disabilities into regular education schools and classrooms,
and developing policy in favor of non-specialized and inclusive
schools.
Mobility. Another factor that limits choice
within a voucher program is the geographical limitations on the
use of the voucher. Some programs, such as Cleveland's limit the
use of vouchers to private schools within a particular district
where the eligible students are located. Others, such as the reimbursement
program in Maine allow parents to choose any school inside or outside
of the state as long as it is "approved." While greater mobility
expands choice options, it can also send funds out of a district,
thereby hurting the community in which the school is located, especially
if it is already economically underdeveloped.
Funding
A potentially limiting factor itself, funding in
a market driven system is a key factor in motivating participation
and creating options. The method by which the funds are transferred
can also affect the legal status of the program as well as the options
of participants. Funding is characterized by the amount of the voucher,
the method of payment, and the sufficiency of the payment.
Amount. The most basic question about voucher
programs is how much should each voucher be worth? The free market
answer is to determine a standard amount for all eligible children
based on the average amount of money needed to provide each child
an education. This is a fairly common approach among existing programs.
Milwaukee's voucher program provides a standardized amount and Florida's
A+ program provides an amount based on district per-pupil costs.
Both programs limit the voucher amount to no more than the cost
of tuition at the private school, but this requirement seems rather
pointless considering the motivation for private schools to increase
their tuition level to the maximum allowed by the voucher, if indeed
their tuition is lower than the maximum to begin with.
As a practical matter, this system has some potential
problems. Children do not all have the same educational needs, so
a standardized voucher amount based on average educational costs
will not accurately reflect the educational costs for individual
children. This imbalance creates financial risk for private school
participants who must either (1) control admissions to guarantee
a positive voucher-cost ratio, (2) accept a large enough number
of voucher students to average out the individual costs, (3) admit
a high enough number of non-voucher students who have low educational
costs to offset the risk posed by the voucher program, (4) simply
accept the risk of participation in the voucher program, or (5)
provide only a standardized level of educational services to meet
the needs of the average student. One other option for schools worried
about the financial risk is, of course, to not participate.
The financial risk for private schools accepting students
with higher educational costs is particularly high with respect
to children with disabilities whose educational costs are much greater
than that of the average general education student. These questions
have fueled the concern that option 1, above, will be chosen by
schools and result in discrimination against children with disabilities
in voucher programs. Option 5 is potentially even more damaging
to students with disabilities who could not be provided an appropriate
education by a standardized level of services.
To address these concerns, voucher programs could
provide additional dollar amounts to children who need special education.
Additional amounts could be based on identified student needs, individual
disability classification, or be standardized for all students who
need special education. The Cleveland program adopts this strategy
and increases voucher amounts for students with disabilities by
100 percent of the actual costs of additional services as determined
from prior public school expenditures. Other suggestions have included
the creation of a sliding scale for the value of vouchers based
on family income. This would, in theory, offset concerns about schools
limiting admission to children from high-income families, but would
not address discriminatory practices based on voucher amount/educational
cost ratios directly.
Another approach would be to address these concerns
by prohibiting discrimination or admission standards and holding
private schools accountable for providing an appropriate education
to students with disabilities who select their school. This strategy
involves regulation of the private schools involved in the program,
but has still proved an appealing option for many voucher programs.
The Milwaukee program requires schools to comply with federal civil
rights laws, as does the A+ program in Florida. Wisconsin specifically
prohibits discrimination on the basis of race, ethnicity, or religion
(but not disability) in addition to providing more extensive funding
for children with disabilities.
The amount of each voucher is particularly important
with respect to the market theories that support the creation of
voucher programs. The amount of the voucher should not only be sufficient
to allow some children the option to attend existing private schools,
it should be large enough to stimulate the creation of new private
schools (or expansion of old ones) that will provide more choice
options for a greater number of students. The seriousness of this
concern about the high voucher rate required to attract a sufficient
number of providers is starkly demonstrated in Milwaukee. The voucher
provided to Milwaukee students in 2001-2002 had risen to $5,553
per student. This amount is more than enough to meet the standard
tuition at most of the private schools in the city. Yet there is
little evidence that any new private schools are being created.
There were only 106 schools accepting vouchers in the 2001-2002
year from over 10,000 students. The limited supply of educational
options has forced the Milwaukee program to limit the number of
students participating and presents a significant barrier to expanding
the program in the future.
The Florida McKay program has a much better ratio
of participating students to participating schools. In 2001-2002,
the 4,997 students accepting McKay vouchers had 357 schools to choose
from. It could be argued that the increased choices result, at least
in part, from the amount of the McKay voucher. The McKay vouchers
are equal to the lesser of either the funding amount that has been
determined to be necessary for an appropriate education at a public
school or the cost of the private school tuition. This argument
seems misleading though since the ratio of students to schools is
largely due to the program applying statewide. Thus, the actual
choices of students who need special education services in a particular
area are probably much more restricted than the numbers suggest.
Furthermore, the McKay voucher is limited to the amount of tuition
charged by the private school and thus may not reflect the actual
cost of providing an appropriate education. Once more, schools will
be faced with the aforementioned five choices to address such fiscal
risk, at least to the extent each option is allowed by the program.
Payment Method
Since Zelman, how the public funds are used
to create private school choices is a vital issue. The second part
of the Zelman test requires the funds to be provided to the
parents rather than directly to the school. Parental choice as the
vehicle for funds transfers to private schools provided the basis
for the Court distinguishing the case from those that fall under
the Lemon test. If a voucher program provides funds directly to
schools, the Zelman decision will not uphold its constitutionality.
The payment method also affects who benefits and how
much benefit they receive from the choice program. There are several
existing payment methods that can be utilized in a voucher program:
individual tax subsidies, tax incentives for private donations,
direct payment to schools, vouchers, and family reimbursement.
Tax subsidies include deductions, exemptions, or credits.
A deduction allows the family to subtract qualified educational
expenses actually incurred from their total taxable income. This
approach tends to favor those in upper income brackets for whom
the value of a deduction is substantially more. Although these inequities
would not exist as much in a low-income targeted program, the deduction
would also provide only a minimal benefit for such individuals or
no benefit at all if the family had no taxable income. Tax exemptions
are similar to tax deductions and allow families to invest income
in the future education of their children such as in education savings
accounts that exempt the money invested, and the interest earned
on such money, from income tax requirements. As with deductions,
families must first have money to take advantage of such programs.
Because of these inequities, most existing tax subsidies
for education provide a tax credit rather than a tax deduction.
A tax credit relieves the taxpayer's final tax burden equal to a
flat dollar amount independent of income amount. Tax credits, while
more equitable than deductions, may still fail to assist families
who do not make enough to incur a tax burden unless they are refundable,
in which case the credit amount will be granted in the form of a
tax refund even if the family does not owe any taxes.
Another tax based appr | 
