Last year, the Louisiana Supreme Court found the state school voucher program unconstitutional, and recently the troubled program has made news again.1 In August, the U.S. Department of Justice filed a lawsuit to enjoin implementation of the program in parishes that are under federal school desegregation orders.2
Despite these significant legal challenges, however, Governor Bobby Jindal and some state lawmakers continue to vehemently defend the program. In the wake of the recent rulings, these officials are attempting to redesign the program to avoid running afoul of state and federal law. As the Legislature is reconsidering how to implement the program, there is another significant legal hurdle that program advocates will likely need to address if the program is to survive. Specifically, legislators will need to reconsider the participation of students with disabilities, or special education students.
Currently, there are two separate programs through which special education students may obtain a private school voucher: the general voucher program that accepts both disabled and non-disabled students, or the special education voucher program specifically designed for students with disabilities. Unfortunately, neither of these programs does a satisfactory job of ensuring equal access to educational opportunities for special education students.
The larger general voucher program, available to students with and without disabilities, provides special education students with two options. One option is that these students may find a participating private school that has specifically expressed willingness to provide special education “spots.” In the program’s pilot year, however, “[i]n the list of 125 schools preliminarily approved to participate in the state’s scholarship program, only six—one in DeRidder and five in Baton Rouge—indicate that they will provide special education services.”3 Thus, for the vast majority of special education students, this option is completely unavailable. The second option under the general voucher program is to enroll in a participating voucher school and forgo any special education services by signing a waiver agreeing that no special services will be provided. These two options essentially put families of special education students in the position of choosing between (1) getting to attend a private school through the voucher program, but having to forgo special education, or (2) remaining in a failing public school, but retaining the right to access special education in that school. For many families, who feel that their children cannot forgo special education, this dilemma will certainly be a de facto prohibition from participation in the general voucher program.
Louisiana lawmakers, however, have attempted to address special needs students in a separate voucher program, which also, unfortunately, fails to ensure equal access. In a separate bill passed in the same session as the general voucher program, the Louisiana Legislature authorized the creation of an independent voucher program specifically designed for special education students (the “special education voucher program”).4 However, this independent program will not likely serve as a viable alternative for those students who would have otherwise participated in the other voucher program (the “general voucher program”) for one important reason: the scholarships under this special education voucher program are worth only one-half as much as those under the general voucher program.5 And, unlike the general voucher program, which caps private school tuition at the amount of the voucher, the program designed for special education students requires parents to pay the difference between the voucher and the full cost of tuition and fees. Given that private schools often charge significantly higher tuition to pay for special education services, this option may be cost prohibitive for students within 250% of the federal poverty line (the category of students whom the general voucher program serves).6 In this respect, the special education only program does not serve as a realistic alternative for poor and working class families.
This disparity in access to an important education program brings up serious concerns regarding compliance with federal disability and special education laws. Specifically, the current scheme for disabled student participation likely violates the landmark legislation that protects the education rights of students with disabilities: the Individuals with Disabilities in Education Act (IDEA) and § 504 of the Rehabilitation Act of 1973.7
Special education students placed in private school by their parents are entitled by IDEA to a service model designed to ensure “the equitable participation of parentally placed private school children” in special education programming.8 Proper completion of the equitable services procedures, including disability identification, funding, and consultation will, at a minimum, give each student an opportunity to have those who are involved in educating the child discuss whether and how special education services should be provided to that student. Not to be diminished, this process ensures that there is a chance for those who know the student’s needs to advocate on his or her behalf.
The general voucher program, however, requires special education students whose parents are unable to find a special education program at a private school to sign a document agreeing “to accept only such services as are available to all students enrolled in the nonpublic school.”9 This waiver requires students to automatically forgo all of the procedures that IDEA guarantees to special education students enrolled in private schools by their parents. Though private school students do not have an individual right to services under IDEA, these students, at a minimum, are guaranteed by IDEA the right to have their needs considered during a consultation involving representatives of all interested parties.
Given the purpose of IDEA that has been commonly recognized by the Courts—providing a free appropriate public education to all disabled students and protecting the rights of disabled students and their families—the waiver is in direct conflict with Congress’s stated intent in enacting IDEA. Broadly, it detracts from the substantive and procedural rights that families have with respect to disabled students. Students will lose the ability to make due process challenges to the identification procedures or submit formal complaints about the consultation and funding processes. Most significantly, the students who sign waivers will have the lost the right to be considered in district consultations with private schools. To the extent that the Scholarship program denies the students this possibility, it conflicts with IDEA.
Additionally, the voucher programs likely violate the prohibitions contained in § 504 of the Rehabilitation Act. Though the U.S. Department of Education’s Office of Civil Rights (“OCR”), which governs compliance with § 504, has not previously examined a program that requires a waiver of access to special education services in the context of a private school voucher program, it has addressed this requirement in the context of many other school programs. In these inquiries, OCR has uniformly found a waiver of special education services as a condition to participate in a program to be a violation of § 504.10 A brief review of this material demonstrates that programs requiring special education waivers violate the fundamental anti-discrimination principles outlined in § 504.
OCR has, in at least two instances, directly addressed a situation where students with disabilities have been required to forfeit their rights to special education services as a condition for participation in an advanced study program.11 In both instances, OCR made it very clear that requiring a waiver for participation in a magnet program is a violation of § 504 of the Rehabilitation Act.12 As long as a student has met the admissions criteria of the program and is “otherwise qualified,” school districts cannot deny that student the special education services that he is guaranteed by virtue of his disability, even in an advanced study program.
Advocates of the current structure of the general voucher program might argue that the existence of the special education voucher program that can serve as an alternative for disabled students resolves the general program’s conflict with § 504. However, a review of § 504’s requirements reveals that this proposition cannot withstand scrutiny. Disabled students who qualify for the original voucher program would ordinarily be entitled to a voucher worth 100% of the Minimum Foundation Program (“MFP”) fund amount. Therefore, a voucher worth only 50% of the MFP amount, as the special education voucher program would provide, would, by any standard, be an unequal benefit. Section 504’s implementing regulations, under “Discriminatory Acts Prohibited,” proscribe actions that “[a]fford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.”13 A provision of unequal voucher amounts thus violates the plain language present in anti-discrimination provisions of § 504. Offering students who would otherwise qualify for a full MFP voucher, a voucher worth one-half as much solely because they are disabled is apparently the exact type of discrimination § 504 seeks to prevent. The special education voucher program as it is currently funded, therefore, cannot serve as a viable alternative to the general voucher program.
Ultimately, the current structure of both voucher programs poses serious problems with respect to special education student participation. The waiver requirement of the general voucher program implicates serious problems with federal special education and disability law that are not ameliorated by the creation of the independent special education voucher program. If Louisiana hopes to maintain these programs in the long-term, the inclusion of special education students must be addressed.
1 Louisiana Federation of Teachers v. State of Louisiana, No. 612, 733, 2012 WL 6220138 (La. Dist. Ct. Nov. 30, 2012).
2Danielle Drellinger, U.S. Government Sues to Block Vouchers in Some Louisiana School Systems, The Times-Picayune, August 24, 2013, available at http://www.nola.com/education/index.ssf/2013/08/us_government_files_to_block_s.html.
3 Barbara Leader, Kids with Special Needs, Being Left Behind, Critics of State Voucher Plans Say, The News-Star, July 20, 2012.
4 Act No. 424, 2012 La. Acts 2180.
5 Under the Student Scholarships for Educational Excellence Act, each student receives a voucher equivalent to the per pupil allocation from the state minimum foundation program that would otherwise be dedicated to the local school system. No. 2, 2012 La. Acts 13. However, under The School Choice Program for Certain Students with Exceptionalities, each student receives a voucher equivalent to 50% of the per pupil allocation from the state minimum foundation program. No. 424, 2012 La. Acts 2180.
6 Act No. 2, 2012 La. Acts 13.
7 20 U.S.C. §§ 1400–1482 (2006); 29 U.S.C. § 794 (2006).
8 20 U.S.C. § 1412(a)(10)(A).
9 Act No. 2, 2012 La. Acts 13.
10 See, e.g., Letter to Harry J. Reynolds, 20 IDELR 999 (Aug. 11, 1993 OCR); Letter from Stephanie J. Monroe, Assistant Secretary for Civil Rights to Colleagues (Dec. 26 2007), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20071226.pdf.
11 20 IDELR 999.
13 34 C.F.R. § 104.4 (Westlaw 2013).