National Council on Disability

November 15, 2018

School Choice Series

Choice & Vouchers—Implications 

for Students with Disabilities
National Council on Disability (NCD)

1331 F Street NW, Suite 850

Washington, DC 20004

School Choice Series: Choice & Vouchers—Implications for Students with Disabilities

National Council on Disability, November 15, 2018

Celebrating 30 years as an independent federal agency

This report is also available in alternative formats. Please visit the National Council on Disability (NCD) 

website (www.ncd.gov) or contact NCD to request an alternative format using the following information:

ncd@ncd.gov Email

202-272-2004 Voice

202-272-2022 Fax

The views contained in this report do not necessarily represent those of the Administration, as this and 

all NCD documents are not subject to the A-19 Executive Branch review process.
Letter of Transmittal

November 15, 2018

The President

The White House

Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I submit this report for your consideration entitled 

Choice & Vouchers—Implications for Students with Disabilities. The National Council on Disability is an 

independent federal agency mandated with the responsibility of providing the President and Congress 

policy recommendations that promote equal opportunity, economic self-sufficiency, independent 

living, and inclusion and integration into society for people with disabilities. This report is one of two 

independent analyses by NCD concerning school choice and its intersection with disability rights law. 

Considering the heightened interest of parents in school choice options and the current national dialogue 

regarding vouchers and school choice, we hope you find this report both pertinent and timely.

This report outlines the construct of vouchers, education savings accounts, and tax credits for students 

with disabilities. It also clarifies the effect on students with disabilities of programs of school choice 

that allow money for each eligible student to go directly to parents rather than to the public-school 

system. The paper explains how this adjustment in the flow of public funds results in critical and often 

misunderstood changes in protections for students with disabilities and their families, under not only 

the Individuals with Disabilities Education Act, but also federal nondiscrimination laws. Finally, this report 

makes multiple recommendations for federal and state departments of education and Congress to 

address problems that may deprive students with disabilities and their families of an equitable education.

NCD stands ready to work with federal agencies, state governments, the disability community, and 

other stakeholders to improve federal protection of the rights of students with disabilities in a manner 

consistent with parents’ right to choose the method and venue of education that best fits their 

children’s needs.

Sincerely,

Neil Romano

Chairman

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the 

U.S. House of Representatives.)
2 National Council on Disability
National Council on Disability Members and Staff

Members

Neil Romano Chairman

Benro Ogunyipe, Vice Chairperson

Billy Altom

Rabia Belt

James Brett

Daniel Gade

Andrés Gallegos

Wendy Harbour

Clyde Terry

Staff

Phoebe Ball, Legislative Affairs Specialist

Stacey S. Brown, Staff Assistant

Joan M. Durocher, General Counsel & Director of Policy

Lisa Grubb, Executive Director

Netterie Lewis, Administrative Support Specialist

Amy Nicholas, Attorney Advisor

Nicholas Sabula, Public Affairs Specialist

Amged Soliman, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Ana Torres-Davis, Attorney Advisor

Keith Woods, Financial Management Analyst

Choice & Vouchers—Implications for Students with Disabilities 3
4 National Council on Disability
Contents

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Summary of Key Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

List of Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Research Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

A. Review of Policies and Secondary Literature . . . . . . . . . . . . . . . . . . . 

B. Review of Existing Quantitative Data . . . . . . . . . . . . . . . . . . . . . . . . . . 

C. Qualitative Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Chapter 1: Current Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

A. Changes over Time and the NCD 2003 Report on Vouchers . . . . . . . . 

B. Overview of Choice Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

1. Types of Programs. .

2. State Voucher Program Constructs for 

Students with Disabilities. .

3. Education Savings Accounts. .

4. Federal Voucher Program. .

Chapter 2: The Fiscal Impact of Vouchers and Scholarship Tax Credits 

on Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

A. Lack of Consensus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

B. Increasing Tension—Who Should Get Resources . . . . . . . . . . . . . . . . 

Chapter 3: Issues Specific to Students with Disabilities . . . . . . . . . . . . . . . . . . . . . . . .  3

A. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

B. Enrollment of Students with Disabilities in Voucher Programs . . . . . 

C. The Reasons Parents Choose Vouchers . . . . . . . . . . . . . . . . . . . . . . . . 

Choice & Vouchers—Implications for Students with Disabilities 5
D. School Choice Programs for Students of Color with Disabilities . . . 

E. Provision of Disability-Related Services . . . . . . . . . . . . . . . . . . . . . . . 

F. Identification of Students with Disabilities . . . . . . . . . . . . . . . . . . . . . 

G. Procedural Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

H. Cost of Private School Is Often a Barrier for Families, Eve

with a Voucher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

I. Voucher Programs Primarily or Entirely Serving Student

with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

J. Information Provided to Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Chapter 4: Outcomes of Students with Disabilities in Voucher Programs . . . . . . . . .  5

Chapter 5: Legal Protections for Students with Disabilities 

in Voucher Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

A. Concern with Waiver of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

B. The Federal Establishment Clause of the U.S. Constitutio

C. The Fourteenth Amendment of the U.S. Constitution . . . . . . . . . . . 

D. Federal Legal Requirements Under Voucher Programs . . . . . . . . . . . 

E. School Vouchers and the Individuals with Disabilitie

Education Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

F. Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

G. The Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 

1. Interplay of ADA Title II and Title III in Voucher Programs. .

H. State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Chapter 6: Court Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Chapter 7: Preliminary Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Student Experiences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Andy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Bonnie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

6 National Council on Disability
Acknowledgements

The National Council on Disability thanks Denise Marshall and Selene Almazan of the Council of Parent 

Attorneys and Advocates; and Eve Hill of Brown Goldstein and Levy for the research conducted in 

developing this report.

Choice & Vouchers—Implications for Students with Disabilities 7
8 National Council on Disability
Executive Summary

At the core of the nation’s laws that 

govern public education is the right to 

equity. The promise of equity is also at 

the core of the nation’s laws to protect students 

with disabilities. The Individuals with Disabilities 

Education Act (IDEA) seeks to guarantee equity 

by assuring that parents are meaningful partners 

in their child’s education; that educational 

programs are specifically designed to meet 

each child’s unique needs; and that children 

with disabilities make progress in the general 

education curriculum alongside peers without 

disabilities. As of the 2015–2016 school year, 

6.7 million students with disabilities are eligible 

under IDEA and are receiving education from 

public school systems. More than 88,000 families 

have chosen to take their children out of public 

school and utilize available state-funded choice 

options, which effectively take them out from 

under the protections of IDEA and other federal 

statutes while also promising to customize 

quality educational options for their children’s 

individual needs.

Given the heightened interest of parents in 

school choice options and the current national 

dialogue regarding vouchers and school choice, 

the terms vouchers and tax-credit scholarships

have entered the mainstream dialogue and 

are fueling an ongoing debate about what is 

considered “public” education in the United 

States and whether private options should be 

part of the public educational system. The debate 

includes increasing tension over school choice 

options for students with disabilities.

Proponents of school choice reforms believe 

that vouchers, education savings accounts, 

and tax scholarships will ultimately improve 

public education through the introduction of 

market forces that expand consumer choice and 

competition between schools. They also believe 

that public schools and the special education 

system are often failing students with disabilities, 

and vouchers provide a way for the federal and 

state governments to support parents choosing 

better options for their children outside of the 

public educational system. Opponents see 

vouchers, education savings accounts, and tax 

scholarships as empty promises that will deplete 

public school funds. They also see students with 

disabilities and their families potentially making 

uninformed choices or decisions that may leave 

students vulnerable to discrimination, rejection, 

substandard educational programs, or hidden 

expenses. Meanwhile, parents feel caught in 

the crossfire, with many thankful for choice 

opportunities and others angry at the need to 

make a choice that may shrink the resources 

of public schools. Many state programs 

systematically exclude low-income families 

that cannot afford the additional costs and fail 

Choice & Vouchers—Implications for Students with Disabilities 9
to include students of color with disabilities. 

Available private schools push out students with 

disabilities who are hardest to serve.

The National Council on Disability (NCD), 

recognizing this emerging debate on the use 

of educational vouchers, education savings 

accounts, and tax credits, commissioned 

research to better understand the experiences 

and outcomes for students with disabilities and 

their families that make use of voucher and 

voucher-like programs in lieu of traditional public 

schools. The policy paper, Choice & Vouchers—

Implications for Students with Disabilities, which 

resulted from this research outlines the construct 

of vouchers, education savings accounts, and 

tax credits for students with disabilities. It also 

explains the effect of programs that allow money 

for each eligible student to go directly to parents 

rather than to the public school system, enabling 

parents to choose the school or services that 

they feel will best meet their child’s needs. 

The paper outlines how this alteration in the 

flow of public funds results in critical and often 

misunderstood changes in protections for 

students with disabilities and their families, under 

not only IDEA, but also federal nondiscrimination 

laws.

In order to gain a better understanding of the 

experiences of students with disabilities with 

respect to voucher programs, the study utilized 

a mixed-methods approach that included focus 

groups, interviews, and analysis of existing 

policies and secondary literature. The second 

component of the study was an examination 

of descriptive, quantitative data pertaining to 

students with disabilities and voucher programs 

available from the National Center for Educational 

Statistics (NCES), state departments of 

education, and various state websites. Two case 

studies were developed to demonstrate different 

perspectives on vouchers and choice options for 

students with disabilities.

10 National Council on Disability
According to the 2016–2017 School 

Choice Yearbook, there are 52 private 

school choice programs in 26 states and 

Washington, DC, serving more than 442,000 

students. Of these programs there are 11 

state voucher programs that are exclusively for 

students with disabilities: Arkansas, Florida, 

Georgia, Indiana, Louisiana, Ohio, Oklahoma, 

Utah, Mississippi, North Carolina, and Wisconsin. 

Five states currently have targeted education 

savings accounts (ESAs) for students with 

disabilities: Arizona, Florida, Mississippi, North 

Carolina (scheduled to start in 2018–2019), 

and Tennessee. Two states, South Carolina 

and Arizona, have tax credits (scholarship or 

individual) for students with disabilities.

Impact on Families and Students with 

Disabilities

The present report documents the following 

issues for families and students with disabilities:

■ Concerns presented in the 2003 NCD 

report School Vouchers and Students 

with Disabilities continue to be critical 

problems in 2018: Parents and families 

using vouchers can lose access to rights; 

accountability can suffer; vouchers might 

only cover a portion of private school cost, 

leaving a majority of families unable to 

access any choice at all; and the state 

construct may profoundly affect rights and 

outcomes for students with disabilities.

■ Many students with disabilities and 

their families turn to choice options 

after experiencing intolerable conditions 

in public schools, including the lack of 

services and the refusal or inability of public 

school districts to fulfill their obligations 

under IDEA; families decide to use choice 

options and enroll their children in private 

schools that may better meet their child’s 

individualized needs.

■ Some families of students with 

disabilities seek other options despite 

being satisfied with their child’s 

individualized education program (IEP), 

especially private schools that have higher 

expectations for students and provide better 

services to children with a disability.

■ State departments of education and 

the U.S. Department of Education are 

not doing enough to ensure parents are 

making an informed decision about giving 

up rights under IDEA and other federal 

statutes in exchange for public funds and 

vouchers, when a child with a disability is 

moved from public to private school.

■ Many families in this study are 

unconcerned about the loss of rights

Summary of Key Findings

Choice & Vouchers—Implications for Students with Disabilities 11
and are happy with their choices and the 

outcomes of their decision. Others are 

angry and frustrated about being forced to 

relinquish rights.

■ To benefit from a choice program, 

families need to be able to pay significant 

amounts from their own pockets for the 

cost of private school that vouchers do 

not cover, including transportation and time 

to coordinate the educational program for 

their child.

■ Research on choice for students with 

disabilities is lacking. Thus, in the absence 

of data on discrimination, discipline, 

segregation, length of time using vouchers, 

or other programs and outcomes, families, 

state officials, and advocates are unable 

to fully understand the consequence and 

impact of vouchers.

Impact on Rights under Federal and State Law

Regarding students with disabilities and their 

rights under federal and state law, the report 

found several concerning issues:

■ The Department of Education and the 

Office for Civil Rights have consistently 

stated that the use of vouchers 

constitutes a parental placement with no 

individual entitlement to free appropriate 

public education, including special 

education and related services in connection 

with those placements.

■ For the majority of school voucher 

programs, if students attend a private 

school with the vouchers, they must 

relinquish their rights under IDEA, 

including the right to assessments paid by 

the school district, an IEP, free appropriate 

public education (FAPE), least restrictive 

environment (LRE), and procedural due 

process protections for them and their 

families.

■ Some parentally placed children with 

disabilities will not receive any special 

education services, and others will

because local education agencies (LEAs) are 

required to spend a proportionate amount 

of IDEA federal funds to provide equitable 

services to parentally placed children.

■ States continue to receive special 

education funding for voucher students 

and may require private schools using 

vouchers to carry out IDEA obligations.

■ Voucher programs could include key 

components of special education 

services, including procedural or substantive 

requirements, the right to an impartial due 

process hearing if the private school fails to 

comply, and IEPs.

■ States could require that private schools 

participating in voucher programs must 

be bound by the obligations of Title II 

of the Americans with Disabilities Act 

(ADA), judged according to the budget 

and resources of the state education 

agency (SEA) or local education agency 

(LEA), rather than to the particular private 

school’s budget.

As a result of these findings, this report makes 

multiple recommendations for federal and state 

departments of education and Congress to 

address problems that may deprive students 

with disabilities and their families of an equitable 

education. Voucher programs must address 

the civil rights of students with disabilities 

12 National Council on Disability
and address the extra costs often assumed by 

families when a child with a disability is attending 

private school. Parents must be fully informed 

about their options and rights when they are 

making a decision about their child’s education, 

and additional research is needed to be sure 

that information is based on actual data and 

facts. Federal agencies can issue guidance on 

these issues, and Congress can enact legislation 

to ensure that students with disabilities are 

protected from discrimination when using 

vouchers to attend private schools. State 

departments of education could be responsible 

for oversight of voucher programs and collection 

of data regarding students with disabilities. These 

changes would ensure that voucher systems 

are not only an educational choice, but also an 

equitable one.

Choice & Vouchers—Implications for Students with Disabilities 13
14 National Council on Disability
List of Acronyms

ABA applied behavior analysis

ACLU American Civil Liberties Union

ADA Americans with Disabilities Act

ADHD attention-deficit/hyperactivity disorder

AFC American Federation for Children

AFT American Federation of Teachers

COPAA Council of Parent Attorneys and Advocates

CRDC Civil Rights Data Collection

DOE Department of Education

DOJ Department of Justice

DPI Department of Public Instruction

ESA Education Savings Account

ESEA Elementary and Secondary Education Act

FAPE free appropriate public education

FFA federal financial assistance

GAO (United States) Government Accountability Office

IDEA Individuals with Disabilities Education Act

IEE independent education evaluation

IEP individualized education program

IES Institute of Education Sciences

LEA local education agency

LRE least restrictive environment

LSP Louisiana Scholarship Program

NAACP National Association for the Advancement of Colored People

NCD National Council on Disability

NCES National Center for Educational Statistics

NCLB No Child Left Behind Act of 2001

NCLD National Center for Learning Disabilities

NCPE National Coalition for Public Education

NDRN National Disability Rights Network

NEA National Education Association

NEPC National Education Policy Center

Choice & Vouchers—Implications for Students with Disabilities 15
OCR United States Department of Education’s Office for Civil Rights

PCESE President’s Commission on Excellence in Special Education

PECS Picture Exchange Communication System

SEA state education agency

Section 504 Section 504 of the Rehabilitation Act of 1973

SNAP Supplemental Nutrition Assistance Program

SPED special education

STO school tuition organization

Title I Title I of the Elementary and Secondary Education Act

Title VI Title VI of the Civil Rights Act of 1964

USED United States Department of Education

16 National Council on Disability
In these days, it is doubtful that any child may 

reasonably be expected to succeed in life if he 

is denied the opportunity of an education. Such

an opportunity, where the state has undertaken 

to provide it, is a right which must be made 

available to all on equal terms

—Brown v. Board of Education, 1954

Choice & Vouchers—Implications for Students with Disabilities 17
18 National Council on Disability
Introduction

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our 

recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very 

foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural 

values, in preparing him for later professional training, and in helping him to adjust normally to his 

environment. In these days, it is doubtful that any child may reasonably be expected to succeed 

in life if he is denied the opportunity of an education. Such an opportunity, where the state has 

undertaken to provide it, is a right which must be made available to all on equal terms.1

—Brown v. Board of Education, 1954

At the core of the nation’s laws that govern 

education is the right to equity. The promise of 

equity is also at the core of the nation’s laws 

to protect students 

with disabilities. 

The Individuals with 

Disabilities Education 

Act (IDEA) seeks to 

guarantee equity by 

ensuring that parents 

are meaningful partners 

in their child’s education; 

that educational 

programs are specifically 

designed to meet each 

child’s unique needs; 

and that children with disabilities make progress 

in the general education curriculum alongside 

peers without disabilities.2 As of the 2015–2016 

school year, 6.7 million students with disabilities 

eligible under IDEA3 were receiving education 

from public school systems. More than 88,000 

families of students 

with disabilities have 

chosen to take their 

children out of public 

school and utilize 

available state-funded 

choice options,4 which 

effectively take the 

student and parent(s) 

out from under the 

protections of IDEA and 

other federal statutes, 

while also promising to 

customize education to meet a child’s needs 

and make quality educational options available 

to every child.5

More than 88,000 families of 

students with disabilities have 

chosen to take their children out of 

public school and utilize available 

state-funded choice options, 

which effectively take the student 

and parent(s) out from under the 

protections of IDEA and other 

federal statutes . . .

Choice & Vouchers—Implications for Students with Disabilities 19
Given the heightened interest of parents in 

school choice options and the current national 

dialogue regarding vouchers6 and school choice,7

the terms vouchers, education savings accounts, 

and tax-credit scholarships have entered the 

mainstream dialogue and are fueling an ongoing 

debate about what is considered “public” 

education in the United States.8

The National Council on Disability (NCD), 

an independent federal agency charged with 

advising the President, Congress, and other 

federal agencies regarding policies, programs, 

practices, and procedures 

that affect people with 

disabilities, recognized 

this emerging debate on 

the use of educational 

vouchers, savings 

accounts, and tax credits, 

and commissioned 

research to gain a better 

understanding of the 

experiences and outcomes for students with 

disabilities and their families that make use of 

voucher and voucher-like programs in lieu of 

traditional public schools. The policy paper, Choice 

& Vouchers—Implications for Students with 

Disabilities, that resulted outlines the construct 

of vouchers, education savings accounts, and 

tax credits for students with disabilities. It also 

explains the effect of having such programs 

where a determined amount of money for each 

eligible student goes directly to parents rather 

than to the public school system, enabling parents 

to choose the school or services they feel will 

best meet their child’s needs. This alteration in 

the flow of public funds results in important and 

often misunderstood changes in protections 

for students with disabilities and their families, 

not only under IDEA, but also under federal 

nondiscrimination laws.

Key to this research are the educational 

experiences and educational outcomes of 

voucher programs and educational savings 

accounts used by students with disabilities and 

their families for private schools. Many families 

of students with disabilities choose vouchers and 

voucher-like programs as 

viable options for their 

child’s education and 

are satisfied with the 

outcomes realized. Other 

families of students with 

disabilities and public 

school supporters oppose 

voucher programs and 

other choice options. 

These opponents assert that these programs 

do nothing more than redirect public money 

to privately operated enterprises, risking the 

possibility that private schools will make empty 

promises while depleting public education 

funds, thereby leaving many schools and 

students without quality or equitable educational 

opportunities. Critics caution loudly against the 

hidden costs, limited availability to all families, 

loss of rights for students with disabilities, loss 

of accountability, and lack of evidence. This 

report examines these issues and the effects on 

students with disabilities and their families.

Key to this research are the 

educational experiences and 

educational outcomes of voucher 

programs and educational savings 

accounts used by students with 

disabilities and their families for 

private schools.

20 National Council on Disability
Research Methods

T

o understand the experiences of students 

with disabilities with respect to voucher 

programs, NCD used a mixed-methods 

design that involves analysis of existing policies 

and secondary literature, quantitative data, and 

qualitative data for this report.

A. Review of Policies and Secondary 

Literature

Relevant statutes, regulations, and administrative 

guidance on the topic at the federal and state 

levels were reviewed. At the federal level, 

these materials include statutory and regulatory 

language of the Individuals with Disabilities 

Education Act (IDEA), Section 504 of the 

Rehabilitation Act of 1973 (Section 504), and the 

Americans with Disabilities Act (ADA) as well as 

guidance by the U.S. Department of Education 

with respect to students with disabilities and 

voucher programs. State-level analyses focused 

primarily on review of state voucher laws and 

evaluations of available information and data. 

We did a cursory review of trends in case law 

and administrative due process hearings that 

pertain to students with disabilities and voucher 

programs. Additionally, we conducted a literature 

review of relevant published material in academic 

journals, books, government documents, and the 

popular media.

B. Review of Existing 

Quantitative Data

For the quantitative component of this research, 

we examined existing data at both national 

and state levels pertaining to students with 

disabilities and voucher programs. Researchers 

looked at data available from the National Center 

for Educational Statistics (NCES), the U.S. 

Civil Rights Data Collection (CRDC), American 

Federation for Children (AFC) and the websites 

of individual state education agencies (SEAs); 

along with data that is cited in the secondary 

literature.

C. Qualitative Research

Researchers completed focus groups in 

Arizona, California, the District of Columbia, 

and Florida. One-on-one interviews were held 

with families from Florida, California, Michigan, 

and Ohio. Families and students represented 

many races and ethnic groups; some students 

who received free or reduced lunch were 

identified by a broad range of disability labels, 

including autism, physical disabilities, Down 

syndrome, intellectual disabilities, attentiondeficit/hyperactivity disorder, communication 

difficulties, learning disabilities, mental 

illness, dyslexia, dysgraphia, and complex 

medical issues. Researchers also interviewed 

Choice & Vouchers—Implications for Students with Disabilities 21
attorneys, advocates, researchers, former 

education officials, and state officials. Select 

findings from participants are incorporated 

throughout this report. NCD appreciates all 

stakeholders who participated. Although 

the sample was limited and not intended to 

be representative of the whole population 

of families utilizing voucher programs or 

stakeholders interested in these programs, 

participants provided useful insight into the 

experiences and perspectives of the families 

impacted by voucher programs.

22 National Council on Disability
Chapter 1: Current Landscape

A. Changes over Time and the NCD 

2003 Report on Vouchers

In 2003, NCD issued a policy paper on vouchers 

that included a detailed history of how previous 

administrations tried to advance voucher 

programs, though no administration has done 

so as vigorously as the current one. At the time 

NCD released the report School Vouchers and 

Students with Disabilities,

9

 there was just one 

voucher program for students with disabilities in 

the United States: the Florida McKay Scholarship 

Program, which began in 2000. The last 15 years 

have seen a sharp increase in the number of 

states with voucher programs,10 with the current 

number being 27: 26 states and the District of 

Columbia.11

While many families support, use, and are 

satisfied with choice options (see Section 

VI.C of this work), in 2003 NCD warned of 

the possible problems that remain of concern 

today: Parents and families could lose access to 

rights; accountability could suffer; and vouchers 

might only cover a portion of private school 

cost, leaving a majority of families unable to 

access any choice at all. NCD was concerned 

that these state constructs might profoundly 

affect rights and outcomes for students with 

disabilities.12 The policy paper also made a 

pointed reminder that

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 

[FAPE] that meets their education and 

related services needs in the least 

restrictive environment [LRE]. 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.13

In the last 15 years . . .

At the time NCD released the report School 

Vouchers and Students with Disabilities in 

2003, there was just one voucher program 

for students with disabilities in the United 

States: the Florida McKay Scholarship 

Program, which began in 2000. The last 

15 years have seen a sharp increase in the 

number of states with voucher programs, 

with the current number being 27: 26 states 

and the District of Columbia.

Choice & Vouchers—Implications for Students with Disabilities 23
Under many of the state voucher programs, 

families must choose to give up rights under 

IDEA and other federal statutes in exchange 

for public funds.14 They often do so without 

understanding the loss of or change in rights 

and protections under the law when a child with 

a disability is moved 

from public to private 

school. In 2001, the U.S. 

Department of Education 

strongly encouraged 

states and school 

districts to notify parents 

of changes to their rights 

and protections under voucher programs in 

order to avoid any misunderstanding.15 However, 

the Government Accountability Office (GAO) 

released a report in 2017 showing that the 

information provided 

to parents on loss of 

rights and protections 

when accessing 

private school choice 

programs continues 

to be inconsistent and 

insufficient. The GAO 

found that an incredible 

73 percent of private 

school choice programs 

provide no information 

at all.16 We found no 

discussion in the GAO 

report of whether 

states that do provide 

information to families, such as Georgia17 and 

Tennessee,18 provide the information translated 

into different languages. The Tennessee 

Department of Education does include a 

video in American Sign Language (ASL) on its 

Individualized Education Account Program (IEA) 

resource page.19

Preceding the NCD policy paper, in June 

2002 the President’s Commission on Excellence 

in Special Education (PCESE) released a report 

that laid out 33 specific recommendations, 

some having to do with 

vouchers and IDEA. 

The “Increase Parental 

Empowerment and 

School Choice” section 

supported school choice 

but recommended that

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.20

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:21

Federal policy should also provide the 

flexibility states need in this area [and] 

[T]he Government Accountability 

Office (GAO) released a report in 

2017 showing that the information 

provided to parents on loss of rights 

and protections when accessing 

private school choice programs 

continues to be inconsistent and 

insufficient. The GAO found that 

an incredible 73 percent of private 

school choice programs provide no 

information at all.

Under many of the state voucher 

programs, families must choose to 

give up rights under IDEA and other 

federal statutes in exchange for 

public funds.

24 National Council on Disability
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.22

Echoing the PCESE report, some advocates 

fear that the use of vouchers will return us to the 

days of segregation of students with disabilities 

by promoting disability-specific schools.23 In 

fact, in the 2003 Report, NCD pointed out that 

in Florida, the special education vouchers were 

apparently providing the 

stimulus for new schools 

to serve only students 

with disabilities. The 

end result of large-scale 

voucher extensions to 

students with disabilities 

could lead to a new 

kind of segregation at 

public expense. Families 

and advocates in focus 

groups indicated that 

students often, but not always, used scholarships 

or vouchers to attend segregated schools. State 

departments of education do not currently track 

where parents use their vouchers, thus making 

it impossible for respective state governments 

to determine whether school choice programs 

are leading to segregation of students with 

disabilities. However, given the LRE mandate 

of IDEA, this kind of transparency should be 

required.

In 2003, NCD also stated that when publicly 

financed and operated systems work well, people 

are satisfied, such as is the case with many 

forms of public transportation, for which there 

is no particular request for privatization. When 

systems fail, however, as in the case of many 

urban schools, public sentiment swings toward 

policies of reform and public control.24 Indeed, 

many of the parents who participated in this 

current NCD research expressed frustration over 

the lack of services and the refusal or inability of 

districts to fulfill their obligations under IDEA; and 

the resulting desire to choose a school that would 

meet their child’s individualized needs.

Interestingly, the 2003 NCD paper suggested 

that the primary rationale for providing vouchers 

to general education students was to escape 

low-performing schools. 

NCD hypothesized 

that students with 

disabilities would not flee 

public schools because 

students with disabilities 

did not participate in 

mandated standardized 

assessments at 

that time. With 

implementation of the 

No Child Left Behind 

Act in 2001 and the 2004 amendment of IDEA, 

schools were required to assess and report the 

progress for students with disabilities.25 Efforts 

to include and count students with disabilities 

in assessments have increased accountability 

but may also have provided another reason for 

families to seek out choice options.

NCD also predicted that parents of students 

with disabilities would not seek choice options 

because of “critical mass,” meaning that 

school districts, with 28 years of experience 

in providing educational services and supports 

to students with disabilities, had acquired and 

State departments of education do 

not currently track where parents 

use their vouchers, thus making 

it impossible for respective state 

governments to determine whether 

school choice programs are leading 

to segregation of students with 

disabilities.

Choice & Vouchers—Implications for Students with Disabilities 25
maintained the infrastructure for specialized 

support that students with disabilities 

require.26 Based on the responses of families 

that participated in this study, that sentiment 

has certainly shifted or has not proven to be 

true. Many believed that private schools had 

higher expectations and would provide better 

services to their child with a disability. Others 

sought relief from intolerable or unsatisfactory 

conditions in public schools.27

In 2003, NCD also predicted that as options 

grew, many private schools would not want 

to serve students with disabilities or would 

not be able to provide the specialized services 

that students with disabilities needed. This 

is a legitimate fear 

because students 

with disabilities are a 

vulnerable population 

that has routinely and 

indisputably been the 

target of discrimination 

and diminished 

opportunities in 

education.28 Anecdotal 

data from interviews and focus groups 

conducted for this report suggests that much 

like the experiences in public and charter 

schools, how well a private school serves 

a student with disabilities depends on the 

leadership and culture of that school.

IDEA requires districts to pay for private 

school when they have failed to provide FAPE 

or a student’s IEP team has agreed the student 

would be best served in a segregated setting

(an example would be a Deaf student attending 

a private school where ASL is the main mode 

of instruction). Some question whether private 

school vouchers should be treated the same 

way. NCD answered this question in 2003, 

and the answer still holds true today: There are 

stark differences between local school district 

private placements and other proposals for 

special education voucher programs. Under 

IDEA, with regard to placements in private 

schools that are ultimately funded by the local 

or state agency

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 IEP must choose the private school 

so that the public school can fulfill its 

requirement to provide 

FAPE; and

4. All IDEA substantive 

and procedural rights 

and requirements 

must still be met.29

Under IDEA, private 

schools are provided 

as part of a continuum of services to meet 

LRE and FAPE. The IEP team is required to 

consider all possible options, including the use 

of supplementary aids and services, resource 

rooms, and homebound services (where 

a student receives educational and special 

education services through one-to-one teaching 

at home or in a hospital setting). The “choice” 

between public school and vouchers is not 

an either–or decision, but rather represents 

two possible options in an array of possible 

placements. We fully explore the issue of effect 

on IDEA rights in the current constructs in 

Chapter 5.

IDEA requires districts to pay 

for private school when they 

have failed to provide FAPE or a 

student’s IEP team has agreed the 

student would be best served in a 

segregated setting.

26 National Council on Disability
B. Overview of Choice Programs

1. Types of Programs

School voucher programs (i.e., “school choice 

programs”) vary widely. Vouchers, tax credits, 

and ESAs are state-funded programs that provide 

eligible students a specific amount toward the 

cost of attending a private rather than a public 

school. The only exception is the Opportunity 

Scholarship Program in Washington, DC, which 

is funded by the federal government. Although 

we discuss each of the program types, the 

main focus of our discussion is on vouchers and 

ESAs as well as on the impact on students with 

disabilities and their families.

School Vouchers—Vouchers give parents 

the option to send children to a private 

school using public funding to pay all or 

part of the tuition. Under such a program, 

funds typically expended by a school 

district for public schools are allocated 

to a participating family in the form of a 

voucher to pay partial or full tuition for the 

private school, which may be religious or 

secular.

Education Savings Accounts—Education 

savings accounts (ESAs) allow parents 

to receive a deposit of public funds into 

government-authorized savings accounts 

with restricted but multiple uses. The 

nature of the allowed expenditures varies 

by state.30 ESAs allow families to customize 

their child’s education and pay for more 

than strictly the academics of education. 

Relative newcomers to educational savings 

accounts are 529 accounts. The ABLE 

Act of 201431 amends Section 529 of the 

Internal Revenue Service Code of 1986 to 

create tax-advantaged savings accounts for 

individuals with disabilities.

Tax-Credit Scholarships—Tax-credit 

scholarships allow full or partial tax credits 

when there is a donation to nonprofits 

(school tuition organizations [STOs] that 

provide private school scholarships). 

Eligible taxpayers can include both 

individuals and businesses. In some states, 

scholarship-giving nonprofits also provide 

innovation grants to public schools and/

or transportation assistance to students 

choosing private or alternative public 

schools (such as a public school outside of 

the child’s district).

Types of school choice programs:

Vouchers give parents the option to send 

children to a private school using public 

funding to pay all or part of the tuition.

Education savings accounts (ESAs) allow 

parents to receive a deposit of public funds 

into government-authorized savings accounts 

with restricted but multiple uses.

Tax-credit scholarships allow full or partial 

tax credits when there is a donation to 

nonprofits (school tuition organizations [STOs] 

that provide private school scholarships).

Individual tax credits and deductions allow 

parents to receive state income tax relief 

for approved educational expenses, which 

may include public or private school tuition, 

books, supplies, computers, tutors, and 

transportation.

Choice & Vouchers—Implications for Students with Disabilities 27
Individual Tax Credits and Deductions—

Individual tax credits and deductions allow 

parents to receive state income tax relief 

for approved educational expenses, which 

may include public or private school tuition, 

books, supplies, computers, tutors, and 

transportation. Tax-incentive programs provide 

mechanisms for any individuals (not only 

parents) or businesses to either (1) spend 

money on private school or educational 

expenses for their child; or (2) donate money 

to nonprofit organizations that are charged 

with issuing private school vouchers in the 

form of “scholarships” to students.

2. State Voucher Program Constructs 

for Students with Disabilities

According to the 2016–

2017 School Choice 

Yearbook,

32 there are 

52 private school choice 

programs in 26 states 

and Washington, DC, 

serving more than 

442,000 students. Eleven of those programs 

are state voucher programs that are intended 

exclusively for students with disabilities: 

Arkansas, Florida, Georgia, Indiana, Louisiana, 

Ohio, Oklahoma, Utah, Mississippi, North 

Carolina, and Wisconsin. Five states currently 

have targeted ESAs for students with disabilities: 

Arizona, Florida, Mississippi, North Carolina 

(which will start in 2018–2019), and Tennessee.33

Only two states, South Carolina and Arizona, 

have tax credits (scholarship or individual) for 

students with disabilities.

All the states allow use of the funds for 

tuition, and some allow for the use of funds 

to pay for fees associated with the student’s 

education. All states allow students to leave 

voucher programs and return to public schools 

at any time. Specific states have carve-outs in 

North Carolina, for example, students are treated 

as parentally placed under IDEA. However, 

prior to the start of each school semester, 

the parent of an eligible student may submit 

documentation of the special education, related 

services, or educational technology costs the 

parent anticipates incurring in that semester 

for preapproval of the authority. In Ohio, under 

its Autism Scholarship Program, schools must 

comply with nondiscrimination codes and may 

be entitled to transportation. The purpose of the 

scholarship is to give the parent of a qualified 

special education child the choice of sending 

the child to a special 

education program 

instead of the one 

operated by or for the 

school district in which 

the child is entitled to 

attend school. This allows 

the parent to receive the 

services prescribed in the child’s individualized 

education program once the individualized 

education program is finalized. The services 

provided under the scholarship shall include 

an educational component. Under Ohio’s Jon 

Peterson Special Needs Scholarship Program, 

students who receive the scholarship are 

considered unilaterally privately placed students 

(this is the same for all the scholarship programs 

discussed in Ohio for students with disabilities). 

Therefore, these students are not entitled to a 

FAPE. The public school is required to evaluate, 

implement the child’s IEP, annually review the 

IEP, and reevaluate it if necessary. The parent is 

entitled to mediation and independent education 

[T]here are 52 private school 

choice programs in 26 states and 

Washington, DC, serving more than 

442,000 students.

28 National Council on Disability
evaluation (IEE) related to the development, 

but not implementation, of the IEP. The Ohio 

Department of Education will investigate 

complaints about violation of scholarship rules, 

but not about implementation of IEP or FAPE. 

Families can file due process complaints related 

to evaluation or identification, not to whether the 

student has received FAPE.

In the District of Columbia, despite the 

fact that the statute states that nothing in this 

Act may be construed to alter or modify the 

provisions of IDEA (20 U.S.C. 1400 et seq.), 

students are also treated as unilaterally privately 

placed. Provision of necessary services for 

each student are limited in scope to a menu 

of options—transportation, fees, and tuition. 

In Virginia, the scholarship tax credit is means 

tested, and while not intended exclusively for 

students with disabilities, it has a provision 

stating that the eligibility of students with 

disabilities must comply with the proscribed 

means tests.34 Wisconsin’s program only 

requires private schools to offer services to 

assist students with special needs if they can 

provide them with minor adjustments. In South 

Carolina, schools need to provide specially 

designed programs or learning resources to 

provide accommodations to students who 

require them.

In Florida, Georgia, Arkansas, and Oklahoma, 

parents using vouchers must sign agreements 

to relieve public schools of any legal obligations, 

under IDEA or otherwise, to provide the student’s 

education. The private school is not required 

to implement the IEP or to provide services, 

supports, or accommodations.

Table 1: States with Choice Programs Designed Specifically for Students with 

Disabilities (See Appendix B for more detailed information.)

State Voucher 

Programs

Education Savings 

Account

Tax Credits (Scholarship 

or Individual)

Arkansas X

Arizona X X

Florida X X

Georgia X

Indiana X

Louisiana X

Mississippi X X

North Carolina X X

Ohio X

Oklahoma X

South Carolina X

Tennessee X

Utah X

Wisconsin X

Choice & Vouchers—Implications for Students with Disabilities 29
Mississippi’s Nate Rogers Scholarship for 

Students with Disabilities is the nation’s only 

program that exclusively serves students with 

speech-language therapy needs. EdChoice 

experts state that this scholarship has very 

few children or schools 

participating because 

the program is very 

restrictive (K–6 only and 

speech impairment must 

be the primary disability) 

and is perceived to be 

too restrictive on student 

eligibility, funding, and 

school regulations.35

While the push for 

vouchers has caused growth, the Colorado and 

Tennessee programs have been terminated.

Until 2017, Colorado had a voucher program, the 

Douglas County Choice Scholarship Program, 

which was the country’s first district-created, 

nearly universal school voucher program that 

included students with disabilities. It was enacted 

and launched in 2011. Although 271 parents 

applied for vouchers to 

be used at more than 30 

private schools approved 

for the program, the 

Choice Scholarship 

program was enjoined 

by the District Court of 

Denver County on August 12, 2011, in a lawsuit 

filed by the American Civil Liberties Union, 

Americans United for Separation of Church 

and State, several Colorado organizations, and 

some taxpayers. Ongoing litigation made it 

impossible for children to utilize the program. 

The Colorado Supreme Court ruled the program 

unconstitutional in June 2015 because it 

channeled public funds to religious schools.36

The case was sent to the U.S. Supreme Court on 

appeal. In June 2017, the case Taxpayers for Public 

Education v. Douglas County School District37

was sent back to the Colorado State Court, 

following a ruling by the 

Court on a similar case in 

Missouri. In the case of 

Trinity Lutheran Church 

v. Comer,

38 a Missouri 

church sued after being 

denied state funding for 

a preschool playground 

because the Missouri 

state constitution forbids 

financially supporting 

a religious institution. The Supreme Court ruled 

7–2 that the state’s original decision violated the 

U.S. Constitution’s protection of the free exercise 

of religion by excluding churches from state 

programs with a secular intent.39 While the case 

was tied up in court, Colorado’s Douglas County 

School Board voted to terminate its voucher 

program in December 2017. The vote was again 

unanimous (6–0, with one 

member who had been 

a plaintiff in the lawsuit 

against the voucher 

program abstaining).40

The program was started 

in an affluent section of 

town by parents who “reported serious or very 

serious problems in their public school” (fighting, 

drugs/alcohol), but the program was ultimately 

terminated by the very body that created it 

because of immense public and political pressure 

and the ongoing litigation.41 In January 2018, the 

Colorado Supreme Court dismissed the case as 

moot.42

In Florida, Georgia, Arkansas, 

and Oklahoma, parents using 

vouchers must sign agreements 

to relieve public schools of any 

legal obligations, under IDEA or 

otherwise, to provide the student’s 

education.

While the push for vouchers has 

caused growth, the Colorado and 

Tennessee programs have been 

terminated.

30 National Council on Disability
3. Education Savings Accounts

Education savings account programs give 

parents the power to use their children’s state 

education dollars on a variety of educational 

options and obtain a deposit of public funds into 

government-authorized 

savings accounts, with 

some restrictions, to 

cover private school 

tuition, private tutoring, 

and other types of 

customized learning 

materials and services.

According to the 

literature and as 

described in the focus 

groups, eligible families 

can use these private 

accounts to pay for 

educational expenses 

for their children. Like vouchers, ESAs can be 

used for private or religious school tuition. Unlike 

vouchers, ESAs may be used for a variety of 

other needs, including public school–related 

expenses such as 

tutoring, uniforms, 

textbooks, therapists, 

homeschooling 

expenses, and school 

supplies, often without 

accountability to 

or transparency for 

taxpayers.43 Some states 

like North Carolina offer debit cards to families to 

use to pay for services not covered by the ESA 

program, although there are worries that this 

system may be open to fraud.44

A report issued in January 2018 by National 

Education Policy Center (NEPC) describes the 

creation of ESA programs that allocate the funds 

directly to the parents rather than directly to 

religious schools.45 We will explore the effect 

of breaking the funding chain directly to private 

schools and the ensuing effects on rights in more 

depth in the legal analysis 

section below.

Although some states’ 

statutes, such as Arizona, 

are silent regarding the 

effect of a voucher on 

IDEA or other rights, in 

most states, parents sign 

contracts when they use 

vouchers, to take full 

legal responsibility for the 

education of the student 

and releasing the public 

school from educating 

the student.

529 and ABLE Accounts

A relative newcomer to educational savings 

accounts are 529 accounts. The ABLE Act of 

201446 amended Section 

529 of the Internal 

Revenue Service Code 

of 1986 to create taxadvantaged savings 

accounts for individuals 

with disabilities. These 

tax-advantaged savings 

accounts are funded 

solely by family assets and can be used to cover 

qualified disability expenses such as, but not 

limited to, education, housing, and transportation. 

Education expenses can include tuition, supplies, 

and the like for K–12 or postsecondary education. 

Individuals with disabilities and their families can 

Like vouchers, ESAs can be used 

for private or religious school 

tuition. Unlike vouchers, ESAs 

may be used for a variety of other 

needs, including public school–

related expenses such as tutoring, 

uniforms, textbooks, therapists, 

homeschooling expenses, and 

school supplies, often without 

accountability to or transparency for 

taxpayers.

[I]n most states, parents sign 

contracts when they use vouchers, 

to take full legal responsibility for 

the education of the student and 

releasing the public school from 

educating the student.

Choice & Vouchers—Implications for Students with Disabilities 31
save up to $14,000 a year in an ABLE account, 

and importantly, these funds do not count toward 

the $2,000 asset limit for many federal programs 

such as Social Security. As of May 2017, a total 

of 21 states had ABLE programs, and families 

did not need to be a resident to open an ABLE 

account in another state (meaning the program 

is available to those who do not have an ABLE 

program in their home state).47

In 2017, the new tax law expanded the 

qualified use of 529 accounts by allowing 

withdrawals of up to $10,000 per year (per child) 

for public, private, or religious K–12 schools. 

Home schooling families 

are also allowed to 

use 529 funds toward 

educational expenses.

The new legislation 

also supports funding of 

ABLE accounts designed 

for use by people with disabilities. Under the 

new law, parents can roll over 529 plan assets 

to an ABLE account. Both accounts must have 

the same beneficiary or a member of the same 

family, but they can roll over up to $15,000 in 

2018. Now families will have more flexibility 

in planning for the futures of children with 

disabilities, where predicting possible needs can 

be a challenge.48

These opportunities certainly may benefit 

those who can afford to put money into such 

an account, let the money grow, and avoid 

capital gains tax on what was earned over time. 

Other tax breaks exist too, as 35 states offer a 

tax deduction or credit when families deposit 

money into 529 plans.49 While some families are 

celebrating this news, others see the opportunity 

gap continue to widen, not only because they 

don’t have the funds to invest, but also because 

private schools might just raise tuition as a result 

and integrate 529s into the financial aid formula.50

4. Federal Voucher Program

The nation’s only federally funded school voucher 

initiative is in the District of Columbia, the 

Washington, DC Opportunity Scholarship Voucher 

Program. This program 

is not targeted solely for 

students with disabilities. 

Programs funded and 

administered by the 

federal government must 

be consistent with and 

uphold all provisions of applicable federal, state, 

and local laws. The U.S. Department of Education 

cannot create a program that attempts to avoid or 

lessen obligations under the law.

As of early 2018, the Department of Education 

asserts that there are no plans for a federal 

voucher program. Instead, it plans to provide 

money ($250 million in FY 2018) through a 

competitive grant program.51

The legal implications of these voucher 

programs and educational savings account 

constructs are explored in more depth in 

Chapter 5.

The U.S. Department of Education 

cannot create a program that 

attempts to avoid or lessen 

obligations under the law.

32 National Council on Disability
Chapter 2: The Fiscal Impact of Vouchers and 

Scholarship Tax Credits on Public Education

A. Lack of Consensus

The debate about resources and costs of 

vouchers includes students with disabilities, 

since they often need services, technology, and 

accommodations. Often these resources can 

be provided at little to no cost, but some may 

involve considerable expense. If schools (public 

or private) are struggling to provide students’ 

basic needs, students with disabilities may be 

disproportionately at risk of not receiving an 

equitable education. Many advocates oppose 

voucher programs based on the concern that they 

and other choice options redirect public money 

to privately operated education enterprises, 

which often operate for profit. They believe taking 

money from taxpayers for choice programs 

harms public schools by siphoning off students, 

resources, and funding while reducing the 

ability of public schools to serve the full range of 

student needs and interests because their hard 

costs, such as those for utilities, maintenance, 

transportation, and food service remain fixed 

even when public school enrollment drops.52

For example, the National Center for Learning 

Disabilities issued a report in 2017 asserting that 

state voucher, ESA, and tax incentive programs 

are “draining funding from public schools, leaving 

the public schools with far fewer resources with 

which to serve their students.”53

Conversely, EdChoice asserts that as 

enrollment declines, the per-student funding 

amount for the remaining public school students 

actually increases. This statement is backed up by 

research in some cities. Public data shows that 

states and cities typically increase their per-student 

spending in the years following the inception of 

school choice programs. Milwaukee and Cleveland 

are examples. By 1992, Milwaukee’s school choice 

program had been in place for two years, and 

according to the U.S. Census Bureau, the city’s 

public schools spent $9,038 per student; by 2011, 

that figure had swelled to $14,244—a 58 percent 

increase. Cleveland’s school choice program 

launched in 1997, when the city was spending 

$9,293 per student. Cleveland was spending 

$15,072 per student in 2011—a 62 percent 

increase over 15 school years.54

Others suggest that the net impact on 

taxpayers is actually twofold: (1) the savings that 

come from the difference between the voucher 

and the per-pupil revenue at district schools, for 

those who would have attended them in the 

absence of the voucher program, minus (2) the 

voucher costs for students who would have 

attended private schools anyway.55 To many, 

vouchers seem to be a giveaway to the state’s 

cash-strapped religious schools at the expense of 

struggling public schools.56

Choice & Vouchers—Implications for Students with Disabilities 33
As a result of the recent changes in the federal 

tax code, local schools and state governments 

may also change state rules to bring in additional 

revenue, but some feel it may actually increase 

the equity of the U.S. tax system. An opinion57

in Forbes magazine recently asserted that “the 

national average annual cost of public schools 

exceeds $11,000 per student and even the most 

frugal states spend $7,000 per student. Even 

granting that the marginal cost of educating 

one additional student may be less than the 

average cost, when parents remove a kid from 

public school to enroll her in private school, they 

are saving the local school system and state 

government considerably 

more than after tax 

$1000 per child.”58

B. Increasing 

Tension—Who 

Should Get 

Resources

There is an ever-widening division about whether 

a national move toward privatization using public 

funds should occur. Critics such as the National 

Education Association (NEA) refer to voucher 

programs as “schemes” and assert that vouchers 

lack proper accountability and oversight and strip 

legal protections for parents and their children.59

The National Coalition for Public Education 

(NCPE) states that private schools accepting 

voucher funds do not adequately serve students 

with disabilities, often denying them admission 

and subjecting them to inappropriate or excessive 

suspensions or expulsions. NCPE has also 

raised concerns about whether private schools 

provide the same quality and quantity of services 

available to students in public schools, including 

those mandated under IDEA and Section 504. 

Advocates in Indiana frame vouchers as a “giveaway” to cash-strapped religious schools at the 

expense of struggling public schools and worry 

that private schools do not accept students 

with disabilities.60 The National Disability Rights 

Network (NDRN)61 believes that scarce and 

needed resources to maintain the quality of our 

public school system should not be diverted to 

publicly fund private school programs. Rather, 

limited public funds should focus on making 

sure that every public school and teacher has 

the resources they need to be effective in 

meeting the academic and behavioral needs of all 

students, but particularly 

the needs of students 

with disabilities.62

There are also valid 

concerns that private 

schools participating 

in voucher programs 

are typically religious. Data from schools in 

Wisconsin shows that out of 28 schools 

accepting vouchers, 22 are parochial schools,63

and studies of Louisiana schools show that 

private schools participating in the Louisiana 

Scholarship Program (LSP) are overwhelmingly 

Catholic.64 One quarter of Indiana families that 

used vouchers said a religious environment was 

an important factor.65 In contrast, families in this 

research study’s focus groups and interviews 

who indicated their child attended a religious 

school cited reasons having to do with services 

offered, proximity to home, and class size. No 

one in the focus groups cited a preference for 

religious schools as the reason for choosing that 

school. These findings suggest that while religion 

is a compelling factor for nondisabled families 

There is an ever-widening division 

about whether a national move 

toward privatization using public 

funds should occur.

34 National Council on Disability
to use vouchers, it may not be as important 

to families of students with disabilities. More 

research is needed on this topic.

Many participants in the focus groups pushed 

back on the concept of “choice,” feeling that 

use of public funds for 

voucher programs is 

not a viable choice for 

those who do not have 

money to supplement 

the voucher amounts, 

who cannot provide 

transportation to 

the private school or 

programs purchased 

with a scholarship 

for their children, or 

who are uninformed 

about the educational options available to their 

children. Others have told stories of long delays 

in services, such as a mother who shared 

this story:

We waited a year 

without proper [special 

education] services 

to be eligible for the 

scholarship, we spent 

a year in a private 

school that did not 

provide appropriate 

services, and we 

transferred back to 

the public school 

and started the eligibility and evaluation 

process to begin again. Four years that we 

cannot get back in my child’s educational 

development.66

Still more families told stories of rejection 

from private schools and what they saw as a 

disincentive for private schools to serve students 

with disabilities—a disturbing trend in a program 

funded with public dollars. When the Texas 

legislature was debating 

a school choice program, 

Rachel Gandy of Disability 

Rights Texas (the state’s 

mandated Protection 

and Advocacy program) 

said in an interview: 

“Those who have the 

choice might not be the 

families of kids with 

disabilities, especially 

severe disabilities and 

mental illness,” but she 

says that it is “likely that choice may fall with 

the private school.” Gandy reported that a parent 

who testified before the legislature during the 

regular session had been 

rejected by 13 private 

schools.67 Others who 

participated in focus 

groups for this report 

poignantly reminded 

researchers that while 

it’s great that many 

children have parents or 

caregivers that can stay 

at home with children 

to locate or implement 

choice programs, finance 

the remainder of private school tuition that is not 

covered by a voucher, or even know about their 

education options, others simply cannot. As a 

participant in one focus group stated:

[F]amilies in this research study’s 

focus groups and interviews who 

indicated their child attended a 

religious school cited reasons 

having to do with services offered, 

proximity to home, and class size. 

No one in the focus groups cited a 

preference for religious schools as 

the reason for choosing that school.

Many participants in the focus 

groups pushed back on the concept 

of “choice,” feeling that use of 

public funds for voucher programs 

is not a viable choice for those who 

do not have money to supplement 

the voucher amounts, who cannot 

provide transportation to the private 

school . . .

Choice & Vouchers—Implications for Students with Disabilities 35
[Many other families] literally cry because 

of the students that are abandoned in the 

public schools that can’t take advantage of 

an ESA and can’t have the one parent that 

they have quit their job to stay home [to 

locate or facilitate participation in a private 

school or coordinate private services and 

programs]. It’s such a privilege. That is such 

a privilege that 90 percent of [the families 

in] this state cannot do. They can’t quit 

their job to stay home and go to endless 

meetings. They give up. They can’t access 

ESA because they don’t have the right label, 

or they can’t get it or whatever or they 

don’t know it exists. 

It makes me so angry 

because instead of 

fixing the problem, 

we’re just creating two 

separate systems and 

it’s not fair and it’s not okay.68

Typically, vouchers still leave parents with 

some tuition or fees they must cover out of 

pocket. Opponents to vouchers predict that 

the gap between who can and cannot afford 

to supplement voucher funds will never be 

completely bridged because as voucher amounts 

increase, so will the tuition and fees at the private 

school.69

On the flip side of the issue, the current 

Administration and other pro-school choice 

organizations such as the Friedman Foundation 

for School Choice (now EdChoice) support 

vouchers, noting that many parents feel that the 

quality of public education is declining.70 They 

believe that providing school choice to students 

with disabilities allows unhappy families to find 

a program that meets their children’s individual 

needs. They also assert that policies such as 

school vouchers and scholarship tax credits 

can save taxpayers money because, while total 

revenues to school districts may decrease, per 

pupil funding actually increases because districts 

keep a portion of funds for students no longer 

served.71 They also assert that school choice 

reforms will ultimately improve public education 

through the introduction of market forces 

that expand customer choice and competition 

between schools.72

Also, in support of vouchers, many families 

interviewed shared intense feelings about the 

positive outcomes of voucher programs and 

ESAs, such as a mother 

of a 13-year-old student 

with autism:

I had some success 

[with public school] 

that was variable just based on the fact of 

who the teacher was and how well they 

knew what the expectations were from the 

law, what they should be providing. And then 

the next year, you know, you could go from 

heaven to hell fairly quickly, and so that’s 

what was happening. There was this roller 

coaster of, Great teacher. Oh, my gosh, life 

is awesome. And then a teacher that’s not 

as involved and, oh, my gosh, now my home 

life is destroyed. I’ve got temper tantrums for 

five or six hours a night, property destruction, 

can’t go out to eat, you know what I mean. 

And it was all dependent on those hours 

that we’re spending at school. It’s been so 

life-altering, you know, going from where we 

were and not knowing if I was going to have 

to put him in an institution and not being 

able to go to family holidays, and you know, 

Typically, vouchers still leave 

parents with some tuition or fees 

they must cover out of pocket.

36 National Council on Disability
just—you know, I get emotional when I talk 

about this, but just even getting undressed to 

go in the shower and looking like a battered 

woman, you know, and it’s my beautiful son 

that’s doing these things. And I know that 

he can be happy. And then having the ability 

to put him in an environment where he 

was appreciated, where he was respected, 

where he was given agency, which is what 

we all want. We all, we all want to be able 

to communicate. We all want to be spoken 

to with respect and with dignity and we all 

want some sort of agency over our physical 

bodies and over, you know, how we’re taking 

in the information. The 

difference has been 

amazing.73

Families are desperate 

for effective individualized 

services, positive 

school experiences, 

and satisfactory 

outcomes. Many are 

frustrated at the lack of 

actual choice, and their 

inability to receive quality services from either 

public schools or schools of choice. Others are 

adamant that choice is absolutely worth the 

risk. One theme that researchers heard over 

and over in focus groups and interviews is that 

parental control is important—even if there are 

no guarantees. Some parents are frustrated 

that special education and civil rights must be 

given up in order to use vouchers or ESAs and 

are adamant that civil and legal rights must be 

protected. Others see the loss as meaningless 

because they feel that they or their child did 

not actually receive any rights. The GAO report 

indicated similar views from families they 

interviewed.74 Families that support and use 

vouchers are striving for outcomes for their 

children that include academic progress, but they 

also noted that equally and sometimes more 

important were self-esteem and acceptance.

I could make the school—dragging, kicking, 

screaming, do what the IEP said. But what 

I couldn’t do was make them care about 

my daughter. I couldn’t make them show 

empathy. And so she was so shut down. 

She didn’t talk to anybody. She wouldn’t 

talk to anybody who was typical. Like the 

only friend she had; 

the only kids she 

would communicate 

with were other kids 

with disabilities and 

it was incredibly 

sad. She had no 

confidence at all. And 

now page forward. 

She attends a private 

school with ESA 

funds. She’s a leader 

in her peer group. She’s like wanting 

to go and read, she is so excited about 

school and everybody knows her. She’ll 

like go get a book and sit with another 

kid. Like everybody knows who she is as 

an individual. For us, it simply changed 

everything, like how assertive she is in the 

community now, like going places and she’s 

talking to people. Things I never thought she 

would do.75

Many families that had several children used 

different options for each child in traditional public 

Families are desperate for effective 

individualized services, positive 

school experiences, and satisfactory 

outcomes. Many are frustrated at 

the lack of actual choice, and their 

inability to receive quality services 

from either public schools or 

schools of choice.

Choice & Vouchers—Implications for Students with Disabilities 37
schools, private schools, and charter schools. The 

narrative of the focus group discussions brought 

to light a disturbing perception: that families are 

pitted against each other for scarce resources. 

On one hand, there are those who are able to 

access and benefit from vouchers, and there are 

those who cannot because of limits in eligibility 

requirements, lack of resources needed to pay 

for what the voucher does not cover, inability to 

provide transportation, or lack of available private 

schools.

A few national organizations, for example, 

the Council of Parent Attorneys and Advocates 

(COPAA)76 and the National Center for Learning 

Disabilities,77 do not have a formal position on 

vouchers in general, although both oppose the 

use of federal funds for school choice largely 

because of the loss of IDEA and other civil 

rights. The Center for American Progress and 

other such organizations don’t take a position 

on the use of vouchers, but they strongly 

caution that the use of school vouchers is 

equivalent to the student missing one-third 

of a year of classroom learning.78 Moreover, 

they maintain that the focus on school choice 

through a voucher system may put the civil 

rights of students with disabilities at risk. If 

federal or state IDEA funding is used to fund 

vouchers for private schools, they recommend 

that public schools must remain accountable 

not only to parents and students, but to the 

government as well.79 At the very least, a 

private school accepting a special education 

student through a voucher system should be 

required to show some proof that a special 

education program has been implemented at 

the school or for specific students. Ideally, a 

family could use a voucher and still receive the 

same individualized attention, planning, and 

detail required under IDEA.

38 National Council on Disability
Chapter 3: Issues Specific to Students 

with Disabilities

A. Eligibility

According to NCD’s survey and a review of 

state documents, school voucher and ESA 

programs consider various factors when 

determining whether students are eligible to 

participate. For example, 7 of the 20 existing 

voucher programs are limited to students who 

reside in specific areas or school districts, 

or those who are attending low-performing 

public schools, whereas 

the remaining voucher 

programs and all ESA 

programs are open to 

qualifying students 

statewide.80 For instance, 

Wisconsin has a program 

specific to Milwaukee 

and another for Racine, 

and Ohio’s EdChoice 

Scholarship Program 

focuses on those 

students who attend 

low-performing schools. In contrast, Indiana’s 

Choice Program is open to eligible students 

across the state. In addition to students’ 

place of residence, almost all voucher and 

ESA programs used disability status or family 

income as eligibility criteria, according to GAO 

surveys.81

Each state determines whether the student 

enrolled in public school is eligible for a 

designated time period, meets a geographic limit, 

or a specific diagnosis. There is also variation 

as to the amount of time for which the voucher 

is approved. Some individuals remain eligible 

for the remainder of their school career, while 

others must reapply every two to three years. 

Some of the ESAs, such as Florida’s Gardiner, 

allow unused funds to be rolled over and used 

for postsecondary schools 

or programs in private or 

public institutions.

Recently, Arizona 

passed a bill to expand 

the targeted audience 

eligible for special needs 

scholarships to allow 

brothers and sisters to 

be eligible, and in 2017 it 

passed a bill that expanded 

eligibility to make any 

public school student 

eligible, up to limited numbers. The bill also 

includes a provision that allows families that can 

demonstrate low income to receive additional 

funding above the current formula of 90 percent 

of funds that would go to a traditional or charter 

public school.82

7 of the 20 existing voucher 

programs are limited to students 

who reside in specific areas or 

school districts, or those who are 

attending low-performing public 

schools, whereas the remaining 

voucher programs and all ESA 

programs are open to qualifying 

students statewide.

Choice & Vouchers—Implications for Students with Disabilities 39
Unlike public schools, a private school or 

program provider participating in a voucher or 

scholarship program is not required to accept a 

student who is eligible under the state program.

Nor is it required to alter any of its business 

practices, policies, or curricula under the 

program. A parent/guardian must comply with all 

the provider’s policies.

B. Enrollment of Students with 

Disabilities in Voucher Programs

The size of traditional voucher programs varies 

significantly. During the 2016–2017 school 

year, voucher systems 

enrolled between zero 

and 34,299 students, 

with the four largest 

programs in Florida 

(McKay Scholarship 

Programs for Students 

with Disabilities), Indiana 

(Choice Scholarship 

Program), Ohio (Educational Choice Scholarship 

Program), and Wisconsin (Milwaukee Parental 

Choice Program) serving 73 percent of the 

nation’s students with disabilities who use 

vouchers.83 The total number is 88,609 students 

across all programs serving exclusively students 

with disabilities.84

States providing these school choice funds 

typically require that private schools meet 

minimum standards under state law in order 

to accept voucher funds. State law also sets 

parameters for student eligibility. Targets can be 

students who meet a specified income threshold, 

students who attend chronically low-performing 

schools, students with disabilities or specific 

types of disability, or students in military families 

or foster care.

C. The Reasons Parents Choose 

Vouchers

In the age of individualization and personalization, 

parents want the opportunity to decide how their 

children are taught, including the curriculum, the 

pedagogical approach used by teachers, and the 

services their children receive. A recent survey 

of parents conducted by the U.S. Department 

of Education reported high levels of parental 

satisfaction with their children’s education, 

though the percentage of “very satisfied” 

parents varied by school type. Satisfaction levels 

were the highest among 

private school parents 

and among parents 

whose children are at 

charter schools and 

public district schools 

of choice reporting 

lower but similar rates 

of satisfaction. Parents 

of students attending 

district-assigned schools are the least likely to 

say they are “very satisfied” with their child’s 

school.85 Public perception and the media 

suggest that parents use vouchers primarily 

to permit their child to attend an academically 

stronger school. Focus group participants 

indicated that higher expectations of school for 

students with disabilities were in fact one reason 

they decided to use a choice program.

But an intriguing study from the Education 

Research Alliance for New Orleans suggests that 

parents’ use of vouchers doesn’t always work 

that way. Parents, especially low-income parents, 

actually show strong preferences for other 

school qualities such as the school’s location or 

extracurricular activities.86

Unlike public schools, a private 

school or program provider 

participating in a voucher or 

scholarship program is not required 

to accept a student who is eligible 

under the state program.

40 National Council on Disability
The study indicated that although parents 

may say they care about academics, this is 

not a critical factor when they actually choose 

a school. When researchers asked parents to 

rank schools, regardless of what they gave as 

preferences for their school, a school’s distance 

from home most affected the parent rankings. 

Even if a parent assigned a letter grade of C to 

a school close to home, they would still choose 

that over a B school that was more than one 

mile away. Extended hours and extracurricular 

activities also mattered, especially for lower 

income families.87

While many school 

choice proponents 

claim that vouchers 

are necessary for 

socioeconomic and 

educational equity, 

this study suggests 

that parents from the 

most economically 

disadvantaged families 

may make decisions 

differently from wealthier 

families. “Quality” of 

schools may include 

location or extracurricular offerings, and not just 

“academic quality,” as wealthier families or state 

assessments may define quality. If this is true, 

vouchers may not diminish achievement gaps 

within a school district or city. For example, while 

wealthier families may use vouchers to move 

children to faraway schools with high academic 

achievement rates, lower income parents may 

not be able to reconcile moving a child to a school 

far from home if transportation or a lack of afterschool programming would cause significant 

problems for the family.

Similarly, parents of students with disabilities 

may not use vouchers in expected ways or make 

choices about schools based solely on traditional 

definitions of academic excellence. In the 

research for this report, parents of students with 

disabilities in focus groups described many other 

reasons for using vouchers or ESAs to choose 

their children’s school, including the following:

■ More involvement and control in decisions 

about their child’s education.

■ More equitable or thorough process of 

assessment of needed special education 

services (e.g., children 

would be assessed 

for disabilities through 

schools in order to 

qualify services), 

including a willingness 

to acknowledge signs of 

less visible disabilities 

like dyslexia.

■ Including and 

respecting parental 

involvement in the 

IEP team.

■ Better special education services and 

willingness to implement individualized 

education programs (IEPs), including 

opportunities for direct instruction and 

research-based interventions.

■ Safer schools, including schools with no 

bullying.

■ Higher expectations for students with 

disabilities.

■ Hope that children with disabilities would 

perform better academically, socially, or 

[W]hile wealthier families may 

use vouchers to move children 

to faraway schools with high 

academic achievement rates, lower 

income parents may not be able to 

reconcile moving a child to a school 

far from home if transportation or 

a lack of after-school programming 

would cause significant problems 

for the family.

Choice & Vouchers—Implications for Students with Disabilities 41
behaviorally in a different setting or better 

school.

■ Opportunity to match educational options 

with family lifestyle (e.g., homeschooling for 

religious reasons).

Many parents who use vouchers say that the 

powers and protections in IDEA statutes and 

regulations only existed for them in theory. Battling 

a school district over their child’s education was 

either wearing them down, or they did not have 

the time, money, or knowledge to go to battle.88

As one professional in the focus groups noted:

Parents tell me they feel they are not 

receiving the support and the services, 

or that their child’s 

IEP is not being 

implemented as 

written in the public 

school system, the 

typical public school 

classroom, and 

therefore they utilize a voucher looking for 

better services. There is not one or two 

disability categories that use vouchers [; it 

ranges] from a child who has an attention 

disorder, autism, an[d] intellectual disability. 

Probably the most difficulty for placement 

or for finding appropriate services are [sic] 

for children who have emotional disorders.89

Again, some choose schools for reasons 

such as proximity of school and availability of 

after-school programs or sports,90 as these two 

parents noted:

I use ESA for one of my children. Ultimately, 

I got to a place where I didn’t feel like—

I didn’t feel like the public-school system 

would provide what she needed or 

could. I am an advocate for students with 

disabilities. I work with lots of families. And 

for me, even if what I do, even with all the 

litigation that I did with the school district, 

state complaints, federal complaints, due 

process complaints, OCR, no matter what 

I did, I could make them do it short term 

but then the follow-up would be horrible 

and then we would be back and it was like 

Groundhog Day.

We were in a rural preschool. Their model 

was ten typical students to five special 

needs students, and in that environment, 

he thrived. Then we moved up to the 

city, and I tried to 

open enroll him into 

the school that we 

had chosen to buy a 

house near because 

of the quality of 

the school and the 

fact that it appeared with five speech 

therapists on staff that they had the staff 

to manage his communication issues. 

And they wouldn’t open enroll him, and I 

couldn’t figure out why because they open 

enroll half of the kids in the school. And 

they said, oh, well, he needs a life skills 

program. He had already been included 

in a regular kindergarten, they didn’t even 

know him.

Focus group and interview respondents overall 

indicated the following reasons for choosing to 

enroll in a voucher or ESA program: bullying or 

safety concerns in the public school; ignoring 

the signs of dyslexia and refusing to evaluate 

Many parents who use vouchers say 

that the powers and protections in 

IDEA statutes and regulations only 

existed for them in theory.

42 National Council on Disability
or provide specific programs such as Barton (an 

Orton Gillingham-based intervention that can 

be implemented by people without training91), 

even though they have trained personnel; forcing 

parents to do a private evaluation that costs 

thousands of dollars, and then not accepting 

any of the recommendations; not implementing 

the IEP or 504 plan; refusing to involve parents 

meaningfully or listen to the parents’ concerns 

and suggestions; their child being stressed out, 

refusing to go to school, acting out behaviorally; 

lack of research-based interventions; and as one 

parent in Florida put it: “I ran into wall, after wall, 

after wall in public school.”

For students with more complex disabilities, 

parents and professionals in NCD’s research 

suggested that vouchers may also be used to 

send students to segregated schools for students 

with disabilities. Some parents participated 

in specific state programs targeting students 

with higher needs (i.e., Ohio’s Jon Peterson 

Special Needs Scholarship Program, Arizona 

Empowerment Education Savings Account, and 

Florida’s Gardiner Scholarship Program). They 

suggested that these programs also mainly 

support students attending schools designed 

specifically for students with disabilities. 

However, as the researchers recognized, it was 

clear that there was a lack of concrete data 

to back up this anecdotal evidence. There is 

no centralized repository for comparing data 

on students enrolled in voucher programs by 

disability category with the level of segregation 

or inclusion or by whether a private school 

only serves specific categories of students by 

disability label. Websites such as EdChoice or 

Choice & Vouchers—Implications for Students with Disabilities 43
state departments of education frequently share 

overall numbers of students enrolled using school 

choice programs, the number of private schools 

that students attend, or the amount of funds 

spent overall.92 This data may not be aggregated 

by type of disability, use of special education 

services or 504 plans, or whether the schools 

only serve students with disabilities.93

D. School Choice Programs 

for Students of Color with 

Disabilities

Some proponents argue that students who will 

benefit from vouchers the most are students of 

color. The reality does 

not necessarily support 

that assertion,94 although, 

admittedly, the issue is 

complicated. The 2015 

PDK/Gallup poll showed 

that 53 percent of the 

general population 

supports public school 

choice, but the percentage was even higher for 

African Americans (64 percent). When asked 

if they would support using public funding 

to support families choosing private schools, 

levels of support dropped to only 31 percent 

of all respondents and 33 percent of African 

American respondents. These conflicting results 

indicate two things: (1) the evidence does not 

support a general assumption that vouchers are 

“extremely” popular with African Americans, and 

(2) when respondents understand that vouchers 

may divert public money to private schools, 

support for school choice proposals drops 

considerably.95

Research on vouchers also shows that such 

programs often benefit wealthier white families, 

even when they are intended to protect and 

uplift students of color or students at risk. One 

example is the Indiana School Choice Program. 

When it began in 2011, it was billed as a way to 

help poor and minority children escape “bad” 

public schools. Since then, the percentage of 

white voucher recipients has increased from 

46 to 60 percent, and the percentage of black 

recipients has dropped from 24 to 12 percent. 

Students receiving vouchers are also increasingly 

suburban and middle class.96 In another example, 

Florida recently published results from the McKay 

Scholarship Program, which showed enrollees 

were 46 percent white, 28 percent Hispanic/

Latino, and 20 percent 

black/African American.97

Proponents of school 

choice programs assert 

that choice fosters 

“social justice” and 

equity.98 Critics, however, 

point to the racist origins 

of vouchers. Brown v. The 

Board of Education99 deemed that the “separate 

but equal” standard was unacceptable in public 

education. At that time, pre-1954, “school choice” 

was a code for maintaining segregation, and it 

was only available to white families. For example, 

Prince Edward County in Virginia operated two 

high schools: a well-funded high school for white 

children and a severely underfunded high school 

for black children, which was overcrowded and 

lacked a cafeteria, a gymnasium, a locker room, 

and proper heating.100 Rather than comply with 

Brown, the county closed all its public schools 

in 1959 in defiance of the Supreme Court’s 

decision. However, white children continued their 

education at the private Prince Edward Academy, 

a “segregation academy” that would serve as a 

Research on vouchers also shows 

that such programs often benefit 

wealthier white families, even when 

they are intended to protect and 

uplift students of color or students 

at risk.

44 National Council on Disability
model for other communities in the South. The 

county’s black students were not permitted to 

attend Prince Edward Academy and could not 

receive tuition grants to attend other private 

schools.101

There is tension between national 

organizational stance and black parents on the 

use of vouchers, with the National Association 

for the Advancement of Colored People 

(NAACP) stating that the answer to inequity and 

inadequacy of the public schools does not lie in 

the school choice movement but rather in greater 

investment in traditional public schools; and black 

families asserting that families will flock to choice 

programs in pursuit 

of better educational 

opportunities.102,103

While this debate is not 

specific to students with 

disabilities, it mirrors 

the rift outlined earlier 

between families of 

students with disabilities 

and national organizations 

serving their interests.

One reason disability 

advocates are concerned about voucher 

programs is the push-out of students of color. 

The National Disability Rights Network states 

that “we regularly hear from our network that 

students of color who are also students with 

disabilities are removed from voucher schools 

for disability related behaviors. We sadly are not 

surprised, as this practice would be consistent 

with the limited available data regarding removal 

of students in public and charter schools.”104

It is well documented that students of color 

and students with disabilities are suspended, 

expelled, and disciplined in public schools at 

significantly disproportionate rates.105 The U.S. 

Department of Education data for 2015–2016 

reveals that students with disabilities represented 

12 percent of the overall student enrollment. 

Yet school-level reported data show that

■ 28 percent of students were referred to law 

enforcement or arrested.

■ 51 percent of students were harassed or 

bullied based on their disability.

■ 71 percent of all students were restrained.

■ 66 percent of all students were secluded.

■ 26 percent of students received an out-ofschool suspension.

■ 24 percent of those 

students were 

expelled.

Students of color 

with disabilities also 

represent two-thirds 

of students who are 

secluded from their 

classmates or restrained 

to prevent them from 

moving—even though they make up only 

12 percent of the overall student population.106

Students of color with disabilities experience the 

highest rates of exclusion. With the exception 

of Latino and Asian American students, 

more than one out of four boys of color with 

disabilities—and nearly one in five girls of color 

with disabilities—receives an out-of-school 

suspension. Notably, the vast majority of 

suspensions are for minor infractions of school 

rules, such as disrupting class, tardiness, and 

dress code violations rather than for serious 

violent or criminal behavior.107

Students of color with disabilities 

also represent two-thirds of 

students who are secluded from 

their classmates or restrained 

to prevent them from moving—

even though they make up only 

12 percent of the overall student 

population.

Choice & Vouchers—Implications for Students with Disabilities 45
The glaring and well-documented disparity 

between students of color with disabilities and 

their nondisabled white peers has devastating 

consequences for this student cohort: from 

undermining learning to depriving students of 

instruction time to tragically altering the life 

trajectories of millions of students. We have 

long known that suspensions are associated 

with negative student outcomes such as lower 

academic performance, higher school dropout 

rates, failure to graduate on time, decreased 

academic engagement, future disciplinary 

exclusion, and entry into the juvenile justice 

system.108

Excessive discipline 

causes many students 

to be held back in school 

and others to drop out, 

and it contributes to the 

school-to-prison pipeline. 

Students of color who 

are forced to repeat a 

grade or who drop out 

altogether have an increased likelihood of ending 

up in prison.109

The Center for Civil Rights at UCLA’s Civil 

Rights Project estimated days of missed 

instruction and found that, nationally, black 

students with disabilities lost 119 days of 

instruction (per 100 enrolled), which is 76 more 

days than the 43 estimated to have been lost by 

their white counterparts.

Finally, exclusionary discipline practices have 

an indirect adverse effect on nonsuspended 

students by negatively affecting their academic 

achievement. A three-year study of more than 

17,000 students disclosed that high rates of 

school suspensions harmed math and reading 

scores for nonsuspended students.110 In addition, 

such practices contribute to a negative school 

climate both in and outside the classroom.111

We only know of these disproportions in 

discipline and exclusion because of the extensive 

data collected on public schools by the federal 

government. No similar data is collected on 

private schools. It is possible that private schools 

funded through choice programs may have 

less disproportionate discipline. However, in 

the absence of comprehensive monitoring and 

data collection, we will not know. The report 

cautions that policymakers must consider 

the origins of vouchers and their impact on 

segregation and support 

for public education. 

No matter how well 

intentioned, widespread 

voucher programs 

without oversight risk 

exacerbating segregation 

in schools and leaving the 

most vulnerable students 

and the public schools they attend behind.112

E. Provision of Disability-Related 

Services

As explained earlier, providing disability-related 

services and describing what a program covers 

or allows vary across voucher type, state or 

private school. Most of the voucher programs 

provide limited or no disability-related services. 

ESAs typically do allow use of funds for services 

that vary widely in accordance with the student’s 

needs.

Some families in the focus groups shared 

concerns that private schools were not providing 

specialized services, such as speech/language 

Most of the voucher programs 

provide limited or no disabilityrelated services. ESAs typically do 

allow use of funds for services that 

vary widely in accordance with the 

student’s needs.

46 National Council on Disability
therapy, and occupational or physical therapy to 

which the student was entitled, and at times, for 

which the state had already paid. However, other 

parents did not experience any loss in services 

and actually reported a greater ability to find and 

fund services recommended for their children 

that some public schools had refused to provide. 

Among these services were applied behavior 

analysis (ABA) or tutoring for dyslexia, services 

that are not available in the public schools (in both 

voucher programs that do implement the IEP or 

provide services or under ESA programs). These 

inconsistencies are highly problematic, with 

families essentially gambling that services will 

be the same or better in 

private schools, even if 

IDEA protections are not 

in place.

In Port St. Lucie, 

Florida, Lynn Ambert’s 

9-year-old son is eligible 

for a voucher under 

Florida’s program that she wanted to use. 

However, no private school in her area will 

accept Ayden, who has autism and behavioral 

disabilities. Even the schools whose websites 

announced that they offered behavioral programs 

turned her away.113

In other cases, socioeconomic status may 

affect whether or not the loss of services is 

problematic. For example, transportation was 

a topic of conversation in the focus groups. 

Without IEPs, families may lose transportation 

services for their children with disabilities.

This may mean families cannot utilize vouchers 

unless they are willing to drive several hours a 

day or pay for accessible private transportation. 

Many working parents or guardians simply 

cannot afford these luxuries of time and 

money.

According to a report released by the GAO in 

2016, federal laws and regulations for two key 

federal education grant programs require public 

school districts to provide “equitable services,” 

which may include speech therapy or reading 

tutors, to eligible private school students. The 

Department of Education (Education) provides 

general guidance on these requirements. 

However, Education’s guidance does not 

specifically address providing these services to 

students participating in private school choice 

programs. Education officials said they had not 

received any recent 

inquiries on the subject, 

but officials in all four 

states GAO visited—

comprising half of all 

private choice programs 

and two-thirds of 

participating students—

said that vouchers and ESAs complicate their 

efforts to implement these requirements. Further, 

although Education officials said that a student’s 

participation in private school choice programs 

does not affect the federal equitable services 

requirements, officials GAO spoke to in two 

states expressed confusion about whether a 

student’s participation in these programs changed 

their eligibility for these services. Providing 

quality information to clarify requirements and 

responsibilities—including adapting to emerging 

trends—is a key federal internal control. Providing 

such information would help clarify how to 

implement equitable services requirements in 

the context of growing private school choice 

programs.114

[T]ransportation was a topic of 

conversation in the focus groups. 

Without IEPs, families may lose 

transportation services for their 

children with disabilities.

Choice & Vouchers—Implications for Students with Disabilities 47
Evaluation of Florida’s McKay program shows 

a different story; it was found that families 

reported obtaining higher-quality services in a 

private setting with a McKay voucher than they 

had received in public schools.115

F. Identification of Students with 

Disabilities

A study of Florida’s McKay voucher program 

shows that the program offers the promise of 

slowing growth in the percentage of students 

identified as having a disability: “The addition of 

7.6 private schools that accept McKay funding 

within five miles of a public school, which is 

the average, reduces the probability that a 

student will be identified as having a specific 

learning disability by 15 percent.”116 When 

voucher programs specifically target students 

with disabilities, public schools are provided 

with a disincentive to find children eligible, as 

each student identified as disabled becomes a 

voucher-eligible student who could leave public 

schools and take all of the money devoted to her 

education with her.117

G. Procedural Protections

Under IDEA, when members of the IEP team, 

which includes parents, cannot agree on the 

services that a child should receive, the parents 

have the right to raise their concerns with a 

hearing officer and ultimately to take the school 

district to court if necessary (known as “due 

process”). Students who are parentally placed in 

a private school through a voucher do not have 

these due process protections.118,119

My biggest problem with vouchers is the 

waiver of FAPE. If FAPE is a right under 

IDEA, our kids have a right to an education. 

Then, you can’t waive a right. A waiver 

of your right to a FAPE is terrible for the 

student because they can’t possibly get the 

support services [they require]. And once 

you’ve waived FAPE, you’re done.120

Parents often opt for use of a voucher 

program rather than initiating due process. They 

may save time and money upfront, however, and 

may also give up additional compensation if a 

hearing officer finds a denial of FAPE. Consider 

this example from a parent in Florida:

My child was self-injurious and would try 

to put his head through a wall and [bang 

it on the] floor, and I asked the school for 

a para [paraprofessional], so he would not 

hurt himself. They didn’t want to [provide 

one], so I had to threaten to due process. 

The public school could not give my child 

the support he needed to be safe, so I am 

not even talking about educational. I am 

just talking about keeping the child safe. 

You know, he would come home with 

bruises, lacerations, and he would also bite 

and attack other[s]. So, you couldn’t keep 

anybody in the classroom safe.121

In taking the voucher offered by the state, 

the parent was required to supplement the 

cost of a private education that exceeded the 

voucher amount. If a hearing officer found a 

denial of FAPE, the family may have received 

the full cost of the private placement paid 

for by the state. Attorneys in voucher states 

report that if parents obtain representation, 

voucher programs can serve as a catalyst for 

due process settlements for private placements 

because the district reimbursement amount 

48 National Council on Disability
is less on a voucher than a litigated private 

placement would cost.122

H. Cost of Private School Is Often a 

Barrier for Families, Even with a 

Voucher

Based on interviews with parents and focus 

groups, the following themes became apparent: 

Cost is a huge factor in whether families can 

afford to exercise choice options. Costs include 

tuition but also other costs. For example, if 

there are no private schools nearby and the 

family can’t afford to move, one parent needs 

to assume responsibility for transportation, 

and often that involves loss of career or limited 

work options. Many 

families cannot afford 

to pay the difference 

between the voucher 

amount and the private 

school,123 which can be 

as much as a $7,000 

to $10,000 difference 

per year. Coupled with 

the need for one parent not to work in order to 

provide transportation or manage the process, 

it’s a luxury many cannot afford. Some parents 

indicated that they took most of the money out 

of their retirement account to pay for it—feeling 

thankful they had those resources to use.124

Not every parent can afford it and not every 

parent has the wherewithal to do what 

you all are doing. And so I think one of the 

major issues, whether it’s a charter school, 

voucher school, or public school, because 

they all need the same level of advocacy 

and commitment and parent involvement, 

is we need to find a way to provide these 

services to the under-served families. And 

the under-served families with children with 

disabilities is huge and it may not have to do 

with socioeconomic level because many of 

us have to work.125

Voucher amounts vary by program. The sum 

of money received, or tax break provided, may 

not be equal to the state-funded portion of the 

cost of a student’s education in a public school. In 

most cases, voucher amounts are not set at rates 

high enough to cover the full cost of education 

at a private school, and many of the programs do 

not cover critical costs to enable full access and 

participation, such as transportation or fees. The 

range for vouchers and/or 

savings accounts is from 

$2,500 (in Louisiana) to 

$27,000 (in Ohio, but only 

for students with autism). 

The median amount is 

between $5,000 and 

$7,000, which in many 

states is not enough to 

cover the full cost of tuition, fees, and supplies 

for one year of private schooling. Louisiana, 

for example, provides tuition assistance at 

50 percent of the state’s per-pupil funding for the 

student’s school district (approximately $2,500) 

and cannot exceed the cost of the private school 

tuition. Families are responsible for paying the 

difference if tuition exceeds that amount.126 For 

example, average private school tuition ranges 

from $4,300 to $10,000, while the average tuition 

for a specialized school for students with learning 

disabilities, according to the National Center 

for Learning Disabilities, ranges from $9,000 to 

$25,000.127 If a private school does not provide 

disability-related services or does not provide 

The range for vouchers and/or 

savings accounts is from $2,500 

(in Louisiana) to $27,000 (in Ohio, 

but only for students with autism). 

The median amount is between 

$5,000 and $7,000.

Choice & Vouchers—Implications for Students with Disabilities 49
them in a sufficient amount for a particular 

student with a disability, a parent of a student 

with a disability will face even more costs to 

provide those services themselves.

Some states that offer special education 

vouchers distinguish the voucher amounts 

depending on the student’s disability label, 

providing increased amounts for students with a 

specific diagnosis, such as autism. For example, 

Ohio’s Jon Peterson Special Needs Scholarship 

Program provides students with disabilities with 

a range of maximum scholarships based on the 

student’s disability. Ohio also has an Autism 

Scholarship Program 

that provides public 

funding for students 

with autism to attend 

their nondistrict school; 

the amount provided 

can be up to $25,000. 

All students with 

disabilities are eligible 

for the Jon Peterson 

Scholarship, with the 

amount depending on 

their disability category. 

Voucher amounts are determined through a 

complex funding formula that considers the 

average cost to educate a “typical student in a 

typical classroom” plus the estimated additional 

costs of providing special education and related 

services based on the child’s disability.

Participants in the focus groups indicated that 

the vouchers or ESAs were not enough to cover 

the full cost of the private schools, unless they 

used a hybrid model (part-time school, part-time 

home school) or parochial school. Two individuals 

stated that they had to take money out of their 

retirement accounts to cover the additional 

cost, and several others stated that one parent 

needed to stop work to manage the process or 

transport. Only families that can sustain that kind 

of financial impact can access services using one 

of the choice programs.

I. Voucher Programs Primarily or 

Entirely Serving Students with 

Disabilities

Because IDEA—which requires that students 

with disabilities be educated with their 

nondisabled peers to the maximum extent 

possible—does not 

extend to private schools, 

voucher programs could 

potentially facilitate 

segregation of students 

with disabilities.128

As the GAO noted in 

its 2017 report, almost all 

of the 27 private school 

choice program websites 

provide a directory of 

participating schools, and 

some provide guidance 

on selecting schools. However, GAO estimates 

that no more than half of all schools participating 

in any type of voucher program mention 

students with disabilities anywhere on their 

websites. From our review of state department 

of education programs, that includes publicly 

available data on who is enrolled in what type of 

school by disability category; and how long they 

remain in the voucher program or return to public 

school.

Additional data needs to be tracked and 

reported. As one stakeholder interviewed 

Because IDEA—which requires 

that students with disabilities be 

educated with their nondisabled 

peers to the maximum extent 

possible—does not extend to 

private schools, voucher programs 

could potentially facilitate 

segregation of students with 

disabilities.

50 National Council on Disability
for this research indicated, “we found that 

the states (such as Wisconsin) have a very 

hard time getting this data from the voucher 

schools—the state may know who left the 

public schools (but not in a timely way and 

not why they left), but they don’t know where 

they went.”129 Given the use of public funds, 

policymakers, stakeholders, and families should 

have the data necessary to easily answer this 

question.

The National Center for Education Statistics 

(NCES) publishes The Condition of Education

each year and provides the report to Congress.130

This report, at minimum, 

should include statistics 

on the use of voucher 

programs for students 

with disabilities, by 

disability and race; and 

include information 

on reasons for exiting 

public schools and characteristics of private 

schools that they will attend using the voucher or 

educational savings account funds. NCES does 

publish fast facts for students with disabilities; 

the last year covered was 2013 in which they 

reported 95 percent of 6- to 21-year-old students 

with disabilities were served in regular schools; 

3 percent were served in a separate school for 

students with disabilities; 1 percent were placed 

in regular private schools by their parents; and 

less than 1 percent each were served in one 

of the following environments: in a separate 

residential facility, homebound or in a hospital, 

or in a correctional facility. The data presented 

is by disability category but does not show 

whether the private school is only for students 

with disabilities or any other characteristic. This 

is important information to add to data collection 

and reporting.

EdWeek provided a data snapshot of Florida 

schools and showed whether the schools are 

accredited or religious. However, this data 

snapshot did not indicate whether these schools 

are only for students with disabilities or whether 

they are segregated.131

J. Information Provided to Families

Families that participated in this research noted 

that information about vouchers or available private 

schools is often conveyed by word of mouth from 

family to family. Some 

families indicated that the 

process was easy and 

smooth, but others stated 

that they still needed 

to hire an attorney or 

an advocate to navigate 

between programs and 

access the best option for their child.

Parents find out the information that they 

need to make a choice through [state] 

website, but mostly [by] word-of-mouth. 

Also, they go to advocates, to organizations, 

and then they could go to the State 

Department of Education website but most 

of them don’t know how [to] navigate it. It’s 

not the friendliest website. And the DOE 

does not return phone calls and they are not 

good about e-mails. It’s hard to get accurate 

information.132

The cumulative effect of this lack of 

information is that parents are making choices 

while being totally in the dark about the school 

Families that participated in this 

research noted that information 

about vouchers or available private 

schools is often conveyed by word 

of mouth from family to family.

Choice & Vouchers—Implications for Students with Disabilities 51
to which they are sending their child. They are 

simply hoping for the best, and as some stated in 

focus groups:

They sign up for a private school, thinking 

that they are getting all of the benefits 

one expects of that: better instruction, 

lower class size. But when they visit 

their child might be in the back of the 

classroom without enough support and 

not really getting any sort of an education. 

Or there’s like a lower-level untrained 

person that’s supporting the child. That’s 

not what they thought they signed up for. 

So, then they end up going back to public 

schools.133

52 National Council on Disability
Chapter 4: Outcomes of Students with Disabilities 

in Voucher Programs

A recent National Public Radio feature 

asserted that though vouchers bring 

choices, they do not bring guarantees of 

educational outcomes.134 Certainly, there are no 

guarantees in public education either; however, 

there is ample data. In contrast, there is no 

public data collection showing how well private 

schools are serving students with disabilities. As 

indicated previously, parents have to waive their 

rights under IDEA, including the requirement 

to demonstrate that the child is receiving a 

meaningful benefit from their education. Some 

states require testing, while others do not. The 

GAO stated that “academic testing and reporting 

requirements can help the public compare the 

academic achievement of private school choice 

students with students in public schools. Twothirds of private choice programs (18 of 27)—

which represented 78 percent of all students 

participating in voucher and ESA programs in 

school year 2016–17—require[d] private schools 

to test voucher or ESA students. Nine of the 

18 programs that require testing, nine programs 

require participating schools to administer their 

state’s standardized test and six require schools 

to administer some type of norm-referenced 

test.”135

States vary considerably in terms of academic 

accountability. Almost half of the voucher 

programs do not have any testing requirement 

or only have to provide parents with a progress 

report about their children. In other voucher 

programs, schools must administer a state 

or a nationally standardized assessment to 

their voucher recipients; in some programs, 

participant schools are included in the state 

school grading system. Among the five states 

with ESA programs, three states—Florida, 

Nevada, and Tennessee—require participants to 

take a standardized test; however, in Florida and 

possibly other states, students for whom testing 

is determined not to be appropriate are exempt. 

In terms of scholarship tax credits, only 8 of the 

21 programs require students to take a state or 

national test.136

The results on outcomes overall is mixed. 

A recent study of DC voucher students found that 

math scores were 10 percentage points lower 

for students who used vouchers compared with 

students who applied but were not selected 

through the lottery.137 Students in Indianapolis 

who left public schools to attend private Catholic 

schools, for example, experienced no gains in 

reading but “moderate and statistically significant 

average annual losses in mathematics compared 

with the gains they experienced while attending 

traditional public schools.”138 A study of the 

effectiveness of Ohio’s ESA program found 

similar negative effects in math scores that 

persist over time and cannot be attributed to 

Choice & Vouchers—Implications for Students with Disabilities 53
“setbacks that typically accompany any change in 

schools.”139

Previous evidence140 revealed that the 

Louisiana Scholarship Program (LSP) had large 

negative effects on student outcomes in both 

English and math after one year, but researchers 

say that by the third year, the performance of 

LSP scholarship users was statistically similar 

to that of their counterparts in both English and 

math. Perhaps most surprisingly, the study also 

concluded that LSP scholarship users were more 

likely to lose their special education status after 

two years and less likely to be newly identified 

as a student with a disability by their third year in 

the program.141 However, 

as a September 2017 

study states: “These 

large and statistically 

significant negative 

findings, especially 

in mathematics, are 

unprecedented among 

experimental evaluations 

of school voucher 

programs in the United 

States.”142

Focus groups and interviews reveal that 

although there are families frustrated with 

the experience, or unable to access services 

and supports, there are many families that 

are very happy with the outcomes. Several 

participants in multiple states indicate that they 

participated in the study specifically to counter 

media and research reports that dismiss the 

benefits of vouchers. They describe students 

who are learning, thriving, and showing an 

increase in hard-to-measure outcomes, such as 

confidence and self-esteem. Participants gave 

many examples of innovative hybrid programs 

(part campus based or online, part homeschool 

or tutoring) and greater choice over curriculum 

(such as in the case of dyslexia), which has made 

incredible differences.

And I have to say it’s given us not only 

the individual, you know, my teachable 

moments and being able to access or get 

a Kindle and buy audio books or whatever 

it is, flashcards, I mean, everything, as long 

as it’s educationally relatable, you know, 

it’s been a blessing. But he’s been able to 

take advantage of the other programs, too, 

even though they may be short term. For 

example, my son is 

in a monthly program 

at the local university, 

which is an awesome 

opportunity and it’s 

reimbursed by the 

education savings 

account, and it’s the 

education master 

students, the physical 

fitness and Pre-K 

students, and the psychology master’s 

and counseling students. They’re learning 

mindfulness, they’re learning about their 

bodies. They have different levels. They have 

folks that come in that help with speech 

facilitation, with the learning. It’s geared 

specifically for intellectual disability. You 

know, they have enough staff from three 

different departments, so they’re learning 

to collaborate. And then the students are 

getting the benefit of that collaborative 

education model, and then they modify 

what they learned [in] one session and that 

adjusts the next session. So the teachers 

Focus groups and interviews reveal 

that although there are families 

frustrated with the experience, 

or unable to access services and 

supports, there are many families 

that are very happy with the 

outcomes.

54 National Council on Disability
are learning, the students are learning. It’s 

just been absolutely fantastic.143

Compared to public school, there is little to 

no oversight, aside from the minimum regarding 

health and safety. The GAO reports that of the 

27 taxpayer-funded private school voucher and 

ESA programs studied by GAO in school year 

2016–2017, only 8 of these programs required 

private schools to comply with annual financial 

audits, meaning that the states funding these 

schools often have no clear picture of where their 

investment is actually going.

The American Federation for Children Growth 

Fund and the American Federation for Children 

wrote in the 2016–2017 Yearbook that “quality 

program design transparency and accountability 

in educational choice programs are crucial for 

program effectiveness, growth and longevity.”144

These sister organizations “work to ensure 

that private school choice programs include 

effective policy and program design, including 

common sense academic, administrative and 

financial accountability provisions.”145 Of note 

in their recent publication is the number of 

programs (overall not simply choice programs 

for students with disabilities) that now have 

testing and reporting requirements has nearly 

tripled since 2010. The American Federation 

for Children (AFC) states that they encourage 

transparency and accountability as smart 

public policy that provides educational choice 

advocates with readily available data and 

information to showcase program successes. 

All of the states with voucher programs were 

marked with strong accountability in health, 

Choice & Vouchers—Implications for Students with Disabilities 55
safety, and nondiscrimination. Voucher programs 

did not score as well in the financial section 

and showed even less accountability in the 

academic indicators. The weakest accountability 

ratings were found in the ESA programs. As 

the report states, increasing transparency and 

accountability, with readily available data, is 

essential.

This lack of oversight and transparency can 

have troubling consequences for students with 

disabilities and their families. Take this student 

from Florida: After receiving a $6,000 scholarship 

under the McKay program, the family had new 

hope but found it difficult for their daughter to 

get an education. The first school she attended 

closed down. Another refused to enroll her 

because she was too far behind academically. 

And a third school expelled her midyear in a 

dispute over bullying. The family tried to file a 

complaint and fingers were pointed regarding 

responsibility, but no action was taken. After 

three years, the student is back in public school, 

and with a proper diagnosis and supports, she is 

thriving.146

Private schools receiving state aid don’t have 

to track students or tell the state how many 

students graduate from their schools. Nor need 

they tell how many are bullied, suspended, 

expelled, or drop out—some of which are the 

most basic measures of student success. They 

don’t have to report Civil Rights Data Collection 

(CRDC) information for inclusion in the national 

data collection on numbers of students who are 

suspended and families indicate that can create 

problems because suspension or expulsion is 

easier in private schools. If a student is served 

under IDEA, it is much harder to suspend long 

term or to expel a student with a disability from a 

public school than a student without a disability. 

Except in certain serious cases, public schools 

must go through a process to determine if a 

student’s misbehavior is a manifestation of his 

or her disability.147 Private schools have no such 

obligation. A recent Orlando Sentinel investigation 

found several instances of private schools fudging 

health and safety records and hiring staff with 

criminal backgrounds. The state was often slow to 

catch the misdeeds and respond.148

Others feel that regulations over private 

schools, such as the requirement of many 

states that the private school be in operation for 

a specified period of time before it can enroll 

students, create unnecessary barriers to new 

schools.149 Parents in focus groups often told 

competing tales of schools that were shut down 

for fraud on the one hand; and of schools with very 

strict oversight of uses permitted for educational 

savings accounts, on the other hand. For example, 

one focus group parent stated the following:

And let me say that with the Gardiner, 

we’re not out there just willy-nilly as 

parents picking stuff. I mean, we have to 

submit everything. It has to be approved. 

Everything we do has to be submitted with 

a paragraph or a few sentences or more 

sometimes that explains the educational 

benefit tailored to your child.150

As a recent GAO151 report showed,

■ One-third of the taxpayer-funded private 

school voucher and ESA programs in 2016–

2017 had no academic testing requirement. 

Officials in two of the programs GAO 

studied in greater depth indicated that 

some private schools were unfamiliar with 

or unequipped to administer standardized 

tests, and stakeholders told GAO this was 

56 National Council on Disability
especially true at some of the smaller 

private schools.

■ Only one-third of the programs require that 

schools publicly report test results, making 

it difficult for parents to fully understand the 

quality of school to which they are sending 

their child.

■ GAO estimates that 13 percent of all private 

voucher schools provide student and school 

performance data on their websites.

■ Only 4 of the 27 private school voucher 

and ESA programs in 2016–2017 provided 

information on the graduation rates of 

private schools.

Choice & Vouchers—Implications for Students with Disabilities 57
58 National Council on Disability
Chapter 5: Legal Protections for Students with 

Disabilities in Voucher Programs

A. Concern with Waiver of Rights

Students with disabilities are guaranteed various 

rights through a network of federal laws. One 

of those statutes, IDEA, has guaranteed critical 

protections for more than four decades. In 

the past school year, it has served 6.5 million 

students and provided more than $11 billion in 

federal funding to the nation’s schools, making 

it the second-largest K–12 program in the U.S. 

Department of Education.152 Through the research 

and focus group participants, these potential 

harms for students with disabilities were noted:

1. In the majority of school voucher programs, 

when students use vouchers to attend a 

private school, they relinquish their rights 

under IDEA, including the right to an IEP, 

FAPE, and procedural protections.153

2. State programs and private schools fail to 

notify parents of students with disabilities 

that they are waiving rights and what that 

means.

3. Some parents report feeling unprepared to 

make an informed decision.

4. Other parents report knowingly waiving their 

rights and were not worried about doing so.

The 2017 GAO report found that private 

school choice programs inconsistently provide 

information on changes in rights and protections 

under IDEA when parents move a child with 

a disability from public to private school. In 

the 2016–2017 school year, 83 percent of 

students enrolled in a private school choice 

program specifically designed for students with 

disabilities were enrolled in a program that 

either provided no information or inaccurate 

information about the changes in their IDEA 

rights.

In the following sections, we discuss the 

interaction of school choice programs with 

constitutional, federal, and state rights.

B. The Federal Establishment Clause 

of the U.S. Constitution

Although some school voucher programs have 

been challenged for violating the Establishment 

Clause of the U.S. Constitution, the Supreme 

Court in Zelman v. Simmons-Harris, 536 U.S. 

639 (2002)154 held that Ohio’s school voucher 

program did not violate the First Amendment’s 

establishment of religion clause, despite the large 

number of students attending religious schools 

with school vouchers. The Court reasoned that 

the program did not violate the Establishment 

Clause because the program (1) was enacted for 

the valid secular purpose of providing educational 

assistance to poor children in a demonstrably 

failing public school system, and (2) was a 

Choice & Vouchers—Implications for Students with Disabilities 59
program of true private choice that did not have 

the effect of advancing religion.

C. The Fourteenth Amendment of 

the U.S. Constitution

Brumfield v. Dodd is a 1975 case in Louisiana 

that challenged the state Board of Education’s 

provision of books and other materials to 

racially segregated private schools under the 

Constitution’s Equal Protection Clause of the 

Fourteenth Amendment. The order issued in 

that case had no expiration, and currently the 

federal government is using that order to look 

into the state’s new school voucher program.155

In 2013, the judge concluded that the federal 

government was authorized to review the 

possible racial segregation of the state’s voucher 

system, not only because of the possibility of 

segregated private schools, but also because 

the case implicates the state’s obligation not 

to promote segregation in public schools. “This 

case is about the Constitution and Brown v. 

Board of Education,” the judge said, referring 

to the U.S. Supreme Court’s landmark 1954 

decision outlawing “separate but equal” public 

schools. “The court has an obligation . . . to take 

reasonable steps in the process whereby the 

voucher program is not being used to promote 

segregation.”156

D. Federal Legal Requirements 

Under Voucher Programs

Title I, Part A, of the Elementary and Secondary 

Education Act (ESEA) mandates that all public 

school students shall be provided with a 

rigorous curriculum aligned to state-adopted 

standards for college- and career-readiness; 

and that the academic achievement standards 

include the same knowledge, skills, and levels 

of achievement expected of all public school 

students in the state, with the sole exception 

of those students who are identified with the 

most significant cognitive disabilities.157 These 

academic standards do not apply to the vast 

majority of students with disabilities in voucher 

programs.158 Title I also requires each state to 

establish an accountability system that includes 

ambitious state-designed long-term goals. 

Regular measurements of interim progress 

toward meeting such goals are to be made for 

all students and separately for each subgroup 

of students in the state for improved academic 

achievement, as measured by proficiency 

on the annual assessments and high school 

graduation rates.

Students with disabilities are guaranteed 

various rights through a collection of federal laws, 

including IDEA, Section 504 of the Rehabilitation 

Act (Section 504), and the Americans with 

Disabilities Act (ADA).

E. School Vouchers and the 

Individuals with Disabilities 

Education Act

IDEA, enacted in 1973, provides federal funding 

to states for the purpose of assisting them to 

provide special education and related services 

to students with certain disabilities.159 Generally, 

the funding formula is based on the number 

of children with disabilities in the state who 

are receiving special education and related 

services.160 The states are required to distribute 

that funding to local educational agencies.161 The 

states are eligible for IDEA funding only if they 

agree to submit a plan for providing FAPE for 

students with disabilities in the least restrictive 

environment through an IEP, and to apply IDEA 

procedural safeguards.162

60 National Council on Disability
IDEA arose from court decisions evaluating 

the constitutional obligations of public schools 

to serve students with disabilities.163 Congress 

incorporated these constitutional requirements 

into IDEA and provided federal funding to 

support implementation by the states. Under 

IDEA, schools must provide each eligible 

student with a FAPE that meets the standards 

of the SEA and is consistent with the student’s 

IEP.164 The right to FAPE ensures these students 

full and meaningful opportunities to participate 

in the same curriculum that is being taught to 

students without disabilities and to meet the 

same high academic standards that are set for 

all students.165 Multiple provisions, including 

those regarding IEP 

development and 

implementation, ensure 

that each student 

shall be involved and 

make progress in the 

general education 

curriculum—that is, 

the same curriculum as 

that provided to students without disabilities.166

Moreover, consistent with IDEA’s LRE 

requirement, students with disabilities are to be 

educated to the maximum extent appropriate 

with students without disabilities; removal 

from the regular education environment is to 

occur “only when the nature or severity of the 

disability of a child is such that education in 

regular classes with the use of supplementary 

aids and services cannot be achieved 

satisfactorily.”167

IEP teams must determine each student’s 

LRE based on the student’s unique disabilityrelated needs as set forth in her IEP, not 

based on a diagnosis, a specific disability 

label, or because the student requires needed 

modifications in the general education 

curriculum.168 Such placement decisions cannot 

be based on the availability of placement 

options, administrative convenience, institutional 

barriers to providing supportive, related services 

in charter school settings, or based on the 

nature of students’ particular disabilities rather 

than their individual needs.

IDEA has guaranteed critical protections to 

students with disabilities for more than four 

decades. In the 2016–2017 school year, it served 

6.5 million students and provided more than 

$11 billion in funding to the nation’s schools, 

making it the second-largest K–12 program in 

the U.S. Department 

of Education.169 As the 

current Administration 

and Education Secretary 

Betsy DeVos push for 

expansion of voucher 

programs, risks for 

students with disabilities 

are often left out of 

pro-voucher narratives.170 Parents of students 

with disabilities have mixed understandings 

and opinions about any possible loss of special 

education rights for themselves or their children. 

In focus groups and interviews, NCD research 

showed that state programs and private 

schools often fail to notify parents of students 

with disabilities about their rights and about 

how those rights may be forfeited in voucher 

programs; other parents received information 

but still felt unprepared to make a fully informed 

decision. Other parents felt the voucher 

programs were worth any risks and knowingly 

gave up special education rights without 

concerns about it. The fact is, however, that 

NCD research showed that state 

programs and private schools often 

fail to notify parents of students 

with disabilities about their rights 

and about how those rights may be 

forfeited in voucher programs.

Choice & Vouchers—Implications for Students with Disabilities 61
for the majority of school voucher programs, 

if students attend a private school with the 

vouchers, they must relinquish their rights under 

IDEA,171 including the right to assessments paid 

by the school district, an IEP, FAPE, LRE, and 

procedural due process protections for them 

and their families.172 When a voucher is used 

for a school that does not provide sufficient 

services, parents have no recourse. If a private 

school fails to meet a 

student’s needs, the 

student will not be 

entitled to compensatory 

services. Private schools 

do not have to follow the 

IEP and are able to easily 

remove the student 

from the program. COPAA members indicate 

that in order to accept a voucher, there can be 

no outstanding complaint by the family against 

the district, making it impossible to pursue any 

sort of compensatory 

remedy for past, 

present, or future 

claims. Denying IDEA 

protections in the name 

of choice is potentially 

a way for states to 

skirt accountability for 

individual access to a free and appropriate public 

education. Under a voucher, disability-related 

services may or may not be free (as many 

parents have to cover the cost with personal 

funds), and the education may or may not be 

appropriate for the particular student. In sum, 

as a general rule, IDEA rights have not been 

viewed as extended to children and youth with 

disabilities who participate in voucher programs. 

Some states, however, have chosen either to 

align with IDEA or to protect certain rights under 

IDEA.

In addition, as stated previously, the GAO 

found that when parents move a child with 

a disability from public to private school, 

school choice programs inconsistently provide 

information on changes in rights and protections 

under IDEA. In the 2016–2017 academic year, 

83 percent of students enrolled using vouchers 

specifically designed for 

students with disabilities 

received no information 

or inaccurate information 

about the changes in 

their IDEA rights when 

they chose a private 

school. Families should 

have easy-to-understand, accurate information 

in a format that is accessible to people with 

disabilities and presented in the family’s primary 

language. As explained later, this information 

must also explain the 

risks of waiving rights 

and how it may affect 

services.

Whether or not the 

state requires parents 

and students to explicitly 

relinquish rights under 

IDEA as a condition of accepting a voucher 

varies considerably. Nevada voucher law is silent. 

Arizona doesn’t specifically state that rights 

are terminated, but it does say that the state 

department will not monitor schools to ensure 

that procedural or substantive rights are upheld. 

Parents in Arizona who feel rights are being 

violated have to file a complaint with the U.S. 

Office for Civil Rights (OCR). In Florida, when 

parents opt to apply for the McKay Scholarship 

[F]or the majority of school voucher 

programs, if students attend a 

private school with the vouchers, 

they must relinquish their rights 

under IDEA.

Families should have easy-tounderstand, accurate information in 

a format that is accessible to people 

with disabilities and presented in 

the family’s primary language.

62 National Council on Disability
specifically for a child with a disability, their child’s 

rights under IDEA are then explicitly revoked. 

Laws in Georgia and Oklahoma also explicitly 

revoke IDEA rights. Louisiana requires that the 

student’s IEP be followed, and in Ohio parents 

and students retain all rights except the right 

to due process for denial of FAPE. Florida and 

Mississippi programs require that families waive 

all IDEA rights, while other states, such as Utah 

and Ohio, allow parents to retain limited rights. 

In Ohio, the guidelines state that the district will 

no longer be responsible for FAPE; while a child 

is receiving a scholarship, the participating school 

is required to maintain an IEP for the student, 

and all records and documentation relating to the 

IEP and progress must also be provided to the 

public school district, as is also the case in Utah. 

Any school wishing to provide services under 

the scholarship program must sign an affidavit 

also stating that they will comply with laws 

regarding the delivery of services to children with 

disabilities.

A 1990 OCR staff memorandum states that 

students who are placed in private schools 

through the Milwaukee Choice Program 

are considered to be parentally placed in 

private schools and are not covered by IDEA’s 

protections.173 A 2001 OCR letter, Letter to 

Bowen, reiterated this point, stating that 

participating students in Florida’s McKay Program 

“are considered ‘private school children with 

disabilities’ enrolled by their parents. . . . [S]uch 

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.”174,175

Many states, including the District of 

Columbia, despite having language in its statute 

that says “(c) CHILDREN WITH DISABILITIES.—

Nothing in this Act may be construed to alter 

or modify the provisions of the Individuals with 

Disabilities Education Act (20 17 U.S.C. 1400 et 

seq.),”176 require parents to waive their rights to 

IDEA protections.

Weber (2007) asserts that under the current 

IDEA, there is not an explicitly established 

individual entitlement to special education 

services for any private school child. Nor does it 

require that services provided to private school 

children be delivered on the site of the private 

schools or by means of private school personnel. 

IDEA affords few procedural rights to parents 

of private school children to challenge decisions 

about services.177 Weber’s premise is tied to 

IDEA provisions (changed in 2004) relating to 

services for children placed voluntarily by their 

parents in private schools. The Department 

of Education’s 2011 guidance supports 

Weber’s view:178

The LEA’s obligations to parentally placed 

private school children with disabilities are 

different from its responsibilities to those 

enrolled in public schools or to children with 

disabilities placed in a private school by a 

public agency (rather than by parents) as 

a means of providing FAPE. Parentally 

placed children with disabilities do not 

have an individual entitlement to services 

they would receive if they were enrolled 

in a public school. Instead, the LEA is 

required to spend a proportionate amount 

of IDEA federal funds to provide equitable 

services to this group of children. Therefore, 

it is possible that some parentally placed 

children with disabilities will not receive any 

services while others will.179

Choice & Vouchers—Implications for Students with Disabilities 63
The Department of Education’s guidance/

publication, released in 2011, reminds local 

education agencies with jurisdiction over the 

school district where the private school is located 

that they remain the responsible agency for 

implementing IDEA’s “child find” provision: “the 

obligation that the LEA locate, identify, evaluate, 

and spend a proportionate share of IDEA funds 

for equitable services for children with disabilities 

enrolled by their parents in private, including 

religious, elementary and secondary schools 

located in that district.”180

IDEA itself does not provide for FAPE and 

LRE in private schools, even if those schools 

receive funding from the state. Rather, under 

IDEA, a state must provide for the equitable 

participation of children 

who are parentally placed 

in private schools, as a 

group, by allocating a 

“proportionate amount” 

of federal IDEA funding 

to the group.181 The 

state is then responsible for ensuring that 

parentally placed students in private schools 

have opportunities for equitable participation in 

special education and related services within that 

proportional amount.182 The equitable services 

must be provided by the state, either directly or 

through contracts.183 However, IDEA “does not 

require a [LEA] to pay for the cost of education, 

including special education and related services, 

of a child with a disability at a private school or 

facility if that agency made a [FAPE] available 

to the child and the parents elected to place 

the child in such private school or facility.”184

Thus, as shown by the U.S. Supreme Court in 

Zobrest v. Catalina Foothills School District,

185

Board of Education of Kiryas Joel v. Grumet,

186

and Agostini v. Felton,

187 the district does have 

an IDEA mandate to provide limited services to 

students enrolled in private schools. However, 

they are not required to provide the same level 

of special education services the child would 

receive if enrolled in a public school. As noted 

earlier, under Child Find requirements, the district 

is required to assess all students within the 

district, even those homeschooled or in private 

school settings. There are limitations on the 

other services: (1) these services must be only 

supplemental services, not the student’s primary 

services for education; (2) the amount provided is 

limited to a small proportion of the federal IDEA 

funds provided to the district, and when those 

funds are expended, the district is not required 

to spend more; (3) the 

district may choose to 

not serve all parentally 

placed students; (4) the 

full range of special 

education services may 

not be available; and 

(5) the provisions of FAPE are not available.188

Notably, this does not make the private school 

responsible for providing special education and 

related services, but the responsibility remains 

with the state, which may decide “how, where, 

and by whom special education and related 

services will be provided.”189 Nor does it provide 

an individual right to any particular parentally 

placed child to receive FAPE.190 As explained by 

the Department of Education, “Therefore, it is 

possible that some parentally placed children 

with disabilities will not receive any services 

while others will. For those who receive services, 

the amount and type of services also may differ 

from the services the child would receive if 

placed in a public school by the parents or in a 

IDEA itself does not provide for 

FAPE and LRE in private schools, 

even if those schools receive 

funding from the state.

64 National Council on Disability
private school by a public agency.”191 An individual 

parentally placed child with a disability who 

is designated by the state or LEA to receive 

special education and related services must 

have a services plan, which shares some parent 

participation considerations similar to the IEP 

process.192 Special education and related services 

may be provided at the private school or at an 

alternate site.193 Private schools, rather than 

parents, have the right to complain about a failure 

of the state to give due consideration to the 

views of the private school in determining how to 

allocate the proportionate amount of funding for 

parentally placed students.194

For a student eligible under IDEA and under 

the parentally placed provision, acceptance of a 

voucher is a withdrawal 

and a relinquishment of 

individual rights under 

IDEA, including special 

education and related 

services. Vouchers, 

however, represent a 

school choice initiative 

that authorizes use of government resources 

to allow parents to send their child to a school 

other than the one to which the child would be 

assigned in the family’s home community. Often, 

the reason for the voucher is the acknowledged 

failure of the public school to adequately provide 

an education.

When a school district offers a school 

placement that cannot implement the required 

instruction and services at the time that the 

parents have to decide whether to accept or 

reject the school placement offer, in this case 

at the IEP meeting, courts have found that 

the school district failed to offer the child a 

FAPE.195,196

Denying rights under IDEA as a condition 

of accepting a scholarship counters both the 

theoretical purpose of vouchers and IDEA’s stated 

intent, for both vouchers and IDEA assert that 

their purpose is to ensure that the student ́s 

specific individualized needs are met in a 

placement that will best serve the educational 

needs of the child. IDEA promises meaningful 

parent participation, as do vouchers, but vouchers 

in theory go a step further in enabling families to 

make independent private choices to direct their 

resources to appropriate schools. This promise 

of “choice” is hollow, however, for many families 

who cannot afford the cost above the allowable 

voucher funds, cannot provide transportation, or 

may have to give up all procedural safeguards and 

rights to benefit from the 

voucher.

In sum, federal IDEA 

rights, as a general rule, 

have not been viewed 

as being extended 

to children and youth 

with disabilities who 

participate in voucher programs. All the same, 

states continue to receive special education 

funding for voucher students and have the ability 

to require voucher schools to carry out IDEA 

obligations through contract or as a condition of 

receiving voucher funding.

The express purpose of IDEA is to “ensure 

that all children with disabilities have available to 

them a FAPE that emphasizes special education 

and related services designed to meet their 

unique needs.”197 Under IDEA, in exchange 

for receipt of federal funds, the state agrees 

to guarantee a FAPE to every child who has a 

disability.198 A FAPE is provided to a child with 

disabilities through the development of an IEP, 

[F]ederal IDEA rights, as a general 

rule, have not been viewed as being 

extended to children and youth 

with disabilities who participate in 

voucher programs.

Choice & Vouchers—Implications for Students with Disabilities 65
which is both a “comprehensive statement of 

the educational needs of a handicapped [sic] 

child and the specially designed instruction 

and related services to be employed to meet 

those needs.”199 An IEP must be reasonably 

calculated to enable the child to receive 

educational benefits.200 The IEP is required to 

identify both the services and a particular school 

at which the offered instruction and services 

are to be implemented.201 An IEP that fails to 

offer a school, “as a matter of law . . . [, is] not 

reasonably calculated to enable [the child] to 

receive educational benefits.”202

Some scholars suggest that state and federal 

laws should consider tying IDEA rights to the 

role of the IEP team in making the placement 

decision. If the IEP team together, including 

the parents, makes the placement choice of a 

voucher school, not the parents alone, and if the 

team chooses the private school as a means to 

provide FAPE, the public school district should 

retain the primary responsibility to provide FAPE 

and stay in a working relationship with the private 

school. In addition, the child should retain all IDEA 

rights, and all substantive requirements (such as 

development of an IEP) must be followed.203

Any allowable choice in this context must only 

require that the parents and the school agree that 

the voucher will allow school funds to follow the 

child to the school of his or her choice. Parents 

or students should not have to give up either 

procedural or substantive requirements under 

IDEA, or their right to an impartial due process 

hearing if the private school fails to comply. The 

IEP should remain the cornerstone of providing 

individualized special education and related 

services designed to meet the unique needs of 

students with disabilities.

Although the loss of meaningful protection 

under IDEA is problematic for parents accepting 

vouchers, the consequences of such waivers 

are limited to the extent that § 504 or the ADA 

provides similar protection to students with 

disabilities, either through direct regulation of 

the private schools or through regulation of the 

state agencies administering voucher programs. 

Upon closer examination, however, it becomes 

evident that the protection these statutes 

extend to private school students is relatively 

minimal.204

F. Section 504

Under Section 504 of the Rehabilitation Act 

of 1973, any federal funding to a SEA or LEA 

triggers antidisability discrimination requirements 

for their educational programs. For public schools 

receiving federal funds from the Department of 

Education (DOE), these requirements include 

the provision of an appropriate education, 

including regular and special education and 

related aids and services that (1) are designed 

to meet the individual educational needs of 

disabled persons as adequately as the needs of 

nondisabled persons are met and (2) are based 

upon adherence to regulatory procedures (34 

C.F.R. § 104.31 et seq.). In addition, both public 

and private schools receiving federal funding 

must meet nondiscrimination requirements. 

For example, they are prohibited from excluding 

or limiting the participation of students with 

disabilities and from segregating students with 

disabilities. They are also required to provide 

physical accessibility (program access for existing 

facilities and complete access for new facilities or 

alterations); reasonable modifications to policies, 

practices, and procedures when necessary to 

66 National Council on Disability
allow a student with a disability to participate; 

and auxiliary aids and services to ensure effective 

communication with students with disabilities (34 

C.F.R. § 104.4).

The Section 504 requirements apply to all 

stakeholders, including parents, companions, 

and students with disabilities. Section 504’s 

nondiscrimination requirements, unlike 

IDEA’s FAPE, are subject to the defense that 

providing a reasonable modification or effective 

communication would cause an undue burden 

or fundamental alteration to the program.205

However, these limitations on the obligations 

still require a good deal 

from school districts 

because, as the 

Department of Education 

has explained, “[An 

undue burden] defense 

would rarely, if ever, 

prevail in the context 

of extracurricular 

athletics. . . . Moreover, 

whenever IDEA 

would impose a duty 

to provide aids and services needed for 

participation in extracurricular athletics . . . , 

OCR would likewise rarely, if ever, find that 

providing the same needed aids and services 

for extracurricular athletics constitutes a 

fundamental alteration under Section 504 for 

students not eligible under IDEA.”206

The Letter to Bowen stated that because a 

Florida SEA received federal financial assistance, 

Section 504 applied to SEA’s administration 

of the program. “The SEA 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. . . . However, the SEA would 

not be required to ensure that the participating 

private schools ‘provide an appropriate education 

to . . . students [with disabilities] with special 

educational needs if [the participating private 

schools do] not offer programs designed to meet 

those needs.”

IDEA contains a statutory FAPE provision 

and allows private causes of action only for 

prospective relief and only after administrative 

proceedings have been exhausted. Section 

504 contains a broadly 

worded prohibition on 

discrimination, exclusion, 

and denial of benefits, 

under which the U.S. 

DOE has promulgated 

regulations containing 

a FAPE requirement 

for public schools that 

is worded somewhat 

differently from IDEA’s 

FAPE requirement. 

Section 504 can be privately enforced in federal 

court to provide, in addition to prospective relief, 

compensatory but not punitive damages for past 

violations.207

FAPE under Section 504 is defined to require 

a comparison between the manner in which the 

needs of children with and without disabilities 

are met and focuses on the “design” of a child’s 

educational program.208 FAPE requires education 

and services “designed to meet individual 

educational needs of handicapped [sic] persons 

as adequately as the needs of non-handicapped 

persons are met” (emphasis added).209

Section 504’s nondiscrimination 

requirements, unlike IDEA’s FAPE, 

are subject to the defense that 

providing a reasonable modification 

or effective communication 

would cause an undue burden 

or fundamental alteration to the 

program.

Choice & Vouchers—Implications for Students with Disabilities 67
State or local education agencies that receive 

federal funding, as well as private schools 

that receive federal funding, either directly or 

indirectly, are covered by Section 504. Thus, 

if private schools receive federal funding from 

SEAs or LEAs, they are obligated to comply with 

Section 504. In addition, if SEAs or LEAs contract 

with private schools to operate schools, the 

Section 504 obligations will flow to the private 

schools.

However, because voucher and ESA funding 

is provided to parents, who are arguably the end 

beneficiaries of the funding, rather than directly 

to private schools, this could break the chain of 

federal funding, and thus the chain of Section 

504 obligations, before 

it reaches the private 

schools. Because the 

framework of Section 

504 is based on the 

framework of Title VI of 

the Civil Rights Act of 

1964, the Department of 

Justice’s Title VI Manual 

is instructive, as is case law under Title IX, which 

uses the same framework:

Finally, Title VI does not apply to direct, 

unconditional assistance to ultimate 

beneficiaries, the intended class of 

private citizens receiving federal aid. For 

example, social security payments and 

veterans’ pensions are not federal financial 

assistance. . . . During debate preceding 

passage of the Civil Rights Act, members of 

Congress responded to concerns about the 

scope of Title VI by explaining that Title VI 

would not apply to direct benefit programs: 

“The title does not provide for action 

against individuals receiving funds under 

federally assisted programs—for example, 

widows, children of veterans, homeowners, 

farmers, or elderly persons living on social 

security benefits.”210

Cases in the higher education context indicate 

that Section 504 obligations will attach to voucher 

funding and will bind private schools receiving 

tuition through vouchers, if the voucher funding 

to the parent is conditioned on the student 

participating in an educational program. Thus, in 

Grove City College v. Bell, the Supreme Court 

found that the college, which did not receive any 

direct federal funding, nevertheless was subject 

to Title IX of the Civil 

Rights Act by virtue of 

its students’ receipt of 

federal financial aid.211 The 

Court explained, “The 

linchpin of Grove City’s 

argument that none of 

its programs receives 

any federal assistance 

is a perceived distinction between direct and 

indirect aid, a distinction that finds no support in 

the text of [Title IX]. Nothing in [Title IX] suggests 

that Congress elevated form over substance 

by making application of the nondiscrimination 

principle dependent on the manner in which a 

program or activity receives federal assistance. 

There is no basis in the statute for the view that 

only institutions that themselves apply for federal 

aid or receive checks directly from the federal 

government are subject to regulation. . . . [B]y 

its all inclusive terminology [Title IX] appears to 

encompass all forms of federal aid to education, 

direct or indirect.”212 In distinguishing between 

recipients and beneficiaries, the courts have 

State or local education agencies 

that receive federal funding, as 

well as private schools that receive 

federal funding, either directly or 

indirectly, are covered by Section 

504.

68 National Council on Disability
considered both the intent of Congress and 

a party’s ability to accept or reject the federal 

financial assistance.213

Importantly, however, tax credits, such as 

those sometimes used to provide voucher funding 

to parents, are not necessarily considered to be 

federal financial assistance.214 While some federal 

laws, such as the Affordable Care Act, explicitly 

provide that tax credits are considered federal 

financial assistance,215 others are silent on the 

subject. As the U.S. Treasury216 has noted, “While 

tax credits are generally not considered FFA, we 

recognize that, as the commenters have pointed 

out, some aspects of LIHTCs [low income housing 

tax credits] resemble programs that constitute 

FFA [federal financial 

assistance]. Though 

we are not including 

LIHTCs in the Appendix, 

we emphasize that 

the Appendix does not 

purport to be exhaustive, 

and the absence of a 

program or activity from the list does not by such 

absence limit the applicability of Title VI to that 

program or activity.”

Even if Section 504 coverage applies to private 

schools funded through vouchers, the extent of 

the Section 504 obligations applicable to private 

schools may differ from those applicable to public 

schools. In the current public school system, in 

determining whether a particular educational 

or related service, reasonable modification, or 

auxiliary aid is reasonable or an undue burden, 

the cost of the accommodation is compared to 

the entire SEA or LEA budget. When a particular 

private school is responsible for providing 

the accommodation, that school’s individual 

budget, which is presumably smaller than the 

SEA or LEA budget, will determine whether 

the cost is an undue burden. In addition, the 

Department of Education regulation governing 

private schools that are covered by Section 504 

provides that such schools are not allowed to 

exclude students with disabilities “if the person 

can, with minor adjustments, be provided an 

appropriate education” and “may not charge 

more for the provision of appropriate education 

to . . . persons [with disabilities] than to persons 

[without disabilities] except to the extent that 

any additional charge is justified by a substantial 

increase in cost to the recipient.”217 This may limit 

voucher schools’ obligations to serve students 

who need high-cost accommodations and may 

allow them to increase 

tuition for such students.

In a voucher system, 

the SEA and LEA still 

retain the Section 504 

obligations attached 

to the federal funding 

they receive. As a 

result, they may be obligated to ensure that the 

private schools funded through vouchers provide 

equal opportunity and appropriate education 

to students with disabilities, even if the private 

schools themselves have different obligations 

based on their own budgets. In addition, 

Department of Education Section 504 regulations 

preclude states from “providing significant 

assistance to an agency . . . that discriminates 

on the basis of handicap [sic] in providing any 

aid, benefit, or service to beneficiaries of the 

recipient’s program or activity.”218 If private 

schools that receive vouchers discriminate on the 

basis of disability, states, SEAs, and LEAs that 

provide those vouchers could be held liable under 

Section 504 (see Figure 1).

If private schools that receive 

vouchers discriminate on the basis 

of disability, states, SEAs, and LEAs 

that provide those vouchers could 

be held liable under Section 504.

Choice & Vouchers—Implications for Students with Disabilities 69
G. The Americans with 

Disabilities Act

Under Title II of the Americans with Disabilities 

Education Act (ADA), state and local government 

agencies, including SEAs, LEAs, and public 

schools, are prohibited from discrimination 

against students and other participants with 

disabilities. They may not exclude or limit the 

participation of students with disabilities; 

must not segregate students with disabilities; 

must provide physical accessibility (program 

access for existing facilities and complete 

access for new facilities or alterations); must 

provide reasonable modifications to policies, 

practices, and procedures when necessary to 

allow a student with a disability to participate; 

and must provide auxiliary aids and services to 

ensure equally effective communication with 

students with disabilities.219 The requirements 

of ADA’s Title II, unlike the FAPE requirements 

of IDEA, are subject to the defense that 

providing a reasonable modification or effective 

communication would cause an undue burden 

or fundamental alteration to the program in 

light of the SEA’s, LEA’s, and school’s entire 

available budget.220 Title II can be enforced 

privately through lawsuits or through complaints 

to the federal Department of Education (DOE) 

or Department of Justice (DOJ); remedies 

include requiring accommodations and, in some 

circumstances, compensatory damages for past 

violations.

Figure 1: Funding Flow

70 National Council on Disability
Private schools are not covered under Title II 

of the ADA, even if they receive state or local 

funding. Rather, they are covered under Title 

III of the ADA. All nonreligious private schools 

are covered as “public accommodations” 

under Title III of the ADA and as such, are 

precluded from discriminating on the basis of 

disability. Among other things, this prohibition 

requires private schools to make reasonable 

modifications to policies, practices, and 

procedures where such modifications are 

necessary for students with disabilities and 

do not represent a 

fundamental alteration 

of the academic 

program. Title III also 

precludes private 

schools from refusing 

to allow a qualified student with a disability to 

participate in their programs or from imposing 

unnecessary eligibility requirements that 

tend to screen out such students. To ensure 

inclusion, private schools must provide auxiliary 

aids and services where necessary to facilitate 

communication with students with disabilities, 

and architectural barriers must be removed 

where it is readily 

achievable to do so. 

The defense of undue 

burden, as applicable 

to a private school, will 

be determined based 

on the particular private 

school’s budget rather than the resources of the 

school district or state. Title III can be enforced 

by filing a private lawsuit or by filing a complaint 

with the DOJ. However, remedies for violation 

of Title III do not include damages for harm 

caused by a private school’s discrimination.

In addition, Title III of the ADA explicitly 

exempts religious organizations, including 

religious schools, from all its obligations.221

Therefore, private religious schools, 

regardless of their receipt of state funding, 

are not prohibited from discriminating on 

the basis of disability. The only federal law 

that could subject private religious schools 

to nondiscrimination requirements is Section 

504, if the voucher is treated as federal 

financial assistance, as discussed earlier (see 

Figure 1).

States could require, 

as a condition of 

participation in a voucher 

program, that private 

schools agree to be 

bound by the obligations 

of Title II of the ADA, judged according to the 

budget and resources of the SEA or LEA, rather 

than to the particular private school’s budget.

1. Interplay of ADA Title II and Title III 

in Voucher Programs

A 2013 letter from the U.S. Department of 

Justice (DOJ) to the Wisconsin Department of 

Public Instruction (DPI) 

states that because 

the school choice 

program is funded and 

administered by the 

state, the program 

itself is subject to 

Title II requirements of the ADA. “[T]he state 

cannot, by delegating the education function 

to private voucher schools, place MPCP 

[Milwaukee Parental Choice Program] students 

beyond the reach of federal laws that require 

Wisconsin to eliminate disability discrimination 

Private schools are not covered 

under Title II of the ADA, even if they 

receive state or local funding.

Title III of the ADA explicitly 

exempts religious organizations, 

including religious schools, from all 

its obligations.

Choice & Vouchers—Implications for Students with Disabilities 71
in its administration of public programs.” DPI 

is required to collect accurate information 

about participating schools and ensure that 

services are provided in a manner that does not 

discriminate.222 DOJ reasoned that government 

agencies are obligated under Title II to “take 

appropriate steps . . . to prohibit discrimination 

against individuals with disabilities, regardless 

of whether services are delivered directly by a 

public entity or provided through a third party.”

DOJ’s position in the letter walks a careful 

line between state and federal precedent holding 

that students are “parentally placed” when they 

participate in voucher programs, such that state 

and federal laws applicable to governmental 

entities do not apply to private voucher schools, 

and the obligations the state has to ensure 

that its voucher program, as a whole, does not 

discriminate. The DOJ stated:

Title II’s nondiscrimination requirements 

do not compel DPI to require that voucher 

schools affirmatively provide students 

with disabilities special education and 

related services pursuant to the Individuals 

with Disabilities Education Act (“IDEA”). 

See 20 U.S.C. §1400, et seq. However, a 

student with a disability who meets income 

requirements for the school choice program, 

and voluntarily foregoes IDEA services in 

order to attend a voucher school, is entitled 

to the same opportunity as her non-disabled 

peers to attend the voucher school of her 

choice and to meaningfully access the general 

education curriculum offered by that school.

The letter also explicitly states that Title 

II’s nondiscrimination requirements do not 

compel the DPI to provide students with special 

education and related services pursuant to 

IDEA. However, a student with a disability who 

is eligible for a voucher and attends a private 

school with that voucher is entitled to the same 

opportunity as their peers without disabilities 

to attend the voucher school of their choice and 

meaningfully access the general education. 

The DOJ’s letter, in apparent recognition of the 

limitations on states’ power to force private 

voucher schools to accommodate students 

with disabilities, limited the state’s corrective 

obligations to

1. Ensure that its administration of the voucher 

program does not discriminate against 

students with disabilities.

2. Establish and publicize a procedure for 

individuals to complain to the state about 

disability discrimination in the school choice 

program.

3. Collect data about the number of students 

with disabilities who (a) are enrolled in 

voucher schools, (b) are denied admission to 

voucher schools, (c) leave voucher schools, 

or (d) are suspended or expelled from 

voucher schools.

4. Conduct outreach to families of students 

with disabilities about school choice 

programs and provide specific and accurate 

information about the rights of students 

with disabilities and services available at 

voucher schools.

5. Monitor voucher schools’ rejections of, 

discouragement of applications from, and 

expulsions of students with disabilities.

6. Provide ADA training and guidance for 

voucher schools.

72 National Council on Disability
In short, while the DOJ letter requires the 

state to oversee its voucher program in order to 

ensure that the program, as a whole, is available 

to students with disabilities, it does not apply 

the requirements of Title II to particular private 

voucher schools themselves. The DOJ closed its 

investigation of the Wisconsin voucher program 

in 2015 without finding a violation.

The possible limits on the ability of ADA Title II 

to hold states responsible for the private entities 

that receive vouchers are further illustrated by 

Liberty Resources, Inc. v. Philadelphia Housing 

Authority.

223 That case involved a challenge under 

Title II and Section 504 to a housing voucher 

program providing vouchers to low-income 

families to subsidize rent payments to private 

landlords. The vouchers were funded in part 

by federal money, and the housing authority 

imposed some obligations on the private 

landlords who accepted the vouchers. However, 

the housing authority did not require landlords to 

make their facilities accessible. The federal court 

rejected the challenge, finding that the housing 

authority was only required to provide meaningful 

access to the voucher program. Therefore, as 

long as the housing authority was evenhanded 

in its issuance of vouchers to people with and 

without disabilities, it complied with federal law 

and was not responsible for the actions of private 

entities.224

H. State Law

Most states prohibit disability discrimination by 

public schools under state law. Many states, 

including some of those with school choice 

programs, also have state laws prohibiting 

discrimination on the basis of disability by public 

accommodations, such as private schools. 

Generally, these state public accommodation 

laws are interpreted to provide requirements 

similar to Title III of the ADA. Some states also 

have laws prohibiting discrimination by recipients 

of state funding, which could be helpful to 

states seeking to ensure that voucher schools 

meet each state’s obligations to its students 

with disabilities. As noted in Section E, states 

could require, as a condition of participation in a 

voucher program, that private schools agree to 

be bound by the obligations of Title II of the ADA, 

judged according to the budget and resources 

of the SEA or LEA, rather than to the particular 

private school’s budget.

Choice & Vouchers—Implications for Students with Disabilities 73
74 National Council on Disability
Chapter 6: Court Challenges

T

he construct of vouchers in general, not 

specific to students with disabilities, is 

contentious and has been challenged 

in court at both federal and state levels. Some 

examples of challenges to school voucher 

programs include Zelman v. Simmons-Harris

in which the Supreme Court held that Ohio’s 

school voucher program did not violate the First 

Amendment’s establishment of religion clause, 

despite the large number of students attending 

religious schools with school vouchers.225 The 

recent Supreme Court case, Trinity Lutheran 

Church of Columbia v. Comer,

226 may add to the 

debate on the use of public funds for religious 

private schools. The Court determined that 

the First Amendment did not bar a church an 

otherwise public benefit because of its religious 

status. The ruling was a narrow one: viewing 

eligibility to participate in Missouri’s playground 

program as akin to eligibility for generally 

available public services such as police and fire 

protection.

In 2012, school districts in Oklahoma 

sued to prevent the voucher legislation that 

served students with disabilities under IDEA 

but excluded students with disabilities with 

accommodation plans developed under Section 

504 of the Rehabilitation Act of 1973. On March 

27, 2012, a Tulsa district court agreed with the 

school districts and struck down the Lindsey 

Nicole Henry Scholarships for Students with 

Disabilities Program as unconstitutional. The 

Oklahoma Supreme Court, on February 16, 2016, 

upheld the constitutionality of the Lindsey Nicole 

Henry Scholarships for Students with Disabilities 

Program stating: “Because the parent receives 

and directs the funds to the private school, 

sectarian or non-sectarian, we are satisfied that 

the state is not actively involved in the adoption 

of sectarian principles or directing monetary 

support to a sectarian institution.”

When Nevada adopted a school voucher 

program, there were challenges based on the 

state constitution.227 The American Civil Liberties 

Union (ACLU) challenged the Nevada voucher 

program on constitutional grounds, arguing 

in a lawsuit filed on August 27, 2015, that the 

program violates the state’s prohibition against 

using public money for religious purposes.228

The Nevada program creates “educational 

savings accounts” that would allow any parent, 

regardless of income, to pull a child from the 

state’s public schools and take tax dollars with 

them to pay for private or parochial school. Other 

states increasingly have allowed tax dollars to 

be used for private school tuition, but most limit 

the programs to students with disabilities or 

from low-income families. Nevada’s law is unique 

because all of the state’s 450,000 K–12 public 

school children are eligible to take the money to 

Choice & Vouchers—Implications for Students with Disabilities 75
whatever school they choose. In January 2016, 

Judge James Wilson of the First Judicial District 

Court of Nevada (Carson City) ruled in Lopez v. 

Schwartz that the state’s school voucher law (SB 

302) enacted in 2015 by the legislature violates 

two provisions of Nevada’s constitution. Judge 

Wilson issued a preliminary injunction to prevent 

the state from implementing the law. The case 

challenging the voucher law was filed by parents 

of Nevada public school children from across the 

state. They argued that the program would divert 

scarce funding from public schools, triggering 

cuts to essential programs and services for 

their children and all other children attending 

Nevada’s public schools.229 In September 2016, 

the court ruled that Nevada’s ESA program 

was constitutional but 

required the creation of a 

new funding mechanism 

by the legislature.

Challenges to 

vouchers have also been 

made based on equal 

protection under the Fourteenth Amendment.

In Brumfield v. Dodd (1975), families of black 

students successfully sued Louisiana’s Board 

of Education and a handful of school boards 

for providing funding to private schools that 

discriminated against the black students 

on the basis of race. Finding a violation of 

Equal Protection Clause of the Fourteenth 

Amendment, the court ordered the state and 

local defendants to recoup the materials and 

funds. Ten years after the initial ruling, the 

court issued a Consent Decree, reiterating 

that “the [State] Department [of Education] 

will not provide any monies or assistance to 

any private school which the subject of any 

court order or injunction under which any local 

school district or parish or any other entity is 

enjoined from providing assistance to the private 

school because of reasons related to racial 

discrimination.”230

In 2013, a year after the Louisiana legislature 

implemented a voucher program, the DOJ 

sought to rely on the court’s orders in Brumfield, 

which alleged that “most of the private schools 

participating in the [voucher] program have 

student enrollments that are all or almost all 

one race.”231 The DOJ moved to enjoin the state 

from awarding school vouchers to students 

attending school in districts operating under 

federal desegregation orders unless the state 

received authorization from the court. The Fifth 

Circuit Court of Appeals ruled that the DOJ did 

not have the authority 

to regulate Louisiana’s 

school voucher program 

and that the district 

court had no jurisdiction 

to let DOJ collect data 

and monitor the voucher 

program.232

Florida the Citizens for Strong Schools v. 

Florida State Board of Education was first filed 

in 2009 and amended in 2014. The suit alleged 

that Florida was violating its constitution by failing 

to provide a high-quality public education or 

adequate education funding. Plaintiffs are seeking 

a declaration that the state is in fact breaching its 

paramount constitutional duty to provide a highquality, free public school system. They also hope 

to secure supplemental relief for K–12 public 

schools, beginning with a study to determine 

the actual cost of providing a high-quality 

education. The suit was amended in 2014 and 

added the challenge to the McKay Scholarship 

Program for Students with disabilities (alleging 

Challenges to vouchers have 

also been made based on equal 

protection under the Fourteenth 

Amendment.

76 National Council on Disability
that the state failed to administer a “uniform” 

system of education because two school choice 

programs—the Florida Tax Credit Scholarship 

Program and the John M. McKay Scholarship 

Program for Students with Disabilities or the 

McKay Scholarship Program—divert public funds 

to private schools that are not subject to the 

same requirements as public schools). The case 

is pending before the Florida Supreme Court as 

of this writing.

As new programs are constructed, and if 

federal funds are used, creating “quasi-public” 

schools through use of voucher and voucherlike certificates (e.g., tax savings, tax-credit 

scholarships, or educational savings accounts), 

the legal challenges are likely to continue.233

Choice & Vouchers—Implications for Students with Disabilities 77
78 National Council on Disability
Chapter 7: Preliminary Recommendations

A. Recommendations for Education Leaders and State Departments 

of Education

a. Maintaining IDEA Rights

■ For vouchers for students with identified disabilities covered by IDEA, ensure that voucher 

amounts are based on the cost of individual special education and related service needs 

of the individual student, including transportation. This can be accomplished by setting 

voucher amounts for students with disabilities based on individual student needs or by 

allowing LEAs to provide and pay directly for special education and related services at 

voucher schools.

■ Require private schools receiving increased vouchers to fully implement the child’s IEP.

■ Require private schools receiving increased vouchers to be subject to the administrative 

due process proceedings provided by the LEA.

■ Ensure that parents who accept vouchers are fully informed of any changes to their IDEA, 

Section 504, ADA, or state law rights regarding students with disabilities and explicitly 

acknowledge acceptance of those changes.

b. Maintaining Nondiscrimination Rights

■ Model vouchers on financial aid in higher education, by making vouchers payable to parents 

conditioned on the student participating in an approved educational program, thus making 

clear that federal funding is flowing to the private schools, along with its associated Section 

504 obligations.

■ Protect the legal rights of children and ensure that voucher programs do not result in 

liability for the state, by requiring, by contract or statute, that private schools receiving 

voucher programs implement the requirements of Section 504 and Title II of the ADA.

(continued)

Choice & Vouchers—Implications for Students with Disabilities 79
A. Recommendations for Education Leaders and State Departments 

of Education, continued

■ Provide oversight, data collection, monitoring, and reporting on participating private schools 

to ensure accountability for nondiscrimination, including disproportionate discipline, 

segregation, and academic equity, as well as administrative functions, financial viability, 

health and safety, academic assessment, and the provision of services.

■ Collect and make publicly available data on students with disabilities accessing vouchers by 

disability, race, gender, and income; reasons for exiting public schools; type of placement 

(private, parochial, or school solely serving students with disabilities), and tenure in the 

placement.

■ Conduct studies to evaluate the test scores, retention and graduation rates, harassment 

reports, and similar measures of success, both for students accepting vouchers and for 

those who remain in public schools.

c. Facilitating Academic Equity and Informed Choice

■ Require private schools that accept vouchers to administer state assessments to students, 

including students with disabilities and publish data showing comparisons among private 

schools and public schools.

■ Assess and publish information about the academic outcomes of each private school 

participating in a voucher program, including retention and graduation rates for students 

with disabilities.

80 National Council on Disability
B. Recommendations for Congress and/or Federal Agencies

a. Maintaining IDEA Rights

■ The United States Department of Education (ED) should issue guidance to states making 

clear that use of vouchers does not mean that students are treated as parentally placed 

and no longer have the protections of IDEA.

■ In the interim, ED should issue guidance to states and require that all parents should have 

notice that IDEA rights are waived and should be able to provide informed consent to that 

waiver.

■ ED should issue guidance to states reminding them of their obligation to provide FAPE to 

all students with disabilities, including those using vouchers.

■ ED should issue guidance to states clarifying that students using vouchers are entitled 

to pursue their IDEA rights through the state’s established administrative due process 

proceedings.

b. Maintaining Nondiscrimination Rights

■ Congress and ED should adopt legislation or regulations making clear that federal funding 

to schools that is distributed to parents via tax credits or vouchers for use in private 

schools, including religious schools, constitutes federal financial assistance for purposes of 

federal civil rights law, including Section 504’s nondiscrimination and FAPE requirements.

■ The U.S. Departments of Education and Justice should issue guidance or regulations to

● Clarify that states and LEAs that implement voucher programs remain responsible for 

ensuring that students with disabilities participating in the program receive FAPE and 

equal access under Section 504 and the ADA and must provide appropriate oversight, 

data collection, enforcement, and resources to accomplish that responsibility.

● Require that states not use an ESA program to educate students with disabilities unless 

it allows parents to keep their IDEA rights.

● Require that states implement oversight, accountability, and monitoring to ensure that 

voucher programs do not result in loss of IDEA or nondiscrimination rights and do not 

result in segregation or disproportionate discipline, for students with disabilities, and 

implement remedial measures to address deficiencies.

Choice & Vouchers—Implications for Students with Disabilities 81
82 National Council on Disability
Appendix A

Student Experiences

This appendix provides an in-depth examination of the differing experiences of two students with 

disabilities and their families as reported in the focus groups. Student A, Andy (not real name), utilizes 

an ESA, while Student B, Bonnie (not real name), uses a voucher program to attend a private school.

Andy

Andy is a 12-year-old with Down syndrome and intellectual disabilities. He receives a scholarship 

through the state’s ESA program. Andy attended his home school prior to enrolling in the ESA. He 

attended that school for several years, and he seemed to fit in well and was well liked by other 

students. Many members of the school community know Andy because he’s been at the same school 

since he was 3 years old.

Andy’s public elementary school was inclusive and has an excellent rating—so much so that 

families that do not live in this school’s area try to transfer their child if there are any openings. Andy’s 

family was satisfied; they felt they were in a good school and were getting decent help for Andy. It did 

not start out that way, however. Andy’s mom worked at building a relationship with school staff and 

administrators, and after the first IEP or two, she was able to get what she felt Andy needed because 

“they knew I would compromise on some things and other things I wouldn’t.” The school was a good fit 

for the family.

And then life changed unexpectedly, and so the family was trying to find its footing; finances had 

to change, as did caregiving. Andy’s mom was offered a position that was financially lucrative, but 

it would require travel. At this point, she heard about ESAs and decided to apply for one. Andy was 

approved and has used the program for three years; the family feels that it is a fantastic aid. Andy’s 

mom indicated that the application process was easy, and once proof of residency and diagnosis were 

provided, Andy was approved. The family now homeschools Andy and states that they are able to “just 

do what we think [our] son needs and have the ability to get reimbursed for it, or sometimes direct 

pay for it through providers.” Andy’s family reports that they feel participating in the ESA program has 

eliminated 95 percent of the stress involved in educating a child with a disability.

Andy’s mom was nervous at first but then as she gained confidence, she realized she and her 

husband knew as much as anyone else did, and likely more, about their son. She started researching 

the learning curriculum and modalities and felt that by combining the main points of the curriculum with 

life experiences she could catch those teachable moments. Andy’s parents, in collaboration with tutors 

and other service providers, learned that this arrangement worked in some circumstances and settings, 

but not in others. They felt that the program’s flexibility empowered them to make what would correlate 

to an IEP that was, for perhaps the first time, genuinely individualized.

Choice & Vouchers—Implications for Students with Disabilities 83
Andy’s family reports that he is learning much more than they expected, though perhaps as is the 

case with any learning disability, the learning does not occur in a linear fashion. For example, Andy 

does not necessarily learn his letters first and then make progress on reading. He works on each of 

those skills continuously and learning increases as he finds subjects of interest. For example, Andy’s 

family had the flexibility of scheduling and control over the educational programming to make plans 

to see the recent solar eclipse. Andy was fascinated by the phenomenon and is now reading more 

about the subject and can talk endlessly about the moon, the sun, eclipse, and shadows. The family 

states that he is probably years ahead in science than in reading in many regards. What is important 

to them is that he is in fact learning about something that is of interest to him. Andy is an experiential 

learner, and his mom and tutor pick his curriculum, build in trips to museums, go to parks, and the like. 

Then the tutor relates his learning to those experiences. This methodology has really worked for Andy. 

He remembers interesting facts and articulates words about those experiences more clearly than he 

articulates anything else. In retrospect, the family feels that Andy was in a good public school that was 

trying to help him, but it was unable to individualize or catch those teachable moments for Andy that 

would make a difference in how he learns.

Andy is also now in a unique program at a local university part-time and remains homeschooled for 

the other part. His family is required to turn in forms once a year from a licensed teacher that reports 

he is learning and making adequate progress. The teacher and Andy’s parents decide what is adequate. 

Andy’s mom stressed that it is important for decision makers to realize the lifestyle and pressures of 

families of children with disabilities, especially medical, learning, and financial pressures. School choice 

is vital in trying to meet the needs of some families and students.

Bonnie

Bonnie’s parents chose to use a state voucher program because they felt that the public school system 

was not keeping their child safe. Bonnie was 5 years old and in pre-K and was self-injurious. She would 

try to put her head through a wall and would often bang her head on the floor. Bonnie has complex 

disabilities. The family requested a paraprofessional to be assigned to Bonnie in the public school in 

order to keep her safe. But the district refused.

Bonnie’s parents stated that it was sad to have to worry first and foremost for their child’s safety; that 

there was certainly more that parents typically hope for in school; and that parents hope for engaging 

classrooms, individualized attention, achievement and learning, and also, quite frankly, love and affection. 

But the fact was that the public school was not giving their child the support she needed to be safe. As 

the parents stated, “we aren’t even talking about education. Keeping her safe became the first priority.” 

In the public school she would come home with bruises and lacerations. She would also bite and attack 

other children. So, the situation became one in which no one in the classroom was safe.

Bonnie’s parents wanted to put her in a school that would address her disabilities and that would 

have a staff properly trained in the state-approved crisis management program. When they were in 

the public school, they became worried that even if the school were to approve a paraprofessional for 

Bonnie, the person would likely be paid minimum wage and not be trained or professional.

84 National Council on Disability
After much discussion and investigation, the parents decided to apply for the state’s voucher 

program. Their daughter scored the maximum amount allowed and found that the LEA would not 

allow her to receive the maximum funding. The parents were shocked, feeling that the LEA had “no 

problem getting rid of a child but [didn’t] want to give a child what they are[sic] entitled to receive.” The 

LEA staffing specialist said that she had never given a score so high in almost 10 years and she didn’t 

know how this was even possible. The parents were stunned, as their child had significant disabilities, 

exhibited serious self-injurious and aggressive behavior, and required constant supervision. The score 

was arrived at through a valid assessment by professionals. Bonnie’s parents had to hire an advocate to 

appeal to the state, making note of the fact that many parents still have to hire an advocate to get past 

the barriers.

The state agreed with the parents and instructed the LEA to pay the maximum amount. The 

monetary amount was much less than the cost of a private school (which generally costs more 

than $40,000), so the family was grateful that they were able to have assistance with tuition. Even 

though they have to pay tens of thousands of dollars per year to make up the difference, the parents 

are satisfied because without the funds from the state they wouldn’t be able to put Bonnie in an 

environment that could keep her safe.

Once the voucher amount was settled, Bonnie’s family felt fortunate to find a school that met her 

needs, even though the school is 35 miles from their home, which means that Bonnie’s mom has 

to travel 70 miles each day. Bonnie also has two siblings, and all three go to different schools. Not 

surprisingly, her mom spends a great deal of time each day on transportation.

Bonnie’s parents said that they know many families who, even if they get properly funded, have 

a great deal of trouble finding a school that will accept or keep their child. This reality makes them 

nervous because if something does not work out for Bonnie or if she is expelled from the school for 

behaviors or any other reason, they will have no other option in the near vicinity. They don’t have the 

resources to pick up and move, and although they could refuse the voucher and go back to public 

school, that is not a viable option due to safety concerns.

The state in which Bonnie and her family lives offers other options: notably transferring to another 

public school with voucher funds, if the school will accept the student. They explored this option and 

were told that the public school would not accept Bonnie unless the family paid for a paraprofessional 

out of pocket. They then explored using their private health insurance to cover that cost but were told 

that they would have a co-pay of $50 a day.

In the end, they chose the state voucher program and a private school. Bonnie’s parents report that 

she is doing fine at the school, though they feel that some barriers and issues remain. The funding 

goes to the private school; however, it is not allocated to the student, nor does the school guarantee 

that Bonnie will get what she needs. For example, Bonnie is nonverbal and uses the Picture Exchange 

Communication System (PECS), a language program using squares with pictures. The parents reported 

that the school was using black-and-white pictures for items, which were hard to identify, because the 

school did not have a color printer. Bonnie’s mom lamented: “that’s unfair and they are getting all of this 

funding. They couldn’t spend $60 on a printer? I bought the classroom a printer. How is it that they have 

Choice & Vouchers—Implications for Students with Disabilities 85
a new playground, but there is no printer for the children? The principal could have chosen to use the 

money that way, but he did not until I pushed.”

In the public school Bonnie was receiving language therapy and physical therapy. The family had to 

give up those services for Bonnie to obtain the voucher. Nonetheless, the family still feels the voucher 

program is important and that it allows students to be served better in a place that will meet their 

priority needs.

Bonnie is now in a school just for students with disabilities. She isn’t tested using state tests 

because of the severity of her disabilities. The parents are satisfied with her placement, stating that 

she “is in a school where she is loved and kept safe. Is she flourishing academically? I don’t know. 

Is she [toilet] trained? No. She is 7 now, but that’s okay. She is not hurting herself and is learning and 

enjoying life.”

86 National Council on Disability
Appendix B

In the pages that follow, Appendix B provides an overview of voucher programs, targeted educational 

savings accounts and individual tax credits/deductions for students with disabilities by state.

Choice & Vouchers—Implications for Students with Disabilities 87
Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

AR Succeed 

Scholarship Program for Students with DisabilitiesArk. Code Ann. §6-18-1901 through 1908

151 Average 

$6,713

Be accepted to eligible private schoolBe in foster care or have an IEPAdditional pre-requisites

Nationally recognized normreferenced test

Statute is silent; however, to participate must sign a waiver that releases state and residential district from any liability to provide services to or educate child

FL John M. McKay

Scholarships ProgramFla. Stat. §1002.39; 1002.4

30,378 Average 

$7,287

Students with disabilities—who have IEPs or a 504 plan—enrolled for at least 1 yearThe voucher amount is determined through a matrix formula based on the amount of services a child received in public school

No testing mandates

Requires parents to opt out of all the due process rights and services to which their child is entitled under IDEA

GA Georgia 

Special Needs ScholarshipO.C.G.A. §§ 22110 through 20-2-2118

4,408 Average 

$5,606

Have an IEPParent must have lived in state for a year

Pre- and postassessment testing

Acceptance of scholarship shall have the same effect as a parental refusal to consent to services pursuant to the Individuals with Disabilities Education Act, 20 U.S.C.A. Section 1400, et

88 National Council on Disability
(continued)

Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

IN Indiana Choice 

Scholarship ProgramInd. Code §§20-51-1 through 4

34,299 $4,024 Students have an IEP 

and are from families that earn up to (but not exceeding) 200 percent of FRL

State testing mandates

Nonpublic eligible school is not an agent of the state or federal government, and therefore it is not subject to the U.S. or State oIndiana Constitution, Declaration of Independence, Supreme Court Decisions, Executive Orders. Statemay not regulate in any way

LA School Choice 

Pilot Program for Certain Students with ExceptionalitiesLa. Rev. Stat.17:4031

311 $ 50% 

of state per pupil funding (average $2,500)

Student has autism, developmental delay, mental disability, other health impairment, specific learning disability, TBIHas an IEP or a districtprovided service plan or a nonpublic school service plan

No testing mandates

Silent on IDEA specifically, does say “In accordance with time lines as determined by the department, each eligible nonpublic school choosing to participate in the program shall inform the department of the types of student exceptionalities as defined in R.17:1942 that the school is willing to serve. Each school may determinethe number of eligible students it will accept in any year of program participation and may establish criteria for enrollment of studentsEach school shall have discretion in enrolling eligible students for participation in the program and no school shall be required to accept any eligible student.

(continued)

Choice & Vouchers—Implications for Students with Disabilities 89
Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

MS Equal 

Opportunity for Students with Special NeedsMiss. Code An§§ 37-181-1 through 21

153 Average 

$6,500

Students must have had an IEP within the past 5 years

No testing mandates

Cannot enroll student in a public school and must waive individual entitlement to a FAPE, including special education and related services

MS Mississippi 

Dyslexia Therapy ScholarshipMiss. Code An§§ 37-175-1 through 29

119 Average 

$4,980

Students diagnosed with dyslexia, 1–12th grade

No testing mandates

A parent or legal guardian who applies for a Mississippi Dyslexia Therapy Scholarship is exercising his or her parental option to place his or her child in a nonpublic school

MS Nate Rogers 

ScholarshipMiss. Code An§§ 37-175-1 through 29

1 Capped 

at $5,358

K–6 and have a diagnosed impairment and attended speechlanguage therapy and intervention

No testing mandates

A parent or legal guardian who applies for a Mississippi SpeechLanguage Therapy Scholarship is exercising his or her parental option to place his or her child in a nonpublic school. No liabilityshall arise on the part of the state based on the award or use of a Mississippi Speech-Language Therapy Scholarship

(continued)

90 National Council on Disability
Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

NC Special Education 

Scholarship GrantsN.C. Rev. Stat.115C-112.5–

1,323 Average 

$6,508 per year

Require an IEP, additional enrollment prerequisites

National testing mandated

Treated as parentally placedScholarship reimbursements for costs. Scholarshipreimbursement for costs incurred shall be provided as follows: aPreapproval process. Prior to thestart of each school semester, the parent of an eligible student may submit documentation of the special education, related services, or educational technology the parent anticipates incurring costs in that semester for preapproval by the Authority. Under specifiedconditions

OH Autism 

Scholarship ProgramOhio Rev. Code§§ 3310.41through 44

3,522 Average 

$22,748

Autism spectrum disorder, registered and have a current IEP

No testing mandates

Schools must comply with nondiscrimination codesEntitled to transportationPurpose of the scholarship is to attend a special education program that implements the child’s IEP

(continued)

(continued)

Choice & Vouchers—Implications for Students with Disabilities 91
Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

OH Jon Peterson 

Special Needs Scholarship ProgramOhio Rev. Code§§ 3310.51through 64

3,470 Average

$9,818

Must be eligible for IDEA and have a completed, uncontested IEP in placeLimit—5% Students with Disabilities

State testing mandates

Schools must comply with nondiscrimination lawsUnilaterally privately placed student not entitled to FAPEPublic school required to evaluate, implement the IEP, annually review IEP, and reevaluateParent entitled to IEE, mediation surrounding development, not implementation of IEP. ODE willinvestigate complaints about violation of scholarship rules, but not implementation of IEP or FAPE. Can file due process relatedto evaluation or identification, not whether received FAPE

OK Lindsey 

Nicole Henry ScholarshipsOkla. Stat. §70-13-101.1 and101.

669 $6,161 Any student with an 

IEP in effect. Additionalenrollment prerequisites

No testing mandates

Acceptance of a Lindsey Nicole Henry Scholarship shall have the same effect as a parental revocation of consent to service pursuant to 20 U.S.C., Sectio1414(a)(1)(D) and 1414(C) of the IDEA

(continued)

92 National Council on Disability
Programs for Students with Disabilities

State Program

Enrolled 

(2017–

2018)

Per-Pupil 

Funding Eligibility Testing

Statutory Language Regarding 

Rights

UT Carson Smith 

Special Needs Scholarship Program

882 $5,905 Ages 3 and 21 identified 

IDEA or 504; and students with special needs in private schools that served students with disabilities prior to participating in the program

Annual assessment and reporting

Comply with federal nondiscrimination requirements, disclose special education services to be provided and cost of those services

WI Special Needs 

Scholarship Program

246 $12,129 

per FTE

Participating students must have an active IEPStudents may continue participating in the program as long as they have an IEP and attend an eligible school until they turn 21 or graduate high school, whichever comes first

Testing mandates State Civics Exam for high school graduation, unless IEP exempts student from participation

A choice school may not discriminate against a child with special needs. Only requiredto offer those services to assist students with special needs that it can provide with minor adjustments

DC* Opportunity 

Scholarships (Vouchers)

1,154 $9,570 Not exclusively for, but 

does include, students with disabilities. ReceiveSupplemental Nutrition Assistance Program (SNAP) or earn no more than 185 percent of the federal poverty level

State testing mandates

Includes, tuition, fees, and transportationStatute says: Nothing in this Act may be construed to alter or modify the provisions of the Individuals with Disabilities Education Act (20 U.S.C. 1400 seq.Treated as parentally placed

Sources: GAO (2016) Report, Ed Choice and State Department of Education websites, state statutes.* Voucher program not limited to, but includes, students with disabilities.

(continued)

Choice & Vouchers—Implications for Students with Disabilities 93
Targeted Educational Savings Accounts

State Program

#s 

(2017–2018)

Per 

Pupil Eligibility Testing

Statutory Language

on Rights

AZ Empowerment 

Scholarship AccountsAriz. Rev. Stat. 15-2401 through 2404

1,311 $12,400 Attended public school 

for at least 100 days of prior year. Limited tostudents with special need. Other conditionsapply

Required to take state test or a nationally normreferenced test

Statute is silent on IDEA; however, the contract requires parents to release public school from liability for education or providing servicesSpecifies school that accepts payment is not an agent of the state

FL Gardiner 

Scholarship ProgramFla. Stat. §393.063 & 1002.3

1,655 10,311 Have an IEP and have 

been diagnosed with one of the following: Autism, Down syndrome, intellectual disability, Prader-Willi syndrome, spina bifida, Williams syndrome, and kindergartners who are considered high risk

Testing mandates— state and national; however, students with disabilities for whom testing is not appropriate are exempt

Parents must sign an agreement to accept scholarship that the school is not responsible

MS Equal Opportunity 

for Students with Special Needs ProgramMiss. Code Ann. §37-181-1 through 21

153 $6637 Students must have 

had an IEP within the past five years

No testing mandate— school provides parents the option of taking a standardized test

Schools need to comply with nondiscrimination policies in 42 USC § 1981Parents must agree student has no individual entitlement to a FAPE for as long as student is participating in the program

94 National Council on Disability
State Program

#s 

(2017–2018)

Per 

Pupil Eligibility Testing

Statutory Language

on Rights

NC Personal ESA Will 

begin in 2018–20191,430 have enrolled

Max will be $9,000

Child with a Disability; (c) Satisfies the disability determination requirements in Rule .0202; And meetingone of criteria: received scholarship previously, in NC school or DoD for at least 75 days, adopted, entering K or First Grade, Foster Care, Active Duty Military. Enrolled parttime in public schoolpart-time in nonpublic school

At least once a year, each eligible school shall administer a nationally standardized test, selected by the chief administrative officer of the eligible school, to all students in grades 3 and higher whose tuition and fees are paid in whole or in part by the program

Parents do not have a right to receive all of the special education and related services that they would receive if enrolled in the public schools. Likewise,a private school does not have a legal obligation to provide special education and related services to students with disabilities

TN Individualized 

Education Account ProgramTenn. Code Ann. §49-10-1401 through 1406

87 $6,721 Student K–12 with 

an IEP with specific disabilities. Otherprerequisites apply

Either stateapproved or national testing

Parent must release LEA from all obligations to education of the student

Choice & Vouchers—Implications for Students with Disabilities 95
Individual Tax Credits/Deductions

State Program #s (2017–18) Per Pupil Eligibility Details Effect on Rights

AZ Student Tuition 

Organization (STO) scholarships may be used by all studentsCollectively, Arizona refers to these programs as “Switcher.

Do not have numbers for students with disabilities20,956 total

Average $1,360

Original Program open to K–12 students attending one of AZTO’s nine partner schoolsThe PLUS (Private Learning Uplifting Students) student attended an Arizona governmental primary or secondary school as a fulltime student for at least 90 days of the prior fiscal year and transferred to a private schoolKindergarten studentMilitary dependentPrior corporate tax credit recipient

Statewide;no enrollment cap;state and nationaltesting mandates

A credit is allowed against individual’s taxes for the amount of voluntary cash contributions by the taxpayer or on the taxpayer’s behalf during the taxable year to a school tuition organization that is certified pursuant to Chapter 16 of this title at the time of donation

SC Refundable 

Educational Credit for Exceptional Needs ChildrenS.C. State BudgeProviso 109.1

N/A Up to 

$11,000 per student or actual cost of school

Parents are eligible if their child has been designated by the South Carolina Department of Education as meeting the federal definition of a “child with a disability” (34 CFR 300.8)diagnosed within past 3 years. Additionally, astudent’s parents must believe that the assigned public school district does not sufficiently meet the student’s needs

Statewide;no enrollment cap;state and nationaltesting mandates

Funding sent directly to approved school through parents once confirm eligibility. Doesnot discriminate on the basis of race, color, or national origin; located in state that has an educational curriculum that includes courses set forth in the state’s diploma requirements, graduation certificate requirements (for special needs children), school facilities are subject to applicable federal, state, and local laws

96 National Council on Disability
Endnotes

1 Brown v. Board of Education, 347 U.S. 483 (1954).

2 Endrew F., a Minor, by and Through His Parents and Next Friends, Joseph F. et al. v. Douglas County School 

District RE–1, 580 U.S. ___ (2017).

3 National Center for Education Statistics. Retrieved on June 7, 2018, from https://nces.ed.gov/programs/coe/

indicator_cgg.asp.

4 See Appendix B of this work.

5 Tommy Schultz, Krista Carney, Whitney Marcavage, Nicole Jackson, Elisa Clements, Paul Dauphin, and Kim 

Martinez. 2017. School Choice Yearbook 2016–17. American Federation for Children Growth Fund.

6 Eric Westervelt. 2016. Trump’s Pick for Education: A Free Market Approach to School Choice. National 

Public Radio. Retrieved on June 7, 2018, from https://www.npr.org/sections/ed/2016/12/07/504696506/

trumps-pick-for-education-a-free-market-approach-to-school-choice.

7 Jeremy Hobson and Sam Abrams. 2017. Why There Is a Renewed Push to Privatize Public Education. 

Retrieved from http://www.wbur.org/hereandnow/2017/05/09/privatize-public-education, WBUR Here and 

Now.

8 Paul DiPerna, Michael Shaw, and Andrew D. Catt. 2017. Schooling in America. Public Opinion on K–12 

Education, Parent Experiences, School Choice and the Role of the Federal Government, EdChoice.

9 National Council on Disability. 2003. School Vouchers and Students with Disabilities. Available at https://ncd

.gov/publications/2003/April152003.

10 This number represents the overall number of voucher programs and does not indicate the voucher programs 

designed for students with disabilities.

11 GAO-18-94. 2017. Federal Actions Needed to Ensure Parents Are Notified about Changes in Rights for 

Students with Disabilities.

12 National Council on Disability. 2003.

13 Ibid.

14 Selene Almazan and Denise Stile Marshall. 2016. School Vouchers and Students with Disabilities: Examining 

Impact in the Name of Choice Council of Parent Attorneys and Advocates. Available at https://c.ymcdn.com/

sites/copaa.site-ym.com/resource/resmgr/2016._Conference/COPAA_Voucher_paper_final_R6.pdf.

15 U.S. Department of Education, Office of Innovation and Improvement, Office of NonPublic Education. 2011. 

The Individuals with Disabilities Education Act (IDEA): Provisions Related to Children with Disabilities Enrolled 

by Their Parents in Private Schools.

16 GAO-18-94. 2017.

17 See Understanding the Program found on http://www.gadoe.org/External-Affairs-and-Policy/Policy/Pages/

Special-Needs-Scholarship-Program-Resources.aspx.

18 See https://www.tn.gov/content/dam/tn/education/iea/iea_Top_5_Things_to_Consider.pdf.

19 See https://www.tn.gov/content/tn/education/iea/iea-resources.html.

20 President’s Commission on Excellence in Special Education (PCESE). 2002. A New Era: Revitalizing Special 

Education for Children and their Families, p. 35.

21 20 U.S.C. §1412(a)(5).

22 PCESE. 2002.

23 COPAA. 2016: 17.

24 National Council on Disability. 2003: 6.

Choice & Vouchers—Implications for Students with Disabilities 97
25 Candace Cortiella. 2006. “NCLB and IDEA: What Parents of Students with Disabilities Need to Know and Do.” 

University of Minnesota, National Center on Educational Outcomes: 10. Retrieved from https://nceo.umn.edu/

docs/OnlinePubs/Parents.pdf.

26 National Council on Disability. 2003: 28.

27 Focus Group and Interviewees participating in this study.

28 Wendy Hensel, “The Limits of Federal Disability Education Law: State Educational Voucher Programs,” 

Georgia State University College of Law, Legal Studies Research Paper No. 2015-21, Journal of Law and 

Education 44(2015): 200.

29 National Council on Disability. 2003: 11.

30 Friedman Foundation for Educational Choice, The ABCs of School Choice, p. 5.

31 https://www.congress.gov/bill/113th-congress/house-bill/647.

32 American Federation for Children. 2016–2017. School Choice Yearbook (Washington, DC, 2017).

33 Oscar Jimenez-Castellanos, William J. Mathis, and Kevin G. Welner. 2018. The State of Education Savings 

Account Programs in the United States. Boulder, CO: National Education Policy Center. Retrieved April 6, 

2018, from http://nepc.colorado.edu/publication/ESAs.

34 American Federation for Children. 2016–2017. School Choice Yearbook (Washington, DC, 2017), p. 85.

35 EdChoice. https://www.edchoice.org/school-choice/programs/mississippi-nate-rogers-scholarship-for-studentswith-disabilities-program.

36 Emma Brown, “Colorado Supreme Court Strikes down School Voucher Program,” The Washington Post (2015). 

Retrieved on June 7, 2018, from https://www.washingtonpost.com/local/education/colorado-supreme-courtstrikes-down-school-voucher-program/2015/06/29/a382768e-1e75-11e5-bf41-c23f5d3face1_story.html?utm_

term=.c35745835316/.

37 Taxpayers for Pub. Educ. v. Douglas County Sch. Dist., 2017 Colo. LEXIS 959.

38 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

39 Alex DeWind. 2018. “School Voucher Program Case Dismissed by the Colorado Supreme Court.” http://

castlerocknewspress.net/stories/school-voucher-program-case-dismissed-by-colorado-supreme-court,258008.

40 Leslie Hiner. 2017. A Frank Discussion of What Really Happened with Douglas County, Colorado’s School Voucher 

Program. Available at https://www.edchoice.org/blog/frank-description-really-happened-douglas-county-coloradosschool-voucher-program/.

41 Ibid.

42 Douglas County School District Statement. Retrieved February 22, 2018, from https://www.dcsdk12.org/

legal-counsel/choice-scholarship-program.

43 Christine Gulosino and Jonah Liebert. 2012. NEPC Review: The Way of the Future: Education Savings 

Accounts for Every American Family. Retrieved on March 29, 2018, from http://nepc.colorado.edu/thinktank/

review-ESA.

44 T. Keung Hui. NC Offers Debit Cards to Families of Disabled Students, but Some Worry about Fraud. Retrieved 

on March 19, 2018, from http://www.newsobserver.com/news/local/education/article197847574.html.

45 The National Educational Policy Center. 2018.

46 Able Act of 2014. Retrieved on June 7, 2018, from https://www.congress.gov/bill/113th-congress/house-bill/647.

47 Megan Leonhardt. 2017. “Able Savings Accounts: An Updated, State-by-State List of Programs.” Retrieved on 

June 7, 2018, from http://time.com/money/4618317/529-able-savings-account-states.

48 Dawn Doebler. 2017. Column: 4 Changes Taxpayers Need to Know about the Tax Bill. Retrieved on March 29, 

2018, from https://wtop.com/business-finance/2017/12/4-changes-tax-bill.

49 Ron Lieber. 2017. “Yes, You Really Can Pay for Private School with 529 Plans Now.” New York Times. Retrieved 

on March 29, 2018, from https://www.nytimes.com/2017/12/21/your-money/529-plans-taxes-private-school

.html.

50 Ibid.

98 National Council on Disability
51 Andrew Ujifusa, “Ed Dept has no plans for a Federal Voucher Program. Let’s Break That Down.” Retrieved 

from http://blogs.edweek.org/edweek/campaign-k-12/2017/05/federal_voucher_program_no_plans_education_

department.html.

52 Carol Burris. 2017. “Do Charters and Vouchers Hurt Public Schools? The Answer Is ‘Yes.’” The Network 

for Public Education. Retrieved on June 7, 2018, from https://networkforpubliceducation.org/2017/01/

charters-vouchers-hurt-public-schools-answer-yes.

53 National Center on Learning Disabilities. Vouchers, Education Savings Accounts, and Tax Incentive Programs: 

Implications and Considerations for Students with Disabilities, (2017). Retrieved from https://www.ncld.org/

wp-content/uploads/2017/10/SV-ESA-TI-White-Paper.pdf.

54 U.S. Census Bureau. 2013. Public Education Finances: 2011, G11-ASPEF (Washington, DC: Government 

Printing Office), p. 8, table 8. Retrieved from http://www2.census.gov/govs/school/11f33pub.pdf.

55 Robert M. Costrell. 2009. Who Gains? Who Loses? The Fiscal Impact of the Milwaukee Parental Choice 

Program. Retrieved from http://educationnext.org/who-gains-who-loses.

56 Cory Turner, Eric Weddle, and Peter Balonon-Rosen. 2017. The Promise and Peril of School Vouchers. Retrieved 

from https://www.npr.org/sections/ed/2017/05/12/520111511/the-promise-and-peril-of-school-vouchers.

57 Jeffery Dorfman. 2018. “Expanded 529 Accounts Improve Tax Equity and Increase School Choice.” 

Forbes Magazine. Retrieved from https://www.forbes.com/sites/jeffreydorfman/2018/01/16/

expanded-529-accounts-improve-tax-equity-and-increase-school-choice/#5e3d9ef77ff7.

58 Ibid.

59 Tim Walker. 2017. “School Vouchers’ Empty Promise to Special Education Students,” NEA Today. Retrieved 

from http://neatoday.org/2012/05/23/school-vouchers-empty-promise-to-special-ed-students-2.

60 “The Promise and Peril of School Vouchers.” 2017. National Public Radio. Retrieved from https://www.npr.org/

sections/ed/2017/05/12/520111511/the-promise-and-peril-of-school-vouchers.

61 The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally 

mandated Protection and Advocacy (P&A) Systems and the Client Assistance Programs (CAP) for individuals 

with disabilities. P&As and CAPs work to improve the lives of people with disabilities by guarding against 

abuse; advocating for basic rights; and ensuring accountability in health care, education, employment, 

housing, transportation, and within the juvenile and criminal justice systems. See http://www.ndrn.org/en/

about.html.

62 National Disability Rights Network. See http://www.ndrn.org/en/media/releases/649-gao-school-choice-study

.html.

63 “Wisconsin Department of Public Instruction.” Retrieved on June 7, 2018, from https://dpi.wi.gov/sms/

special-needs-scholarship/data.

64 Jonathan N. Mills, Anna J. Egalite, and Patrick J. Wolf. 2016. “How Has Louisiana Scholarship Program 

Affected Students,” p. 1. Retrieved from https://educationresearchalliancenola.org/files/publications/ERAPolicy-Brief-Public-Private-School-Choice-160218.pdf.

65 Andrew D. Catt and Evan Rhinesmith. 2017. “Why Indiana Parents Choose,” EdChoice, p. 34.

66 Florida family interview.

67 Jill Ament. 2017. “Proposed Vouchers Wouldn’t Reach Most Special Needs Students.” Retrieved on June 7, 

2018, from http://kut.org/post/proposed-vouchers-wouldnt-reach-most-special-needs-students.

68 Arizona Focus Group Parent.

69 Patricia Fontan. 2012. “An Analysis of the Legal Issues of School Voucher Programs for Students 

with Disabilities and Its Impact on the Individuals with Disabilities Education Act.” Florida: University 

of Central Florida, p. 30. Retrieved on June 7, 2018, from http://stars.library.ucf.edu/cgi/viewcontent

.cgi?article=3282&context=etd.

70 “What’s Wrong with Our Schools?” EdChoice (1979/1980). Retreived on June 7, 2018, from https://www

.edchoice.org/who-we-are/our-founders/the-friedmans-on-school-choice/article/whats-wrong-with-our-schools.

Choice & Vouchers—Implications for Students with Disabilities 99
71 Martin Lueke. 2016. “How to Accurately Calculate the Fiscal Impact of School Voucher 

Programs,” EdChoice. Retrieved on March 29, 2018, from https://www.edchoice.org/blog/

how-to-accurately-calculate-the-fiscal-impact-of-school-voucher-programs.

72 “EdChoice School Choice FAQs: How Does School Choice Affect Public Schools?” Retrieved April 2, 2018, 

from https://www.edchoice.org/school_choice_faqs/how-does-school-choice-affect-public-schools.

73 Focus Group Parent.

74 GAO-18-94, 2017, p. 28.

75 Focus Group Participant.

76 COPAA conducted research for the National Council on Disability for this report.

77 Issue Brief: Voucher Programs, National Center for Learning Disabilities (2017). Retrieved from https://www

.ncld.org/wp-content/uploads/2014/11/Voucher-brief-in-LJ-template.pdf.

78 Urlich Boser, Meg Benner, and Erin Roth. 2018. “The Highly Negative Impact of Vouchers.” Center for 

American Progress. Retrieved on March 20, 2018, from https://www.americanprogress.org/issues/

education-k-12/reports/2018/03/20/446699/highly-negative-impacts-vouchers.

79 Meg Benner and Rebecca Ullrich. “Betsy DeVos’ Threat to Children with Disabilities.” Center for American 

Progress. Retrieved February 2, 2017, from https://www.americanprogress.org/issues/education-k-12/

reports/2018/03/20/446699/highly-negative-impacts-vouchers.

80 GAO-16-712, School Choice (2016), p. 14.

81 GAO (2016), p. 14.

82 Yvonne Wingette Sanchez and Rob O’Dell. 2017. “Arizona’s New School Voucher Program Is on Hold. 

Now What?” The Republic. Retrieved from https://www.azcentral.com/story/news/politics/arizonaeducation/2017/04/20/arizona-expanding-its-school-voucher-empowerment-scholarship-account-program-nowwhat/100352304.

83 GAO (2016), p. 5.

84 See Appendix B. It is important to note that students with disabilities may participate in state programs that 

do not require a student to have a disability to participate. It is not possible to know how many students with 

disabilities participate across all private school choice programs because many programs do not collect this 

information. See GAO-16-712.

85 Albert Ceng and Paul E. Peterson. 2017. “How Satisfied Are Parents with Their Children’s Schools?” 

Education Next, Spring.

86 Anya Kamanentz. 2015. “A New Study Reveals Much about How Parents Really Choose Schools.” 

Retrieved from https://www.npr.org/sections/ed/2015/01/15/376966406/a-new-study-reveals-muchabout-how-parents-really-choose-schools.

87 Ibid.

88 EdWeek. 2017. “Parents See Benefits in Spec. Ed. Vouchers, But No Silver Bullet.” Retrieved from https://

www.edweek.org/ew/articles/2017/03/22/parents-see-benefits-in-spec-ed-vouchers.html.

89 Focus Group Participant.

90 Kamanentz, 2015.

91 https://www.understood.org/en/school-learning/partnering-with-childs-school/instructional-strategies/

barton-reading-program-what-you-need-to-know

92 EdWeek. 2017. “Florida’s Voucher Program.” Data Snapshot.

93 Ibid.

94 Casey Quinlan. 2017. “Vouchers Don’t Help Disadvantaged Students, Regardless of What DeVos Thinks,” 

Think Progress. Retrieved on June 12, 2018, from https://thinkprogress.org/vouchers-dont-help-students73d120597c35.

95 The Century Foundation. 2017. “School Vouchers and Race: It’s Complicated.” Retrieved from https://tcf.org/

content/commentary/school-vouchers-race-complicated.

96 Ibid.

100 National Council on Disability
97 John M. McKay Scholarship Program. “February 2018 Quarterly Report.” Retrieved from http://www.fldoe.org/

core/fileparse.php/7559/urlt/McKay-February-2018-Quarterly-Report.pdf.

98 Cory Turner, Eric Weddle, and Peter Balonon-Rosen. 2017. “The Promise and Peril of School Vouchers.” 

Retrieved from https://www.npr.org/sections/ed/2017/05/12/520111511/the-promise-and-peril-of-schoolvouchers.

99 Justia, U.S. Supreme Court. Brown v. Board of Education of Topeka, 349 U.S. 294 (1955), available at https://

supreme.justia.com/cases/federal/us/349/294/case.html (last accessed July 2017).

100 Kara Miles Turner, “Both Victors and Victims: Prince Edward County, Virginia, the NAACP, and ‘Brown,’” 

Virginia Law Review 90, no. 6(2004): 1667–1691.

101 Chris Ford, Stephanie Johnson, and Lisa Partlow. 2017. “The Racist Origins of Private School Vouchers.” 

Retrieved from https://www.americanprogress.org/issues/education-k-12/reports/2017/07/12/435629/

racist-origins-private-school-vouchers.

102 Sharif El-Mekki. 2017. “Black People Support Vouchers, Black Leaders Don’t. Who’s Right?” The Root. 

Retrieved on May 7, 2018, from https://www.theroot.com/black-people-support-vouchers-black-leaders-don-twho-1795711457.

103 Emma Brown. 2017. “NAACP: School Choice Not the Answer to Improving Education for Black Students.” The 

Washington Post. Retrieved on June 7, 2018, from https://www.washingtonpost.com/local/education/naacpschool-choice-is-not-the-answer-to-improving-education-for-black-students/2017/07/26/7b4edcf0-721c-11e7-

9eac-d56bd5568db8_story.html?noredirect=on&utm_term=.06cf5681d88c.

104 National Disability Rights Network Press Release. 2017. Retrieved from http://www.ndrn.org/en/home/5/649-

gao-school-choice-study.html.

105 Office for Civil Rights, U.S. Department of Education. 2015–16 Civil Rights Data Collection: Data Highlights on 

School Climate and Safety in Our Nation’s Public Schools (April 2018). Retrieved from https://www2.ed.gov/

about/offices/list/ocr/docs/school-climate-and-safety.pdf.

106 Civil Rights Data Collection. Data Snapshot: “School Discipline.” Available at https://ocrdata.ed.gov/downloads/

crdc-school-discipline-snapshot.pdf. See “Sent Home and Put Off Track: The Antecedents, Disproportionalities, 

and Consequences of Being Suspended in the 9th Grade,” in Daniel Losen, Are We Closing the School 

Discipline Gap, 17–30. Robert Balfanz, Vaughn Byrnes, and Joanna Fox. 2011.

107 Daniel J. Losen and Tia Elena Martinez. 2013. Out of School and Off Track: The Overuse of Suspensions in 

American Middle and High Schools (April 8, 2013). Available at https://civilrightsproject.ucla.edu/resources/

projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/out-of-school-and-off-track-theoveruse-of-suspensions-in-american-middle-and-high-schools.

108 Virginia Costenbader and Samia Markson. 1998. “School Suspension: A Survey of Current Policy and 

Practices.” NASSP Bulletin, 78. Russ Skiba and Reece Peterson. 1999. “The dark side of zero tolerance: 

Can punishment lead to safe schools?” Phi Delta Kappan, 80.

109 Available at https://csgjusticecenter.org/wp-content/uploads/2012/08/Breaking_Schools_Rules_Report_Final.pdf.

110 Brea L. Perry and Edward W. Morris. 2014. Suspending Progress: Collateral Consequences of Exclusionary 

Punishment in Public Schools. Available at http://journals.sagepub.com/doi/abs/10.1177/0003122414556308.

111 Lindsey M. O’Brennan, Catherine P. Bradshaw, and Michael J. Furlong. 2014. Influence of Classroom and 

School Climate on Teacher Perceptions of Student Problem Behavior. Available at https://www.ncbi.nlm.nih

.gov/pmc/articles/PMC4204794.

112 Ibid.

113 EdWeek. 2017. “Parents See Benefits in Spec. Ed. Vouchers, But No Silver Bullet.” Available at https://www

.edweek.org/ew/articles/2017/03/22/parents-see-benefits-in-spec-ed-vouchers.html.

114 GAO-16-712 (2016). Private School Choice Programs Are Growing and Can Complicate Providing Certain 

Federally Funded Services to Eligible Students, p. 3. Available at https://www.gao.gov/products/GAO-16-712.

115 Jay P. Greene and Marcus A. Winters, “Debunking a Special Education Myth,” Education Next 7, no. 2 

(Spring 2007). Available at http://educationnext.org/debunking-a-special-education-myth.

Choice & Vouchers—Implications for Students with Disabilities 101
116 S. Buck and J. P. Greene. 2010. “The Case for Special Education Vouchers,” Education Next 10(1): 36–43. 

Retrieved from http://educationnext.org/the-case-for-special-education-vouchers. See also: https://www2

.ed.gov/about/offices/list/oii/nonpublic/idea1.html.

117 Greene and Winters, “Debunking a Special Education Myth.”

118 Almazan and Marshall. 2016, p. 14.

119 National Coalition for Public Education. Available at https://www.ncpecoalition.org/s/NCPE_TP_Students-withDisabilities.pdf.

120 Focus Group Participant.

121 Ibid.

122 Almazan and Marshall. 2016, p. 6. See also https://www2.ed.gov/about/offices/list/oii/nonpublic/idea1.html.

123 Megan Casey Whittaker. 2017. “The Average Voucher Doesn’t Cover Full Cost of Private School, 

NCLD Data Analysis Shows,” National Center for Learning Disabilities. Retrieved on May 17, 

2018, from https://www.understood.org/en/community-events/blogs/the-inside-track/2017/11/21/

the-average-voucher-doesnt-cover-full-cost-of-private-school.

124 Focus Group Participants and Interviews.

125 Focus Group Participant.

126 Department of Education. Retrieved February 21, 2018, from https://www.louisianabelieves.com/schools/

school-choice-for-students-with-disabilities.

127 National Center on Learning Disabilities. 2017. Vouchers, Education Savings Accounts, and Tax Incentive 

Programs Implications and Considerations for Students with Disabilities, p. 16. Retrieved from https://www

.ncld.org/wp-content/uploads/2017/10/SV-ESA-TI-White-Paper.pdf.

128 National Center for Learning Disabilities, Voucher Programs Issue Brief. 2017. Retrieved from https://www

.ncld.org/wp-content/uploads/2014/11/Voucher-brief-in-LJ-template.pdf.

129 Interview with Stakeholder.

130 https://nces.ed.gov/programs/coe.

131 Florida’s Voucher Program: Data Snapshot and List of Participating Schools. 2017. Retrieved from https://www

.edweek.org/ew/section/multimedia/floridas-voucher-program-data-snapshot-and-list.html.

132 Focus Group Participant.

133 Ibid.

134 Anya Kamenetz. 2017. “For Families with Special Needs, Vouchers Bring Choices, Not Guarantees.” 

Retrieved from https://www.npr.org/sections/ed/2017/05/17/527938057/for-families-with-special-needsvouchers-bring-choices-not-guarantees.

135 GAO 2018-94 report, p. 11.

136 Elizabeth Mann and Diana Quintero. 2017. States Could Lead the Way in Private School Choice 

Program Expansions. Brown Center Chalkboard. Available at https://www.brookings.edu/blog/

brown-center-chalkboard/2017/04/05/states-could-lead-the-way-in-private-school-choice-program-expansions.

137 M. Dynarski, N. Rui, A. Webber, and B. Gutmann. “Evaluation of the DC Opportunity Scholarship Program: 

Impacts Two Years after Students Applied” (NCEE 2018-4010). Washington, DC: National Center for Education 

Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education. Retrieved 

on June 7, 2018, from https://ies.ed.gov/ncee/pubs/20184010/pdf/20184010.pdf.

138 Cory Turner and Anya Kamenetz. 2017. “School Vouchers Get 2 New Report Cards,” nprED, 2017. Available at 

https://www.npr.org/sections/ed/2017/06/26/533192616/school-vouchers-get-a-new-report-card.

139 D. Figlio and K. Karbownik. 2016. “Evaluation of Ohio’s EdChoice Scholarship Program: Selection, Competition, 

and Performance Effects.” Fordham Institute, p. 2. Available at https://edexcellence.net/publications/

evaluation-of-ohio%E2%80%99s-edchoice-scholarship-program-selection-competition-and-performance.

140 “How Has the Louisiana Scholarship Program Affected Students.” Available at https://

educationresearchalliancenola.org/publications/how-has-the-louisiana-scholarship-program-affected-students.

141 Ibid.

102 National Council on Disability
142 Jonathan Mills and Patrick Wolf. “Vouchers in the Bayou: The Effects of the Louisiana Scholarship Program on 

Student Achievement after 2 Years,” Education and Policy Analysis 39, no. 3 (September 2017): 464, 473.

143 Focus Group Participant.

144 AFC, p. 23.

145 Ibid.

146 Arianna Prothero. “There Is No Oversight” Private—School Vouchers Can Leave Parents on Their Own,” 

EdWeek, November 14, 2017. Available at https://www.edweek.org/ew/articles/2017/11/15/there-is-nooversight-private-school-vouchers-can.html.

147 20 U.S.C. §1415(k)(1), (7) and 34 C.F.R. §300.530.

148 Leslie Posta, Beth Kassab and Annie Martin. “Schools Without Rules,” Orlando Sentinel. Retrieved on 

February 23, 2018, from http://www.orlandosentinel.com/features/education/os-florida-school-voucherinvestigation-1018-htmlstory.html.

149 Nat Malkus and Tim Keller. “Federal Special Education Law and State School Choice Programs,” The Federalist 

Society Review 18(2017): 22.

150 Focus Group Participant.

151 GAO-18-94, 2017, pp. 11–13.

152 National Center for Education Statistics. “Fast Facts: Students with Disabilities.” Available at https://nces

.ed.gov/fastfacts/display.asp?id=64 (last accessed January 2017); U.S. Department of Education. 2016. 

“Fiscal Year 2016 Congressional Action.” Available at https://www2.ed.gov/about/overview/budget/

budget16/16action.pdf.

153 National Council on Disability. 2012. National Disability Policy: A Progress Report, 60); Wendy F. Hensel. 

“Recent Developments in Voucher Programs for Students with Disabilities,” 59 Loyola Law Review 323, 

330(2013).

154 Zelman v Simmons-Harris, 536 U.S. 639 (2002).

155 Brumfield v. Dodd, 405 F. Supp. 338 (E.D. La. 1975).

Brumfield v. Dodd, 425 F. Supp. 528 (E.D. La. 1976).

Brumfield v. Dodd, No. 71-1316, 2013 WL 360572 (E.D. La. Jan. 30, 2013).

Brumfield v. Dodd, 749 F.3d. 339 (5th Cir. 2014).

Brumfield v. Dodd, No. 13-31262, 2014 WL 3828724 (E.D. La. April 10, 2014).

Available at http://www.nola.com/education/index.ssf/2015/06/louisiana_school_voucher_appea.html.

156 Available at http://www.nola.com/education/index.ssf/2013/11/federal_government_has_right_t.html.

157 20 U.S.C. §§ 6301 et seq.

158 AFC, p. 24.

159 20 U.S.C. § 1411(a)(1).

160 Id. at §1411(a)(2).

161 20 U.S.C. § 1411(f)(1).

162 20 U.S.C. § 1412(a).

163 Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 

(E.D. PA 1971) (finding unconstitutional under the Fourteenth Amendment a state law that allowed schools 

to refuse to serve students with disabilities and creating the FAPE and LRE standards); Mills v. Board of 

Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972) (finding that the Constitution prohibits 

excluding students with disabilities owing to budget constraints and requires due process protections before 

a change of school placement for a student with a disability).

164 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. FAPE consists of “specially designed instruction” that adapts the 

content, methodology, or delivery of instruction “[t]o address the unique needs of the child that result from 

the child’s disability; and . . . [t]o ensure access of the child to the general curriculum, so that the child can 

meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. 

§ 300.39(b)(3).

Choice & Vouchers—Implications for Students with Disabilities 103
165 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.17(b), (c); 20 U.S.C. § 6311(b)(1), 34 C.F.R. § 200.1(a), (b), (c). 

Also see 34 C.F.R. § 104.33(a).

166 34 C.F.R. § 300.320(a)(1)(i), (a)(4).

167 34 C.F.R. § 300.114.

168 34 C.F.R. § 300.116(e).

169 National Center for Education Statistics. “Fast Facts: Students with Disabilities.” Available at https://

nces.ed.gov/fastfacts/display.asp?id=64 (last accessed January 2017). U.S. Department of Education. 

2016. “Fiscal Year 2016 Congressional Action.” Available at https://www2.ed.gov/about/overview/budget/

budget16/16action.pdf.

170 Meg Benner and Rebecca Ullrich. 2017. Betsy DeVos’ Threat to Children with Disabilities. Center 

for American Progress. Retrieved from https://www.americanprogress.org/issues/education-k-12/

reports/2017/02/02/298010/betsy-devos-threat-to-children-with-disabilities.

171 The “child find” provision of the IDEA and Section 504 remain intact. The local education agency still has the 

obligation to locate, identify, and evaluate students in private schools. 20 U.S.C. 1412(a)(3) and 34 C.F.R. 

§ 104.32.

172 National Council on Disability, National Disability Policy: A Progress Report, 60 (2012); Hensel, supra note 1, 

at 330.

173 OCR Staff Memorandum, 22 IDELR 666 (July 27, 1990).

174 Letter to Bowen, 35 IDELR 129 (OCR, March 23, 2001).

175 Compare: Lower Merion School District v. Doe reaffirmed that private school students [in PA] have the right to 

seek services under IDEA from their LEA as dually enrolled students. 593 Pa. 437 (2007). See Lower Merion 

School District v. Doe, 593 Pa. 437 (2007).

176 See https://ies.ed.gov/ncee/pubs/20174022/pdf/20174022.pdf; see p. 17.

177 Mark C. Weber. 2007. Services for Private School Students under the Individuals with Disabilities Education 

Improvement Act: Issues of Statutory Entitlement, Religious Liberty, and Procedural Regularity, p. 3.

178 See https://www2.ed.gov/admins/lead/speced/privateschools/idea.pdf.

179 Id. at 1.

180 Id. at 4.

181 20 U.S.C. § 1412(A)(10).

182 Id.

183 20 U.S.C. § 1412(a)(10)(A)(vi).

184 20 U.S.C. § 1412(a)(10)(C).

185 509 U.S. 1 (1993).

186 512 U.S. 687 (1994).

187 521 U.S. 203 (1991).

188 20 U.S.C. §1412 (a)(10)(A)(iii)(IV).

189 Id.

190 See IDEA: Provisions Related to Children with Disabilities Enrolled by Their Parents in Private Schools. 

Available at https://www2.ed.gov/admins/lead/speced/privateschools/idea.pdf, at 1 on March 2011.

191 Id. at 1.

192 Id. at 11.

193 Id. at 11–12.

194 Id. at 12.

195 R.E., 694 F.3d at 191–192.

196 Cases in the Second Circuit are analogous because, while that Circuit has held that the IEP need not list a 

specific school, school districts are still required to recommend a school that can implement the instruction 

and services on the IEP. See id.; D.C. v. N.Y.C. Dep’t of Educ., 950 F.Supp.2d 494 (S.D.N.Y. 2013) (holding that 

104 National Council on Disability
Department of Education failed to offer the student a FAPE where the recommended school placement told 

the mother that it could not implement a medical mandate on her son’s IEP that he be educated in a seafoodfree environment); B.R. v. N.Y.C. Dep’t of Educ., 910 F. Supp. 2d 670 (S.D.N.Y. 2012) (holding that DOE failed in 

its burden to show that the proposed public school placement could implement the student’s IEP).

197 20 U.S.C. § 1400(d)(1)(A); see Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 

359, 367 (1985).

198 20 U.S.C. § 1412(a)(1)(A).

199 Burlington, 471 U.S. at 367.

200 Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 187–188, 203 (1982).

201 A.K. ex. Rel. J.K. & A.S. v. Alexandria City Sch. Bd., 484 F.3d 672, 681 (4th Cir. 2007).

202 Id. (citing Rowley, 458 U.S. at 207).

203 S. S. Taylor, “School Vouchers: Views from a Special Education Perspective,” Journal of School Choice 1, 

no. 3(2006): 29–53, 37–38.

204 Wendy F. Hensel, “Vouchers for Students with Disabilities: The Future of Special Education?” Journal of Law 

and Education 39, no. 291(2010): 12–13.

205 See Alexander v. Choate, 469 U.S. 287, 300-01 (1985) (Section 504 may require reasonable modifications 

to a program or benefit to assure meaningful access to qualified persons with disabilities); Southeastern 

Cmty. Coll. v. Davis, 442 U.S. 397 (1979) (Section 504 does not prohibit a college from excluding a person 

with a serious hearing impairment as not qualified where accommodating the impairment would require a 

fundamental alteration in the college’s program). As the Department of Education has explained, “To be clear, 

however, neither the fundamental alteration nor undue burden defense is available in the context of a school 

district’s obligation to provide a FAPE under the IDEA or Section 504. See 20 U.S.C. § 1414(d)(1); 34 C.F.R. 

§ 104.33.” See Department of Education Dear Colleague Letter, https://www2.ed.gov/about/offices/list/ocr/

letters/colleague-201301-504.html#ftn8, at fn. 17.

206 Department of Education Dear Colleague Letter, https://www2.ed.gov/about/offices/list/ocr/letters/

colleague-201301-504.html#ftn8, at fn. 17.

207 Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008).

208 34 C.F.R § 104.33(b)(1).

209 cf. 20 U.S.C. §§ 1401(9), 1414(d)(1)(A)(i)(II).

210 Title VI Manual, available at https://www.justice.gov/crt/fcs/T6manual5, at Chapter V §C.2.f. (internal citations 

omitted).

211 Grove City College v. Bell, 104 S.Ct. 1211 (1984).

212 Id. at 1216–1217.

213 Alfano v. Bridgeport Airport Servs., 373 F. Supp. 2d 1, 5 (D. Conn. 2005) (citing Paralyzed Veterans, 477 U.S. at 

605–606).

214 See Title VI Manual at Chapter V § C.1.d.

215 45 C.F.R. § 92.4.

216 U.S. Treasury, Preamble to Regulation Regarding Nondiscrimination on the Basis of Race, Color, or National 

Origin in Programs or Activities Receiving Federal Financial Assistance from the Department of Treasury, 

31 C.F.R. Part 22 at B.2, 81 Fed. Reg. 89853-54.

217 34 C.F.R. § 104.39.

218 34 C.F.R. § 104.4(b)(vi).

219 28 C.F.R. § 35.130; § 35.160.

220 28 C.F.R. § 35.164.

221 42 U.S.C. § 12187.

222 U.S. Department of Justice, Letter to Evers (April 9, 2013). Available at https://www.aclu.org/files/

assets/04_09_13_letter_to_wisconsin_dpi_0.pdf.

Choice & Vouchers—Implications for Students with Disabilities 105
223 Liberty Resources, Inc. v. Philadelphia Housing Authority, 528 F. Supp. 2d 553 (E.D. Pa. 2007).

224 See also Wendy F. Hensel, “The Limits of Federal Disability Law: State Educational Voucher Programs,” 

Journal of Law and Education 44, no. 199 (2015): 219–224.

225 Zelman v Simmons-Harris, 536 U.S. 639 (2002) held that Ohio’s school voucher program did not violate the 

First Amendment’s establishment of religion clause, despite the large number of students attending religious 

schools with school vouchers. The court reasoned that the program did not violate the Establishment Clause 

because the program (1) was enacted for the valid secular purpose of providing educational assistance to poor 

children in a demonstrably failing public school system, and (2) was a program of true private choice that did 

not have the effect of advancing religion.

226 See https://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-577.htm.

227 See http://www.huffingtonpost.com/rep-chris-taylor/back-to-alec-back-to-priv_b_8055540.html?utm_hp_

ref=politics.

228 See http://www.washingtonpost.com/local/education/aclu-says-its-suing-to-stop-nevadas-new-school-voucherprogram/2015/08/27/db57dcd2-4cd0-11e5-902f-39e9219e574b_story.html.

229 Arizona, Florida, and Wisconsin’s voucher programs explicitly include students with Section 504 Plans. 

See http://www.edchoice.org/school-choice/school-choice-in-america.

230 Brumfield v. Dodd, 425 F. Supp. 528 (E.D. La. 1976).

231 U.S. Memorandum in Support of Its Motion to Extend Time to Respond to Discovery. Retrieved from http://

www.gov.state.la.us/assets/docs/10-29-13%20-%20DOJ%20Motion%20to%20Postpone.pdf.

232 Retrieved from http://www.politico.com/story/2013/11/justice-department-louisiana-voucher-program-100072.

233 A 1990 Office for Civil Rights staff memorandum also states that students who are placed in private schools 

through the Milwaukee Choice Program are considered to be parentally placed in private schools and are not 

covered by the IDEA’s protections. See: OCR Staff Memorandum, 22 IDELR 666 (July 27, 1990). A 2001 OCR 

letter, Letter to Bowen reiterated this point, stating that participating students in Florida’s McKay Program 

“are considered ‘private school children with disabilities’ enrolled by their parents. . . . [S]uch 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.” See Letter to Bowen, 

35 IDELR 129 (OCR March 23, 2001); Compare Lower Merion School District v. Doe, which reaffirmed that 

private school students [in PA] have the right to seek services under IDEA from their LEA as dually enrolled 

students. 593 Pa. 437 (2007). See Lower Merion School District v. Doe, 593 Pa. 437 (2007).

106 National Council on Disability
National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004