Do ESA programs “deprive students with disabilities of their civil right to a free and appropriate public education?” It’s an argument used all the time, and I heard it during a debate at AEI last week. The answer is no, and it’s a vapid talking point that misses the point entirely.
“Civil rights” was once about creating equal opportunities for students – getting adults to step aside from schoolhouse doors to allow kids entry. Today, it seems more about standing at the schoolhouse door and refusing to let kids leave.
School choice and students with disabilities
Today, there are hundreds of thousands of students with disabilities being educated with the aid of one of the many ESA, voucher, or tax credit programs across the country. Recent reports from Q1 of 2024 show that in just Florida and Arizona, nearly 100,000 students with disabilities are participating in the ESA program via their parents’ choice.
School choice programs are about giving parents another option, to take matters into their own hands and pursue an education that best works for their child. The addition of an option is not a subtraction of another option. This should be self-evident.
The history of civil rights law for students with disabilities
To understand why these programs do not “deprive students of a free and appropriate public education,” you need to understand some history. Prior to the enactment of what is now called the Individuals with Disabilities Education Act (IDEA) in 1975, U.S. public schools only served 1-in-5 students with disabilities, denying an estimated one million students access to public schools. Many of these students—particularly those with more severe disabilities—ended up in state institutions, which rarely provided educational opportunities and often only provided minimal food, clothing, and shelter.
A goal of the IDEA legislation was to ensure that students received a “free appropriate public education,” or FAPE. But what is an “appropriate” education for each of the millions of students with disabilities in public schools across the country? The answer to this lies in the “individualized education program” (IEP). The IEP is a legal document that is meant to describe the child’s strengths, weaknesses, goals, and the services that a school will provide to meet those goals.
What happens if parents don’t agree with school officials?
The IEP is developed between the parent, teacher, and other school officials. It was envisioned by Congress to be a collaborative process, and in many cases it is. However, it is ultimately the school officials who have final say over the IEP’s content, including the services the child will receive.
If a parent doesn’t agree with the plan detailed in the IEP, the law gives them two options. First, parents can appeal the decision in court — a process that can often take months or even years — in the hopes the court sides with the parents and orders the school provide the services. This is far from a comforting prospect to a parent who is literally suing the school over their belief that their child is not getting the services they need there.
The second option is for parents to enroll their child in a private school without district consent. This option is very risky, since parents are required to pay for services up front while they present their case to the court. While a gamble, many parents will take the risk when they identify a private setting that works better for their child.
In either case, parents are saddled with the costs and frustrations of a complex legal process, which can include appeals to state or federal courts. This is crystalized in a recent U.S. Supreme Court case – Endrew F. v. Douglas County School District – which involved a student with autism whose parents chose to “place and chase” by enrolling Endrew in a private school without the district’s consent.
Endrew’s parents withdrew him from public school in May 2010, they received their due process hearing in June 2012, the Supreme Court issued an opinion in March 2017, and the case was tried again in February 2018. Endrew’s family won – 8 years later – and his family won the reimbursement.
Anti-ESA crusaders miss the point entirely
While the Endrew case is an extreme example, it isn’t dissimilar from the fights that many parents find themselves in via a system that does not provide them with a level playing field with school officials.
There’s an entire subculture of IEP memes on the internet, like this one of MMA fighter Conor McGregor walking into the ring with the caption “me showing up at my child’s IEP meeting ready to advocate!,” or this one with the caption, “me walking into an IEP meeting when the district has been violating the child’s rights for years.”
I recently talked to a parent who walked into an IEP meeting for their child and was greeted by eleven school officials who showed up to explain why their child didn’t qualify for services.
Let me be clear: there are many, many (maybe a majority of) parents of students with disabilities who are completely satisfied with their local public school, their IEP team, the services their child is getting, and the progress the child is making. But generalities are not the point of a law focused on the needs of individual students.
As with anything, the words written in legislation are only as good as those who are left to implement them. Even a school with the best IEP team and the best services may not be the right fit for a child – a factor we hear often from parents who enroll their child in a microschool or other alternative.
At the AEI panel, it was asserted that families should just focus on choosing among public schools. While many families do determine that a non-zoned public school could be the best fit for their child, they are often prevented from doing that in subtle and overt ways. In choice-friendly Arizona, for example, students with disabilities are regularly denied open enrollment slots from public schools, who will often say they have capacity — but then change their message upon learning the child has a disability. This video from Available to All shares just one such story. When education advocates in Arizona tried to fix the issue, school superintendents across the state fought it – explicitly saying they couldn’t take kids with special needs.
So those who glibly say, “ESA students are deprived of their right to FAPE” are missing the point entirely. No one is waiving their right to FAPE or an IEP if they freely choose to bypass that process altogether, take their ESA funds to the school of their choice, and be done with it.
Those who levy this claim about ESA programs cannot imagine a world where parents look at what a public school is offering and decide that a more “appropriate” education is found elsewhere. Or maybe they’re just afraid of giving more families that choice.