Education Law

What Are My Child’s Rights Under Special Ed Voucher Programs?

By E.A. Gjelten, Author and Editor
If you accept a special education voucher from your state to send your child to private school, you’re almost certainly giving up the legal rights guaranteed to children with disabilities under the federal Individuals with Disabilities Education Act.

If you have a special needs child who isn’t thriving in the public school system, you may be wondering if you can get a voucher to help pay for private school. Several states have voucher programs for special ed students (also known as disability or opportunity scholarships), and “school-choice” advocates have been pushing to expand these programs to other states. If your state offers special education vouchers, promises of smaller classes and personalized attention in a private school could be tempting. But you should know what you might be giving up by taking the voucher.

Losing Your IDEA Rights?

The federal Individuals with Disabilities Education Act (IDEA) guarantees a number of important legal rights for children with disabilities and their parents. (For more details, see our article on your rights under the IDEA.) But the law doesn’t apply to private schools. So if you enroll your child in a private school through a voucher program, it’s nearly certain that you’ll be giving up most of your child’s IDEA rights. For example, this could mean that the private school doesn’t have to:

  • follow your child’s IEP
  • provide testing or assessments for your child
  • place your child in the least restrictive setting that’s appropriate
  • hire teachers and other staff who are qualified to work with special ed students, or
  • offer an impartial procedure for challenging the school’s decisions about your child, including disciplinary actions.

When parents have enrolled their special needs children in private schools, the IDEA does require the public school district to offer them support services (20 U.S.C. § 1412(a)(10)(A)). However, depending on the state’s voucher program, students in voucher schools may not be entitled to the same level of services that they would receive in public school.

Some states have their own requirements for voucher schools, and a few of them explicitly ask parents to waive all of their IDEA rights when they accept special ed vouchers. In other states, however, it can be difficult for parents to find out all of the consequences of participating in the voucher program.

Other Disability Rights

The IDEA isn’t the only source of legal rights for students with disabilities. Another federal law, Section 504 of the Rehabilitation Act of 1973 (29 U.S. C. § 794), requires schools to provide accommodations so that students with disabilities have equal access to educational opportunities. Section 504 applies to any programs that receive federal financial assistance—which in theory includes vouchers. However, because vouchers are usually given to the parents rather than directly to the schools, it’s not entirely clear to what extent voucher schools have to meet all the requirements in Section 504.

Private schools also have to make reasonable accommodations for students with disabilities under Title III of the Americans with Disabilities Act, whether or not they receive public funding. But Title III exempts religious schools, so they may not have accommodations like wheelchair ramps and accessible bathrooms.

Getting Help

If you’re thinking of using a special ed voucher to send your child to private school, it’s important that you learn as much as you can about the program before making a decision. Talk to your state department of education, your local school district, and other parents. Ask what costs the voucher will cover, and how much you’ll have to pay out of pocket. You might also consider speaking with a special education lawyer about your options. The IDEA and its companion regulations are complicated and can be difficult to understand. An attorney who’s experienced in this field should be able to explain how the voucher program works in your state, including requirements for participating private schools and whether there have been legal challenges to your state’s program.

Go to the main FAQ page on special education and the IDEA.
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