An IDEA for the Future

Jessica Hayashi and Kimberlee Pelster

What rights do disabled children have when it comes to education? The Individuals with Disabilities Education Act (IDEA) is a civil rights statute that provides disabled students a substantive right to a free and appropriate public education. It requires that the school meet a given student’s special needs in the least restrictive environment possible by working together with parents, at no charge, to develop and implement an Individualized Education Program (IEP) for that student. The IEP must be reviewed annually and modified if necessary. The purpose is to grant children with disabilities the opportunity to learn and engage in the classroom alongside other children to the maximum extent possible.

Part B of IDEA includes provisions for placement in a separate school setting or institution specialized in supporting the educational or social-emotional learning of students with disabilities where the public school district is unable to provide services that adequately fulfill the terms of a free appropriate public education. Once the IEP team, which includes the parent and teacher, makes this determination, the school district contracts with the private school to cover the tuition costs. Students and parents retain all the due process rights that they would have had under a public school. However, a major challenge with implementing IDEA is determining how far a school district must go to provide a free and appropriate public education.

On January 11, 2017, Endrew F. v. Douglas County School District raised before the US Supreme Court the key question of what constitutes a free and appropriate public education. In this case, the parents of the disabled student, Endrew, argued that the IEP proposed by his public school was inadequate because it was too similar to those from previous years. They enrolled Endrew in a private school and sought reimbursement of tuition from the school district. The federal district court and the 10th Circuit Court of Appeals found that the school district was obligated to provide disabled students an educational benefit that was “merely more than de minimis” or more than trivial. Endrew’s counsel argued that the IDEA’s statutory language requires the school district to provide an educational benefit “substantially equal” to that of non-disabled students. While the Supreme Court seems open to considering the higher “substantially equal” standard, the justices have expressed concern over potentially inconsistent interpretation of the new standard and over the possibility that the nature or severity of the student’s disability would render a “substantially equal” benefit impossible.

Another source of uncertainty is imminent policy reform geared toward the privatization of education. This will broadly impact students, parents, and teachers, but it will deeply affect students with disabilities by limiting, or even eliminating, their protected rights, substantively and procedurally. Under IDEA, for example, students with special needs are entitled to a hearing to determine whether any behavior resulting in disciplinary action is due to unmet educational needs. Students remain entitled to the free and appropriate education while serving any prescribed disciplinary action. In comparison, a family who sends their special needs child to a private school is not entitled to such legal protections under IDEA if the education costs are covered by a voucher or tax credit. Under a voucher or tax credit system, private schools could enforce disciplinary actions without due process, they would not be obligated to implement or abide by IEPs, and they would not have to accept disabled students at all. Children with disabilities, therefore, would lose their federally protected right to either a free or integrated education appropriate for their needs.

The future of IDEA will have far-reaching social and policy ramifications, especially for low-income and minority students with disabilities. While IDEA offers the most protections for students with disabilities, it only applies to public institutions. Under the current structure of IDEA, school voucher programs for private educational expenses will diminish the extent to which the six million students currently educated in the nation’s public schools will maintain their right to free and appropriate public education as established under IDEA.

Separate from IDEA is Section 504 of the Rehabilitation Act. Section 504 prevents discrimination based on disability status and applies to institutions that accept federal funds. In the event that school voucher legislation is considered federal funding of the institution, then Section 504 would apply. Significantly, Section 504 only requires “minor adjustments” that do not cause an “undue burden” on the institution. Under this system, students requiring more significant accommodation find it difficult if not impossible to access private school settings that can meet their needs. In these cases, private schools could exclude such students by citing “undue burden.” Because school vouchers paid directly to the family as a tax credit or deduction may circumvent Section 504, even students requiring “minor adjustments” may find private schools inaccessible.

School vouchers raise important questions of socioeconomic and racial equity. With private school tuition frequently outpacing per pupil funding rates, low-income students unable to pay the difference will be least able to benefit from school voucher programs. For students with disabilities, this disparity in funding is further amplified. Schools that provide specialized services for students with disabilities cost well above the $10,700 per pupil average in combined state and federal funding. While high-income families may find the school vouchers a useful subsidy, the median income household of a student with a disability requiring substantial accommodation will find private schools inaccessible. Finally, with a disproportionate representation of students of color among students with disabilities, households of color will be disproportionately impacted by the inequitable impacts of school voucher programs.

Educational access varies significantly depending on the Supreme Court and emerging federal legislation in support of school vouchers. Students with disabilities and their families may have access to a free and appropriate education that provides “substantially equal” educational benefit and the procedural safeguards to enforce it; or they may find that their students are de facto segregated into public schools obliged to provide only “merely more than de minimis.”

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Jessica Hayashi

Jessica Hayashi is an attorney at Johnson Moore in Chicago, Illinois. 

Kimberlee Pelster

Kimberlee Pelster is the director for teacher leadership development at Teach for America.