Do vouchers cause parents to forfeit legal rights?
A special education law expert in Texas thinks the U.S. Supreme Court ruling upholding vouchers as constitutional may lead to legal conflicts with another decision which
requires public schools to pay the private tuition of special education students who leave for educational reasons.
In 1985, the High Court said a school can be forced to pay the tuition of a student in private school if the public facility he attended did not meet his individualized education
program needs.
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Related stories:
Democrats question effect of vouchers on IDEA students
Amendment to special education voucher law in Florida could have national consequences
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In Burlington School Committee v. Massachusetts Department of Education, the Supreme Court said schools can be required "to reimburse parents for their expenditures
on private special education for a child if the court ultimately determines such placement, rather than a proposed individualized education program, is proper."
Jose Martín, an attorney with Richards, Lindsay and Martín in Austin, asked whether parents waive their legal rights under Burlington if they want to take part in a
voucher program.
"Have they waived that right to make that Burlington claim?" he asked.
Since state voucher programs often target students in the worst performing schools, he said it seems special education students there would be more likely to have an
inappropriate IEPs.
"The voucher isn't going to pay for all of the private school tuition," he said, asking whether parents have forfeited their rights to seek reimbursement simply because they
accept a voucher.
The legal headaches Martín expects wouldn't be the first involving special education students and private school tuition vouchers. Two years ago, school attorneys in
Florida faced legal problems with vouchers when the state adopted a separate voucher program for students with disabilities.
The legality of Florida's McKay Scholarship Program has not been challenged, but school attorneys asked the Office for Civil Rights for an opinion on whether students
forfeit their legal rights under federal law by accepting a private school voucher.
The answer was yes. The OCR said students with disabilities who use state-funded vouchers give up their rights under the Individuals with Disabilities Education Act.
While parents may be more than happy to put their child in a private school, there is little a parent can do legally if the school chooses not to give the student an IEP or
fails to follow one if it does.
The only option left open to a parent who is unhappy with the education their child receives at a private school is to remove him from the private school and put him back in
public school.
Under a bill now pending before Congress to start a voucher program for special education students in the District of Columbia, however, even that could possibly change
The bill, as proposed, would require private schools to abide by federal civil rights laws, including the IDEA.
Contact Jose Martín at (918) 512-0091.
By Steve d'Oliveira, who covers special education and law issues for LRP Publications.
July 26, 2002
Copyright 2002 © LRP Publications