The Fallacy of Choice: The Destructive Effect of School Vouchers on Children with Disabilities

The Fallacy of Choice: The Destructive Effect of School Vouchers on Children with Disabilities

67 Am. U. L. Rev. 1797 (2018).

* Associate Professor of Law, University of Denver Sturm College of Law.

** Student, University of Denver Sturm College of Law.  Appointed Member of Colorado Special Education Advisory Committee, Colorado Department of Education.

This Article addresses the impact of school voucher programs on students with disabilities.  We show that for children with disabilities, the price of admission into so-called “school choice” programs is so high that it is effectively no real choice at all.  School voucher programs require students with disabilities to sign away their robust federal rights and protections in the public school system.  Under the Individuals with Disabilities Education Act (IDEA)—the preeminent legislative safeguard for students with disabilities—these rights include the right to a “free and appropriate public education” delivered through an “individualized education plan.”  By giving up these protections, children with disabilities are left at the mercy of private schools that have no legal obligation to provide them with an appropriate education, and, in the vast majority of cases, are not legally prohibited from discriminating against them on the basis of their disability.  We argue that school voucher programs—including a proposed federal voucher program—put the education of students with disabilities back decades, and likely constitute a violation of the Equal Protection Clause of the U.S. Constitution.