In recent years, Texas has made significant strides towards advancing school choice through voucher programs and education savings accounts (ESAs). While these initiatives aim to provide families with more educational options, they also raise important concerns, particularly for students in special education.

One of the primary concerns is the potential loss of federal protections. Unlike public schools, private schools are not required to comply with the Individuals with Disabilities Education Act (IDEA). This means that students with disabilities who use vouchers to attend private schools may lose access to key protections and services, such as individualized education programs (IEPs) and necessary accommodations.

One need not look far to find Supreme Court precedents that highlight this.  Here are some court cases that highlight that private schools are not required to adhere to special education laws like IDEA:

1. Board of Education of Hendrick Hudson Central School District v. Rowley (1982): This U.S. Supreme Court case established that public schools must provide a “free appropriate public education” (FAPE) to students with disabilities, but private schools are not bound by this requirement.
2. Irving Independent School District v. Amber Tatro (1984): The Supreme Court ruled that certain medical services, such as clean intermittent catheterization, are considered “related services” under IDEA, but this ruling applies to public schools, not private institutions.
3. Fry v. Napoleon Community Schools (2017): This case involved a dispute over a school’s refusal to allow a child’s service dog in school. The court ruled that the parents’ claim was barred because they failed to exhaust their administrative remedies under IDEA, which again applies to public schools.

These cases illustrate that private schools are not subject to the same legal requirements as public schools under IDEA.

Another significant issue is the impact on public school funding. Advocates argue that diverting public funds to private schools through vouchers could further strain the already underfunded public school system. This is particularly concerning for the majority of special needs students who remain in public schools, as it could lead to fewer resources and support for those who need it most.

While some private schools offer specialized programs for students with disabilities, they are often selective and may not have the capacity to serve all students who require these services. Additionally, the cost of private special education can be prohibitive for many families, even with the aid of vouchers. This limitation can leave many students without access to the specialized support they need to thrive.

Texas has seen a significant increase in the number of students with disabilities. Advocates believe that the focus should be on improving and adequately funding the public school system to meet the needs of this growing population. Rather than diverting funds to private institutions, the state should work towards enhancing the quality and accessibility of public education for all students.

House Bill 212 and House Bill 612 mandate that parents be informed that private schools are not obligated to adhere to the same standards for providing services under IDEA and federal law. This transparency is essential for parents to make well-informed choices regarding their children’s education and to fully understand the limitations of private school options. Furthermore, these bills strategically avoid both state and federal funding sources that would necessitate compliance with federal and state special education protections. This deliberate tactic effectively sidesteps the need to offer protections to students receiving special education services.

If the intent of these initiatives is to provide parents with “more options,” how does offering options that limit protections help parents? While it may benefit parents of children who do not receive special education services, it does not help those who do. How does removing safeguards help parents ensure their child receives the quality education they deserve and are looking for?

While the push for school choice in Texas aims to offer more educational options, it brings with it substantial challenges for students in special education. Ensuring that these students continue to receive the necessary support and protections is critical. The debate over school choice and its impact on special education underscores the need for thoughtful consideration and balanced approaches to educational reform.