School Choice For Children With Disabilities

There has been a lot of discussion recently around the issue of school choice in Ohio. At present, there is a proposal pending in the Ohio Senate Education Committee (Sen. Bill 85) to create additional vouchers for non-disabled students to attend private schools of their choice. There is not expected to be any impact of this proposed program on the availability of school vouchers for students with disabilities. As to the impact it will have more globally, we cannot say, though there is concern that the exodus of students from public schools would result in greater segregation for students with disabilities who may not have all of the same options.

Ohio currently has two voucher programs serving students with disabilities-the Autism Scholarship program and the Jon Peterson Scholarship program. The Autism Scholarship program allows parents of students with an IDEA classification of Autism to receive up to $27,000 per year to pay for private services by an approved provider(s). The Peterson Scholarship allows for varying amounts depending on the child’s eligibility category under the IDEA. The information about qualifying and application is available on the Ohio Department of Education’s website.  

Articles published recently in the New York Times and elsewhere have highlighted the ups and downs of vouchers. Regardless of where you stand on school choice, parents need to be aware of the consequences of their decision to obtain a voucher for their child. In Ohio, parents who use either one of the scholarship programs agree to give up their child’s right to receive a free appropriate public education from their local school district. That means that if you are unhappy with the choice you made regarding the private voucher provider you are using, you will have no recourse to proceed against your school district as you would if your child were in public school. The purpose of the scholarship programs was to allow parents a choice of programs in exchange for which they have given up the right to FAPE.

What about your rights vis-á-vis the voucher school? What rights do parents have to proceed against those schools in the event they violate the child’s rights?  

First, parents should always be careful to read the contract they enter into with the private school. That document will govern much of the relationship between the parents and school. Make sure you understand the policies regarding admission, classroom placement, service provision, contract renewal and discipline. Schools receiving voucher funds (and even those that are not) may still be required to comply with the Americans with Disabilities Act, which would require them to make reasonable accommodations for a student with disabilities. So if your child is in a private school, and the school fails to renew your child for the coming year based on his or her disability, you may have a claim against them in the event the school has failed to make reasonable accommodation.

Autism Scholarship students, at least until Ohio changes the law, may have a third party action against a voucher program in the event the program fails to provide a free appropriate public education. That is because at present, the law requires autism voucher schools to comply with all the laws governing the education of children with disabilities, including the IDEA. That provision of the law is under consideration and will likely be removed. This provision is not present in the Jon Peterson Scholarship law.

What if your child is abused or gets injured as the result of someone’s behavior at school? You can sue a private school as well as the individuals who work there, for negligence. This type of action is not afforded to students who attend public school where simple negligence cannot be alleged against either the school district or its staff. Again, however, the contract you sign with the school may limit your rights so be sure to check it carefully.  

What if your child is excluded from the private school? Again, many private schools must make reasonable accommodation for students with disabilities. However, a private school need not make substantive changes to its program to make it suitable for your child, so a voucher program can choose the students they believe are best suited to their program. Even if they accept voucher money, they do not have to admit your child with a disability if your child does not meet the admission requirements of their school.  

What about a civil rights action for discrimination against a private voucher program? Voucher programs cannot discriminate against students on the basis of race, color or nationality. They may, under certain circumstances, restrict students by gender and religion. Most private schools receive some federal funding, and that is certainly true of voucher programs for students with disabilities.  

If your child is the victim of bullying by another student or students, you may have an action against the school for failing to protect them. However, most of the time those matters are better handled by the Office for Civil Rights (“OCR”) rather than in an action against the school. So long as the school receives some federal funding, the OCR may receive complaints about it. Those complaints can be filed online without assistance from a lawyer.

The school choice programs in Ohio have afforded parents many more options than they otherwise might have had. Remember though, that parents need to be educated consumers. Not all programs are created equal and some are better than others. Not every program is designed to meet every need. There is not a lot of accountability in Ohio regarding the quality of individual programs, so do your homework to make sure your scholarship dollars are well spent.  

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