New Battlegrounds

As charters and voucher schools decry the “burdens” of special education, advocates for students with disabilities prepare to defend hard-won rights

By Christine Stoneman

“My child may be deaf, but she is not a burden!” cries Milwaukee parent Susan Endress.

Endress made the comment after the City of Milwaukee announced that its charter schools do not bear the “burden” of providing special education services to students with disabilities. The Wisconsin Department of Public Instruction (DPI) has threatened to withhold funding for charter schools that do not provide such services, setting the stage for a showdown with the city.

Several miles away in her north side apartment, Viola Beacham ponders her decision to return her son to the Milwaukee Public Schools. The private school for which she had received a state-funded voucher wasn’t providing the services he needed for his speech/language and learning disabilities.

Pat Patterson, meanwhile, makes unanswered calls to some of Milwaukee’s private voucher schools seeking, so far in vain, for them to take her two severely disabled sons. “This is a public program,” says this long-time mentor and advocate for African-American parents of students with disabilities. “Why shouldn’t they have to take my children and provide the help they need?”

Pat’s question is key. When states offer vouchers and charters as educational options for parents who hope to improve the quality of their children’s education, shouldn’t those programs fully include students with disabilities?

Federal Mandates

Three federal laws apply directly to the rights of students with disabilities. In 1975, Congress enacted what is now called the Individuals with Disabilities Act (IDEA) to end persistent abuses, such as public schools refusing to educate children with disabilities or giving them a third-rate education. IDEA requires that states and local education agencies provide a “free and appropriate public education” (FAPE) for all children with disabilities. FAPE consists of specially designed teaching and individualized support. To the maximum extent possible, FAPE must help students with disabilities stay in the regular classroom and learn what all the other children learn. Local education agencies are responsible for providing the comprehensive services and procedural protections in IDEA, and states must ensure compliance. Privately funded schools do not have to provide IDEA services.

Two other federal statutes prohibit discrimination in both public and private schools. Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits recipients of federal funds from discriminating against people with disabilities. All states, all public schools, and some private schools receive federal funds. Further, the Americans with Disabilities Act (ADA) prohibits disability discrimination in all services, programs, and activities provided or made available by state and local governments or their agencies, and in places of public accommodation. The ADA applies to states, public schools, and private schools which are not controlled by religious organizations. Discrimination includes exclusion and denial of comparable benefits and services, and violations of extensive regulations. In the context of education, disability rights advocates have not used Section 504, the ADA, and their implementing regulations nearly as fully as the IDEA, but their broad coverage offers vast opportunity for new advocacy efforts.

In summary ( before vouchers and charters enter the picture):

  • All public schools must abide by IDEA, Section 504, and the ADA;
  • Private non-religious schools that receive federal funds must abide by the ADA and Section 504;
  • Private non-religious schools that do not receive federal funds must still abide by the ADA;
  • Private religious schools that receive federal funds must abide by Section 504;
  • Private religious schools that don’t receive federal funds do not have to abide by either the ADA or Section 504.

State laws can supplement these federal rights, but cannot abrogate them.

Bi-Partisan Political Support

At the school level, teachers and administrators often grumble about these laws, but the political consensus supporting them is strong. A conservative Congress enacted the ADA, and a very conservative Congress just renewed IDEA.

As Viola Beacham discovered, however, when it comes to voucher schools, there is no such consensus. She paid a private school with her publicly funded voucher because she thought it was the best way to set her son on the road to college. The school accepted her mildly disabled son, but he received no specialized education or supportive services. Instead, the eight-year-old periodically traipsed to the nearest public elementary school for separate services unrelated to his private school program. The voucher school told Beacham that it did not need to provide the same level of services found in a public school. Ultimately, Beacham returned her son to the public schools so he could receive the services he needed.

Why didn’t the voucher school provide the services? Because in Milwaukee, voucher schools have been treated like privately funded schools when it comes to the IDEA. In general, a student who is voluntarily enrolled (rather than placed because of special education needs) in a private school has more limited rights to special education services than a student in a public school. Though many private schools must admit and accommodate students with disabilities in compliance with the ADA and Section 504, they don’t have to provide services and procedural protections under IDEA; the public schools must do this.

When the voucher program first started, the Wisconsin DPI tried to require voucher schools to provide IDEA services. But in a 1990 Dane County Circuit Court decision, Judge Susan Steingass found that even though the schools received state vouchers, they were more like private schools than public schools, and DPI could not force voucher schools to comply with IDEA. Judge Steingass wrote: “[I]t is, in the end, not the private school’s obligation but the public school’s obligation to offer participating public school students a free and appropriate public education.” Her opinion was never appealed to any higher court.

Importantly, Judge Steingass ruled that voucher schools cannot discriminate against students with disabilities, even though they do not have to comply with IDEA. This piece of her decision remains largely unexplored. Beacham’s situation could have given rise to Section 504 and ADA claims against the state of Wisconsin (for operating a program that discriminates against students with disabilities) and against the voucher school. Stories like Pat Patterson’s – unanswered or discouraging answers to requests for vouchers for students with disabilities – persist. Legal challenges based on Section 504 and the ADA may prove fruitful, and new IDEA cases will likely arise with the expansion of vouchers.

What About Charters?

Many people thought charter schools would be more accessible to students with disabilities than voucher schools because they are touted as public schools. Even a Republican-controlled Congress, in enacting charter school legislation, explained its intention that charter schools are public schools that serve all students and comply with the IDEA.

Yet charter schools frequently pronounce themselves not subject to IDEA. In 1996, for instance, Professor Joseph R. McKinney reported in the October 1996 issue of Education Leadership that Arizona charter school principals had made comments such as: “[W]e can’t teach those [disabled] children. We have something to sell, but we don’t think it is for those kids;” and, “We tell parents that public schools provide the special education. We can’t be set up for everything.” This summer, after Wisconsin gave the City of Milwaukee the authority to grant charters, the city declared that charter schools are more like voucher schools than public schools and therefore do not have to provide special education services. In another example, a Boston charter school refused to provide a “free and appropriate education” to a first grader.

Such actions provoke challenges. Recently, the Arizona Board for Charter Schools threatened to revoke one school’s charter if it did not do more for special education students. As noted above, Wisconsin’s DPI has threatened to withhold funds to charter schools refusing to follow IDEA. And the Office of Civil Rights at the U.S. Department of Education cited the Boston charter school.

So far, the legal disputes revolve largely around who is responsible for providing IDEA services for a child with disabilities who enters a charter school. Under IDEA, responsibility falls on the local educational agency. That doesn’t resolve the dispute, though. With this new form of school, legitimate arguments favor the state, the public school district, the chartering agency, or the charter school itself being responsible, depending upon who operates the school and the powers granted by state legislation. Adults can debate the legalities of who must pay, but in the end, students with disabilities have the right to attend charter schools and the right to receive a “free and appropriate public education” in the least restrictive environment. The lesser level of services provided to private school students does not suffice.

As seen in Milwaukee, when it comes to vouchers and charters, parents and advocates of students with disabilities will have to fight anew the political and legal battles they have already won in traditional public schools. They have no “choice.”

Christine Stoneman, an attorney with the Center for Law and Education in Washington, D.C., previously worked as a legal services attorney in Milwaukee.