In its June 30, 2020 decision in Espinoza v. Montana Department of Revenue, the United States Supreme Court allowed the use of public funds for private religious schools—a move that raises concerns about new legitimacy given to publicly funded voucher programs that do not support the rights of students with disabilities.
The facts in Espinoza, at first glance, are not directly related to students with disabilities.
The case focuses on whether the state’s denial of the use of funds from a student aid program to support enrollment in a private religious school is a violation of the establishment of religion or equal protection clauses of the U.S. Constitution. Nevertheless, we, along with others in the disability advocacy community, believe the Court should have addressed the impact of such a decision on the rights and opportunities of students with disabilities and urge states to proceed with caution as they consider implementing voucher programs.
Under the federal Individuals with Disabilities Education Act (IDEA), all public schools — traditional and charter — are required to provide a free and appropriate education to students with disabilities in the least restrictive environment appropriate for their needs. Private schools, including religious schools however, are not bound by these standards and many have demonstrated an unwillingness to serve all students, including those with disabilities. Families that use vouchers to enroll in private schools are typically required to forfeit their rights under IDEA because enrollment in a private school is regularly considered a parental placement with no individual entitlement to a free and appropriate education. U.S. Secretary of Education, Betsy DeVos presents voucher programs as providing “freedom for all involved,” but the freedom and rights of students with disabilities are severely limited by such a program.
We published the Principles of Equitable Schools and a recent update in the context of COVID-19 to establish a foundation that must be met in order for a school to be equitable to all students, including those with disabilities. A core component of equity is access – that is, the ability of any student, regardless of disability status or membership in any other protected class, to enroll in and benefit educationally from the school. Many private schools have historically excluded students who the school chooses not to educate, such as those with disabilities. The likely result is the very type of segregation that IDEA was designed to avoid, as students with disabilities who lack the option of a private school end up disproportionately enrolled in traditional or charter public schools – a concern raised by the National Council on Disabilities in their report on school choice and vouchers. We propose that any school accepting public dollars must be held to the standards established in our Principles of Equitable Schools.
The Center supports measures that will ensure that families of students with disabilities can access robust educational opportunities and recognizes that school choice can provide vital alternatives for communities with low-performing schools. However, as states contemplate creating or expanding publicly funded voucher programs, we urge them to ensure that such programs preserve the rights and opportunities of students with disabilities and federal civil rights protections for all students.