OPINION: Students lose federal protections under special ed voucher

Two professors: Parents need to know their kids would waive rights to services provided under Individuals with Disabilities Education Act
The Georgia House of Representatives voted Thursday to expand access to a private school voucher program for special education students. Because the House amended the legislation, it must return to the Senate for approval of the changes this week. Bob Andres / bandres@ajc.com

Credit: Bob Andres/AJC

Credit: Bob Andres/AJC

The Georgia House of Representatives voted Thursday to expand access to a private school voucher program for special education students. Because the House amended the legislation, it must return to the Senate for approval of the changes this week. Bob Andres / bandres@ajc.com

In a guest column, two Mercer University professors warn that special education voucher legislation up for a final vote in the General Assembly this week comes with a critical caveat for parents: If parents enroll their child in a private school with the voucher, they forgo their child’s rights to be educated in the least restrictive environment and to an individualized education program tailored to their child’s needs.

Senate Bill 47 would amend the 14-year-old Georgia Special Needs Scholarship Program by including students with a diagnosis for a variety of conditions — from autism and cancer to drug or alcohol abuse — that have qualified them for what’s known as a “504 Plan.

Robbie J. Marsh is an assistant professor of special education and Robert Helfenbein is associate dean for research and faculty affairs in the Tift College of Education at Mercer University.

By Robbie J. Marsh and Robert Helfenbein

With passage of Senate Bill 47, or the Georgia Special Needs Scholarship, by the Georgia House of Representatives on Thursday, there has been much discussion of the challenges that voucher programs create for public schools. The bill is up in the Georgia Senate for final passage this week.

SB 47 offers private school vouchers to students with disabilities who are eligible for special education services under the federal Individuals with Disabilities Education Act. These services include Individualized Education Programs or IEPS, which are specific education programs tailored to each student’s needs.

The bill also would make the 58,000 public school students with 504 Plans, or students who receive accommodations in the general education environment but do not receive special education services under IDEA, eligible to apply for the program.

While voucher programs have been around for decades, the recent push for them reflects the priorities of the previous secretary of education, Betsy Devos. In Georgia, school voucher legislation has led to many families questioning the abilities and intentions of public school teachers and administrators to meet the needs of their children. Parents of students with disabilities are among those asking questions as they are no strangers to experiencing struggles with public schools.

For example, 48 states are now reporting shortages of special education teachers. This means that many students with disabilities are considered fortunate if they have access to a licensed special education teacher as either their regular teacher or teacher of record. This is only one of many issues schools are experiencing in attempting to better serve students with disabilities, so the idea of leaving the public schools and looking toward greener pastures in private schools can be very enticing,

But, these families need to know that making that move involves forgoing the many protections afforded to them by the Individuals with Disabilities Education Act and further hurts a public school’s ability to meet the needs of students with disabilities.

So why are public schools struggling to meet the needs of students with disabilities? Well, as with most issues in education, it has to do with funding. Now, there are approximately 7 million students receiving special education services in the United States, all with IEPs outlining the specific services and supports tailored to each specific student to help them succeed. That level of support creates quite a cost, so as a stipulation of the passage of IDEA the federal government committed to fund 40% of the costs for serving students with disabilities, which would be considered fully funding the implementation of IDEA.

While Congress was pre-authorized to fund the full 40%, in the fiscal year 2020, the federal government only funded 13% which left states and school districts to cover these excess costs and has created quite a burden on Georgia school districts. With the initiation of voucher programs, already under-funded Georgia school districts will have to divert funds used to serve students with disabilities to private schools. This means less funds for hiring and retaining qualified special education teachers, limited or no funding for teacher professional development, and limited funding for providing services and support necessary for improving the academic and behavioral outcomes of students with disabilities.

However, despite the discussion of funding, the biggest cost in all of this is the fact that families would have to waive their rights and protections under IDEA to attend private school. While there are private schools that may be equipped to meet the needs of certain students depending on their disability and subsequent needs, they are in no way required to provide a free and appropriate public education (FAPE) for every student with a disability.

This means that families would forgo their child’s right to being educated in the least restrictive environment, or the right to an IEP specific to their child’s needs and abilities. Beyond the major known components of IDEA are other rights that would be waived including: (a) the right to the stay-put provision in reference to as education placement issues, (b) extended school year services, (c) transition planning services, (d) the right to receive and education until the age of 22 if the student has not accumulated enough credits for graduation by their senior school year, and (d) all of the parent rights outlined in IDEA.

Dr. Robbie J. Marsh

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Although many private schools may have good intentions in regards to the services they provide students with disabilities, the ability of the parent to actively participate in their child’s education may be severely limited. IDEA was born out of parent advocacy in response to discrimination against their children by their local school districts.

As a means to fight this discrimination, parent groups and advocacy organizations began to create the changes they needed through the court system citing the Supreme court results of Brown v. Board of Education (1954) and the Civil Rights Act of 1964 as precedent for a legal response to the unconstitutional discrimination of students with disabilities. As a result of continued legal battles, the first iteration of IDEA was passed in 1975 under the title of the Education for All Handicapped Children Act. As a part of the passage of the Education for All Handicapped Children Act and subsequent reauthorizations and amendments to it to become IDEA, a significant amount of rights were given to parents to help them to continue to fight any issues of discrimination perpetuated against their children by a school or school district.

Dr. Robert Helfenbein

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These battles continue to happen to this day as schools are still struggling to meet the needs of every student with a disability. In essence, parents wouldn’t just be waiving their child’s rights to be educated under the protection of IDEA, they also would be waiving their own rights to fight for their child against inappropriate class placement, unfair and culturally biased assessment practices, discriminate discipline practices, and access for their child to an education program that includes teaching and training in skills beyond just academics.

So, how can we move forward with protecting disability rights, special education services and supports, and improve outcomes for students with disabilities? The answer is twofold. One, we as advocates for culturally and linguistically responsive education practices need to continue to advocate for full funding of IDEA to support Georgia’s ability to provide students with disabilities the education they require.

But most importantly, Georgia families need to use the parent protections afforded to them under IDEA to advocate on their children’s behalf, which includes participating fully in the decision-making process of their child’s education, request, examine and, if necessary challenge, all records provided by the school including assessment data, discipline data, school response-to-intervention data, and methods being used to teach their children, and most importantly engage in due process when disagreements occur in their child’s IEP.

Parents have the power to create the change they want for their children--they just need to know that they can use it.