Counterpoint - Special Education Vouchers Are Beneficial: A Response to Hensel

I. INTRODUCTION Wendy Hensel's recent article raises several objections to special education vouchers.1 Her first over-arching argument is that the level of services that private schools provide to special education students is inadequate - for example, that private school teachers are unqualified,2 or that parents are waiving important federal rights by entering private schools.3 Her second over-arching point is that even if private schools do a sufficient job at serving special education students, special education vouchers are problematic for several reasons, such as possible discrimination on the basis of wealth or race,4 or harm caused to special education students left behind in the public school system.5 In this article, I defend special education vouchers as an improvement on existing law that already allows public funding for the private schooling of special education students. In Section II, I provide a brief background on federal special education law. In Section III, I address Hensel's arguments head-on. I contend, for example, that special education vouchers merely add another avenue for parents to seek the best services for their children, and that survey evidence shows that parents are generally satisfied with the voucher option. I conclude that special education vouchers are an important option that increases the rights of parents. II. BACKGROUND ON SPECIAL EDUCATION VOUCHER LAWS The most well-known voucher programs in the country are ironically the smallest. The Cleveland voucher program, which was litigated before the Supreme Court in Zelman v. Simmons-Harris,6 served a mere 5,678 children in the 2010-2011 school year.7 The successful Washington, D.C. voucher program - which occasioned much controversy over President Obama's inexplicable non-renewal decision - has never served more than 1,930 children at its maximum.8 Even when these voucher programs are taken together, they are not as large as the phenomenon of special education vouchers. Special education voucher laws allow students served by special education programs (or in Ohio, autistic students)9 to receive a scholarship that can be used at a private school. Four states - Florida (1999), Georgia (2007), Ohio (2003), and Utah (2005) - have established special education voucher programs that together serve nearly 24,000 students, far more than those served by the D.C. or Cleveland voucher programs.10 Just in the past two years, four more programs have joined the ranks: Oklahoma's Lindsey Nicole Henry program,11 Louisiana's School Choice Pilot Program for Certain Students with Exceptionalities,12 North Carolina's Tax Credit for Children with Disabilities,13 and Ohio's Jon Peterson Special Needs Scholarship Program.14 On the federal level, the Individuals with Disabilities Education Act (IDEA) governs special education programs. As a bit of background, the IDEA has four key provisions: 1) states must ensure that [a] free appropriate public education is available to all children with disabilities,16 which can take place in either a public or private setting;17 2) an Individualized Education Plan (IEP) must be designed for each child18 in consultation with his or her parents;19 3) the child should be educated in the least restrictive environment, which means that he or she should be placed with non-disabled students to the extent possible;20 and 4) parents can object to the educational provisions for their child by requesting a due process hearing21 with an independent hearing officer,22 whose decisions can be appealed to state educational agencies23 and then to state courts or federal district courts.24 Under the IDEA and its corollary state special education laws, public school districts continue to serve most special education students, but students can attend private schools at public expense. Private placements can occur either at the district's initiative, where the IEP team determines the appropriate private school based on the nature and severity of the individual child's disability, or at the parents' initiative. …