By Dana Goldstein
April 11, 2017
|When Tamiko Walker transferred her son, she learned that she had|
waived some of his rights to disability support services. “I don’t
understand why,” she said. CreditScott McIntyre for The N.Y.Times
For many parents with disabled children in public school systems, the lure of the private school voucher is strong.
Vouchers for special needs students have been endorsed by the Trump administration, and they are often heavily promoted by state education departments and by private schools, which rely on them for tuition dollars. So for families that feel as if they are sinking amid academic struggles and behavioral meltdowns, they may seem like a life raft. And often they are.
But there’s a catch. By accepting the vouchers, families may be unknowingly giving up their rights to the very help they were hoping to gain. The government is still footing the bill, but when students use vouchers to get into private school, they lose most of the protections of the federal Individuals With Disabilities Education Act.
Many parents, among them Tamiko Walker, learn this the hard way. Only after her son, who has a speech and language disability, got a scholarship from the John M. McKay voucher program in Florida did she learn that he had forfeited most of his rights.
“Once you take those McKay funds and you go to a private school, you’re no longer covered under IDEA — and I don’t understand why,” Ms. Walker said.
In the meantime, public schools and states are able to transfer out children who put a big drain on their budgets, while some private schools end up with students they are not equipped to handle, sometimes asking them to leave. And none of this is against the rules.
“The private schools are not breaking the law,” said Julie Weatherly, a special-education lawyer who consults for school districts in Florida and other states. “The law provides no accountability measures.”
McKay is the largest of 10 such disability scholarship programs across the country. It serves over 30,000 children who have special needs. At the Senate confirmation hearing for Betsy DeVos, President Trump’s education secretary, she cited research from the conservative Manhattan Institute, saying that “93 percent of the parents utilizing that voucher are very, very pleased with it.”
Legal experts say parents who use the vouchers are largely unaware that by participating in programs like McKay, they are waiving most of their children’s rights under IDEA, the landmark 1975 federal civil rights law.
Depending on the voucher program, the rights being waived can include the right to a free education; the right to the same level of special-education services that a child would be eligible for in a public school; the right to a state-certified or college-educated teacher; and the right to a hearing to dispute disciplinary action against a child.
It’s not just Florida. Private school choice programs in Arizona, Colorado, Georgia, Oklahoma, Mississippi, Tennessee and Wisconsin also require parents to waive all or most IDEA rights. In several other states, the law is silent on the disability rights of voucher students.
The Walkers obtained a McKay voucher midway through their son’s second-grade year, when the Port St. Lucie school district told them it planned to remove the boy from general education classes and place him in a “cluster” classroom for students with emotional difficulties. (Ms. Walker, and another parent quoted in this article, asked that their children’s names not be published to protect their privacy.)
“He has more potential than that,” Ms. Walker said. The family, which is black, has filed a federal lawsuit accusing the district of racial discrimination and other wrongdoing, for disciplining their son harshly and refusing to place him in a general-education classroom.
The McKay program has not provided a simple alternative for the Walkers. They used an $11,000 voucher to enroll their son in the Achievers Institute of Science, Art and Technology. But they were caught unaware, they said, when the private school charged them an additional $2,400 in fees. (Achievers Institute has since gone out of business.)
The boy now uses his McKay voucher to attend the Virtual Schools of Excellence. He visits a local “learning center” two to three days a week, and the Port St. Lucie school district sends contractors there to provide him with speech and occupational therapy. He completes the rest of his instruction online, at home.
“We’re happy to the point where he’s safe,” Ms. Walker said, but she regrets that her son no longer receives the same intensive instruction in social cues that he benefited from in public school, before he became a voucher student.
|Tamika Walker’s son now attends a school that allows him to do much|
of his work from home. Credit: Scott McIntyre for The New York Times
Federal law requires public school districts to assess the needs of special-education students enrolled in private schools. But districts are not obligated to provide those children with the same services they would receive in a public setting — even if a child’s private school tuition is taxpayer funded through a voucher.
Private schools that participate in McKay are not required to demonstrate that they use any type of specialized curriculum to meet disabled children’s needs. Still, many private schools say they go beyond the letter of the law in an effort to serve McKay students.
Trina Angelone, chief executive of the Virtual Schools of Excellence, said the school employed state-certified special-education teachers in both its online program and its in-person learning center, even though this is not required by law. A disabled child “going to a typical public school classroom is going to be with maybe 20 or 25 students, using textbooks, following along at the pace of the class,” she said. “In the virtual space,” she said, “the child is really getting one-on-one attention, moving at their own pace.”
But ultimately, there is no guarantee that students will receive the same level of disability services in private schools that they were entitled to in public school, a limitation that parents may not fully understand.
The state affidavit that parents sign in order to receive a McKay scholarship, for example, says nothing about forfeiting IDEA rights and services. It also does not explain that parents are responsible for any additional fees a private school may charge on top of a voucher, which can range from $5,000 to $23,000. The Florida Department of Education website provides other materials with more detail on the legal implications of participating in McKay, but the documents are difficult to find and decipher. District-level documents are often similarly opaque.
In a statement provided to The New York Times, the Port St. Lucie school district said, “Every effort is made to fully inform parents of the difference between public school services and private school services when a child utilizes a McKay Scholarship.”
The Florida Department of Education declined requests for a phone interview. In an email, a department spokeswoman said there had been “very few complaints on this issue.”
Robyn Rennick, a board member of the Coalition of McKay Scholarship Schools, said that private schools should be transparent with families about the services they provide but that the onus was on parents to ask detailed questions. “This is a buyer’s market,” she said. “You go and say, ‘I love your big building, but what is the expertise of your teachers?’”
Many McKay recipients, it appears, do eventually end up back in the public school system. The average length of time in the program is 3.6 years, according to data provided to The Times by the Florida Department of Education, and 85 percent of McKay recipients are in elementary or middle school.
Families who leave the program sometimes do so after moving residences. Other times they conclude that their child’s needs would be better met in a public school.
Carla Donaldson of West Palm Beach used a McKay voucher to send her son Zachary, who has autism spectrum disorder, to a private school that specializes in serving special-needs students. “I needed a break from the fight” for adequate services in a public setting, she said.
Zachary blossomed there socially, his mother said. “Unfortunately, he did pay the price academically,” she said. When Zachary returned to public school in eighth grade, he had to work to catch up. “There is no perfect school,” Ms. Donaldson said.
Some families find they do not have a choice about whether to continue at a private school. Last year, Lisa Siegel was surprised to learn that she had few legal options after her seventh grader, who received a McKay scholarship, was suspended and then asked not to return to a religious school in Davie, Fla., near Fort Lauderdale, after a series of behavioral incidents.
Ms. Siegel’s son is on the autism spectrum. In public schools, IDEA guarantees parents the right to a hearing in which they can seek to overturn a disciplinary action if the child’s misbehavior was a manifestation of a disability. That is not the case in a private school.
“You don’t have much recourse,” said Ms. Siegel, whose son is now at a public school magnet program for marine sciences. “I never in a million years thought that in this private educational setting that my child would not be protected by state and federal law.”