Title: Preserving Public V aloes in the Private Sector: Unintended Consequences or Vouching for Ableism-Free Schools?
Abstract: In The Limits of Federal Disability Law: State Educational Voucher Programs' commentator Wendy Hensel continues her inquiry into the efficacy of the school voucher model for students with disabilities.2 This time her focus is on private school compliance with Title II of the Americans with Disabilities Act (Title II) and Section 504 of the Rehabilitation Act of 1973 (Section 504).3 The federal obligations of voucher schools to students with disabilities sparked a controversial federal investigation in a state where parental choice schools are fast becoming the norm.4My disagreement with Professor Hensel is not about the appropriateness or quality of a private school education for disabled5 students, as much as her focus on unintended consequences, such as the distortion or dilution of federalist doctrine. In this response to her article, I set out four principles. First, we must acknowledge that parental choice schools are a fixture of educational reform, and for many, represent an anticipated antidote to failed Second, rather than argue for an opt-out of federal disability non-discrimination laws, we should seek ways to encourage these schools' compliance to the maximum extent feasible. Third, all schools should adopt and embrace an ableist-free environment, beginning with an elevation of disability to the altar of core anti-discrimination values. Fourth, the above objectives can be obtained in both the private and public sector by having one clear standard for primary and secondary educational institutions to follow in accommodating disabled pupils, modifying policies or offering instructional support and services.Finally, I share Hensel's belief that public school compliance with laws enabling and protecting students with disabilities must be at the forefront of policy-making and advocacy. To that end, continued vigilance is required to ensure best practices for disabled-and other marginalized-students.I. FEDERAL OBLIGATIONS OF VOUCHER SCHOOLS TO STUDENTS WITH DISABILITIESProfessor Hensel has a problem with school vouchers for education students. She does not think these students are well served in private schools that accept public funds.6 But, at the same time, she contends the federal government has overstepped its authority in ordering these schools to comply with disability anti-discrimination laws enacted by Congress, and that this decision will lead to unintended consequences.7 8Her legal analysis may be correct insofar as the application of Title II and Section 504 to the private sector ultimately may be limited. However, the Department of Justice (DOJ) has determined that Wisconsin's state education agency must comply with federal antidiscrimination law when it offers placement at sectarian and other private schools at public expense * Specifically, the agency must implement and administer a school choice program in a manner that does not discriminate against children with disabilities, or disabled parents or guardians.9I share Hensel's apprehension about the quality of education available in voucher schools for special needs10 students and the continuing obligation to advocate for meaningful and effective options for youngsters with disabilities attending public schools. But, when the public and private sectors are co-mingled, as they are in Milwaukee and other large urban school districts, it is incumbent on policy makers to create a variety of school settings for a diverse population, and to be sure that opportunities are not segregated along the lines of race, class, or ability.Among the unintended consequences Professor Hensel identified is the impos[ition of] burdens on private schools far beyond Wisconsin's borders. If this adds a burden to participating schools-where there are already certain quality control and other state-imposed requirements-that just may be a cost of doing business with the public sector and a consequence worth bearing. …
Publication Year: 2016
Publication Date: 2016-07-01
Language: en
Type: article
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