THE BLOG
05/13/2014 05:09 pm ET | Updated Jul 13, 2014

'School Choice' -- As Long as Your Child Doesn't Have a Disability

Ragnar Schmuck via Getty Images

Imagine asking someone to "speak up please" while cupping your right back ear and leaning forward slightly to hear imperceptible words uttered. Again, you ask, "Can you please speak up." The teacher, with pursed lips, looks at you and then says in an annoyed loud voice "the lesson plan today will be to discuss the first chapter of the readings." Giggles fill the room.

Slightly embarrassed you look down and tell yourself never to ask these questions again. It is better to not know what is said to save yourself the condescension and humiliation of being different. You, with a tightened chest and heavy face, tell yourself it is better to live with your disability in silence, where only you can hear it.

The above experience is not merely fiction. It is widespread in schools that accept voucher students, students whose parents transfer their children from lower-performing public schools to higher-performing private, often parochial schools. Low-income parents are able to transfer their children from failing public schools to private schools with state, sometimes federal money. In other words, low-income parents choose the school their children will attend. This is known as "School Choice."

However, disabled students are not always given true choice. No choice exists if private schools refuse disabled students' needed services, and this is precisely what has happened in many places.

In fact, the American Civil Liberties Union (ACLU) filed a lawsuit against Wisconsin and several schools in Milwaukee for violations of the American Disability Acts (ADA) and the Rehabilitation Act (RHA) § 504.

What is ADA?: ADA is a federal law that prohibits discrimination on the basis of disability by public entities. It protects the disabled from discrimination on the basis of their disability in services, programs, or activities of all state and local governments. It extends to certain federally assisted programs, and all state and local governments, including those that do not receive federal financial assistance.

What is RHA?: The RHA is another federal law that requires any institution that receives federal funds for any purpose not to discriminate, exclude, or deny benefits to the disabled because of handicaps. This requirement extends to private and public schools alike that receive federal funds.

ACLU's Lawsuit: ACLU and the parents of several children brought a lawsuit against Wisconsin and several private schools because they failed to offer services to their disabled children. These parents sent their children to those schools with private school vouchers serving low-income parents. ACLU has filed this suit because these schools have accepted federal money but denied disabled students appropriate services; private schools that accept federal funds are required to provide disabled students certain appropriate services by law.

The Complaint: According to the ACLU complaint, only a meager 1.6 percent of disabled students attended voucher schools, while there are an estimated twenty percent of disabled students in Wisconsin. This disparity between disabled students attending private schools with a voucher and disabled students attending public schools is exacerbated when the quality of services offered to disabled students is examined. Not only are the proper services not provided, private schools openly state the same level of services, if any, will not be offered at the schools. This statement is further amplified by the schools' own actions.

The Stories of 3 Disabled Children

B.J., is an eighth grader who qualifies for disability services. She has Oppositional Defiance Disorder and a mood disorder and was enrolled in special education at public school, but her parent transferred B.J. from public school to a church-run private school. So, during 2010-2011, B.J. attended the private school, Concordia University School (Concordia), where her tuition was paid for by a voucher.

The ACLU complaint alleges that Concordia knew of B.J.'s disorders but did not provide any accommodations to her. Without providing any accommodations for B.J.'s disabilities, Concordia placed B.J. on a "behavioral" contract. Soon after placing her on this contract, the school expelled B.J., alleging she broke the contract. Consequently, B.J. had to return to the public school she left. Federal law requires schools not to discipline students for actions that arise from their disability.

S.E. is a four-year old child who is developmentally delayed and receives special education at public school. S.E.'s mother applied for S.E. to attend Messmer Catholic Preparatory School (Messmer). Messmer told S.E.'s mother no placements tests were required.

However, the complaint alleges that after Messmer was informed of the developmental delay, Messmer required placement tests and screenings. Messmer later told S.E.'s mother she should "give some serious thought to whether or not Messmer would be the right place for S.E. because it would not be able to give him what Milwaukee Public School was giving him." The school urged that S.E. be released from his special education Individual Special Education Plan. The mother refused to release S.E. from the Individual Special Education Plan; a screening process was conducted, however. When the lawsuit was filed, S.E. had not been admitted to Messmer.

S.E.'s mother also has another disabled child: K.S., an eight-year-old with Attention Deficient Hyperactive Disorder (ADHD). After K.S.'s application was complete, according to the complaint, Messmer conditioned K.S.'s school acceptance on taking medication for ADHD. K.S., however, was neither on medicine nor enrolled in special education at public school. S.E. did not think her child needed medicine. Nevertheless, Messmer refused to admit K.S. if he did not take ADHD medicine. Messmer informed the mother that if her developmentally delayed child "had academic problems, they did not want to be blamed." When asking whether her eight-year-old was on ADHD medicine, the school emphasized that "Messmer had a fast-paced academic program."

North Carolina

The above-mentioned individuals are the parties who filed the complaint against Wisconsin for violation of federal disability law. Wisconsin is not the only state where taxpayer dollars outrightly support discrimination. North Carolina is another. North Carolina implemented a similar voucher program where most of the vouchers are for religious, private schools. As of February 2014, Greensboro Islamic Academy (GIA), a private, religious school, was sought after by voucher applicants. Not all applicants receiving state vouchers are treated equally at GIA. The unfortunate parent who fills out a GIA application for her disabled child will be taken aback when she reaches the "RESTRICTIONS" section of the application and reads:

"Children with emotional and severe learning disabilities may not be accepted at GIA, as necessary program are not available to meet the needs of these children... After accepting a child, if it is determined that he/she has emotional or behavioral problems, and/or severe learning disabilities, etc. the child may be asked to leave..."

However, in February 21, 2014, Superior Court Judge Robert Hobgood ordered North Carolina to suspend its school voucher system. Dick Komer, a lawyer representing the parents, plans to appeal the decision. Will this victory be short-lived? How many other states will allow discrimination through their school choice voucher program?

Many states have indeed found school choice vouchers to be unconstitutional mainly because most states' constitution prohibit educational funds from being spent on anything other than public education. In other words, most state constitutions prohibit money being given to parents to choose a private, nonpublic school for their child to attend. This would violate the state constitution, but what about federal law? What about the disabled? What about their legal claims? Why are states missing this poignantly obvious, legally meritorious argument of disabled children? Who will fight for them? They cannot fight for themselves.

Luckily, the DOJ keeps fighting for our disabled children. The DOJ sent Wisconsin's Department of Public Instruction a letter demanding the agency enforce Title II of the Americans with Disability Act. Wisconsin's School Choice Program is still being investigated by the DOJ for violations of federal law. The investigation is expected to be complete by the end of 2014. Maybe the states will catch on before then.

Shayna A. Pitre has an undergraduate degree in philosophy and is currently pursuing a Juris Doctorate at Southern University Law Center. Growing up with a hearing impaired brother has made her a strong advocate for disabled children. "Fight for Those Who Can't" is devoted to advocating for not only the rights of the disabled, but the rights of all children -- the rights of those who can't fight for themselves.

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