Enable the Disabled
An Analysis of the Kentucky Students with Special Needs Scholarship Program
Executive Summary
More than 30 years after Congress passed what is now called the Individuals with Disabilities Education Act (IDEA), the law’s goal of providing a “free and appropriate public education” remains elusive.
In theory, the IDEA was supposed to restore parental control over children’s education and guarantee public schools provided educational services to special-needs students. In practice, regulatory compliance, not student learning, has IDEA's chief purpose. Such compliance is achieved largely through an adversarial process that pits parents and educators against each other.
In spite of numerous amendments to the IDEA, the President’s Commission on Excellence in Special Education concluded in a recent report that parents still lack options when their children are not progressing at their current schools. In many cases, their only recourse is to sue school districts for separate placement. This constant specter of litigation has created a “culture of compliance,” in which paperwork comes before pupils and bureaucratic demands have increased at all levels for special-needs students, parents, educators and schools.
Several states have taken the lead in attempting to rectify the shortcomings of the IDEA and fulfill its promise of providing all disabled children with a quality education that meets their needs. Since 1990, statewide scholarship programs in Florida, Ohio, Utah and Arizona and city-wide programs in Milwaukee and Cleveland have been serving special-needs students. Together, these scholarship programs are assisting approximately 21,000 of these students. An estimated 122,000 more special-needs students nationwide utilize the IDEA to attend nonpublic schools at public expense.
State and national data strongly indicate that over-identification of students in special education – especially disproportionate representation among minority students – is a real and growing problem in Kentucky. The need to end the practice of over-identifying special-needs students, conserve limited public resources and direct those funds to provide services for genuinely disabled students are pressing public-policy concerns.
In Kentucky, special-education funding is based on the number of students school districts identify as disabled. Some researchers refer to this system as “bounty funding” because it introduces perverse financial incentives for districts to label students as disabled.
The Students with Special Needs Scholarship Program proposed by state Rep. Stan Lee represents a significant step toward achieving an identification-neutral funding mechanism. Parents dissatisfied with their children’s progress could use scholarships offered by the program to send their children to another participating public or nonpublic schools for needed services without having to hire a lawyer and go to court.
Scholarships would be worth the state’s current SEEK (Support Educational Excellence in Kentucky) base amount – guaranteed for every public-school student in the commonwealth – plus the add-on funding for each student’s disability type, and would range from $4,300 to $12,000, depending on the severity of the disability.
Today, approximately 2,500 Kentucky students attend public schools outside their resident district or nonpublic schools to receive the special educational services they require. Kentucky has more than 400 nonpublic schools where tuition averages between $4,500 for elementary school and $6,700 for high school.
By implementing a more placement-neutral mechanism, the Kentucky Students with Special Needs Scholarship Program could help reduce the number of students over-identified in special education each year.
Kentucky Compared to Other States
Arizona, Florida, Georgia, Ohio and Utah all have scholarship programs for students with disabilities. Kentucky has none, despite the fact that nearly one-sixth of the entire public school student population has been determined to have a special learning need.
Several other states have either considered or are considering passing their own laws that, as these five states, make it easier for parents to bypass IDEA's bureacratically muddy waters provide special-needs' children the best education possible.
A new reportreleased by the Thomas Jefferson Institute for Public Policy shows how the proposed Tuition Assistance Grant Program for Students with Disabilities would go a long way toward eliminating the adversarial relationship that often exists between parents of special-needs students and local school districts.
While both parents and the district are charged under the IDEA with working together to create an Individual Education Program (IEP) for each disabled child, parents often disagree with the school about the appropriate services, and setting, for their children. Cases often end up in court, where the cost of litigating often outruns what would have been the amount of a scholarship.
Such litigation would be avoided in the new law proposed in Virginia, just as it has in other states with similar policies. The law would involve a modest, annually renewable grant paid by the commonwealth directly to private schools licensed by the Virginia Department of Education to operate a facility for disabled students (this, as author William H. Hurd indicates, "would avoid any risk of 'fly-by-night' schools popping up to take advantage of the new funding source."). Parents would be eligible to participate in the program after their disabled child has spent at least one year in the Virginia public schools.
IEP hearings: Who has the burden of proof?
Hurd, the report's author, is Virginia's former Solicitor General and has argued for parents of special needs children before the U.S. Supreme Court in Schaffer v. West. In that case, the court dealt a blow to those who challenge a local school district's IEP for a disabled student by ruling that those who challenge a local district's IEP at a due process hearing bear the burden of proof.
As Justice Sandra Day O'Connor stated for the 6-2 majority that while Congress gave several requirements for thse hearings, it did not "specify which party bears the burden of persuasion at the hearing," and thereby the court saw "no sufficient reason to depart from the usual rule that the burden of persuasion lies with the party seeking relief," which, in most special-needs cases, will be the parents.
But Justice Ruth Bader Ginsburg argued that while the burden of proof would ordinarily be placed on the shoulders of those "seeking relief" (usually it's parents who are challenging IEPs), that when it comes to special-needs children, "other factors ... policy considerations, convenience and fairness ... warrants a rule requiring a school district, in 'due process' hearings, to explain persuasivley why its proposed IEP satisfies IDEA's standards."
Ginsburg said the process represents an unlevel playing field for parents who often are outgunned by a school district with lots of resources, including legal counsel retained, as well as better access to information and expertise.
But a state-run program in Virginia -- which could also be done in Kentucky -- would bypass the confusion, including the many bureaucratic and litigious nightmares involved in the current federal IDEA program. It would include rules to ensure public dollars are not misspent by parents.
