The Limits of Federal Disability Law: State Educational Voucher Programs

Journal of Law & Education, vol. 44, no. 2, pp. 199-286 (2015).

Georgia State University College of Law, Legal Studies Research Paper No. 2015-21

89 Pages Posted: 29 May 2015 Last revised: 17 Jul 2015

See all articles by Wendy Fritzen Hensel

Wendy Fritzen Hensel

Georgia State University College of Law

Date Written: 2015

Abstract

The U.S. Department of Justice is currently investigating the state of Wisconsin with respect to its administration of the Milwaukee Parental Choice Program (MPCP), which provides low-income students with public money to attend private schools. Faced with complaints of disability discrimination by private schools accepting voucher students, DOJ has ordered Wisconsin to oversee and police these schools to ensure compliance with Title II of the Americans with Disabilities Act, which applies to states and their agencies, and § 504 of the Rehabilitation Act, which applies to recipients of federal funding. Although conditioning its directive on the state's coverage under these statutes, DOJ in an unprecedented move also strongly hinted that participating schools may themselves be subject to Title II by accepting voucher students. If correct, this contradicts existing agency precedent, has significant implications for states administering voucher programs, and may impose burdens on private schools far beyond Wisconsin's borders.

Complicating this inquiry is the sensitive context in which it takes place - the education of children with disabilities. This vulnerable population has routinely and indisputably been the target of discrimination and diminished opportunities in education. The ability to ensure equal access and opportunity for these students is both compelling and critical as a matter of their civil rights.

This article evaluates the legal authority for DOJ's directives to Wisconsin and explores the broader question of whether Title II and § 504 obligations attach to the actions of private schools participating in voucher programs.

Keywords: education, voucher, disability, disability law, ADA, Rehabilitation Act, private schools, school funding, education law

JEL Classification: I22, I28, I29, K19, K39, Z00

Suggested Citation

Hensel, Wendy Fritzen, The Limits of Federal Disability Law: State Educational Voucher Programs (2015). Journal of Law & Education, vol. 44, no. 2, pp. 199-286 (2015).; Georgia State University College of Law, Legal Studies Research Paper No. 2015-21. Available at SSRN: https://ssrn.com/abstract=2605866

Wendy Fritzen Hensel (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States
404-982-6803 (Phone)

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