Here is an analysis of the bill from Dena Sher, State Legislative Counsel for Americans United:
Students and Parents Using Vouchers Lose All Protections under IDEA (HB 3393)
Under the Individuals with Disabilities Education Act (IDEA), students with disabilities are entitled to a free and appropriate public education that meets each student’s specific educational needs and is provided in the least restrictive environment possible. To accomplish this, IDEA requires that public schools provide these students an Individualized Education Program (IEP) that sets out the special education and support services that each student will need. Parents must be included in the IEP development team and the IEP must be reviewed and updated as needed. If schools do not uphold their responsibilities under IDEA, parents and students can enforce their rights in court.
Importantly, IDEA already allows for students with disabilities to attend private school when doing so is necessary to satisfy a student’s IEP. When this happens, students and parents continue to have all the rights under IDEA that students in public schools have.
However, under this bill, parents who choose to use a voucher to send their child to private school would waive all their rights and their children’s rights under IDEA. Despite advice from the U.S. Department of Education to the contrary, there is no requirement in this bill that parents and students attending private schools with vouchers be notified that they would waive their rights under IDEA. And though the bill says that students are eligible to use taxpayer vouchers only if they have had an IEP developed, there is not even a requirement that schools accepting these taxpayer vouchers must provide services prescribed in each voucher student’s IEP. Furthermore, there is no right to enforce the IEP, nor is there any mechanism to update and revise IEPs as required under IDEA. Finally, the bill is misleading, because even though parents would clearly lose all rights provided to them under IDEA, Section 3 of the bill declares the state could fulfill its duties under IDEA with these vouchers.
Moreover, private schools do not have to abide by the "least restrictive environment" requirements of IDEA. Thus, these schools could segregate students with disabilities from other students, which runs directly counter to the goals of IDEA and the Americans with Disabilities Act.
HB 3393 May Only Help Students from Wealthier Families
The amount of the voucher is likely not enough to cover tuition costs at many private schools that specialize in educating children with disabilities. The bill provides that the value of the voucher is only the per-pupil costs plus the additional costs of providing special education services for that student. Therefore, as has happened in Ohio, where private schools accepting taxpayer vouchers charge fees above the $20,000 voucher, Oklahoma’s families that are least well-off may be precluded from participating in this program.
Vouchers Cost, Rather than Save, Taxpayer Money
Vouchers for special education are very costly and in every program in states across the country, the costs have increased annually. Furthermore, having students leave public schools does not decrease education costs. Instead, taxpayer money that would ordinarily go to public schools now pays for vouchers, thus limiting the capacity of public schools to serve remaining students. A 1999 study of Cleveland’s voucher program showed that schools were unable to reduce administrative costs or eliminate teaching positions even when they lost voucher students, because the number of students using vouchers to attend private schools was negligible at each individual school. Thus, public schools lost state funding to pay for vouchers without being able to cut overall operating costs.
Vouchers Give Private Schools, Not Students and Parents, a Choice
This bill only requires that private schools not discriminate on the basis of "race, color, or national origin." This means that private voucher schools could still discriminate against a student based on criteria such as his or her sex, religion, economic background — and even disability. Thus taxpayer money will go to support discrimination. Also, students who live in rural areas may not have any private school options nearby.
HB 3393 Is Constitutionally Suspect
First, HB 3393 may violate Article V, section 57 of the Oklahoma Constitution, the Single-Subject Rule, which prohibits a statute from addressing more than one subject. This bill amends two distinct sections of Oklahoma’s statutes. It creates a self-directed care option for citizens with disabilities and amends the special education authorization. And it creates a brand new taxpayer-funded voucher program. These three distinct changes are likely not "germane, relative, and cognate to a readily apparent common theme and purpose" as required by the Constitution.
Second, under HB 3393, taxpayer money is sent directly to private schools -- including religious schools -- violating Article II, section 5 of the Oklahoma Consstitution. Most religious primary and secondary schools are part of the ministry of the sponsoring church. Because religious indoctrination is an important part of these ministries, the schools integrate religion throughout their curriculum and require all students to receive religious instruction and attend religious services. Thus, there is no way to prevent the publicly funded, backdoor vouchers from paying for these institutions' religious activities and education. The vouchers are unrestricted in their use and pay for all aspects of a religious education, including worship, proselytization, and religious items such as Bibles.
Yet, the Oklahoma Constitution has a provision, which courts have faithfully enforced, prohibiting taxpayer funds to be used to support religious schools: Article II, section 5 says,
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such. (Emphasis added.)Thus, for two reasons, HB 3393 is highly constitutionally suspect.
Please call your state legislators and ask them to vote against this legislation.
NOTE: Documentation for assertions made in this blog is available upon request.