Milwaukee Journal-Sentinel | Esenberg: Special needs vouchers and federal law

Published on: May 19, 2015

WILL President and General Counsel, Rick Esenberg, writing in the Milwaukee Journal-Sentinel:

“In an article on special needs vouchers in today’s Milwaukee Journal Sentinel, reporters Erin Richards and Jason Stein report that the “chief concern” of groups opposing such vouchers is that ” [p]rivate schools are not obligated to follow federal disability laws.”

While I am sure thatthe critics did cite the supposed absence of federal regulation, the claim is not entirely  true. No private schools are subject to requirement that they provide what is known as a “FAPE” – a free and appropriate public education – as required by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). That makes sense. They aren’t public schools. (They also aren’t funded to provide it.)

But private schools may be subject to certain federal anti-discrimination mandates. They are not – although the Civil Rights Division of the U.S. Department of Justice apparently disagrees – subject to Title II of the Americans with Disabilities Act. That law requires public entities to accommodate persons with disabilities unless it would “fundamentally alter” the program offered by that public entity.”