By: Katherine Montgomery
School voucher systems have increased in popularity in the last decade and will continue to expand if Betsy DeVos becomes Secretary of Education. Programs differ by state, some only offer scholarships to a small subset of school-age children, while other programs give money directly to the parents for any school related charge. Most of the litigation surrounding voucher programs has involved the First Amendment. Voucher programs expand parent choice. However, most parents on voucher programs choose to send their children to religious schools. The US Supreme Court has held that if the parent is making the choice, as opposed to direct payment to the religious school by the state, then there is no violation of the Establishment Clause even if the result is that most children attend a religious institution. Currently in school voucher litigation and academic study, Fourteenth Amendment legal issues are emerging as voucher programs may lead to de facto racial re-segregation. It is too narrow to focus on the adverse effects of voucher programs based on race, as it may also lead to re-segregation of children with disabilities.
Voucher programs have been around in different forms since the 1890s, and grew during the 1960s to avoid racial desegregation. In testing whether the programs that came about in reaction to Brown v. Board of Education violated the Fourteenth Amendment, the Court focused “on effect, process, or purpose” of the school choice plans. In cases such as Alexander v. Holmes County Board of Education (1969) and Green v. County School Board (1968), the states had been ordered to desegregate which they were avoiding through school voucher programs. However, the legislative intent of the Arizona voucher system is not racially biased but instead is focused on offering more options to those most disadvantaged. The process for the Arizona voucher program is non-discretionary, with very strict guidelines and offers a period for quick appeal and judicial review. The Arizona voucher program is not available to most students, and students with disabilities make up most of the recipients. Therefore, the supply of students with disabilities who can afford private school has increased. There are many reasons for why there has been exponential growth in private schools focused on special education in the past decade, one reason in states with voucher programs might be that the increase in students who can afford private school has increased and that demand has been met by an increase of private schools. Social science studies need to be completed to see if the effect of narrow voucher programs for students with disabilities has led to an increase of enrollment in specialized private schools. If narrow voucher programs, such as Arizona’s scholarship program, leads to an increase in students with disabilities leaving public education for schools only focused on a specific disability then the effect may be de facto segregation of students by ability.
The Supreme Court has found that the government’s role in school voucher programs ends with the disbursement of benefits to the parent, which is why there is no conflict with the Establishment Clause. State action is necessary for finding a violation of the Fourteenth Amendment. There is a break in the causation in school voucher programs between the state and the school. Therefore, even if the program leads to segregation, it is not necessarily unlawful. Generally, de facto segregation does not violate the Fourteenth Amendment. However, the Court relied in Brown v. Board of Education on social science findings about the benefit of desegregation and there is social science evidence that inclusion of students with disabilities in general classrooms is beneficial.
Public schools are bound by the American Disabilities Act and the Individuals with Disabilities Education Act while private schools are not. For many advocates, it is concerning that parents may spend state money on the education of a student with disabilities at a school that is not required to educate that student to the standard of the public school. Since voucher programs are separate from the state, the state does not regulate the private school. The state could only disperse money to private schools that meet ADA standards, however few programs have such criteria. School choice advocates are often resistant to such limits, as the goal of the programs is to let parents choose what the best education for their child. However, not every parent may be well-informed of the services offered at the private school or their rights if a legal issue arises.
If the problem with public schools is poor funding and resources, then allowing school voucher programs to divert funding away does not fix the issue. Public schools already can be legally obligated to pay for a child’s private school tuition if they cannot meet the child’s needs. However, school voucher programs may put pressure on public schools “to improve to keep more students from leaving.” Since there is no state action, if a voucher program de facto results in segregation of students or the school a parent chooses provides sub-par education, there probably is no violation of the US Constitution. Education as the great equalizer may be in conflict with parental choice, especially if parents’ choices result in an adverse effect such as segregation by ability.
 Kay McSpadden, DeVos is dangerous for public education, The Charlotte Observer, Dec. 16, 2016, http://www.charlotteobserver.com/opinion/op-ed/article121407983.html.
 Zelman v. Simmons-Harris, 536 U.S. 639.
 See Zelman v. Simmons-Harris, 536 U.S. 639 (if parent makes the decision then constitutional and “religiously neutral”); Niehaus v. Huppenthal, 233 Ariz. 195 (Court of Appeals found Arizona voucher program constitutional since parent, not the private school, directly receive the state money)
 Thomas J. Davis, Vouching for Vouchers? Zelman v. Simmons-Harris in Light of Lessons on Ends and Means from Brown v. Board of Education, 6 Rutgers Race & L. Rev. 31, 37 (2004).
 See David Safier, New Bill Bulks Up Arizona’s “Vouchers on Steroids” (aka Empowerment Scholarship Accounts) Program, Tucson Weekly: The Range (Feb. 3, 2016) http://www.tucsonweekly.com/TheRange/archives/2016/02/03/new-bill-bulks-up-arizonas-vouchers-on-steroids-aka-empowerment-scholarship-accounts-program; Empowerment Scholarship Accounts, Arizona School Choice (2017), http://www.arizonaschoolchoice.com/EDU_ESA.html; Empowerment Scharship Account Program: FAQ, Arizona Department of Education (2016), http://www.azed.gov/esa/frequently-asked-questions.
 See Alexandra Hudson & Rick Esenberg. Education Savings Accounts – a Primer for 21st Century Education Policy, Wisconsin Institute for Law & Liberty (July 2016); Special Needs Schools, Raising Arizona Kids (2016), http://www.raisingarizonakids.com/special-needs-schools-arizona; Arizona Special Education, Private School Review (2016), http://www.privateschoolreview.com/arizona/special-education-private-schools.
 Zelman v. Simmons-Harris, supra note 2; Niehaus v. Huppenthal, supra note 3.
 Tom I. Romero, Kelo, Parents and the Spatialization of Color (blindness) in the Berman-Brown Metropolitan Heterotopia, Utah L. Rev. (2008), 947, (de facto racial concentration has been upheld in Milliken v. Bradley, 418 U.S. 717); Charles J. Bloch, Does the Fourteenth Amendment Forbid De Facto Segrgation, Case Western Reserve Law Review Vol 16 Issue 3 (1965) http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4308&context=caselrev (Brown v. Board of Educ. only struck down the “separate but equal” doctrine for public education related to racial segregation and the case only considered de jure segregation)
 Brown v. Bd. of Educ., 347 U.S. 483; Compare, Concerns about and arguments against Inclusion and/or Full Inclusion, SEDL: Issues … about Change, Vol 4, Issue 3. (1995) http://www.sedl.org/change/issues/issues43/concerns.html; Together we Learn Better: Inclusive Schools Benefit Children, Inclusive Schools Network (Jun. 10, 2015) http://inclusiveschools.org/together-we-learn-better-inclusive-schools-benefit-all-children.
 See Marie Rauschenberger, Resolving the Lack of Private-School Accountability in State-Funded Special Education Voucher Programs, 2015 Mich. St. L. Rev. 1125, http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1132&context=lr. Resolving the Lack of Private-Lex Frieden, School Vouchers and Students with Disabilities, National Council on Disability (April 15, 2003) http://www.ncd.gov/publications/2003/April152003; Annysa Johnson & Patrick Thomas, Johnson amendment would limit ADA enforcement in voucher schools, Milwaukee-Wisconsin Journal Sentinel (July 1, 2016) http://archive.jsonline.com/news/statepolitics/ronjohn01-b99753966z1-385267421.html.
 Rebecca Beitsch, Stakes High in Special Ed Case Before Supreme Court, Disability Scoop (Dec. 15, 2016) https://www.disabilityscoop.com/2016/12/15/stakes-high-special-ed-case/23133 (standard for private placement under review at Supreme Court currently).