Despite a well-intentioned federal law that provides baseline rights for parents of special needs children across all states, a stark divide has emerged in education opportunities for children with disabilities, based on whether they live in states with school choice.
Students with disabilities in choice states have significantly more options than their peers in non-choice states. Congress needs to update the law to expand choice nationwide for students with disabilities.
The centerpiece of federal special education law — the Individuals with Disabilities Education Act — was passed 50 years ago at a time when ascendant reform-minded activists were redefining liberalism to rely less on the redistribution of wealth through federal agencies and more on the expansion of due process rights through compliance regimes hashed out by federal judges and special-interest legal organizations.
The law provides a right to an Individualized Education Program, a plan negotiated between the public school system and the child’s parents, but not a right to a high-quality education of the parents’ choice.
Without a parental right to exit the public school system, school administrators are frequently compelled to ration access to scarce special education resources. As a result, while the law greatly expanded access to public education for children with disabilities, students whose parents cannot afford to hire lawyers or who are unable to navigate the Individualized Education Program bureaucracy struggle to receive needed services.
School choice programs give parents another option. They can now opt out of the Individuals with Disabilities Education Act compliance regime altogether and use scholarships or education savings accounts to pay for the schools and services that best meet their children’s individual needs. Special-needs families in choice states are doing just that. By conservative estimates, 184,450 students with disabilities currently participate in school choice programs. Expect this number to grow with latest wave of new education savings account programs that prioritize children with disabilities. The massive education savings account program launching next year in Texas, for example, allocates up to $30,000 annually for special needs children.
The early results from the school choice programs designed to serve students with disabilities are encouraging. New York, the District of Columbia, California and New Jersey — all non-choice jurisdictions — top the list of states with the highest number of due process complaints claiming violations under the Individuals with Disabilities Education Act. In contrast, choice states with education savings account programs for special needs children have far fewer due-process complaints.
Adjusted for population, New York has over 100 times the number of Individuals with Disabilities Education Act due process complaints as Arizona and Ohio, two of the first states to create school choice programs specifically for students with disabilities.
This vast disparity suggests that parents of students with disabilities in choice states are not filing due process complaints because they do not have to. The choice programs are working for them. That also explains why special needs students are voting with their feet. The number of students with disabilities in Arizona’s education savings account program jumped 85 percent from 2022 to 2024. In Arkansas, special needs students made up 44 percent of education savings accounts beneficiaries during the program’s first year, roughly three times their representation in the school-age population.
The success of choice for students with disabilities points to how Congress can reform the Individuals with Disabilities Education Act. Lawmakers should provide additional funding to states that offer special education students a right-of-exit from their public schools using a scholarship or education savings accounts. This would ensure that more parents can choose the right learning environment for their children without hiring a lawyer. Establishing this incentive may also spur non-choice states to enact education savings accounts limited to special-needs children, helping millions of families.
A bipartisan approach to reform is possible. For decades, congressional Democrats have called for full funding for special education, since Individuals with Disabilities Education Act committed the federal government to pay 40 percent of special education costs. But that original promise has never been fulfilled. Significantly increasing federal funding for special education in exchange for school choice incentives may be a compromise lawmakers in both parties can support.
Opponents of special education choice programs warn that parents who exit the Individuals with Disabilities Education Act compliance regime can no longer sue their schools to provide “appropriate” services if they use an education savings accounts or voucher. But the system needs more competition, not more conflict. Rather than relying on burdensome litigation, Congress should provide parents more options while improving the overall quality of special education through a larger federal investment for children who stay or reenroll in public schools after trying education savings accounts programs.
Apart from helping millions of special-needs children, this approach would likely attract public support. A recent survey published by EdChoice shows that 83 percent of Americans believe the federal government has a role to provide funding to schools serving children with disabilities. The survey also showed that 69 percent of parents supported school choice reforms. Congress should listen to parents and make special education choice a top legislative priority for the upcoming midterm election year.
Michael Toth is a resident fellow at the Foundation for Research on Equal Opportunity and research fellow at the Civitas Institute at the University of Texas at Austin. Dan Lips is a senior fellow at the Foundation for Research on Equal Opportunity.