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The landscape of public education, once thought to be a core function of the state, is shifting towards privatization. The appointment of Betsy DeVos as U.S. Secretary of Education further cements this shift. In particular, DeVos intends to vastly expand the availability of vouchers and tax credits that use public dollars to fund private school tuition. The debate over this expansion and its impact on traditional public schools has been polarizing and combative. Thus far, commentators have framed vouchers as purely matters of choice and increased educational opportunities. Drowned out in the debate are the voices of students with disabilities. This Article reframes this conversation and reveals that many students with disabilities may not have a choice at all.

This Article is the first to argue that voucher legislation, as applied to students with disabilities, violates two principles of constitutional law: the unconstitutional conditions doctrine and equal protection. First, some states force students with disabilities to give up crucial federal and state educational rights in exchange for vouchers. The unconstitutional conditions doctrine, however, limits government’s authority to require individuals to forgo their rights in exchange for a gratuitous benefit. Vouchers cross those limits, coercing students into accepting a restriction of significant rights to escape failing public schools. Second, equal protection requires that states sufficiently justify legislation that targets particular groups for disadvantage. While states claim that vouchers for students with disabilities are justified by better educational outcomes, many states are, in fact, motivated by their desire to eliminate the costs and burdens associated with educating students with disabilities in public schools. Moreover, far from providing a benefit, vouchers have the potential to resegregate students with disabilities — an ironic outcome given that federal disability rights law was founded on the principle of inclusion for all children.


© 2019 by Claire Raj. First published in Emory Law Journal Volume 68, Issue 6, page 1037.