Article

The Cost of School Vouchers: 14th Amendment Pathways to Protect Disability Rights

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Abstract

Amidst a national expansion of school choice policies, concerns have been raised
about the legal protections afforded to students with disabilities participating in
these programs. In this paper, I will evaluate the constitutionality of voucher
programs that require students to waive their rights under the Individuals with
Disabilities Education Act of 2004 (IDEA) as a condition of their participation.
Three pathways will be considered, all emerging from the 14th Amendment. First,
I establish that based on the Court’s Equal Protection jurisprudence, people with
disabilities could be considered a quasi-suspect class given the history of
class-based discrimination and the immutability of disability as a trait. Next, I
will apply a rational basis “with a bite” test, where state law cannot designate a
class for disfavored treatment. In this case, the state treats students with
disabilities disfavorably by attempting to avoid the responsibility and burden of
providing quality education to students with disabilities. Finally, I will consider
education as a public right, establishing substantive due process protection for
students participating in these voucher programs and determining whether the
state is arbitrarily infringing on this right. I will then evaluate the benefits,
challenges, and implications of these pathways for civil rights protections in
education.

Keywords: 14th Amendment, Disability, School