Private School Vouchers and Special Education: A Legal Perspective

• In Event: Students with Disabilities in School Voucher Programs

Abstract

Objective

The goal of this paper is to highlight and examine the various ways in which legal considerations affect the availability, viability, and quality of private school choice options for students with disabilities (SWDs). Understanding that context and framework are essential for a full appreciation of voucher and educational savings accounts (ESAs) generally, and concerning SWDs in particular.

2. Perspective

This paper adopts a pragmatic legal analysis, emphasizing practical reasoning and prioritizing real-world outcomes over rigid formalism or abstract ideology (Morris, 2007). Informed by pragmatist philosophy, this approach conceives law as a responsive instrument for addressing societal challenges, evaluating legal norms by their functional utility rather than theoretical consistency (Krecké, 2003).

3. Methods

Employing this pragmatic legal analysis (Solum, 2025), the paper reviews, analyzes, and evaluates relevant statutory and regulatory authorities governing voucher and ESA programs across various states, as well as at the federal level following the recent enactment of the Educational Choice for Children Act (ECCA) (Blagg & Macklin, 2025). It does so through a dispassionate, analytically neutral lens that prioritizes functional utility, assessing how these legal norms shape real-world outcomes for SWDs in exercising private school choice rights and revealing adaptive responses to evolving societal challenges.

4. Data Sources

Key sources include federal disability statutes, such as the IDEA, Section 504, and the ADA, alongside state-specific voucher and ESA regulations. The Educational Choice and Access Act (ECCA), a new federal voucher law, provides a critical data point.

5. Initial Results

Preliminary analysis reveals distinct patterns in the evolution of private school choice programs for SWDs. Early initiatives—particularly in Florida (McKay Scholarship)—prioritize access for SWDs, but gradually expand to include broader student populations, indicating a shift in policy emphasis. A comparative analysis across additional states mirrors Florida's trajectory, with the initial prioritization of SWDs yielding to broader eligibility amid shifting legal dynamics. Arizona’s ESA Program, Indiana Choice Scholarship Program, and Oklahoma's Lindsey Nicole Henry Scholarship exemplify programs launched exclusively for SWDs, subsequently expanding to encompass general populations under evolving statutory pressures.

Legal considerations emerge as dual forces, simultaneously enabling and constraining SWDs’ educational choices. A deeper examination suggests that continued refinement of the statutory and regulatory environments may significantly enhance equity and access for this student group.

6. Significance

This analysis informs scholars examining the structure and significance of private school choice, providing a foundation for further inquiry into related legal, policy, and educational questions. A solid command of the legal framework enables a practical understanding of choice programs and supports interdisciplinary exploration.

Authors

• Paul O'Neil, Barton Gilman

• Charisse A. Gulosino, University of Memphis