Friday, September 4, 2015

Recent Scholarship on States' Education Obligations

Mead on voucher programs and state constitutional guarantees

Julie F. Mead (Wisconsin-Madison) explores when does a state's funding of private education voucher programs subvert its constitutional obligations to provide adequately for public education in The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703, 704-05 (2015). An excerpt follows:

… The introduction of publicly funded private school choice provisions calls into question what is “public” about “public education.” Distinctions that once were clear--public school versus private school--become blurred. For example, Tony Evers, Wisconsin Superintendent of Public Education, noted that the average private school participating in the Milwaukee Parental Choice Program (MPCP) enrolls more than eighty percent of its students by means of a publicly funded voucher and posed the following question: “If only one in five students enrolled in a choice school pays tuition, then when do choice schools stop being private schools and become something else?” These same statistics prompted the American Civil Liberties Union and Disability Rights Wisconsin to characterize the MPCP participating schools as “private in name only.”

    Whether voucher programs alter the nature of the participating schools from private school to some quasi-public or quasi-private form of school is a provocative question. However, the more important question is what such programs mean for a child's right to an education. State constitutions uniformly make some provision of public education, sketching the contours of that right and directing state legislatures to provide it. As such, the question becomes whether a state's subsidy of private education compromises that state's ability to fulfill its obligation to establish and fund public schools consistent with each state's constitutional mandates. 

Queenan on amending the IDEA to require school districts to consider broader factors for extended school year services

Rosemary Queenan (Albany) discusses the states' criteria for determining whether a disabled student is in need of special education services during the summer in School's Out for Summer-but Should It Be?, 44 J.L. & Educ. 165, 167 (2015). Excerpted from the article: 

States are required to consider the need for extended school year services (ESY services) during the summer months, if necessary, to comply with the Individuals with Disabilities Education Act’s (IDEA) requirement to provide school-age children with disabilities a free appropriate public education. However, the federal regulations do not identify specific factors for determining a child's need for ESY, instead authorizing the states to determine the eligibility standard. As such, the states have established and developed their own criteria for determining whether a disabled student is in need of special education services during the summer. However, questions remain as to the most appropriate factors to be evaluated in assessing eligibility for ESY services, and whether such an assessment should be made based on one factor alone or a variety of factors.

    [This article] provides a comparative analysis of the various factors applied by the local education agencies to determine eligibility to receive ESY services. Based on this comparative analysis, [the article] makes the case that the analysis of whether a child with a disability is eligible for ESY services should be based on a multi-factored analysis, and recommends that the IDEA regulations be amended to require or recommend local school districts to consider multiple factors, including the nature of a child's disability, the rate of progress over the course of the school year, and whether critical skills are emerging.

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