KASB Testimony on Special Education Vouchers

KASB Testimony on Special Education Vouchers

Here is the full text of KASB’s Testimony before the House
Education Committee 
on
HB 2263Enacting the school district special needs scholarship program
Presented by Tom
Krebs, Governmental Relations Specialist.
Legal analysis by Sarah Loquist, Attorney
February
18, 2013
KASB appears before you today regarding HB 2263, which would create a special
needs scholarship program.  We believe
such a program would be unconstitutional under Article 6 of the Kansas
Constitution, would sanction discrimination against disabled students, and would
not provide accountability for student achievement.  In addition, it would likely cause the state
and local school districts to violate IDEA. 
Most importantly, however, HB
2263
is simply not good for all Kansas children.  Accordingly, we must oppose the bill.
I.  HB 2263 Would Be Unconstitutional
HB
2263
defines a “participating school” as either a public school outside of
the resident district or “any nonpublic school that: (1) Provides education to
elementary and secondary students; (2) has notified the department of their
intention to participate in the program; and (3) complies with the requirements
of the program.”  This very broad
definition of eligible nonpublic schools would allow public education funds to
be given to private religious schools that wanted to participate in the program.  The Kansas Constitution does not allow
religious schools to receive public education funds.
Specifically, Article 6, Section 6
of the Kansas Constitution states, in relevant part, as follows: “No religious
sect or sects shall control any part of the public educational funds.”  This crystal clear constitutional mandate
simply would not permit the type of special needs scholarship program as HB 2263 seeks to create.
 II. HB
2263 Would Sanction Discrimination against Disabled Students
Under HB 2263, the participating schools would be required to certify
that they will not discriminate in admissions on the basis of “race, color,
national origin or religion.”  Notably,
disability is missing from this list of certifications.
HB
2263
would be applicable to any “eligible student,” which has been defined
as any public school elementary or secondary student who has an IEP.  The definition goes on to include a
non-exhaustive list of potential disabilities that would be covered.  However, what this bill fails to recognize is
that gifted students also have IEPs.
HB
2263
would also require that any eligible student attending a participating
school must comply with the student code of conduct.  Furthermore, the participating school would
not be required to follow the student’s IEP. 
The net effect of these two items is that participating schools would
likely accept only the gifted students or those with the least severe
disabilities, such as those with learning disabilities.  Those students who are emotionally disturbed
(including those with behavior disorders) and those who are more severely
disabled and require more specialized (and more expensive) educational services
will remain behind in the resident district, which will now have less money to
serve them due to the subtraction of these scholarship funds from the state aid
the resident district receives.
Furthermore, HB 2263 would provide disparate services for disabled students in
that it applies only to students with an IEP. 
It would not provide scholarships for disabled students who are provided
additional educational supports and accommodations under Section 504 of the
Rehabilitation Act.
HB
2263
also provides that the Kansas State Department of Education would
determine the amount of each scholarship on the basis of its review of the
student’s IEP.  Unfortunately, it is
unclear what relationship the student’s IEP would have on the amount of the
scholarship.  Would the State Department
of Education be determining whether the IEP is appropriate for students for
whom it only has limited information and has never met?  Would students with more severe disabilities
receive larger scholarships or vice versa? 
Due to the completely subjective nature of this provision, HB 2263 is fraught with the potential
for discrimination among the disabled students seeking to obtain the
scholarships.
III. HB 2263 Does
Not Provide Accountability for Student Achievement
While HB 2263 has included provisions which attempt to provide
accountability for state funds received by the participating schools, it does
not require that the participating schools have a proven track record of
success with student achievement prior to receiving scholarship funds.  Likewise, participating schools will not be
required to follow the student’s IEP, and we see no requirement that the
participating school provide any specialized educational services for the
special education students.  Will these
students be expected to meet the academic requirements of the participating
school without additional support?  Or,
will the resident district be expected to provide special education services at
the participating school?  If it is the
latter, how can the resident district ensure that appropriate special education
services and accommodations are being provided when the participating school
has no obligation to follow the IEP? 
Moreover, how would the resident district pay for special education
services to be provided in the participating school when its state aid is being
reduced to pay for the scholarship?
The only accountability for student
achievement in this bill is the provision that would allow parents to remove
their child and place him or her in another participating school at any
time.  The participating school has no
accountability to the state regarding student achievement.
However, it does appear that the
resident district may be held accountable for the student’s achievement, or
lack thereof, while attending the participating school.  HB
2263
provides that the parents may request that the student take state
assessments at the resident district. 
Will these scores then be counted against the resident district, even
though it is no longer responsible for the student’s education?
IV. HB 2263 Would
Violate IDEA Regarding Transportation
HB
2263
provides that the resident district shall provide transportation to
and from the participating school “in the same manner as the resident school
district is required by law to provide transportation of other resident
students to nonpublic schools.”  The
portion of the sentence set forth in quotation marks is somewhat problematic as
school districts are not currently required to provide transportation for
resident students to nonpublic schools unless the students live along or gather
along an established bus route, as set forth in K.S.A. 72-8306.
            Assuming that the intent of HB 2263 is to require the resident
district to provide transportation for the scholarship students to their
respective participating schools, the bill would violate the IDEA.  The federal regulations applicable to the
states specifically provide that school districts “are not required to provide
transportation from the child’s home to the private school.”  34 C.F.R. §300.139(b) (1) (ii).  Rather, school districts are only required to
provide transportation as necessary to another site at which services will be
provided.
Furthermore, HB 2263 would provide for the resident district to claim state
transportation aid for any scholarship students so transported.  It is possible that this provision would run
afoul of the IDEA regulations which prohibit federal special education funds
from being used to support a private school or the federal regulations
requiring that special education funds provided to a state be used to supplement,
not supplant, federal, state and local funds. 
See 34 C.F.R. §300.141; 34
C.F.R. §300.162.
V. HB 2263 Would
Cause Public Schools Who Are Also Participating Schools
To Violate IDEA
HB
2263
states that public schools in another district can be participating
schools and further states that admission to the participating school is
considered a nonpublic placement for IDEA purposes.  It would be impossible for a public school
district to treat the scholarship students as they would be treated in a
nonpublic placement.
Public schools are required to
comply with procedural and disciplinary safeguards of the IDEA and Section
504.  In addition, public schools are
required to comply with state law regarding the suspension and expulsion of
students – private schools are not. 
Public schools that accepted the scholarship students would be required
to comply with the IEP from the resident district, at least until such time as
the participating school’s IEP team met to determine whether the IEP needed to
be revised.  These are but a few of the
many statutory and regulatory requirements with which public schools must
comply and with which private schools are not required to follow.  Given the many requirements that public
schools must meet, it is unclear how a public school could possibly treat one
small subset of special education students differently than all of its other
special education students without violating federal and state laws.
VI. HB 2263 Is Not
Good For All Kansas Children
While HB 2263 may have some limited benefit for a small subset of special
education students, such as the gifted students, it would be detrimental to
other Kansas children.  The scholarship
would not be available to Section 504 students, at-risk students, or English
language learners.  In fact, HB 2263 would serve to take money away
from these students by requiring that funds for scholarship recipients would be
deducted from the resident district’s state aid.
Likewise, HB 2263 is silent as to what happens if the parents move out of the
resident district in which they lived at the time they obtained the
scholarship.  HB 2263 provides that the scholarship will continue in effect until
the student returns to a public school, graduates from high school, or turns
21.  Will the resident district continue
to have this scholarship amount deducted from its state aid even after the parents
move to another district?  Will the new
resident district ever have a chance to provide a Free Appropriate Public
Education (“FAPE”) to the scholarship student before having the scholarship
amount deducted from its state aid?  Does
the “return to public school” include attendance at a public school in another
district that is considered a “participating school”?  Will the scholarship amount ever be
adjusted?  Is there a mechanism by which
the resident district would be able to conduct reevaluations that are required
by IDEA?  If so, what if the student is
no longer eligible for special education? 
Does the scholarship still continue?
Even for those students who receive
the scholarship, we believe the fact that the participating schools are not
required to follow the IEP will have a detrimental impact on the progress those
students will make.  We do not believe it
is appropriate to conduct such an experiment with the educational outcomes of
the student population most in need of educational services.  We fear that students who take advantage of
such a scholarship and no longer receive their IEP services and accommodations
across their entire school day will soon fall behind in the participating
school and, ultimately, will return to the resident district having regressed
in areas on the IEP for which they had previously made progress.
Thank you for the opportunity to
speak to you today and share our position on this bill.