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

Amidst a national expansion of school choice policies, concerns have been raisedabout the legal protections afforded to students with disabilities participating inthese programs. In this paper, I will evaluate the constitutionality of voucherprograms that require students to waive their rights under the Individuals withDisabilities 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 withdisabilities could be considered a quasi-suspect class given the history ofclass-based discrimination and the immutability of disability as a trait. Next, Iwill apply a rational basis “with a bite” test, where state law cannot designate aclass for disfavored treatment. In this case, the state treats students withdisabilities disfavorably by attempting to avoid the responsibility and burden ofproviding quality education to students with disabilities. Finally, I will considereducation as a public right, establishing substantive due process protection forstudents participating in these voucher programs and determining whether thestate is arbitrarily infringing on this right. I will then evaluate the benefits,challenges, and implications of these pathways for civil rights protections ineducation.