Order Code RL31489
Report for Congress
Received through the CRS Web
Individuals with Disabilities
Education Act (IDEA):
Possible Voucher Issues
July 3, 2002
Richard N. Apling
Specialist in Social Legislation
Domestic Social Policy Division
Nancy L. Jones
Legislative Attorney
American Law Division
David P. Smole
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

Individuals with Disabilities Education Act (IDEA):
Possible Voucher Issues
Summary
Congress is considering reauthorization of the Individuals with Disabilities
Education Act (IDEA) program (the main federal program providing special
education and related services to children with disabilities). Among the options
being discussed is increasing parental choice under IDEA. This report provides
background on current federal choice programs and on the Florida McKay
Scholarship program, which provides scholarships for children with disabilities
enrolled in the state’s public schools to attend other public schools or to attend
participating private schools. The report concludes with a discussion of possible
issues that a federal special education voucher program might raise.
Congressional consideration of school choice is not new. Most recently the No
Child Left Behind Act (P.L. 107-110), which amended and reauthorized the
Elementary and Secondary Education Act (ESEA), contains several provisions to
maintain and expand federal support of school choice for pupils and their families.
For example, the Act requires that students attending schools identified as needing
improvement be provided with the option of transferring to another school in the
school district, consistent with state law.
There is also considerable state and local experience with choice programs. One
such program, particularly relevant to children with disabilities, is the Florida McKay
Scholarship program. This program provides parents who are dissatisfied with their
disabled child’s educational progress the opportunity to transfer the child to another
public school in the state or enroll the child in a participating private school in the
state. The amount of the scholarship is the lesser of the private school’s tuition and
fees or a calculated amount based on state funds the student would have generated
if attending a Florida public school. If the value of the scholarship is insufficient to
cover the full cost of the tuition of the private school, parents may contribute funds
to cover the shortfall. In the second year of its existence, an estimated 5,000 students
and 400 schools participated.
Proponents and opponents of voucher programs raise a variety of issues–for
example, whether the increased competition vouchers could engender will improve
or weaken public education. A federal voucher program for children with disabilities
could raise additional issues. Perhaps the key set of issues is the degree to which the
rights and obligations that IDEA requires will continue to be provided by private
schools accepting federal special education vouchers.
This report will be updated to reflect relevant legislative action.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of Federal Choice Programs and Proposals . . . . . . . . . . . . . . . . . . 1
Florida’s McKay Scholarship Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Selected Issues for Choice Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Background on School Choice Programs . . . . . . . . . . . . . . . . . . . . . . . 5
Overview of IDEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Possible Additional Issues with Respect to IDEA . . . . . . . . . . . . . . . . . 6
Would Students’ Rights Continue? . . . . . . . . . . . . . . . . . . . . . . . . 6
Would State and Local Funding Be Included? . . . . . . . . . . . . . . . 7
How Would Voucher Funding Be Structured? . . . . . . . . . . . . . . . 7
Could Least Restrictive Environments Be Provided? . . . . . . . . . . 7
Who Would Be Eligible for Vouchers? . . . . . . . . . . . . . . . . . . . . . 8
Would Sufficient Choice Be Provided ? . . . . . . . . . . . . . . . . . . . . 9

Individuals with Disabilities Education Act
(IDEA): Possible Voucher Issues
Introduction
Congress is considering reauthorization of the Individuals with Disabilities
Education Act (IDEA) program (the main federal program providing special
education and related services to children with disabilities). Among options being
discussed is increasing parental choice under IDEA.1 This report provides a brief
overview of choice programs, including current and proposed federal programs and
the Florida McKay Scholarship Program, which provides vouchers for children with
disabilities. The report concludes with a brief summary of general issues related to
choice programs together with possible additional issues with respect to children with
disabilities.
Overview of Federal Choice Programs and Proposals2
On January 8, 2002, the President signed P.L. 107-110 (H.R. 1), The No Child
Left Behind Act, which amended and reauthorized the Elementary and Secondary
Education Act (ESEA).3 P.L. 107-110 contains several provisions to maintain and
expand federal support of school choice for pupils and their families. It requires, as
part of Title I-A accountability provisions, that students attending schools identified
for school improvement after failing to make adequate yearly progress for 2
consecutive years will be provided intradistrict public school choice, consistent with
state law. Further, it requires students from poor families attending schools that fail
to make adequate yearly progress for 3 consecutive years to be provided the option
of obtaining supplementary or tutorial services from providers of their choice.
Additionally, it provides that public school choice must be made available to pupils
who are victims of violent crimes or who attend unsafe schools. P.L. 107-110
authorizes increased funding for the Public Charter Schools Program to assist charter
school start-up and for facilities, and also authorizes the use of Innovative Programs
1See, for example, Chester E. Finn, Jr., Andrew J. Rotherham, and Charles R. Hokanson, Jr.,
“Conclusions and Principles for Reform.” In Chester E. Finn, Jr., Andrew J. Rotherham,
and Charles R. Hokanson, Jr. (eds.) Rethinking Special Education for a New Century.
Washington, D.C.,Thomas B. Fordham Foundation and Progressive Policy Institute, May
2001.
2For further information on current education choice programs and proposals, see School
Choice: Current Legislation
. CRS Issue Brief IB98035 by David P. Smole.
3Note that IDEA (20 U.S.C. 1400 et seq.) is not part of ESEA, although children with
disabilities may participate in ESEA programs.

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funds for activities to promote, implement, or expand public school choice.
Previously, during floor debates of H.R. 1, both the House and the Senate rejected
amendments that would have authorized federal aid to support private school choice
programs.
On June 7, 2001, the President signed into law P.L. 107-16 (H.R. 1836), the
Economic Growth and Tax Relief Reconciliation Act of 2001. Among other
provisions, this legislation modified the Education Individual Retirement Account
authority to increase the annual contribution limit to $2,000 and to permit these
accounts to support elementary and secondary school expenses, including those for
attendance at private schools. Subsequently, these accounts have been renamed
Coverdell Education Savings Accounts.
On February 4, 2002, in his FY2003 budget request, the President proposed two
new initiatives supportive of school choice involving public and private schools: a
choice demonstration fund; and a refundable tax credit for certain costs associated
with attendance at a different school for families of pupils assigned to public schools
that fail to make adequate yearly progress.
Florida’s McKay Scholarship Program
The 2000 session of the Florida legislature established the John M. McKay
Scholarships for Students with Disabilities Program, which was substantially revised
in 2001.4 The program allows parents who are dissatisfied with their disabled child’s
progress to request that the child be placed in another Florida public school or be
provided with a scholarship so that the child can attend a participating private school
in the state. The program applies to K-12 students with disabilities5 who attended a
Florida public school in the prior school year. That is, students with disabilities
already enrolled in private schools are not eligible.
If the parent opts for a scholarship to a private school, the parent must obtain the
student’s admission to a participating private school and request the scholarship from
the school district at least 60 days prior to the first scholarship payment. In turn, the
school district must inform the parent of all options available, including enrolling in
another public school within the district or enrolling the student in a public school
in an adjacent school district that offers the services the child requires and has space
available. If the parent chooses either the private school placement or placement in
another school district, the parent is responsible for transporting the child to the new
school. In addition, the parent has the option to return the child to the public school
system or to choose another participating private school, if the parent continues to be
dissatisfied with services the student receives.
4 Fla. Stat. Ann. §229.05371.
5The statute defines students with disabilities as those “who are mentally handicapped,
speech and language impaired, deaf or hard of hearing, visually impaired, dual sensory
impaired, physically impaired, emotionally handicapped, specific learning disabled,
hospitalized or homebound, or autistic.” (229.05371 (1)) Note that this definition differs
somewhat from the IDEA definition of a child with a disability (Section 602 (3)).

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Participating private schools may be either sectarian or nonsectarian and must
meet certain state requirements:
! “Demonstrate fiscal soundness,”
! Notify the state department of education by May 1 of the preceding school
year of their intent to participate and grade levels and services that will be
available,
! Comply with federal antidiscrimination provisions with respect to race, color,
and national origin (20 U.S.C. 2000d),
! Meet state and local health and safety requirements,
! “Be academically accountable to the parent for meeting the educational needs
of the student,”
! Meet certain minimum teacher requirements,
! Comply with general Florida laws pertaining to private schools, and
! “Adhere to the tenets of its published disciplinary procedures prior to the
expulsion of a scholarship student.”
In addition, the parent and the student accepting a scholarship must fulfill
certain obligations and accept certain responsibilities. For example, the student must
attend the school throughout the school year unless excused for good cause, such as
illness, and must comply with the school’s rules of conduct. The parent must
participate in the school’s parent involvement activities, unless excused. Perhaps of
greatest importance, the statute notes that, in accepting a scholarship, the parent “is
exercising his or her parental option to place his or her child in a private school.”
The U.S. Department of Education (ED) has concluded that if the state of Florida and
local educational agencies (LEAs) in the state have made a free appropriate public
education (FAPE) available to eligible children with disabilities, as IDEA requires,
“but their parents elect to place them in private schools through the Scholarship
Program, then such children are considered ‘private school children with disabilities’
enrolled by their parents. . . . Under IDEA, such parentally placed private school
students with disabilities have no individual entitlement to . . . special education and
related services in connection with those placements.”6 ED also pointed out that
federal nondiscrimination laws with respect to individuals with disabilities do not
apply directly to participating private schools because Title II of the Americans with
Disabilities Act (ADA) does not apply to private schools7 and Section 504 of the
Rehabilitation Act of 1973 depends on the acceptance of federal funds.8
6U.S. Department of Education (ED) letter to John W. Brown, School Board Attorney,
Pinellas County School Board, Largo, Florida, March 30, 2001. For a more detailed
discussion of IDEA and private schools see Nancy Lee Jones, “Individuals with Disabilities
Education Act: Services in Private Schools under P.L. 105-17,” CRS Rep. 98-854.
7Title II of the ADA, 42 U.S.C. §12131 et seq., prohibits discrimination against individuals
with disabilities by a public entity. A public entity is defined in relevant part as a state or
local government or any department, agency, special purpose district, or other
instrumentality of a state or states or local government.
8Section 504, 29 U.S.C. §794, in relevant part prohibits discrimination against individuals
with disabilities in any program or activity that receives federal financial assistance.

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The amount of the scholarship is the lesser of the private school’s tuition and
fees or a calculated amount based on state funds the student would have generated
if attending a Florida public school. If the value of the scholarship is insufficient to
cover the full cost of the tuition of the private school, parents may contribute funds
to cover the shortfall.9 Payments of the scholarships are made quarterly in the form
of an individual warrant to the parent, which the parent then endorses over to the
private school for deposit in its account.
In the first year of the scholarship program, an estimated 1,000 students and 139
schools participated. The second year saw substantial increases in both students
(5,000) and schools (400).10 Apparently the program is too new to have been
systematically evaluated. Currently all that is available is anecdotal data. For
example, Diane McCain, Director of the Choice Office in the Florida Department of
Education, in recent testimony relayed the following success story:
The school admitted a middle school student who was identified in the public
school system as Educable Mentally Handicapped (EMH). He could not read nor
did he have any math skills. In addition, it was reported by the child and his
parents that his teacher had verbally abused the child. Recognizing the extent
of the verbal abuse, his mother removed him from the public school system and
brought him to The Pathways School. When he arrived, his mother's aspirations
were for her son to be able to complete basic life skills like reading road signs,
filing out a job application. After several months of intensive encouragement,
attention and a new school setting, her son now not only reads, but he can also
add, subtract, and multiply. He is a model citizen. The administrator and the
teacher report that the student is a pleasure to have at the school and they are
very pleased with his progress and the fact that they have accepted students in the
McKay Program.11

Selected Issues for Choice Programs
This section begins with a brief overview of general issues sometimes raised
regarding school choice programs. After providing a summary of IDEA
9This is unlike the Florida Opportunity Scholarship program in which schools cannot charge
tuition greater than the value of the scholarship.
10Testimony by Ms. Diane McCain before the House Subcommittee on Education Reform,
May 8, 2002. (Referred to hereafter as McCain Testimony). Some have attributed the
substantial growth in the number of participating students and schools to changes made in
the program in 2001. One significant change allows private schools to charge parents the
difference between the amount of the school’s tuition and fees and the amount of the
scholarship. Apparently in the first year of the program, schools could only charge parents
the amount of the scholarship. See “McKay Scholarships: Florida’s Special Vouchers.”
Draft paper by Carolyn D. Herrington and Virginia R. Weidner, College of Education,
Florida State University, January 2002. (Referred to hereafter as Herrington and Weidner.)
11McCain Testimony. Not all anecdotes are positive. See, for example, the Naples Daily
News
story, which reported allegations that funds from the voucher program had been
“pocketed” by owners of a firm operating private schools in Florida ( “Pensacola Voucher
School Workers Fired Amid Spending Questions”, March 16, 2002).

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requirements, the section discusses additional issues that could arise with respect to
a federal special education voucher program.
Background on School Choice Programs. In general, school choice
proposals have been made under the presumption that they would increase the range
and quality of educational opportunities available to pupils, including those from
low-income families, those who attend low-performing schools, and those whose
families seek an education provided by an entity other than their local public school.
Some proponents also suggest that the availability of school choice will improve
public schools through market competition. Some opponents express concern about
potential negative effects on public schools and their pupils, including the redirection
of public education resources and an erosion of the ideal of a common public
education for all. Additionally, some aspects of school choice raise constitutional
questions, especially when involving religiously affiliated schools.12 Although a
detailed discussion of this issue is beyond the scope of this report, the Supreme Court
recently held that a government educational assistance program does not run afoul
of the establishment clause if it is neutral with respect to religion and provides
assistance to a broad class of citizens who in turn direct the aid to schools of their
choice, which may include religiously affiliated schools.13
Overview of IDEA. School choice proposals could raise additional issues for
children with disabilities and their parents. To understand some of these issues, it is
necessary to have some understanding of the IDEA, the central federal statute dealing
with children with disabilities and special education. The IDEA both authorizes
federal funding for special education and related services14 and, for states that accept
these funds,15 sets out principles under which special education and related services
are to be provided. The requirements are detailed, especially when the regulatory
interpretations are considered. The major principles include requiring that:
! States and school districts make available a free appropriate public
education (FAPE)16 to all children with disabilities, generally between the
ages of 3 and 21; States and school districts identify, locate, and evaluate all
children with disabilities, regardless of the severity of their disability, to
12For a detailed discussion of these constitutional issues see David M. Ackerman,
“Education Vouchers: Constitutional Issues and Cases,” CRS Rept. RL30165.
13Zelman v. Simmons-Harris, 2002 US Lexis 4885 (June 27, 2002).
14Related services (for example, physical therapy) assist children with disabilities to benefit
from special education (20 U.S.C. §1401(22)).
15Currently all states receive IDEA funding.
16It should be emphasized that what is required under IDEA is the provision of a free
appropriate public education. The Supreme Court in Board of Education of the Hendrick
Hudson Central School District v. Rowley
, 458 U.S. 177 (1982), held that this requirement
is satisfied when the state provides personalized instruction with sufficient support services
to permit a child to benefit educationally from that instruction and that this instruction
should be reasonably calculated to enable the child to advance from grade to grade. IDEA
does not require that a state provide sufficient resources and services to maximize the
potential of children with disabilities.

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determine which children are eligible for special education and related
services;
! Each child receiving services has an individual education program (IEP)
spelling out the specific special education and related services to be provided
to meet his or her needs; the parent must be a partner in planning and
overseeing the child’s special education and related services as a member of
the IEP team;
! “To the maximum extent appropriate,” children with disabilities must be
educated with children who are not disabled; and states and school districts
provide procedural safeguards to children with disabilities and their parents,
including a right to a due process hearing, the right to appeal to federal district
court and, in some cases, the right to receive attorneys’ fees.17
Possible Additional Issues with Respect to IDEA. Because of the
unique nature of IDEA as both a grants program but also a civil rights act, additional
issues could arise with respect to a federal voucher program for children with
disabilities.
Would Students’ Rights Continue? One set of issues with respect to a
potential IDEA voucher program involves the extent to which the rights of children
with disabilities and their parents guaranteed under IDEA would continue under a
federal special education voucher system. Apparently, IDEA requirements and
protections do not apply to the Florida voucher program, because federal funds are
not included in the voucher payments and because parents are determined to have
unilaterally decided to place their children in private schools. But with an IDEA
voucher program federal funds could flow to private schools. The question would
then become what student and parental rights and private school obligations would
be attached to those funds.
Clearly, any legislative language on this issue would be key in making the
determination of what rights would apply. However, it should be noted that the
student and parental rights at issue would include not only those delineated in IDEA
but also those contained in other civil rights statutes, notably section 504 and the
Americans with Disabilities Act, as well as constitutional rights. Although ED stated
that section 504 and title II of the ADA were not directly applicable to the Florida
McKay program, the rationale for that conclusion was that the McKay program
received no federal funds. If federal IDEA funds were involved, that rationale would
no longer apply. In addition, private schools are covered under title III of the ADA.18
17For additional information on IDEA requirements, see Individuals with Disabilities
Education Act: Statutory Provisions and Selected Issues.
CRS Report for Congress
RL31529, by Nancy L. Jones and Richard N. Apling.
18 See 42 U.S.C. §12181 which defines public accommodation in part as “a nursery,
elementary, secondary, undergraduate, or postgraduate private school, or other place of
education.”

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However, title III specifically exempts entities controlled by religious organizations
from coverage19 thus limiting ADA coverage of religiously affiliated schools.
Would State and Local Funding Be Included? Regardless of the receipt
of federal funds, certain constitutional rights regarding an education for children with
disabilities may apply. The constitutional rights of children with disabilities to
receive an education if education is being provided to children without disabilities
were examined in two seminal cases: PARC v. State of Pennsylvania20 and Mills v.
Board of Education of the District of Columbia
.21 In essence, these cases found
constitutional due process and equal protection violations when children with
disabilities were denied education and were the impetus to the enactment of P.L. 94-
142, the original IDEA legislation. Although there have been few interpretations of
these constitutional rights since they were codified in the statute, it is likely that
courts would find some rights to exist even in the absence of IDEA although the
exact parameters of these rights are difficult to determine. One of the issues vouchers
would raise in this context is whether states and LEAs would be obligated to provide
funds to follow the child with a disability to a private school in addition to a voucher
for federal IDEA funds. It could be argued, based on PARC and Mills, that if a state
chooses to educate children without disabilities, it must also educate children with
disabilities and the existence of a federal voucher does not negate that responsibility.
On the other hand, it could be argued that if the state was willing to provide a free
appropriate public education and the parents opted to place their child in a private
school with the federal voucher, there are no other obligations on the state.
How Would Voucher Funding Be Structured? Other issues could arise
with respect to the mechanism for providing vouchers and the amount of the voucher.
Would states continue to receive their full IDEA formula allocation and then
distribute some portion of that allocation to parents via vouchers; or would the
federal government establish a separate source of funding to provide vouchers
directly to parents? What would be the amount of the voucher? For example, would
each child receive a voucher for the same amount, or would the amount of the
voucher be related to the type of disability? What could the voucher be used for?
For example, the voucher could be limited to tuition, or it could be used for other
expenses, such as transportation. Could private schools charge more than the amount
of the voucher (with parents making up the difference), or would tuition be limited
to the amount of the voucher?
Could Least Restrictive Environments Be Provided? To the extent
that IDEA guarantees continued to be provided under an IDEA voucher program,
another set of issues could involve the student make-up of participating private
schools. As noted above, a basic principle of IDEA is that children with disabilities
are to receive services in the “least restrictive environment” (LRE). This means that
“to the maximum extent appropriate” children with disabilities are to be educated
with their nondisabled peers in regular classrooms. “Only when the nature or
19 42 U.S.C. §12187.
20 343 F.Supp. 279 (E.D. Pa. 1972).
21 348 F.Supp. 866 (D.D.C. 1972).

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severity of the disability . . . is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily” can the child be
placed in a separate classroom or in a special school.22 “Inclusion” or
“mainstreaming” with children who are not disabled is not a problem for public
schools, at least in one sense, since children with disabilities usually account for 10%
or 12% of the overall enrollment. However one could imagine, under a voucher
system, private schools that specialize in serving children with certain disabilities.
(Such schools exist now for serving certain relatively severely disabled children.)
These specialized private schools might attract few, if any, nondisabled children.
Thus children in such schools would not be educated with their nondisabled peers,
even if those children’s disabilities were mild enough to permit their being educated
full time in regular public classrooms.23
Who Would Be Eligible for Vouchers? Another set of issues involves the
criteria under which parents and students could participate in an IDEA voucher
program. As discussed above, some federal public choice programs are linked to
evidence over time of school failure. For example, the No Child Left Behind Act
would only authorize intradistrict public school choice for students attending schools
that had failed to make adequate yearly progress for 2 consecutive years. On the
other hand, the Florida McKay Scholarships are available to parents who express
dissatisfaction with their child’s educational progress.24 The nature of participation
criteria could significantly influence the popularity of an IDEA voucher program.
For example, some could argue that the popularity of the Florida program can be
attributed, in part, to the ease with which parents can demonstrate eligibility.
Eligibility for Florida’s other voucher program–Opportunity Scholarships–is based
on school performance. To be eligible to transfer to a high performing public school
or receive a voucher to attend a private school, a student must be attending a school
that has failed, i.e., it is rated as an “F” school for two years in a four-year period.
Perhaps because an entire school must fail, rather than just a parent being
dissatisfied, participation in this program, according to at least one report, is more
modest: During its first year, only 2 schools were judged as “failures” and only about
140 students either transferred to a higher performing public school or took
22See 20 U.S.C. 1412(a)(5(A).
23One exception to the LRE requirement in the statute involves a child with a disability who
has been convicted as an adult and incarcerated in an adult prison. Based on a demonstrated
“bona fide security or compelling penological interest that cannot otherwise be
accommodated” the IEP team may modify this (and other) requirements of IDEA (20 U.S.C.
1414(d)((6)(B)).
24Apparently the original statutory language tied eligibility to a student’s academic
performance: scholarship availability required that “the student’s academic progress in at
least two areas has not met expected performance levels for the previous year as determined
by the student’s IEP–or, absent specific performance levels identified in the IEP, the student
performed below grade level on state or local assessments and the parent believes that the
student is not progressing adequately towards his/her IEP goals . . . .” Quoted in “The
Little-Known Case of America’s Largest School Choice Program” by Daniel McGroarty in
Rethinking Special Education for a New Century. Thomas B. Fordham Foundation and
Progressive Policy Institute. Chester E. Finn, Andrew J. Rotherham, and Charles R.
Hokanson, Jr., eds., p. 303.

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advantage of the voucher to attend a private school.25 Issues for a parental IDEA
voucher program include whether eligibility will be based on individual or school
performance or on parental dissatisfaction with the FAPE being provided. In
addition, would children with disabilities previously placed in private schools by
their parents be eligible? Under the McKay Scholarship program, such children are
not eligible.
Would Sufficient Choice Be Provided ? A related issue is the extent to
which private schools will choose to participate in an IDEA voucher program. The
McKay Scholarship experience suggests that participation rates can be quite high if
eligibility requirements are modest, and schools are permitted substantial flexibility.
Indeed this is one argument for vouchers and other choice programs, such as charter
schools; namely, that by reducing regulatory requirements, schools are freed to be
more creative and provide better education. However, the degree of freedom from
legal requirements may be inversely related to the degree to which IDEA guarantees
and protections follow the child and the IDEA funding to the private school. One can
surmise that the greater the degree to which federal statutes and regulations are
applicable to publicly funded children with disabilities served in private schools, the
more likely some or many private schools will choose not to participate.
In brief, current and proposed federal choice programs providing educational
options to a broad array of students and the Florida McKay Scholarship program can
inform a congressional deliberation on an IDEA voucher program. At the same time,
the special needs and unique rights of children with disabilities and their parents
suggest that additional issues are likely to be considered in any debate on such a
program.
25Herrington and Weidner, p. 1. Students from 10 failing schools will be eligible for
Opportunity Scholarships in school year 2002-2003. (For further information, see
[https://www.opportunityschools.org/Info/OSP/default.asp] .)