LDA Legislative News – November 2019

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LDA Joins Amicus on Supreme Court Case

LDA has joined an amicus curiae (“friend of the court”) brief with 19 other national disability and civil rights organizations in the case of Espinoza v. Montana Dept. of Revenue, which will be heard by the U.S. Supreme Court on January 22, 2020.  The case revolves around a tax credit for contributions to “student scholarship organizations,” which in turn gave “scholarships” (vouchers) to families for use in private sectarian and non-sectarian schools.  LDA has a long history of keeping public funds for education in public schools, and this case could turn that principle on its head.

While the U.S. Constitution contains no specific provisions on education, many states, including Montana, have constitutional provisions that support a system of public education for all students.  Montana’s constitution also has a “no-aid” provision explicitly prohibiting direct or indirect aid to sectarian schools.

In 2015, the Montana legislature passed a bill allowing taxpayers or corporations to receive a dollar-for-dollar tax credit for contributions to “student scholarship organizations,” which in turn pay those funds to private schools (“qualified education providers”) for tuition assistance.  This is the only dollar-for dollar tax credit in the state.  Because of the constitutional no-aid provision, the Department of Revenue promulgated a rule excluding sectarian schools as qualified education providers under the program.  Only three Montana counties have secular, non-tribal private schools, and two-thirds of the state’s private schools are religiously affiliated.  In addition, one of the few non-sectarian private schools that accepted the tax credit scholarship is a school for children with learning disabilities.

Several families chose to challenge the exclusion of sectarian schools under the Department of Revenue rule.  The families won in the district court, which prevented the rule from taking effect.  Subsequently, the Montana Supreme Court reversed the District Court, stating plainly that the tax credit program violates the Montana constitution. The Court noted the dollar-for-dollar tax credit scheme in effect meant the taxpayer donated nothing to the scholarship organization. Rather, the taxpayer received a lower tax bill, and the funds essentially were a prohibited “indirect payment” to sectarian schools.  In fact, the Court invalidated the entire program, stating it aided religious schools, a violation of the “no aid” clause of the state constitution.

Now, for the first time as the case comes before the U.S. Supreme Court, the families are raising federal constitutional questions.  The Court will examine whether the Free Exercise Clause or the Equal Protection Clause of the U.S. Constitution requires a state to aid private religious schools, even when the state does not similarly aid private non-sectarian schools and not withstanding a state constitutional  provision prohibiting such aid.

The amicus brief signed by LDA focuses totally on the impact of children with disabilities when school vouchers, tax credits, or other schemes are used.  The brief highlights a number of key points, including that the IDEA does not apply for students in private schools.  That means that they are not entitled to an individualized education program, placement in the least restrictive environment, or any of the rights and protections that are a part of the IDEA.  The brief also discussed the fact that private schools can have entrance requirements that discourage or discriminate against students with disabilities.  Private schools do not have to address behaviors of students with disabilities when that behavior is a manifestation of the disability, as public schools must under the IDEA.  In fact, those students are more often suspended or expelled, and families have no recourse.

Other briefs have been filed from national education organizations, special education administrators, and a host of groups that oppose this program.  Many state constitutions have “no aid” provisions.  If the Supreme Court rules for the families in this case, those provisions could be in jeopardy across the states, opening the door for more schemes to use public funds for private schools.  This case is critically important to preserving the already too few federal dollars that support American public schools.

Click here to read the amicus brief.

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Why Can’t Congress Complete FY 2020 Funding?

Just as this article was finished, the president signed a second continuing resolution until December 20. The first continuing resolution – a stopgap measure to keep the government operating when funding levels have not been established – expired on November 21.  LDA members need to know what funds will be available for schools, healthcare, housing, and other federal agencies to ensure programs are able to be available to eligible individuals with learning disabilities.

Since Fiscal Year 2020 began on October 1, the situation becomes more serious with each passing day.  While the president signed the latest continuing resolution, he has also continued to insist that nothing in the funding bill can hinder work on the border wall.

The hope is that work on all 12 appropriations bills, which fund every federal program and activity, could be completed by the December 20 expiration of the next continuing resolution.  However, that seems unlikely.  The result would be at least another short-term continuing resolution for those federal agencies whose appropriations levels are still not settled.

LDA monitors the appropriations process very closely.  The organization has signed on to several letters with partners in the disability, education, civil rights, and juvenile justice communities urging Congress to settle on adequate funding levels to ensure programs can continue to serve eligible individuals.  The Labor-Health and Human Services-Education appropriations bill continues to be one of the most contentious, with the Senate proposing a freeze in funding, and instead using any potential increase for the Department of Homeland Security and the border wall.

Hopefully, by the time this article appears, Congress will be well on its way to settling FY 2020 funding, already three months into the year.

New Civil Rights Data Analysis Released

The National Center for Special Education in Charter Schools (NCSECS) has just released a new report analyzing data from the Civil Rights Data Collection (CRDC), compiled by the Department of Education’s Office of Civil Rights.  The most recent data are from the 2015-16 school year.  The CRDC examines key issues, including overall enrollment and demographics such as eligibility for special education, race, and gender, educational environment, and discipline. These data provide information on current and longitudinal trends for students with disabilities.

The CRDC is administered every other year to every public school in the country, rather than a sampling of schools.  The purposes are to collect data on major civil rights indicators related to access and barriers to educational opportunity; ensure recipients of federal funds do not discriminate based on race, color, national origin, sex, and disability; assist with investigating complaints of alleged discrimination and provide policy guidance and technical assistance; and, serve as a resource on data related to student equity and opportunity.

The Center has conducted an analysis of CRDC data after each of the previous three collections.  This year’s report highlights several key trends:

  • There has been an increase in the proportion of students with disabilities in both charter and traditional public schools, and the last ten years have seen a decrease in the difference in enrollment between charter and traditional public schools.
  • Students with disabilities in charter schools spend significantly more time in the general education classroom than students in traditional schools.
  • Students with disabilities are disciplined approximately twice as often as students without disabilities in all types of public schools. Charter schools suspend students with disabilities at a higher percentage than traditional schools in the same states.
  • There has been an increase in the number of students identified as having a disability, with a disproportionate number being male and African American students.
  • Charter schools that operate as their own school district – as opposed to being a part of the local school district – enroll a higher proportion of students with disabilities, have a higher percentage of those students spending 80 percent or more time in the general education classroom, and suspend and expel all students at a higher rate than traditional public schools.

To read the full report, click here.

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