By Eve Hill
On January 29, 2025 President Trump issued an Executive Order to on Expanding Educational Freedom and Opportunity for Families. The Order frames the public education system as failing and promotes universal K-12 voucher programs, allowing families to use public funds for private school tuition. It also directs the Department of Education to prioritize school choice in its funding programs.
While the rhetoric of “choice” sounds appealing, what does it actually mean for students with disabilities and their families? The answer: fewer rights, fewer protections, and in many cases, no real choice at all.
The Rights at Stake
Students with disabilities in public schools have significant legal protections under federal law. The Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) ensure that public schools cannot discriminate against students with disabilities. They require reasonable accommodations, special education services, and protections such as Individualized Education Programs (IEPs) and due process rights.
The Private School Loophole
But private schools that accept vouchers are not public schools. Many are religious or for-profit schools. Because vouchers are given to parents – not directly to schools – these private schools argue they are not bound by the IDEA or Section 504. They also claim they are not state or local government entities, and, therefore, they are not covered by Title II of the ADA.
Instead, they argue they are only covered by Title III of the ADA. While Title III prohibits discrimination and requires reasonable modifications, the requirements are weaker than those placed on public schools. The key difference? Compliance depends on what’s “reasonable” within the budget and resources of the particular private school, which can be significantly smaller than those of a public school district or state school system. A service that is easily accommodated in a public school district with a $10 million budget may be deemed “too burdensome” for a private school with a fraction of that funding.
Higher Cost, Less Access
Voucher programs scatter students with disabilities across multiple private schools, making it harder to share resources like specialized staff and assistive technology. This drives up per-student costs, and in response, many private schools may simply avoid admitting students with disabilities altogether.
Without the protections of IDEA and Section 504, private voucher schools are not obligated to:
- Provide special education or related services
- Offer IEPs or conduct disability evaluations
- Ensure placement in the least restrictive environment
- Follow due process protections for students facing discipline
- Report how many students with disabilities they serve or what services they provide
Without legal obligations in place, families may be left to hope that private schools will voluntarily accommodate their child’s needs. If a school refuses, and if it is not a religious institution, parents can attempt to enforce their rights under the ADA—but only by filing a lawsuit in federal court. Unlike IDEA, which provides a local administrative process for disputes, ADA cases require costly litigation that many families cannot afford and that takes a long time. Even if they win, the remedies are weak: the school may be required to provide the accommodation going forward but does not have to compensate for past harm, reimburse tuition, or even return voucher funds.
The Situation is Even Worse for Religious Schools
Religious schools are completely exempt from the ADA. They can legally refuse to accept students with disabilities—or worse, accept voucher funds and then expel the child. If the federal government allows, or mandates, vouchers to be used at religious schools, students with disabilities will have even fewer choices.
The Bottom Line
Despite promises of “educational freedom,” this Executive Order may leave many students with disabilities without real options. True choice means having access to quality education with the necessary supports—not being forced into a system where schools can pick and choose which students they serve. If policymakers are serious about educational opportunity, they must ensure that any publicly funded program includes full legal protections for students with disabilities. Otherwise, school choice is little more than a false promise.
There are ways we can push back. The Supreme Court in Grove City College v. Bell (1984) held that federal grants to students that they used to pay a private college constituted federal financial assistance. Therefore, the college was subject to the federal antidiscrimination laws, such as Section 504. The same analysis should apply to private schools that accept vouchers, prohibiting them from discriminating against students with disabilities and requiring reasonable accommodations.
