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New Jersey lawyer focusing on special education law and employment law

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NJ Scholarship Opportunity Act and Special Education

The NJ Scholarship Opportunity Act is generating a tremendous amount of buzz these days. Reporters, bloggers, and special interest organizations, are debating whether the Act will benefit children who attend the “worst” schools in New Jersey, whether the Act saves the State money, and whether the Act makes sense from an educational point of view. See here, there, over yonder, way over there, and this and that.

The Act (as currently drafted) is a five-year pilot program that will provide scholarships (or “vouchers”) to as many as 40,000 low-income students to attend an out-of-district public school or private school of the student’s choice. Regardless of whether the Act is beneficial and fiscally responsible, the fact is that many parents from low income areas are very excited about the prospect of pulling their children out of “failing” schools and sending them to different schools.

What has not been discussed is how the Act will benefit children with disabilities if their parents want to send them to an out-of-district public school or private school.

First, let’s talk about who will be able to take advantage of the NJ Scholarship Opportunity Act. Students who will be eligible for the scholarships must come from one of thirteen districts: Asbury Park, Camden, East Orange, Elizabeth, Jersey City, Lakewood, Newark, Orange, Passaic City, Paterson, Perth Amboy, Plainfield, and Trenton.

If a student does not attend a school in one of these districts, he or she will not be eligible for the scholarship.

Although the Act prohibits discrimination on the basis of disability, the Act does not require that public school districts disburse a proportional share of state funds for special education services to receiving private schools for children who receive these scholarships.

As I previously explained in a blog article from last year: when parents choose to send their disabled children to private schools, public school districts must disburse a proportionate share of IDEA federal funds for special education services to those children who reside in the district and attend private schools. However, public school districts are not required to disburse state funds for special education services to private schools.

Ideally, there ought to be a provision in the NJ Scholarship Opportunity Act requiring that school districts disburse a proportional share of state funds for special education services to children who attend private schools under this bill. But at the time of this writing, there is apparently no such provision.

In fact, the Act requires that parents provide “written acknowledgment” that private schools “may not provide the same level of special education services that are provided in a public school.” See Section 6-b-(4)-(b) of the Act.

Therefore, it is questionable how this Act benefits children with disabilities if private schools do not receive all of the funding necessary to provide special education services to its students. Put in another way: unless they had money to spend, why would parents who reside in “failing” school districts want to send their disabled children to private schools if the private schools are not able to provide the same level of special education services that are provided in public schools?

We know that in most cases, parents who reside in “failing” school districts are from low income communities and will not be able to pay additional monies for special education services for their children. Thus, it appears unlikely that parents who have children with disabilities and reside in one of the thirteen districts will take advantage of the Act. Or, if some parents do take advantage of the Act, they may end up regretting it because they will realize that not all of the services are being provided at the new school due to lack of sufficient funding for special education services.

There is also another issue that has not been adequately addressed by the NJ legislature: It is not clear whether in-district public schools will disburse state funds to out-of-district public schools for special education services under the Act.

Based on the amount of political support for the NJ Scholarship Opportunity Act, it seems likely that the Act will become law one day. But before it becomes law, however, I hope the NJ legislature reevaluates the Act through the lens of children who have disabilities and clarify some of the issues as they relate to special education.

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