On January 29, 2025, President Trump issued an Executive Order on Expanding Educational Freedom and Opportunity for Families. The Order frames the public education system as failing, while promoting the appeal of private education and directing the Department of Education to make school choice a priority for funding programs. It relies on a solution includes introducing universal K-12 voucher programs, allowing families to use public funds for private school tuition.
The concept of “choice” sounds appealing in theory, but 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.
Protections at Stake
Students with disabilities in public schools have significant legal protections under federal law, including the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA). These protections ensure that public schools cannot discriminate against students with disabilities. They also aim to provide a more equitable learning environment for students with disabilities by requiring reasonable accommodations, special education services, and protections such as Individualized Education Programs (IEPs) and due process rights. According to the National Center for Education Statistics, during the 2022-2023 school year, “the number of students ages 3–21 who received special education and/or related services under the Individuals with Disabilities Education Act (IDEA) was 7.5 million, or the equivalent of 15 percent of all public school students.”
The Private School Loophole
Private schools that accept vouchers do not become public schools. Many private schools that accept vouchers are religious or for-profit schools. Because vouchers are given to parents and not directly to schools, they are able to argue that they are not state or local government entities, and, therefore, they are not covered by Title II of the ADA, nor bound by IDEA or Section 504.
Instead, they claim to only be covered by Title III of the ADA, which prohibits discrimination and requires reasonable modifications. But those, requirements are weaker than those placed on public schools. Compliance with Title III depends on what’s “reasonable” within the budget and resources of each individual private school, which can be significantly smaller than the budget and resources of a public school district or state school system. While a school in a public school district with a $10 million budget can easily accommodate a necessary service, that same service runs the risk of being deemed “too burdensome” for a private school with a fraction of that funding.
More Costs, Fewer Opportunities
In addition, voucher programs scatter students with disabilities across multiple private schools, thus making it more difficult to share resources like specialized staff and assistive technology. This inevitably drives up per-student costs. As a result, 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 these 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.
No Protections in Religious Schools
Even harder: Religious schools are completely exempt from the ADA, meaning they can legally refuse to accept students with disabilities without consequences—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 Reality of the Situation
While this Executive Order promises “educational freedom,” the truth is, it stands to 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, the option of school choice is simply a false promise.
Thankfully, 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.
About Eve Hill:
Eve Hill, one of the nation’s leading disability and civil rights attorneys, co-leads Inclusivity. She previously served as Deputy Assistant Attorney General of the U.S. Department of Justice, Civil Rights Division, where she was responsible for oversight of the Division’s disability rights enforcement and educational civil rights implementation. Her responsibilities included enforcement, regulation, and policy development regarding accessibility requirements for websites and other digital technology; Olmstead community integration requirements in employment and education; and disability rights in education, law enforcement, and health care.
About Inclusivity Strategic Consulting: Inclusivity Strategic Consulting works to help government and private entities navigate a clear path to web accessibility to best serve all of their audiences and minimize potential liability. Inclusivity can help organizations adopt policies and procedures, priorities, and contractual requirements to make their websites and mobile apps accessible and keep them accessible into the future. Inclusivity is part of Brown, Goldstein & Levy, a leading civil rights law firm with offices in Baltimore, MD and Washington, D.C.