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The Positive Legal Consequences of Disabilities TAG Grants

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As the General Assembly struggles to reduce costs and burdens on local school divisions this year, they might cast an eye towards the issue of students with disabilities.First created 35 years ago, the federal Individuals with Disabilities Education Act responded to a time when a majority of disabled students were totally excluded from schools, sat ignored in regular classrooms or warehoused in centers where very little education went on.

Today, the education of students with disabilities is light years ahead of where it was three decades ago. But no matter how superb a school’s program may be, there will always be students needing a more specialized education that is often too challenging for a school system trying to educate a broad range of students.

And parents who disagree with their child’s placement often find themselves in a clash of wills with their local school system – one that can tie up staff time in placement hearings and lead to expensive litigation in the courtroom.

That’s why five states – Arizona, Florida, Georgia, Ohio and Utah – have developed scholarship programs for students with disabilities. Parents in those states can receive a state scholarship that partially covers the cost of tuition at a private (or different public) school. The process is simplified – no drawn out hearings, no lengthy testimony, no tying up staff time and certainly no recourse to the courts.
Parents are more satisfied with the process – and public school systems are able to focus their attention and resources on their main mission:  the education of the children within their schools.

Since 2006, State Senator Walter Stosch has introduced legislation creating such a Tuition Assistance (TAG) Grant for students with disabilities in Virginia – sometimes limited to students with autism, sometimes more broadly based. It provided that if a student with disabilities was not making progress in school, the state funds already being spent in the public schools for that child could be redirected to an alternative private placement, licensed by the Department of Education, that would be more effective.

Opponents of the idea argue against it on both a fiscal (“it will drain the public schools of funds”) and legal (“it will lead to skyrocketing lawsuits”) basis. But both arguments are groundless.

Johns Hopkins University’s Dr. Susan Aud analyzed the fiscal argument in 2007 – and concluded that local school systems would in fact see a small windfall for each student who used a TAG Grant. Because, although the locality would lose its state funding (an average of about $5,000 per child), they would also lose most of the expenses connected with that child – and be able to retain all of the local funds that otherwise would have been spent.

Now, former Virginia Solicitor General William Hurd has similarly analyzed the legal arguments offered by opponents – and concludes they lack merit. Hurd, who devotes a significant portion of his private legal practice to representing the parents of children with disabilities in disputes with local school systems, carefully deconstructs the line of reasoning used by opponents of a TAG Grant.
Would parents take the grant, spend it, and then want to move back to the public school? Not likely, says Hurd, but even so, this can be easily resolved by dividing the grant into installments.

Would parents take the TAG money, move their child to a private school and then demand that the school system pay the entire amount of the private tuition? To guard against that, the state could require parents to state, as a condition of receiving the grant, that the school system offered an “appropriate” program. Because public schools can only be required to pay for private placements if their own offering is “not appropriate” parents would essentially be signing away their legal case for a lawsuit.

In short, “Under the IDEA, so long as the school system’s placement is ‘appropriate,’ the school system wins. Even if the private program would be better for the child, the school system still wins, and the parents recover nothing. Nothing in the TAG legislation would change this,” says Hurd.

Rather than an increase in expensive legal actions, a TAG Grant will likely lead to a decrease.  Under Florida’s long-running disability scholarship program, requests for due process hearings fell nearly 25 percent – from 206 in the 2003-04 school year to 158 in 2007-08. In the same period, fully adjudicated due process hearings dropped like a rock – from 38 to five.

Stosch’s bill (and one introduced by Delegate William Janis) offers an opportunity for local school divisions to reduce student costs, retain more of their own local revenue and slash expensive and time-consuming staff and legal costs simply by lending parents a helping hand in making their own choices about their child’s education.
It’s an opportunity worth looking at.

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