Fixing Special Ed, Part 8:‘Right of exit’ found key to genuine special-ed progress

In the late Sixties and early Seventies, when American courts — citing the U.S. Constitution — began flogging states and ultimately the U.S. Congress in the direction of what became the federal Individuals with Disabilities Education Act, such remedial action was profoundly needed and long overdue.

Today, however, IDEA is significantly behind the times and, as the different stories in this series have documented, struggling everywhere.

Unfortunately, the program’s problems are intrinsic, as a little reflection on the two main categories of the goods and services that we use will show.

One set has, for years, been marked by regular and reliable improvements in price and quality. Many are high-tech goods, such as our smartphones. But others are just everyday necessities — on which we spend much less of our incomes than did our parents just a generation ago. Indeed, even the poor today own better shoes, clothes, motor vehicles and entertainment systems than did the middle class back then.

On the other hand, some other goods and services we all use seem either stuck in stasis or to actually decline in quality, while growing more expensive. These would include health insurance, education and many other basic government services.

Right of Exit

What characterizes the first set of goods and services is that, in these sectors of the economy, we all have what is known as the “right of exit.” If you don’t like a product or service you are free to decline it. No government-imposed monopoly or regulations have been able to block or kneecap potential competitors. Thus, all of us can follow our individual, personal, preferences.

Remarkably, it is this fact — that we all can follow our preferences — that makes these goods and services constantly improve.

In other words, as we express our preferences through our choices, intelligent firms paying attention to those expressions of preference use that information to bring their products and services closer and closer to our hopes and desires — or even, as they test the markets, to our possible preferences.

Firms that do this successfully prosper and expand — while firms that do not, lose market share, go broke, and get bought up and sold for their constituent parts.

Consequently, within this sector where we have the right of exit, the goods and services offered to us evolve. A classic example: When the world’s first truly portable commercial mobile phone, the Motorola DynaTAC 8000X, went on sale in the US in 1983, it weighed two pounds and cost $3,995. In our current much-inflated dollars, that would be $9,975.58.

Yet today a much more powerful cell phone, with infinitely broader coverage, can be purchased for as little as $20.

And what is the situation in the sectors of our life where laws prohibit us from exercising the right of exit? In other words, where goods and services get delivered, or tightly metered, through the medium of federal, state or local governments? It is there that any evolution in goods and services only occurs very slowly and sluggishly, if at all.

For families with special-needs children, the meaning of this strikes home in a particularly excruciating way, since early delivery of appropriate services can make a lifelong difference.

In the course of things, however, nearly all Nevada parents of children with disabilities, hopeful and seeing no real alternative, enlist their children in their local school district’s special-education program, which — along with ostensibly supervising state and federal agencies — profess to implement the federal Individuals with Disabilities Education Act.

It is at this point that parents’ real-world education begins, regarding the difference between special-education law and special-education practice.

At a certain point, and realizing that their child’s entire future life is at stake, parents begin looking around for alternatives to what the school district is providing or, perhaps, for what it won’t provide.

It is then that parents learn how constrained their real choices are, given federal IDEA law’s multiple and costly bureaucratic and legal hurdles for parents who seek a truly individualized educational curriculum for their child.

In most states, parents must go through a time-consuming administrative appeal process, and then — if they find no relief — hire lawyers and begin lengthy years of legal fighting in state and federal courts. Even then, only at the very end of the fight can they be sure of success.

However, that is not the situation in all states today. Instead, a number of states, for assistance with their special-education challenges, have increasingly turned to an idea of the late Milton Friedman.

When Friedman came up with idea of school choice for families in 1955, he saw it as not only a way to improve the quality of public education but also as a way to make public money go significantly further.

Today, at least 15 states offer 18 different parental-choice programs specifically designed for the educational needs of children with disabilities. Those programs give parents flexibility, while saving states money.

Florida’s McKay Scholarships

The most senior of these programs — the McKay Scholarships launched by the State of Florida in 1999 — was, by the start of the 2016-17 school year, serving well over 31,499 students.

And when McKay numbers dropped a bit the next year, it was largely because of the rapid growth of a new Florida program that is even friendlier to special-needs families: the ESA-style Gardiner Scholarships. Meanwhile, total participation by Florida families with exceptional children continues to rise:

The McKay Scholarship Program for Students with Disabilities — named for a former state senate president who had learned of parents’ needs through a grandchild’s difficulties — provides scholarships to students who have attended a Florida public school and have an Individualized Education Program (IEP) written according to state board of education rules.

Students may use the scholarships to attend a participating private school or may attend another public school within or adjacent to the student’s district of residence.

If parents choose a participating private school, the annual scholarship is based on a cutting-edge matrix-determined state calculus, or the amount of the private school’s tuition and fees, whichever is less.

For the 2016-17 school year, the average scholarship award was $8,021 — with the actual scholarship amounts ranging from $4,970 to $24,096. The number of schools seeking to serve special-needs students through the program had increased from 1,163 in the 2012-13 school year, to 1,454 in 2016-17.

Under the McKay program, parents may provide tuition and fee funds in excess of the scholarship amount, if necessary.

However, that usually turns out to be a relatively modest amount, according to the first in-depth study done to answer questions regarding the McKay scholarships. The study included 600 interviews with parents or guardians whose child was currently enrolled in a McKay school, and 215 interviews with respondents whose child no longer attended a McKay school.

According to study directors Jay P. Greene and Greg Forster:

We found that majorities of both current and former participants pay nothing at all above the scholarship — 53.8 percent of current participants and 58.1 percent of former participants. Among current participants, 71.7 percent are paying nothing or less than $1,000 above the scholarship, while 27.3 percent are paying $1,000 or more above the scholarship. Among former participants, 75.8 percent were paying nothing or less than $1,000 above the scholarship, while 21.9 percent were paying $1,000 or more above the scholarship.

One surprising result of our survey was that among current participants, students with major disabilities are significantly more likely than students with mild disabilities to pay nothing above the scholarship, and also less likely to pay $1,000 or more above the scholarship if they paid anything. This is probably because students with major disabilities receive a larger voucher, as public schools would have spent more on educating them. Less surprisingly, current participants were more likely to pay anything above the scholarship, and to pay $1,000 or more above the scholarship, if they were in the white or high-income groups. Former participants produced no statistically significant differences by race, income, or severity of disability. (Emphasis added.)

Parents confirm superiority of McKay services, safety

The study’s interviews also demonstrated remarkable satisfaction with the McKay program on the part of parents and guardians:

The average satisfaction level for current McKay participants is 92.7 percent for their McKay schools, as opposed to 32.7 percent for the public schools they previously attended. Their average class size dropped from 25.1 students per class in public school to 12.8 students per class in McKay schools. Only 30.2 percent report that their public schools provided all required services, while 86.0 percent report that their McKay schools provide all the services they promise to provide. And students are far less likely to be bothered or assaulted by other students because of their disabilities in McKay schools than in public schools — 46.8 percent were bothered often and 24.7 percent were assaulted in public school, compared to 5.3 percent bothered often and 6.0 percent assaulted at McKay schools. Current participants also saw a drop in students reporting behavior problems at school, from 40.3 percent in public school to 18.8 percent in McKay schools. (Emphasis added.)

The study authors acknowledged that it “is not surprising that current participants would be better served by their McKay schools than they had been by their public schools, because otherwise they would presumably leave the program.”

However, even families that had left the program reported having been better served on virtually every measure in their McKay schools:

Their average satisfaction level is 45.2 percent for public schools and 62.3 percent for McKay schools. They saw average class size drop from 21.8 students to 12.7 students. Public schools provided all required services for 36.3 percent of former participants, while McKay schools provided all the services they promised to provide for 49.3 percent. Former participants also had fewer problems with other students at McKay schools; 41.4 percent were bothered often and 26.0 percent were assaulted in public school, compared to 20.0 percent bothered often and 10.2 percent assaulted at McKay schools.

Remarkably, the surveys — conducted in 2003 at arms-length by professional survey interviewers from the Taylor Nelson Sofres Intersearch firm — found that “in virtually all cases … no significant differences in satisfaction levels” were shown for “students with mild or major disabilities, families with incomes above or below $30,000, and white or nonwhite students.”

This holds true for both current and former participants, reported study authors. “Among current participants, the only two exceptions were that whites were moderately more satisfied than nonwhites with services addressing the child’s disability and with teacher quality. But in both cases nonwhites still reported very high satisfaction rates: 85.3 percent and 88.4 percent, respectively, as opposed to 29.5 percent and 48.2 percent in public school.”

It might be asked whether the results of the 2003 consumer surveys would still hold true today, 15 years later. The massive increase in the number of participating families over those years would strongly suggest that the answer is yes.

Florida’s Gardiner Scholarships

Originally known as Personal Learning Scholarship Accounts, and later renamed for the legislation’s primary author, Andy Gardiner, this program has been growing at a breakneck pace — over 646 percent in just four years:

What attracted some former McKay Scholarship recipients to the Gardiner Scholarships is the immense customization of special-needs students’ programs the latter program allows parents and guardians. For them, it fills a gap that parents often must instead pursue through extensive litigation against the local school district — if such customization can be pursued at all.

One example is that the Gardiner scholarship accounts are available to students who haven’t yet completed a year at public school. This proved very important to one family where their son’s public school experience was extremely short-lived.

“We started with Kindergarten, and within a week I knew we were in trouble,” the mother told a Florida legislative panel. “It wasn’t the school’s fault — they did everything they could to help me.”

But since the local public school was unable to address the child’s unique needs, his mother withdrew him — and thus did not qualify for a McKay Scholarship, which requires a previous year’s public-school attendance.

Thanks to the Gardiner law, however, the family was able to deposit into their scholarship savings account per-pupil tax dollars that otherwise would have been spent for their son to attend public school.

The Gardiner accounts can also be used to buy “unbundled” educational services from multiple providers — including instructional materials, curriculum, speech therapy, hearing aids, tuition, tutoring and assessment fees.

Having the flexibility to obtain “unbundled” services is particularly important to students with unique abilities, since many public schools will, at least confidentially, acknowledge that they are not equipped to adequately meet certain children’s needs.

Children on the autism spectrum, for example, make up over 64.9 percent of Gardiner recipients.

In essence, the Gardiner Scholarships are special-ed-targeted versions of the education-savings accounts passed into law by Nevada’s Republican-dominated 2015 Nevada Legislature — but denied funding by majority Democrats in the 2017 Nevada Legislature.

At last count, 12 states other than Florida have passed school-choice programs that allow special-needs families to exit dysfunctional school-district IDEA implementations and to customize the child’s education. In many respects the leader — even frequently ahead of Florida — has been Arizona.

Arizona’s education savings accounts; Lexie’s law

In 2011, the Grand Canyon State was the first to enact and launch education savings accounts, America’s newest school choice mechanism. The program, titled Empowerment Scholarship Accounts, was specifically dedicated to students with special needs and circumstances. During the 2017-18 school year, 4,525 students were participating, according to, with an average account valued at $12,400 — that is: 166 percent of public-school per-pupil spending.

In 2017, Arizona’s governor signed legislation that would expand the personalized-education options available to special-needs families and make them available to nearly all Arizona K-12 students. That expansion, however, is the subject of a pending 2018 ballot referendum sought by choice opponents. The referendum itself is also the subject of a legal challenge.

Lexie’s Law for Disabled and Displaced Students — America’s first tax-credit scholarship program for students with special needs — was both enacted and launched in Arizona in 2009. Twelve percent of students statewide are eligible. As of the 2015-16 school year, 936 students were participating at 148 schools. Awarding the grants — at an average value of $4,696 — were 14 scholarship organizations. The program is currently capped at a maximum of $5 million.

Florida-style programs could save Nevada millions

Las Vegas attorney Marianne Lanuti has represented special-needs parents in lawsuits against the Clark County School District for more than 20 years.

She says many of those parents want a larger role in their children’s education but that CCSD has essentially blocked it.

“I have so many parents that have their own tutors, that are willing to pay them to come in and help, and there’s been nothing but resistance” from the district, she told Nevada Journal.

“You know, you drop your kid off and there’s no cameras allowed, there’s no dialog, you never know anything that’s going on. The kid comes home with bruises, and you’re just told nothing.”

Yet, little of this seems necessary. The choice innovations Florida and other states have introduced in special education clearly reveal that programs such as the McKay and Gardiner scholarships can not only save states millions of dollars annually, but also provide the safer and superior service that thousands of families want — and are endorsing with their actions.

Indeed, multiple reasons suggest that the State of Nevada should seriously consider establishing programs modeled after the McKay and Gardiner scholarships.

First, significant numbers of parents in Nevada are increasingly concluding that, at least in the case of their own children, their local school district’s implementation of the federal special-education law is not satisfactory.

This problem — which has existed in Nevada for decades — would be significantly alleviated if and when state lawmakers establish a genuine “right of exit” from public school districts for families with special-needs children who already have IEP or 504 plans.

Parents or guardians happy with the local district’s implementation of IDEA would simply remain within their school-district program. Unhappy families, however, would be able to exit and to direct state scholarships — more or less equal to the child’s per-pupil funding — toward either an alternative, qualified, private school or into an education savings account on the model of the Gardiner scholarships.

If the latter, the parents and guardians could implement truly customized educational program for their children, purchasing the appropriate private services or products required — speech or occupational therapy, instructional materials, course tuition at eligible private or public schools and more.

During Florida’s 2016-17 school year, for example, children on the autism spectrum comprised 64.9 percent of Gardiner Scholarship students — powerful evidence that their parents overwhelmingly see such highly customizable education programs as the best option for their children.

Such a right of exit would relieve much of the pressure on Nevada’s Clark and Washoe county school districts from the many unhappy parents. Reducing the number of lawsuits against the districts, it would thus significantly reduce district litigation costs, as well as high-dollar financial settlements.

A second reason why such a right of exit, accompanied by appropriate funding, would benefit the people of Nevada is that it would introduce a significant element of real-world market discipline into a major dimension of Silver State public education expense. Generally, around the U.S., special education spending exceeds 20 percent of K-12 budgets.

True, an extensive Nevada private-sector marketplace in special-education services would not be in place instantly. But the presence of such choice programs could quickly attract to the state many of the education and other specialists that are already present in Florida and Arizona. And their presence in the Silver State would benefit both the families and the school districts.

Finally, the Florida special-education choice programs for parents could provide the State of Nevada, as well as its taxpayers, with significant financial savings.

According to the 2017 State of Nevada Education Databook, in school year 2014-15 “the average cost to educate a student in Nevada with special education needs was $18,125.” That sum included the expenses for both general-education classes and special-education programs.

In Florida for the same year, however, the average cost of all McKay special-ed students was only $7,681 annually — which, in Nevada, would have translated into a remarkable per-pupil saving of $10,444.

The same Databook also reported that total Nevada special education enrollment that school year was 53,761. Thus, if Nevada had been offering McKay-style scholarships that year and merely a quarter of its special-needs students had opted for them, the savings to the state and its taxpayers would have exceeded $140.3 million, or $280 million for the biennium.

Of course, to the extent that families would prefer the Gardiner type of scholarships, the savings might be marginally reduced: For the 2017-18 school year, the average Gardiner scholarship in Florida was $10,000 — a bit over half of what Nevada spent per-pupil in 2014-15.

However, although the dollar savings are not as great, the satisfaction of Nevada parents — judging from the Florida record — would be even greater.

As almost certainly would be the satisfaction of the special-needs youngsters themselves.


Earlier in the series:

Part 1: Supremes’ decision on special-ed sets higher standards for care

Called ‘a recipe for financial disaster’ by unhappy
public-schools groups

Part 2: New, higher special-ed costs looming for State of Nevada

9th Circuit signals lack of patience with ploys
school districts have used to suppress costs

Part 3: School systems have circumvented federal special-ed law for decades

Los Angeles, Texas, New York exemplify
noncompliance styles

Part 4: CCSD asked for special-ed audit then attempted to hide results

Revealed: Records tampering, state and
federal law violations, illegal IEP changes

Part 5: 2001: CCSD, State of Nevada lose
precedent-setting Amanda J. case

Apparent shift in district’s strategy follows:
Fight until jury trial looms, then settle with parents

Part 6: Special-ed has a fundamental problem:
government rigidity blocks innovation

Leaves school administrators stuck within
a system-corrupting dilemma: kids vs costs

Part 7: Autism, dyslexia, societal changes
reveal a broken special-ed system

Foot-dragging school districts face future of increasingly costly settlements


Steven Miller is managing editor of Nevada Journal and senior vice president at the Nevada Policy Research Institute.


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