In March 2026, the Department of Education’s Office for Civil Rights announced that Washington, D.C. Public Schools had discriminated against children with disabilities by denying them access to a free appropriate public education. Assistant Secretary for Civil Rights Kimberly Richey explained:
After a thorough investigation, today’s findings reveal that D.C. Public Schools has extensively violated federal antidiscrimination law by failing to serve students with disabilities. Students and their families have been forced to demand accommodations the law entitles them through an adversarial system that, among other shortcomings, denies students timely evaluations, individualized placements, and reliable transportation that meets students’ needs.
The Department’s investigation was prompted by an earlier review by the D.C. Advisory Committee to the U.S. Commission on Civil Rights. The advisory committee, on which I served, determined that D.C. public schools placed the burden of access to federally mandated special education services on students and their families by requiring them to advocate for these services, such as by filing due process complaints. Federal data show that D.C. has a much higher rate of due process complaints filed in special education than other jurisdictions. In other words, the Committee found that D.C. was essentially rationing access to special education services, such as high-quality school placements, depending on whether families could initiate legal challenges against the school district.
A family should not need the financial resources to hire a lawyer and challenge its school district just to ensure that their child with disabilities has access to a high-quality learning environment.
In a new essay for the American Enterprise Institute’s Conservative Education Reform Network project, I argue that Congress should reform the Individuals with Disabilities Education Act (IDEA) to provide an incentive for states to offer parents additional education options to expand equal opportunity.
More than seven million children, or roughly 15 percent of kids in public schools, are served by the Individuals with Disabilities Education Act (IDEA). But a legal right to a free appropriate public education has not guaranteed that children with disabilities have access to an education that helps them reach their potential.
Over two decades have passed since Congress last reauthorized IDEA. The proliferation of state education choice programs should prompt Congress to modernize IDEA to reflect the current education landscape. Taking into account recent investigations that expose the flaws of an IDEA system that requires parents to advocate for their children’s rights, Congress should pursue a political “grand bargain” that increases funding for special education while encouraging states to expand parental choice options.
The essay expands upon a blog post that I published for FREOPP on the 50th anniversary of IDEA’s passage.
Since Congress last reauthorized IDEA in 2004, a growing number of states have established education choice programs that allow students with disabilities to choose alternative learning environments beyond their public schools. This means that children living in these states have options if their families are dissatisfied with their school’s services provided through their child’s Individualized Education Program.
In the essay for AEI, I argue that federal law under IDEA should reflect that states that provide these options have gone further to achieve the spirit of the original 1975 law, which sought to establish that special education students have equal opportunities to learn:
[S]tates with education choice programs are providing an additional benefit that complements IDEA’s guarantee of FAPE by offering families other ways to ensure that their child receives education services that meet their needs. Notably, states like Florida and Arizona that have the most mature special education choice programs have low rates of due process complaints, according to federal data.
How could Congress create enough bipartisan support to reauthorize IDEA after twenty years?
I suggest that lawmakers pursue a grand bargain: increasing federal funding for IDEA as a step toward Democrats’ longstanding goal of “full funding” for special education, while requiring states to provide parents with meaningful education choice options as a condition for receiving the additional federal dollars. Increasing funding for special education could reduce the scarcity of needed services, particularly for children with more severe disabilities, while expanding parental choice would allow more families to choose the right learning environments and services for their children without having to legally challenge their school districts.
To be sure, such a proposal would likely face questions from the left and right, some of which I attempted to anticipate and answer in the AEI essay. But a federal IDEA reform that combines new funding with broader parental choice might be able to attract 60 votes needed to pass the Senate.
As an interim step, I recommend Congress conduct fact-finding oversight of special education and IDEA compliance. The Senate HELP Committee and House Education and Workforce Committee could conduct a broader review of IDEA implementation and compliance to determine whether the discrimination we uncovered in Washington, D.C. is happening in other states and school districts. (On this point, a 2019 Government Accountability Office report found that, across five states reviewed, affluent school districts generally had higher rates of special education dispute-resolution activity than low-income districts. This raises questions about whether the practice of effectively rationing special education services based on families’ ability to pursue legal challenges extends beyond Washington, D.C.)
Lawmakers could also examine how education choice programs are serving children with disabilities. While a recent ProPublica investigation reported that many private schools in Florida do not serve children with disabilities, a recent evaluation of Arkansas Education Freedom Account program shows that 16 percent of students participating had disabilities, the same as the public school population, indicating that children with special needs are being served by education choice programs.
A congressional review of special education across the United States could uncover one of the biggest remaining areas of inequality in American K–12 education. In 1975, Congress acted to end the widespread exclusion of children with disabilities from public education. Fifty years later, IDEA’s promise of equal educational opportunity remains unfulfilled if children’s access to an appropriate education depends on whether their parents can afford to hire lawyers.
Conducting fact-finding oversight to better understand the current state of special education in the United States and reauthorizing IDEA to reflect that reality should be at the top of lawmakers’ education reform agenda in the 120th Congress.