In many school systems across the country, children with disabilities are not receiving the education that they are entitled to by law and need in order to reach their full potential. Although there are certainly triumphant examples of school systems that have succeeded in supporting students with special needs, there are unfortunately far too many examples of neglect, misunderstanding, and, ultimately, failure across the country. Into this struggling system emerges an expanding and difficult challenge that only adds further pressure. Due to the growing numbers of children diagnosed with Autism and the level of expertise required to deal with many of the symptoms of this disorder, educating children with Autism has become a particularly pressing issue for both the school systems and the families of children with this disorder. Confronting this struggling system to which additional pressure is being added, some state legislatures have proposed a dramatic rethinking of how to most effectively educate children with special needs. A number of state legislatures have moved forward with voucher programs that allow the families of disabled students to forgo public school and instead use public funds for a private school program that the family deems a better alternative for the student's needs. While most of these programs cover children with disabilities generally, a small number of these proposals have been Autism-specific. Much of the debate surrounding these programs has been politically charged, with proponents of universal school voucher programs lauding these programs and teacher's associations posing opposition. There has also been significant debate and division within the disability community itself about the merits of these programs. The legal academy, however, has spent little time examining this legislative solution to the disability education problem. Moreover, the scholarly work that has engaged with this issue shares a fundamental flaw: failure to recognize that an imperfect solution may still be the best solution available. This Article seeks to evaluate the advantages and disadvantages of special needs voucher programs within the context of the reality facing families of children with special needs. This Article will focus on how these programs affect the education of children with Autism because it is difficult to evaluate these programs without a more concrete context. This Article focuses on the pressing problem associated with educating the growing population of students with Autism, evidenced by the fact that some proposed voucher programs are specifically targeted for and limited to children with Autism. Part II will give a brief definition of Autism Spectrum Disorders and then describe the harsh reality that many families of children with Autism face when trying to educate their children in public school systems. Part III will survey the existing special needs voucher programs that have been created in response to problems in the public school systems. With that context in mind, Part IV will examine commentators' criticisms of special needs voucher programs and will strive to evaluate those critiques without ignoring the reality that exists for children with disabilities, such as Autism, in many public school systems around the country. This Part will conclude that, while there are some valid concerns, ultimately the programs still give children with disabilities, particularly children with Autism, and their families a better option than is available to them in public school systems. Part V will suggest that there is an underlying, fundamental reason that opening up a private school option to children with serious special needs, such as Autism, offers a better policy solution to this complex and growing problem: because it allows both the school and the family of the child to choose one another. This element of choice allows a beneficial and trusting relationship to form between the school and the family, something that is unfortunately missing in some public school systems that are required to educate students with special needs. This overlooked and unappreciated aspect of the relationship between the school and the family is explored in a manner that illuminates the enormous significance that the relationship plays in accomplishing the difficult task of providing an appropriate individualized education. Finally, Part VI will explain how the issue of special needs voucher programs has created a debate among partisan interest-group politics and will argue that politicizing the issue has turned what should be an open exploration of a creative solution to a serious problem into a symbolic battle of ideological purity.
42 Cap. U. L. Rev. 53 (2014)