By Mike Garvey, Washington Legislative Office, ACLU

As the Senate worked through the night last Friday on massive legislation that would overhaul the U.S. tax code, Republican Sen. Ted Cruz of Texas added an amendment that would effectively transform a college savings account into a school voucher for K-12 education. If the amendment survives, it would advance a type of policy that hurtsthe public school system and, as new evidence illustrates, hurts students with disabilities.

The provision would expand 529 savings accounts, which offer tax benefits for saving for future college costs, to cover tuition and other expenses at elementary and secondary schools, including private and religious schools. Given that 80 percent of private schools in America are sectarian, incentivizing families to enroll their children in private schools means incentivizing them to enroll — or continue to enroll —their children in private religious schools. Additionally, the type of tax break proposed in this bill would increasingly exacerbate educational disparities by reducing available funding and resources for public schools. It would leave those remaining in public schools to be educated in an underfunded system of last resort. Public schools, which serve 90 percent of the country’s students, are obligated to serve all students equally. But the same cannot be said for private schools, which can, for instance, reject students because they have disabilities. Numerous studies already present plenty of evidence of the ways that vouchers do not advance educational equity.

And last week, the U.S. Government Accountability Office (GAO) presented more in a new report that studied 27 voucher programs across the country. The watchdog found that vouchers fail to provide necessary or accurate information to parents of students with disabilities about the rights students forfeit when enrolling in a private voucher school. A third of the programs do not provide any information about these changes in rights under the Individuals with Disabilities Education Act (IDEA). And the vast majority — 83 percent — of students who enrolled in a voucher program for students with disabilities did so through a program that provided either no information or inaccurate information about changes in rights.

Making matters worse, neither IDEA nor Department of Education regulations require that parents be informed about changes in their child’s rights. When they do learn that their children don’t have the same protections, parents can be blindsided. According to the GAO, “confusion arises because parents are under the impression that since school choice programs are operated and funded by the state, and are often designed for students with disabilities, their children will have similar protections to those ensured to public school children under IDEA.”

This means that parents may unknowingly send their children to schools that aren’t required to have certified special education teachers, that do not provide some or all special education and related services, that do not educate students with disabilities with nondisabled peers to the maximum extent possible, and that do not adhere to disciplinary guidelines. With no requirement to uphold these rights, or even to provide accurate information about the forfeiture of these rights, you end up with scenarios like this:

“One family told us they were surprised to learn that teachers providing special education services to their child were not trained to provide those services, and another parent described changing schools because they learned aspects of their child’s disability could not be accommodated only after enrolling their child in a school.”

The weaknesses in these voucher programs put students of color with disabilities especially at risk. As detailed in a coalition letter today to Secretary of Education Betsy DeVos, these students are disproportionately subjected to punitive discipline practices, placed in restrictive learning environments, and misidentified for certain categories of special education. They are more vulnerable to a lack of clarity about rights and loss of IDEA protections.

It isn’t news that private school voucher programs overall have major accountability problems, and not only for students with disabilities. The GAO itself has twice studied the District of Columbia’s voucher program and found similar weaknesses in administration, oversight, and provision of information.

Despite all this evidence, the Senate amendment was adopted last week — by a 51-50 vote after Vice President Mike Pence broke a tie — and the House bill included a mostly similar provision in its own tax legislation, which has been praised by voucher proponent DeVos. Members from both houses of Congress are now attempting to reconcile the differences between the bills in a conference committee. This means that Congress is poised to use the tax code to advance the religious education of certain students at the expense of public schools and the students who attend them — even while evidence continues to mount regarding the harmful effects of vouchers, particularly for students with disabilities.

If Congress really wants to help every individual child, it should focus on ways to improve public schools — particularly those that serve underprivileged students, families, and communities— rather than chip away at their ability to serve all students. The government should not incentivize families to choose religious education through tax policy.