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On the provision of special education services for students attending private schools, state laws may grant rights that federal regulations do not.

In education, the federal government takes a back seat to the states. The U.S. Constitution does not give Congress authority over education, which means Congress cannot directly regulate education. But Congress does have the authority to spend for the general welfare and regulate interstate commerce, and, in modern times, we see Congress exerting pressure in many areas, including education, through its spending powers.

Thus, most federal regulations in education come in the form of strings attached to federal funds. If a state, local government, or institution accepts federal funds, then they must abide by the regulations that come with them, both directly and indirectly. Such is the case with the Individuals with Disabilities Education Act (IDEA).

Through IDEA, students with disabilities are guaranteed a free appropriate public education. Specifically, the law requires local public school districts to assess students to determine if they need special education services, and it requires districts to provide each eligible student with an individualized education plan (IEP), which describes the special education services the student will need. Further, it entitles students to be placed in the least restrictive setting in which it is possible to serve their educational needs. It specifies also that during any school disciplinary procedures, students — including those with emotional or behavioral disabilities — are entitled to a determination of whether their behavior is related to their disability; if so, they may not be disciplined through regular disciplinary procedures for those behaviors. Additionally, they are entitled to educational services even if they are expelled, and if students and parents believe their rights are not being protected, they can go through due process procedures to question school decisions and practices.

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Defining the parameters

The application of IDEA has raised complicated questions about the parameters of federal and state authority in education. While states and local districts must abide by these federal statutes and regulations, in some situations states can also provide additional rights to students and teachers, and some have chosen to do so. That is, federal authority provides the floor but not a ceiling.

Herein lies the difficulty involved in determining which services districts have to provide to private school students with disabilities. This was the issue recently presented to the 8th Circuit Court of Appeals in Minneapolis Public Schools v. R.M.M. (2017). As plainly stated by the court, “This case touches upon important questions regarding the needs of children with disabilities like R.M.M., the duties school districts like MPS owe these children, and the education policies chosen by governments at the state and federal level.”

The application of IDEA has raised complicated questions about the parameters of federal and state authority in education.

R.M.M. attended a private Catholic school. She was struggling and, during 5th grade, Minneapolis Public Schools evaluated her for special education services. The evaluation determined that she needed special education for reading, writing, and math, and MPS proposed an IEP that provided her with two 30-minute reading sessions and two 30-minute writing session per week. The IEP called for her to be bused twice a week to a nearby public school to receive these special education services.

 

During the school year, the private school informed her parents they could no longer meet R.M.M.’s educational needs and recommended she be enrolled in MPS. Her parents requested a due process hearing, asserting that MPS had not provided her with a free appropriate education as required by IDEA. In response, MPS said R.M.M., as a private school student, had neither an individual right to a free appropriate public education nor a right to a due process hearing to claim that right. Although IDEA had included that right when the law was first passed, Congress removed that right in 1997. The amended federal statute is clear: “No parentally placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.”

Recently, in Endrew F. v. Douglas County School District (2017), the U.S. Supreme Court clarified what is entailed by a free and appropriate education. In a unanimous opinion, the Court found that IDEA requires an educational program that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” For a special education child being educated in a regular classroom, it should “enable the child to achieve passing marks and advance from grade to grade.” (See Under the Law, September 2017.)

However, under the 1997 amendment to the law, IDEA does not provide private school students with that right. Rather, it provides services to private school students through what is called proportionate share funding: Funding is provided for services, but it is limited according to the proportion of students with disabilities that private schools serve. Further, there is no guarantee of access to a due process hearing. If parents take issue with special education services provided, their only recourse is through a state complaint procedure.

But, of course, states can offer additional rights and services to students with disabilities, and the 8th Circuit Court found that Minnesota law does require districts to provide a free appropriate education to all students with disabilities. According to a Minnesota statute, “No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service . . . because of attending a nonpublic school.”

Further, the court found that Minnesota provides additional rights to parents. It held that “when a state provides for educational benefits exceeding the minimum federal standards . . . the state standards are enforceable through IDEA,” thus giving R.M.M. and her parents access to the IDEA due process procedures.

Most states do not provide IDEA rights and protections to private school students.

But Minnesota’s situation is not typical. Most states do not provide IDEA rights and protections to private school students. When parents place a child in a private school, they basically waive their rights to the individual substantive guarantee of an appropriate education and for the procedural safeguards of due process. IDEA requires public school districts to assess the needs of special education students enrolled in private schools, but districts are not required to provide those children with the same services they would receive in a public setting. (Most private schools are subject to the antidiscrimination provisions of the Americans with Disabilities Act, but that does not entail the same individual substantive guarantees of a free appropriate education.)

IDEA and vouchers

The education media have reported often about the growing number of states that allow students to use public funds to attend private schools. Less often noted, though, is that in most cases, when students enter these voucher programs, they give up their IDEA rights and protections — this is true, for example, in Arizona, Colorado, Florida, Georgia, Oklahoma, Mississippi, Tennessee, and Wisconsin. Most parents do not know they are giving up this level of service when they accept a voucher.

One might expect special education voucher programs — as exist in Florida, Ohio, and Wisconsin — to provide the best guarantees for students with disabilities. But they don’t. Private schools, even under these programs, do not have to implement the IEPs developed for students and are not required to provide an appropriate education for the students they serve. Nor are they required to offer due process hearings when issues of implementation or discipline occur.

All of this may catch parents and educators by surprise. And perhaps it will encourage state lawmakers to expand the rights of students with disabilities through state statutes like Minnesota’s.

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

Originally published in November 2017 Phi Delta Kappan 99 (3), 76-77. © 2017 Phi Delta Kappa International. All rights reserved.