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Services for Private School Students Under the Individuals With Disabilities Education Improvement Act: Issues of Statutory Entitlement, Religious Liberty, and Procedural Regularity

Posted on: Sunday, 29 April 2007, 03:00 CDT

By Weber, Mark C

Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 ("Improvement Act") amends the Individuals with Disabilities Education Act ("IDEA") with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private school children: (1) The existence of any individual entitlement that private school children and their parents may have to any particular level of publicly funded special education services; (2) Whether denial of equal, or even of any, services to some private school children unconstitutionally burdens free exercise of religion or parents' rights to control their children's upbringing; and (3) The risk of arbitrary decision making in allocating services among private school children. With regard to the first issue, this Article demonstrates that Congress has not created any enforceable individual entitlement to special education services for any given private school child. Some states, however, have established an individual entitlement. Regarding the second problem, this Article concludes that it is constitutionally permissible for public schools to refuse to fully subsidize private school children's special education services; any contrary view would expand constitutional rights to public services of private school children and their parents beyond acceptable bounds. Regarding the third problem, this Article advances the position that the Improvement Act creates risks of arbitrary and unfair allocations of services that are unacceptably high, and that under due process principles, transparency of the allocation process needs to be guaranteed.

Some suspect a hidden agenda.1 For others, the agenda is anything but hidden: The Bush administration favors private schooling.2 The federal budget proposal released in March, 2006 offered $100 million in funding for $4,000 private school scholarships and $3,000 tutoring grants for students in underperforming public schools.3 Last fall, the administration proposed that $500 million be spent on private school tuition for students displaced by the Hurricane Katrina disaster.4 The President himself has consistently supported voucher programs to pay the tuition of students at private elementary and secondary schools.5 The No Child Left Behind initiative, which is the centerpiece of the administration's effort on education, requires remedial activity for schools whose students, including defined subgroups of students, do not make adequate yearly progress towards standards of proficiency.6 The actions include permissive transfers, supplemental private services, and ultimately, school reorganization that may entail ceding operations to an outside provider of services.7 The private education nature of these steps has led to sharp accusations that the real goal of No Child Left Behind is to undermine public education and promote private schools.8

The Individuals with Disabilities Education Improvement Act ("Improvement Act"),9 passed in December of 2004, reauthorizes and amends the Individuals with Disabilities Education Act ("IDEA").10 IDEA is the basic federal legislation that furnishes assistance to states and school districts for providing special education to students with disabilities. It requires states and school districts to guarantee free, appropriate public education to all school-aged children who have disabilities." One of the stated goals of the Improvement Act is to coordinate special education with the No Child Left Behind effort,12 so it is hardly surprising that the Act addresses the availability of services for children with disabilities whose parents have voluntarily placed them in private schools. Remarkably, however, the amended provisions relating to private schools do not increase funding of services for children attending school in those settings. They do not create a federal voucher program for students with special education needs.13 Instead, the Improvement Act preserves the essence of the most recent (1997) revision of IDEA as it relates to children placed by their parents in private schools for religious or other personal reasons.14 In some places, the Improvement Act codifies rules previously established by regulation, modifying them only slightly.15 Most significantly, the Improvement Act does not explicitly establish any individual entitlement to special education services for any private school child, nor does it require that services provided to private school children be delivered on the site of the private schools or by means of private school personnel.16 It affords few procedural rights to parents of private school children to challenge decisions about services.17 The private schools provisions of the new law thus do not represent a major victory for those with a pro-private school agenda.18

A primary purpose of this Article is to make and support the point just advanced, the descriptive claim that the Improvement Act represents continuity in the field of special education services for children in private education. Emerging from the description, however, are three additional problems: (1) The existence (or non- existence) of any individual entitlement that private school children and their parents may have to any level of publicly funded special education services; (2) The question whether denial of equal, or even of any, services to some private school children unconstitutionally burdens free exercise of religion or parents' autonomy to control their children's upbringing; and (3) The risk of arbitrary decision making in allocating services among private school children. The first problem is resolved by statutory construction and regulatory interpretation; this Article will demonstrate that under current law, as under prior law, Congress has not created any enforceable individual entitlement to special education services for any given private school child. Interestingly, however, some states have established an individual entitlement, and this Article will catalogue the authorities setting out such a right. The second problem is resolved by asking whether the burden on free exercise and parental control worked by denial of equal support for private school children in need of special education is a penalty for exercise of rights to educate children in private and religious institutions, or merely a refusal to subsidize that choice. This Article will conclude that it is a constitutionally permissible refusal to provide a subsidy and will suggest that the contrary view would expand constitutional rights of private school children to public services beyond acceptable bounds. The third problem remains a problem. The absence of an individual entitlement and procedural rights means that there is little in the way of a check on public school decisions to allocate or withhold services. The law presents risks of discrimination among identically situated private school children, and of arbitrary decision making in general. IDEA affords group consultation rights,19 but these are a poor substitute for a guarantee of regularity in the provision of needed government services. This Article does not advocate increased special education services for children in private schools, but it advances the position that procedural regularity of the system needs to be guaranteed.

Many writers have commented on the general topic of subsidies for private schooling, particularly religious schooling.20 Others have discussed the First Amendment establishment clause issue with specific regard to on-site special education services.21 A few have discussed issues of statutory interpretation entailed in providing special education services for students in private schools under local voucher programs22 and under the 1997 IDEA private school provisions.23 This Article brings the discussion about the meaning of the private school provisions up to date and clarifies the background against which the larger debates over support for students in private school will continue to take place. It treats in detail the question of individual entitlement to services under federal and state law. It then raises, and tries to dispose of, the debate about religious free exercise and parental autonomy issues. It also presents the issue of arbitrariness in decisions about allocation of private school services and argues that greater protection needs to be afforded parents.

Part I of this Article will explain the Individuals with Disabilities Education Act and note some of the changes made by the Improvement Act. In Part II, this Article will give an overview of the current statutory and regulatory regime governing services for children with disabilities in private schools. Part III will take up the specific issue of individual entitlement of private school children to special education services, discussing sources both in feder\al and state law; it will further discuss rights to on-site services and the eligibility of home-schooled students for publicly funded special education. Part IV will discuss the case law concerning Fu-St Amendment and constitutional rights of parental control of children's upbringing in connection with the denial of special education services to students of religious and other private schools. In Part V, the Article will describe the aspects of the law that create risks of arbitrary decision making, and argue that in order to be consistent with basic principles of due process, public school districts need to take steps beyond the minimal ones set out in the statute to guarantee fair treatment of private school students and their families.

I. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

The Individuals with Disabilities Education Act provides significant federal funding for the special education efforts of states that agree to provide all children with disabilities a free, appropriate public education.24 States and local school districts that receive the money assume not only the general obligation of providing an appropriate education to all children with disabilities, but also the duty to provide services related to education, such as transportation, physical and occupational therapy, sign language interpretation, and others.25 Children with disabilities are to be educated, to the maximum extent appropriate, with children who do not have disabilities, and supplementary aids and services must be furnished to avoid the need for removal from regular classes.26

Parents of children with disabilities have extensive rights of participation in the creation of the individualized education program that sets out the services to be delivered to the child.27 They may exercise rights to challenge the program or other aspects of the provision or denial of educational services by demanding an adversarial "due process hearing" and either they or the school district may appeal the result of the hearing to court.28 These mechanisms to insure that the law is enforced in each individual case and that decision making by schools is transparent were key features of the 1975 law, and demonstrated a "congressional emphasis" on participation rights and procedural regularity.29 Two federal cases that strongly influenced Congress in its drafting of the law had upheld equal protection claims against denial of services to children with disabilities in public schools and procedural due process claims against exclusion from public school without notice and the opportunity to be heard.30

The Individuals with Disabilities Education Act is the name Congress gave the Education for All Handicapped Children Act of 1975 when it enacted the amendments of 1990.31 The 1975 law32 culminated years of efforts to establish federal assistance for education of children with disabilities, and introduced an individual, legally enforceable entitlement to education and related services for all children who met a disability standard and were in need of special education. Although some states and localities were educating children with disabilities and receiving limited federal special education funding to do so, as of 1975 approximately 1.75 million children with disabilities were excluded from public school and 2.5 million were in programs that did not meet their needs.33

The special education law came into place against a background of broader federal efforts to end discrimination against persons with disabilities. In 1973, Congress passed section 504 of the Rehabilitation Act, which forbids discrimination against persons with disabilities by recipients of federal funding.34 Since state educational agencies and local school districts receive federal money, section 504 confers rights to nondiscrimination in education on children who have disabilities.35 In 1990, Congress passed title II of the Americans with Disabilities Act, which bars discrimination against persons with disabilities by units of state and local government (again including state educational agencies and local school districts), creating yet another remedy for disability discrimination in education.36

The Education for All Handicapped Children Act originally required states to make provision for participation in special education by students enrolled in private schools by their parents, to the extent consistent with the number and location of the children.37 In 1997, however, Congress tightened and supplemented the statutory language to require that amounts expended by school districts for the provision of services to private school students equal the amount of federal funds that would be proportionate to the number of private school children residing in the district.38 The 1997 law further stated that services could be provided "on the premises of private, including parochial, schools, to the extent consistent with the law."39 The 1997 Amendments also codified case law that allowed hearing officers to require school districts to reimburse parents for tuition at private schools when the parents placed their children there because the public schools failed to offer the children a free, appropriate public education.40 The statute distinguished this right to tuition funding that arises because of the parents' victory in a dispute over the content of public school special education programming from the provision of services to children whose parents placed their children in private school for other reasons, such as family preference or religion.41 The tuition reimbursement provision warned that subject to the specific subparagraph of the statute covering the obligation to provide for participation of private school students and allot proportionate funding,

[T]his part does not require a local educational agency [the statute's term for a school district or its equivalent] to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.42

Thus the participation and proportionate funding provisions were the only clear basis in federal law to obtain support from the public schools for special education of children placed by their parents in private schools for family reasons.

The President signed the latest statute amending the Individuals with Disabilities Education Act, the Individuals with Disabilities Education Improvement Act, on December 3, 2004.43 The Improvement Act left the basic provisions of IDEA intact, but added requirements regarding highly qualified teachers, student assessment, and the other trappings of the No Child Left Behind effort.44 It also permitted some federal special education funding to be used for intervention services for children not yet determined to have a qualifying disability.45 It changed eligibility determination rules for children with learning disabilities.46 It altered dispute resolution procedures and judicial review rights and limited the ability to contest disciplinary decisions. And, of course, it changed the provisions relating to services for children placed voluntarily by their parents in private schools.

II. The Statutory and Regulatory Framework for Private School Student Services Under the Improvement Act

Regarding private school student services, the statutory and regulatory framework of the new law encompasses two principal areas: first, school districts' responsibilities to allocate federal funding and identify, locate, and evaluate private school children who may be eligible for services; and second, the obligations of the districts to consult with private school representatives and to plan for service delivery.

A. Allocation of Funds and Responsibilities for Student Evaluation

Under the Improvement Act, every school district must allocate funding to the education of private school children with disabilities in the amount of federal IDEA Part B dollars proportionate to the number of children enrolled in private schools within the district.47 A child-find process must be used, in consultation with private school representatives, to determine the number of children with disabilities in private schools, in order to determine the proportionate amount to be allocated.48 The allocations are to be proportionate to the number of private school children being educated in the district, rather than the number of private school students residing there.49 State and local funds may supplement the school district's allocation of federal money.50 The district is obliged to maintain records of the number of private school children evaluated, those determined to be children with disabilities, and those served; the district must submit those records to the state educational agency.51 The child-find process must be designed to insure that children in private schools are accurately identified; the activities are to be similar to those used for public school children.52 Child-find may be costly, but the costs cannot be considered as part of the proportionate amount calculation.53 Promptness matters. The process must be completed in a time period comparable to that for students attending public schools in the district.54

The part of this that is new is the requirement that schools identify, evaluate, and spend a proportionate amount of their federal dollars on students attending private school within their geographic boundaries as opposed to students residing there. This revision may appear to promote efficiency,55 and obviously facilitates the delivery of services on the site of the private school.56 But it may also have unintended consequences because the overall amount of federal special education money any district receives is based primarily on the total count of private and public school s\tudents being educated in the district, not the count of students with disabilities.57 To explain: Consider the situation of a school district with a disproportionate number of private schools that accept and educate students with disabilities.58 That district will be forced to share the federal special education funds it receives with the large number of students who have disabilities who are drawn to the private schools located there. In contrast, the neighboring district that is home to many private schools that ruthlessly exclude students with disabilities will see its federal special education allotment rise with the total student count but will have to share the resources with few or no private school students who need special education services. The first district starves while the second feasts. Moreover, according to non- regulatory guidance from the Department of Education, children from out of state must be treated in the same fashion as private school children from neighboring school districts in state.59 This requirement appears to further exacerbate inequalities of burdens among school districts that are home to private schools that accept high special-needs as opposed to low special-needs students.

The reallocation of responsibilities for private school children from the district of residence to that of attendance relates not just to funding, but also to the duty to identify, locate, and evaluate the children for eligibility for IDEA services. IDEA provides extensive rights to children to be evaluated to determine eligibility and the need for particular special education services.60 Among the rights is that to an independent educational evaluation by a qualified individual not attached to the public school system when the parent disagrees with the school district's evaluation and the school district does not challenge the disagreement in a due process hearing.61 This independent evaluation must be provided at public expense.62

IDEA entitles private school children to evaluation by the public school district, and the activities undertaken to comply with that requirement must be comparable to activities undertaken for public school children.63 This provision would suggest that the full set of evaluation rights, including that to independent evaluation at public expense, applies to all private school children being educated in the district. Interpreting Michigan law, a court found that a private school child was entitled to an independent educational evaluation at public expense (or that the school district had to invoke due process hearing rights to avoid providing the evaluation), reasoning that the state law applied to "every handicapped person."64 Although there are no decisions construing IDEA on the private school student-independent educational evaluation issue, the federal law obligations appear to be the same. A guidance circular issued by the United States Department of Education discusses independent educational evaluations as a right of private school children and notes that "parents should file the request for an IEE [independent educational evaluation] with the LEA [local educational agency, typically the school district] that conducted the evaluation with which the parents disagree."65

Additional issues related to evaluation may arise not because of any change in the private school students provision of the Improvement Act, but because of the revisions in the evaluation procedures themselves. The Improvement Act bars states from forcing school districts to use discrepancies between ability and performance to determine IDEA eligibility on the basis of learning disabilities.66 The leading non-discrepancybased methodology is Response to Intervention (RTI), a model that contemplates providing high quality, research-based instruction in general education, and determining that the child has a learning disability only if the intervention proves ineffective over time or otherwise reveals some pattern indicative of learning disability.67 Since the public school district does not control the bulk of the private school child's instructional day, how it can employ this model, much less use it to obtain meaningful results under time constraints identical to those that would apply if the student were in the public school, is a mystery.

To its credit, the Department of Education attempted to address this problem in the preamble to the final version of the Improvement Act regulations. Its response, however, was simply to note that states must develop their own criteria to determine whether a child has a learning disability, and that in doing so, "States may wish to consider how the criteria will be implemented with a child for whom systematic data on the child's response to appropriate instruction is not available."68 The Department asserted that many private schools would collect the needed data, but allowed that the district making the eligibility determination may need to use other, unspecified, information.69

B. Consultation Requirements and Service Delivery

School districts must consult with representatives of private schools regarding the child-find process and the determination of proportionate amount.70 The consultation has to include how the district will consult with the private school representatives and parent representatives about provision of services;71 it must include how, where, and by whom services will be provided, including types of services and apportionment if funds are scarce.72 The consultation must also include how the district will provide reasons for not providing direct or contract services, if the private school representatives disagree with the agency about the provision of services or type of services.73 The district is to obtain a written affirmation from the private school representatives that the consultation has occurred; if the representatives do not oblige, the district must provide documentation of its consultation efforts to the state educational agency.74

These consultation provisions mirror those for other federally funded education programs.75 They suggest confidence that the process of discussing mutual goals and concerns will lead to consensus about means. Reports about the success of the existing consultation processes are sparse, so it is difficult to assess the virtue of what the new law has codified. In any instance, the congressional incorporation of the special education provision into the statute, copying what had previously existed only in the regulations, indicates some distrust of what the Department of Education might do if the control of the executive branch shifts at some time in the future.76

Private school officials may complain to the state about failure to consult, and may take their complaint to the United States Secretary of Education if dissatisfied with the results.77 The United States Department of Education has no direct control over the local school district, but possibly could cut off federal funding if a school district persisted in noncompliance. In addition, there is a mechanism by which the Department of Education may bypass a state or local education agency and deliver that entity's portion of federal funding for private schoolers directly to other providers of services to those students.78 This "By-Pass" provision applies if a state law enacted before the 1983 amendments to the federal special education statute prohibits the state from providing equitable participation in special education programs for children in private schools.79 It also applies if the secretary of Education determines that a state education agency or local school district "has substantially failed or is unwilling to provide for such equitable participation."80 Under the bypass, the federal government withholds funds from the state or local education agency to compensate for the cost of services delivered directly by the contractor of the federal government.81 Various procedural safeguards exist to prevent the action from being taken in error.82 The bypass option appears designed to induce reluctant school districts to comply with IDEA'S private school student provisions rather than lose control over the relevant federal funding, but it may be a paper tiger. Conceivably, the United States Department of Education has threatened to use the provision to force states or school districts to give special education services to private school children, but if a special education bypass has actually been implemented, it is a well kept secret.83

Under the Improvement Act, as under previous law, services may be provided directly by school district or other public personnel, or by contract with other workers; the services are to be secular, neutral, and nonideological.84 Funds and property are to remain in control of the local or state educational agency.85 The regulations promulgated to implement the Improvement Act state that districts must conduct the child count on any date between October 1 and December 1 of each year.86 Like the old regulations, the new call for transportation from the child's school or home to a site other than the private school and from the service site to the home or private school, but not from home to private school.87 Like the old regulations, the new forbid organizing classes separately by private school or religion if the classes are at the same site and the classes include students enrolled in private school and public school.88 Provisions governing use of public and private personnel are retained,89 as are those forbidding benefit to the private school,90 and requiring the public school system to retain ownership of property, equipment and supplies.91

Like old regulations, the new regulations establish that the services provided to private school children "must be provided by personnel meeting the same standards as personnel providing services in the public schools."92 The regulation makes clea\r, however, that private elementary and secondary school teachers contracted to provide services do not have to meet the "highly qualified" standards otherwise required of teachers under IDEA and No Child Left Behind.93

III. Individual Entitlements to Services and Related Issues

The very existence of statutory provisions concerning allocation of special education resources among private school children and consultation about the allocation suggests that no given private school child is assured of a full measure of the services. Nobody talks of rationing when everyone is assured access to whatever amount of a good or service is needed. Under the Improvement Act, as under previous law, there is no federal statutory assurance or guarantee to private school children of needed, or even of any, special education services. State law provides an entitlement in some jurisdictions, but the relevant states amount to just a handful. Some individual treatment is established under federal law for children who receive services, but federal law does not even guarantee individually enforceable rights to administrative review. Moreover, though parents may expect school districts to allocate services so that they are provided in the private schools their children attend, there is no federal entitlement to services delivered on site. State law may be more liberal, but such liberality is rare. Finally, under federal law homeschooled children are not even guaranteed consideration for allocation of special education resources.

A. Individual Entitlements to Services

Before the 1997 revisions IDEA might have been read to confer an individual right to free, appropriate public education for children with disabilities enrolled in private schools,94 but the changes made that year appeared to eliminate any such possibility, and the interpretation adopted by the federal regulations flatly ruled out any individual right.95 Interpreting the 1997 federal law, the Seventh Circuit declared:

[T]he [1997] Amendments unambiguously show that participating states and localities have no obligation to spend their money to ensure that disabled children who have chosen to enroll in private schools will receive publicly-funded education generally "comparable" to those provided to public-school children.96

The Seventh Circuit's position is unassailable. The passage from the 1997 IDEA amendments quoted in section I of this Article establishes that parents have no right under the law to tuition payments for private school if they placed their children there for any reasons other than that the school district was failing to offer appropriate education.97

This language survives in the Improvement Act.98 Considered in light of the statutory provision that demands proportionate allocation of funding but fails to call for a free, appropriate public education for private school children, the language permits no other conclusion but that there is no individual federal law right to services that any specific child can assert. Both the new federal regulations under the Improvement Act and the regulations they replace state the proposition directly: "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."99

State law, however, may create an entitlement to services that the federal law does not provide.100 For example, in John T. v. Marion Independent School District,101 a federal appeals court concluded that Iowa law conferred on a private school student an individual right to services, even though the court decided that the 1997 version of IDEA did not.102 The opinion relied on an Iowa statute requiring that school districts "shall make public school services, which shall include special education programs and services . . ., available to children attending nonpublic schools in the same manner and to the same extent that they are provided to public school students."103 The child in the case had cerebral palsy, which severely restricted his physical mobility and communication abilities, and so he needed a full-time aide while in school. He attended a private, religious school.104 The school district announced that it would provide the aide services only if he were enrolled in public school, relying on a provision of the state statute that said that assistance with physical and communication needs "may" be provided on nonpublic school premises. The court held that reading the "may" language of the statute to undermine the basic obligation to provide services was nonsensical and found a violation of the state law.105 The Iowa legislature subsequently amended the law in a manner consistent with the court of appeals' reading of the original provision.106 The state law thus confers an individual entitlement to services, and in fact even confers an effective entitlement to services on the site of the private school when the child's disabilities necessitate the presence of an aide during the school day.

The law in Kansas establishes a similar individual entitlement to services. In Fowler v. Unified School District No. 259,107 the Tenth Circuit Court of Appeals considered the case of a profoundly deaf child with superior intellectual capacities whose parents voluntarily placed him in a private, nonreligious school where they felt his intellectual development would be stimulated. The school district had previously provided him sign language interpretation services in a public school class that clustered students with hearing impairments.108 The parents requested the school district to provide a sign-language interpreter on the site of the private school, but the district refused.109 After administrative proceedings and a district court ruling, the court of appeals decided that then-applicable (pre-1997) federal and state law required the district to fund the child's interpretation services in an amount up to the average cost to the school district to provide the same services in a public school.110 The Supreme Court vacated that decision and remanded for reconsideration in light of the 1997 changes to IDEA.111

On remand, the Tenth Circuit held open the question whether there is any individual entitlement to the services under federal law for the period after the effective date of the 1997 amendment to IDEA.112 It ruled, however, that Kansas law, enforceable in federal court under IDEA, does provide an individual entitlement to services, at a cost no greater than the average cost of providing the services in the public schools.113 The court relied on this statutory language:

Any school which provides auxiliary school services to pupils attending its schools shall provide on an equal basis the same auxiliary school services to every pupil, whose parent or guardian makes a request therefor, residing in the school district and attending a private, nonprofit elementary or secondary school whether such school is located within or outside the school district.114

The statute further provided for delivering the services on the site of the private school if it was located in the district and services could practically be delivered there, and thus the court found that under the facts of the case the child had a state law entitlement to on-site services.115 The "equal basis" language of law led the court to limit the cost of the interpreter services to "no greater than the average cost of providing hearingimpaired students with interpretive services at public schools."116

In 1999, Kansas amended its statute. The language now reads:

Every school district shall provide special education services for exceptional children who reside in the school district and attend a private, nonprofit elementary or secondary school, whether such school is located within or outside the school district, upon the request of the parent or guardian of any such child for the provision of such services.117

Like the pre-2004 IDEA provisions on private school students, the enactment keys the provision of services to the district of residency, rather than that in which the child attends private school, creating the prospect of districts having to expend non- federal funds for resident children who attend private school outside of school boundaries while expending federal funds for both resident and non-resident children who attend school within the boundaries. Perhaps the obligations of the various districts towards the relevant children will even out in the end. The requirement for on-site services found in the earlier law has been diluted. Now the school district is to determine the site for provision of the services, "in consultation with the parent or guardian."118 The statutory terms incorporate the average-cost holding of Fowler for services delivered on site:

If services are provided for in the private . . . school, amounts expended for the provision of such services shall not be required to exceed the average cost to the school district for the provision of the same services in the public schools of the school district for children within the same category of exceptionality.119

Pennsylvania is an additional jurisdiction in which courts have interpreted state law to create an individual entitlement to special education services for private school children. A federal district court ruled in 2000 that a child with mental retardation who attended a private, religious school had a personal entitlement under state law to services such as a speech therapy, occupational therapy, itinerant teaching services for nonreligious courses, and teacher's aide services.120 The court relied on a statute providing that the relevant public educational agency had the duty "to maintain, administer, supervise and operate such additional classes or schools as are necessary or to otherwise provide for the proper education and training forall exceptional children who are not enrolled in classes or schools maintained and operated by school districts or who are not otherwise provided for."121 The court limited the reach of the holding, however, by stressing that it was impossible in this particular case for the child "to receive a proper education" in the public school.122 The court found as fact that the child reacted negatively to separation from his two brothers, who attended the private school, and would cry and resist getting on the bus to attend the public school.123 At the private school, the child's brothers and friends would help and support him, but he lacked peer support and acceptance at the public school.124 The court did not intimate what the result might be if the reason for the private school placement were purely the religious or other preferences of the parents, and the child could receive a proper education in the public schools if the parents preferred that option.

Veschi v. Northwestern Lehigh School Distnct125 addressed that open issue. In Veschi, the Commonwealth court ruled that a school district had to make speech and language therapy available to Vincent Veschi, a child with disabilities who attended a parochial school.126 The court characterized the district's decision to refuse to deliver the services to a private school child as conditioning provision of the services on enrollment in the district's public schools.127 It said that the "crux of the Veschis' argument, and one with which we agree, is that they have a constitutionally protected right to decide where Vincent goes to school under Pierce v. Society of Sisters and Wisconsin v. Yoder."128 The court did not develop that argument, however.129 Instead it gave most of its attention to Pennsylvania law.130 The court noted one provision that states: "No pupil shall be refused admission to the courses in [special] schools or departments, by reason of the fact that his elementary or academic education is being or has been received in a school other than a public school."131 The court thought this language applicable because special departments within school districts provide speech and language therapy services.132 The court also cited other provisions, declaring that nothing in law either barred dual enrollment of a child in public and private school, or gave the school district direct authority to force a child to enroll in public school in order to take advantage of public school special education classes.133 To the contrary, a regulatory provision required that students who attend nonpublic schools be afforded equal opportunity to participate in special education services and programs.134

A Pennsylvania court recently extended Veschi to require a public school to provide occupational therapy services to a private school child deemed eligible under section 504 of the Rehabilitation Act, but not IDEA. In Lower Merion School District v. Doe,135 a panel of the Commonwealth Court considered the case of a six-year-old child who had been found not to meet the definition of a child with disabilities under IDEA, but had been found eligible for occupational therapy services under section 504 of the Rehabilitation Act of 1973. As noted above, section 504 entitles some children to adaptations or supplemental services under the school district's obligation not to discriminate, even though the children do not need special education to learn or otherwise are ineligible for services under IDEA.136 The parent enrolled the child in a private kindergarten program, dually enrolled him in the public school district, and requested that occupational therapy be provided at a public school.137 In affirming an administrative decision requiring the district to provide the services, the court relied on a federal regulation promulgated under section 504 that obligates recipients of federal money who operate public elementary or secondary education programs to furnish a free, appropriate public education to all children who meet the eligibility standards of section 504.138 The court also rested its decision on provisions of Pennsylvania law implementing that obligation.139 It placed weight on the general interpretation of state law in Veschi, which, as noted, required that speech and language therapy be provided to a child enrolled in a private school when the child was disabled so as to be eligible under IDEA.140 The dissenting judge complained that Veschi relied on a Pennsylvania regulatory provision that had since been repealed,141 and further argued that section 504's basic obligation to provide accommodations to children receiving services from public schools did not constitute a right to services when the child is not attending courses or classes in the public schools.142

Lower Merion's discovery of an individual entitlement to services for a private school child eligible solely under section 504 may well arouse criticism. Simply looking at the federal law issues in the case, it seems strange that private school children who are covered by section 504 but not IDEA would have an individual right to services from the public school system, when children covered by IDEA do not. section 504 is at bottom a nondiscrimination statute,143 and unlike IDEA does not create a funding stream or set out specific obligations beyond the general duty not to discriminate on the basis of disability. For children in public schools, section 504 extends to all children with disabilities who meet its coverage definition144 the entitlement to reasonable accommodations: modifications of rules, additional services, and the like so that children with disabilities may be educated on an equal plane with others whether the children with disabilities are IDEA-eligible or not. But if children in private schools who are IDEA-eligible have no entitlement to special education services under that law, it is hard to find a basis in section 504 for conferring an entitlement to children who have disabling conditions that do not trigger IDEA eligibility. Of course, it could be that section 504 confers the individual entitlement to publicly funded special education services on all children with disabling conditions, irrespective of the children's eligibility under IDEA. But the general provisions of section 504 contain no language conferring such a right, and the federal regulatory provision relied on by the Lower Merion court may easily be interpreted as applying only to children actually attending the district's schools. Nevertheless, Lower Merion stands as the most recent example of finding individual entitlements to services in state law. Although the dissent took the majority to task for relying on a case that followed a state regulatory provision that had since been repealed, the majority cited ample support for its position from other sources.

Statutes and regulatory provisions in other states remain undeveloped as potential sources of individual rights to services. In addition, there is always the prospect of state legislative change. Advocates of greater public support for special education services for private school children might be well advised to look to their state legislatures rather than Congress, in light of the congressional decision to stay with the outlines of the 1997 legislation when revising the federal statute in 2004. The successful implementation of entitlements for private school students where the state law entitlements exist may furnish evidence to respond to the criticism that providing a federal entitlement is unworkable or unduly expensive.

Even in the absence of an individual, enforceable right to services, the federal special education law makes one nod to individual treatment in delivery of services to children with disabilities in private schools. Regulations promulgated under the 1997 version of IDEA established that districts had to create service plans for all the private school children they serve; the plans had to describe the specific special education and related services that the school district will furnish to the individual student.145 The Improvement Act regulations retain this provision: Each private school child served must have a services plan.146 The regulations further state that a services plan "means a written statement that describes the special education and related services" that the school district "will provide to a parentally-placed child with a disability enrolled in a private school who has been designated to receive services, including the location of the services and any transportation necessary . . . ."147 The process for development of the services plan must include the involvement of a representative of the private school.148 Otherwise, the process for development and the content of the final product resemble to some degree the process and content of individualized education programs.149

Whatever procedural regularity the services plan requirement entails nevertheless stops short of the right to appeal school district decisions to refuse services to an individual child. The Improvement Act regulations retain the previous provision forbidding disgruntled parents from using the IDEA due process hearing procedure for any complaints except those having to do with failure by the school district to properly identify, locate, or evaluate the private school student.150 For all other complaints, the parents are expected to make use of the state investigation and resolution process, which lacks the rights of notice, hearing, and judicial review furnished by the ordinary special education administrative procedure.151

B. On-Site Services

The House Committee Report on the bill that became the Improvement Act states a preference for services provided on the site of the private school:

The Committee wishes to make clear that local educational agencies should provide direct services for parentally placed private school students with dis\abilities (as for most students) on site at their school, unless there is a compelling rationale for such off-site services. Such intent indicates the preference that providing services on site at the private school is more appropriate for the student and less costly in terms of transportation and liability.152

This strong preference is repeated in the Notice of Proposed Rulemaking for the Improvement Act regulations,153 but does not appear in the proposed or final regulations themselves, just as it missed being included in the language of the statute. Given the current questioning by many courts of the use of legislative history in the interpretation of statutes,154 the preference could easily become a dead letter. The preamble to the final regulations repeats that preference for on-site services is the Department of Education's position, but goes on to state that the congressional language subjecting the term "may be provided to the children on the premises of private, including religious, schools" to the condition "to the extent consistent with law" permits state constitutions or other law to override any preference for on-site services.155 What the Department of Education appears to have in mind is a state whose constitution imposes greater restrictions on religious establishment than the Supreme Court currently finds to have been imposed by the United States Constitution.156 But the Department of Education's statement would seem to apply as well when a state has any statute or rule, enacted for whatever reason, that forbids on-site services or permits local school districts to refuse to provide them.

The omission of any guarantee of on-site services provides yet another example of how what might have been a more radical change in the law ended up reinforcing continuity with the status quo. Even before the passage of the 1997 IDEA amendments, the leading case Goodall v. Stafford County School Board157 established that a school district may choose to offer services only at public school locations, and may refuse to offer services in private school buildings. Part of Goodall's reasoning was that on-site services at religious school excessively entangle church and state, a position that does not survive Zobrest v. Catalina Foothills School District158 and Agostini v. Felton,159 Supreme Court cases that upheld, respectively, the placement of a public-school funded sign language interpreter at a religious school and the provision of remedial services under title I of the Elementary and secondary Education Act at a religious school. The Supreme Court decisions did not affect the other bases for the Goodall court's reasoning, however, which included the basic point that nothing in the statute commands services on the location of a private school if the district prefers to provide them elsewhere.160 After the 1997 law clarified that no individual entitlement to services existed at all, numerous courts rejected demands for on-site services, relying on the new statute and the Department of Education regulation interpreting it.161

Some cases uphold the principle that the services need not be provided on site even when the denial of on-site services appears scarcely rational. Bristol Warren Regional School Committee v. Rhode Island Department of Education162 refused a demand for services on the site of a parochial school, upholding a policy under which the school district provided on-site services only when the private school was within walking distance of a public school.163 From the students' perspective, that would be when on-site services would be needed least. Perhaps the rationale for the policy was the convenience of the teachers or other personnel based at the public facility, who might otherwise need to be transported to the private school location.164 Alternatively, the conduct of the district may have been purely capricious.

Nevertheless, state law may create an entitlement to services provided on site. In Bay Shore Union Free School District v. T.,165 Judge Jack Weinstein concluded "dubitante" that New York law confers upon a child who is eligible for special education an individual entitlement to services at the child's private school.166 Ruling that a child with attentiondeficit hyperactivity disorder was entitled to the services of a one-onone aide for three hours a day at his private school, the court noted that denial of the services would burden a religious choice of the parents to send the child to a sectarian school; a construction of New York statutes that provided for the services would avoid a potential conflict with the right of free exercise of religion.167 The court also emphasized that under the facts of the particular case, a hearing officer had found that a one-onone aide could be provided only in the private school, and that for this child, the aide was necessary if the child were to receive free, appropriate public education.168 Though the court pointed out that the law in some other states differs from that of New York,169 one may expect advocates of private school services to undertake litigation to have courts enforce state laws that look like New York's in a manner similar to the construction in Bay Shore, and one may expect advocates in other states to work for changes in their state legislation to imitate New York's.

C. Home Schooling

Some home-schoolers have an even more basic complaint than that of the families whose children are inadequately served or served away from their private schools because of allocation decisions made by local school districts. In some states, home schooling is not considered private school, and so home-schooled children are not even eligible for being considered for IDEA funded services. The Improvement Act is silent regarding whether home-schooled children qualify as children in private schools and thus may participate in the fight for the pool of services that a school district provides private school children with disabilities. The leading decision on the topic holds that eligibility under IDEA of homeschooled children for publicly funded services for private school children depends on state law. In Hooks v. Clark County School District,"0 the Ninth Circuit Court of Appeals ruled that a state has the choice whether home schooling will qualify as private schooling under IDEA, and it held that for the relevant time period, Nevada had decided not to include home instruction in with private schools.171 The court relied on a United States Department of Education interpretation of the IDEA,172 and further stated that Congress endorsed that interpretation by enacting definitions of "elementary school" and "secondary school" that delegate to the states the determination of which educational institutions qualify and which do not.173 The court thus affirmed the denial of reimbursement for speech therapy services obtained by parents of a child with a disability who was being educated at home.174

Hooks received a chilly reaction from commentators. They pointed out that the Department of Education's interpretation is by no means the only way to read the statute,175 and that the approach of the Department and the court will cause disuniformity among the states.176 Plainly, the result will cause some children with disabilities not to receive publicly funded school services, contrary to the general goal of providing a free, appropriate public education to all children with disabilities.177 These criticisms of the decision have some power, but cannot overcome a long-standing interpretation by the agency Congress chose to enforce the statute,178 particularly when Congress comprehensively amended provisions relating to private schools in 1997, and then after Hooks in 2004, without making any change in the definition of what is a private school or otherwise doing anything to explicitly cover home schoolers.

Questions about access to facilities may yield a different answer than those about the right to services. One district court case initially held that equal protection, federal statutory disability discrimination, and state law claims may lie against a school district for excluding a home-schooled child with a disability from a playground during the hours public school children used it.179 Ultimately, however, the court dismissed the federal claims for failure to exhaust IDEA administrative remedies and remanded the remaining claims to state court.180 The child's parents pursued to the Maine Supreme Judicial Court the question whether the school could continue to suspend the child from use of the playground in the absence of a functional behavioral assessment of the child, when he had reportedly manifested aggression towards students and adult supervisors.181 The court ruled that state law permitted the child's exclusion.182

IV. Religious Free Exercise and Parental Autonomy Issues

As noted above, in Zobrest v. Catalina Foothills School District183 the Supreme Court ruled that a school district's funding of a public-school funded sign language interpreter at a religious school did not violate the First Amendment's establishment clause.184 The controversy since that case has been whether, if a public school system opts not to provide services to children who attend religious or other private schools, it violates the free exercise clause, due process clause, or some other constitutional provision. Depending on what policies the district adopts, its conduct might be challenged as imposition of an unconstitutional condition or as constitutionally impermissible viewpoint discrimination.

A. Unconstitutional Conditions

Under IDEA, school districts can give lesser amounts of services to children in private schools, including religious schools, than they give to the same children if the children were attending public school. For some of the children, lesser services likely means no services at all. Not surprisingly, parents will view th\is as the school district's conditioning the provision of needed services on the parents' decision to withdraw their children from private school and enroll them in public school. The decision to obtain public schooling will run against the parents' preferences regarding their children's education and may cause the parents to violate what they perceive as their religious duties. Is this the imposition of an unconstitutional condition?

In Pierce v. Society of Sisters, the Supreme Court ruled that a statute forcing parents to send their children to public schools or face criminal penalties "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."185 The Supreme Court's decision drew support from Meyer v. Nebraska,186 which overturned a the conviction of a teacher for instructing children below the eighth grade in a language other than English. That ban violated the Fourteenth Amendment rights of parents to provide for instruction of their children and the right of the teacher to practice his calling.187 Both holdings survived the 1930s revolution in Fourteenth Amendment substantive due process doctrine exemplified by Nebbia v. New York188 and West Coast Hotel v. Parrish,m cases establishing the principle that general economic and social laws are to be evaluated under a rational basis test, and thus that the Court will find no due process violation if the enactment bears a minimal relation to any legitimate governmental end.190

Although neither Pierce nor Meyer relied on the guarantee of free exercise of religion, in Wisconsin v. Yoder, the Court cited both (and relied significantly on Pierce) when it upheld the free exercise claim of Amish parents against a state law requiring all children to attend school until age sixteen when compliance conflicted with Amish religious tenets.191 In Yoder, the Court reasoned that just as Pierce had subordinated the state's interest in establishing and controlling basic education to "the interest of parents in directing the rearing of their off-spring, including their education in church-operated schools," so too the governmental interest in one or two additional years of education had to yield to the religious free exercise interest of the Amish.192 The Court stressed that enforcing the law against the religionists would gravely endanger if not destroy their religion, and that the interests of the state were satisfied in part by the informal training the children received in their communities and the longstanding self-sufficiency of Amish people in the communities.193 Subsequent to Yoder, the Supreme Court in a series of cases culminating in the 1990 decision Employment Division v. Smith limited the reach of the free exercise guarantee, and affirmed that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"194 But Smith did not overrule Yoder. It distinguished it as a "hybrid" case involving both free exercise and parents' rights to direct the upbringing of their children.195

Relying on cases such as Pierce and Yoder, parents may argue that their constitutional rights to control the upbringing of their children and to freely exercise their religion are infringed when they send their children to private, religious school and the public school district refuses to provide the special education services the children would receive if the parents had enrolled them in public school. So far, such arguments have not been successful. In 2004, the First Circuit Court of Appeals turned away a suit contending that failure to provide the full range of special education services and procedural rights for a child in a private, religious school violates the constitutional guarantees of substantive due process, equal protection, and free exercise of religion, as well as federal statutory law.196 The court in Gary S. v. Manchester School District reasoned that the parents' unquestioned constitutional right to educate their child in a private, religious school did not entail a constitutional right to public funding for the child's education, including special education services that would otherwise be provided if the child were in public school.197 The court supported its position by citing cases such as Harris v. McRae,199 in which the Supreme Court ruled that although women have the fundamental right to an abortion, women who cannot afford the abortion need not be provided funding under the Medicaid program to obtain one, even when Medicaid funded all other medically necessary services.199

Parents of private school children may question the reasoning in Gary S., insisting that the denial of services that would cost the school district the same if the child were in public school constitutes a penalty for parental compliance with religious duties or exercise of control over upbringing. The school district, meanwhile, would defend the denial as a decision simply not to subsidize the free exercise of religion or the childrearing choices of the parent. The parents of a child with disabilities are treated no differently from the parents of a child without disabilities. Both sets of families are denied the full set of public school services they would receive if the child were enrolled in public school.

There is, of course, an exceedingly fine line between a penalty and denial of a subsidy.200 In this instance, however, a distinction should be drawn. The statutes in Meyer, Pierce, and Yoder all imposed criminal sanctions for exercise of religious liberty or parental autonomy. Thus they clearly fell on the penalty side. Failure to provide funding for services is different. The Gary S. court's analogy to the abortion funding controversy is apt. Roe v. Wade201 overturned criminal penalties on abortion before fetal viability and declared abortion a fundamental constitutional right, but Harris v. McRae202 upheld denial of funding even when the

Source: Journal of Law and Education

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