What the law says about services for the learning disabled
The United States Congress mandates that school districts receiving federal money for special education use a portion for children in private schools. But home school children in many states are being denied these services. While the term “private school“ is not defined in the federal statute, the law does state that school districts “have a responsibility to provide education for all children with disabilities.“
In order to clarify the law for our families throughout the country who need these services, but have been denied, Home School Legal Defense Association filed suit on behalf of several families. We filed in Connecticut when 9-year-old Kaitlyn Gallagher was denied $10,000 of specialized equipment for the blind, in New Jersey when 6-year-old Gregory Forstrom was denied speech therapy, and in Nevada when 9-year-old Christopher Hooks was denied speech therapy.
In 1997, the federal Individuals with Disabilities Education Act (IDEA), was amended to reduce the obligation of states to private school children. Prior to that amendment, HSLDA had settled Kaitlyn Gallagher’s case and she received a computer, specialized Braille equipment, as well as texts and materials designed for the visually impaired. In New Jersey, the Superior Court Judge ruled in April 2000 that the Fair Lawn Board of Education’s exclusion of Gregory Forstrom from IDEA is a violation of his constitutional guarantee of equal protection. (See the Forstroms’ story below starting on page 3.) The Fair Lawn Board of Education and the New Jersey Department of Education have appealed that decision to the New Jersey Court of Appeals.
In the Nevada case, on the other hand, the Ninth Circuit Court of Appeals affirmed Clark County School District’s decision to exclude home school students from special education. The Ninth Circuit held “that the IDEA leaves discretion to the states to determine that home education . . . does not constitute an IDEA-qualifying private school or facility.“ Therefore, under the Ninth Circuit ruling, where states consider home education to be a distinct category from private schools, there is no obligation to provide services. HSLDA will ask the Supreme Court to review that decision.
HSLDA is not representing families who desire special education at the public schools. Special education refers to remedial instruction in academic areas. Some of our members, however, cannot afford to purchase related services such as speech therapy, occupational therapy, or physical therapy and desire to receive those services from the school district. (Whenever possible, HSLDA encourages families to avoid government services and obtain private services. But sometimes this is not possible-due to financial or other reasons-and that’s where we step in.) Since we believe it was the intent of Congress and some state legislatures to include home schoolers in these services, and because we believe that to provide these same services to traditional private schoolers, but not to home schoolers, is discrimination, we are fighting for these families.
Summary of current law
A parent armed with an accurate understanding of the law is one of the best defenses against discrimination. Know the law and be ready to graciously educate officials who do not know it.
Is a home school considered a private school?
The United States Department of Education and the Ninth Circuit Court of Appeals have ruled that whether home schools are “private schools“ is determined by the particular state. If the state recognizes home schools as private schools, then children with disabilities in those home schools must be treated in the same way as other private school children with disabilities. If the state does not recognize home schools as private schools, then children who are home schooled are not entitled to services. The New Jersey Superior Court in Forstrom ruled otherwise, holding that the United States Congress intended to include all children with disabilities and that to hold otherwise would be unconstitutional discrimination. The school district has appealed this decision.
Are local school districts required to locate, identify, and evaluate local home school children who are suspected of having disabilities?
The IDEA amendments of 1997 explicitly provide that the local school district must attempt to locate, identify, and evaluate all children residing in its district who are suspected of having disabilities. The school district’s obligation, however, is merely to make evaluations available. If a parent does not consent to the evaluation, then there is no legal obligation to submit his child to the school district’s testing. If any school district takes a contrary position by contending that it must test every child in its district, then HSLDA will challenge that school district’s authority to do so, as we have successfully done on several occasions.
Following the evaluation, how is eligibility determined for private school children?
As with public school children following the initial evaluation, an eligibility determination must be made by a group of qualified professional and the child’s parents, and this group must determine whether the child is a “child with a disability“ as defined in IDEA.
If it is determined that the private school child is an eligible child with a disability under IDEA, must the school district develop an Individualized Education Plan (IEP) for the child?
If a determination is made that the child needs special education and related service, the general rule is that an IEP must be developed for the child. Of course, if the parents make clear their intention to educate their child at home and that they are not interested in a public school program, the school district need not develop an IEP for the child.
Is the state required to spend its own money to meet the special needs of private school children?
No. The 1997 amendments to IDEA make it clear that a school district is obligated only to spend federal dollars in providing services to private school students. A state may expend its own funds, but it is not obligated to do so.
What is the calculation for determining how much funding is available for private school students?
The eligible private school students receive what is called a “proportionate share“ of the federal funding. The proportionate share is the percentage of eligible private school students among the school district’s total population of eligible students.
The following is an example of how the proportionate share is calculated:
- Number of eligible children in public school = 300
- Number of eligible children in private school = 20
- Total number of eligible children residing in the school district = 320
The eligible private school children represent 1/16 of the total population of eligible children, so 1/16 of the federal funding must be spent for the group of eligible private school children residing in the district.
