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VOLUME XXI, NUMBER 6
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November / December 2005


FEATURES
A not-so-bright IDEA
Reforming social services

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ET AL.

On the other hand: a contrario sensu

HSLDA social services contact policy/A plethora of forms

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  COVER STORY  

» 

by Andrea Longbottom

As a kindergartner, Scott Fitzgerald of Camdenton, Missouri, struggled to correctly write numbers and letters and to pronounce vowels. His parents, Ron and Joann, strongly suspected that their son was dyslexic, and requested an evaluation from Scott's public school. The school screened Scott, but did not deem his case severe enough to warrant an evaluation.

Joann felt frustrated by the school's lack of help. She knew that, based on the federal Individuals with Disabilities Education Act (IDEA), public school students can receive special needs services from the school. Without the school's assistance, Joann supplemented Scott's education at home. She decided, along with her mother and sister, to launch the Missouri chapter of the Dyslexia Association of America. The three women received special training and opened a center where they offered after-school programs to several dyslexic students.

But Scott's difficulties mounted as he progressed through elementary school and was required to read and speak more. "I struggled with reading and kids calling me names," remembers Scott. His teachers noticed his struggle — one 1st-grade teacher even stayed after school to tutor him. Joann again requested testing, but the school would not provide any services beyond another screening and an IQ test. They assured Joann that Scott would be fine.

"We thought about homeschooling," says Joann. "Scott even asked me why I didn't homeschool him. But my husband just wasn't convinced it was a good idea. We also wanted Scott to have friends and socialization, and that's why we sent him to public school in the first place."

Scott was socializing, but he was not learning. He was frustrated with his lack of progress and the fact that he was different from his classmates. At the end of 3rd grade, two of Scott's teachers met with Joann and told her that Scott would never learn to read.

The history of IDEA

In 1975, Congress passed the Education for All Handicapped Children Act. This federal act was created to combat the lack of public educational support for disabled children, and it guaranteed a "free, appropriate public education" to every disabled child in each state.1 In 1990, the act was renamed the Individuals with Disabilities Education Act.

Today, almost 6 million children and youth participate in special education programs supported by IDEA. Thousands of infants and toddlers receive early intervention services.2 However, because some public schools misinterpret IDEA, this law can be more of a hindrance than a help for homeschoolers-and one of the most troublesome issues for homeschoolers results from IDEA's Child Find provision.

1 "History of the IDEA," http://www.ed.gov/print/policy/speced/leg/idea/ history.html. See also 20 U.S.C. 1412(a)(1)(A).

2 "History of the IDEA," http://www.ed.gov/print/policy/speced/leg/idea/ history.html.

Joann couldn't believe her ears. "My son is dyslexic," she replied, "but he has a normal IQ. He can be taught." Joann talked with school officials about ways to resolve the problem. She even arranged a training meeting between dyslexia specialists and the public school teachers, but no teachers came to the meeting. Joann decided to homeschool Scott for the last month of 3rd grade.

Hoping that Scott's situation would improve in 4th grade, the Fitzgeralds re-enrolled Scott in the public school that fall. The school's special services division finally agreed that if Scott were formally tested, the school would consider the results. Joann paid for Scott to be tested by specialists at the Michigan Dyslexia Institute. Meanwhile, the special services division underwent a change in personnel. When Joann notified the school that Scott's test results would be forthcoming, the school responded that it would not consider them.

"You don't have to accept the testing," Joann responded, "but please at least consider the test results."

The school maintained that it would have to evaluate Scott's social and behavioral needs before deciding on his academic needs.

Joann's patience had run out. Ron and Joann withdrew Scott and his younger brother, Chuck, from school and began homeschooling. "I knew that's what I should have done in the very beginning," says Joann. Meanwhile, the Fitzgeralds received the private test results, which confirmed that Scott was dyslexic.

Soon after withdrawing their two sons from public school, the Fitzgeralds received a letter stating that school officials needed to evaluate Scott for potential special needs. "Mind you," points out Home School Legal Defense Association Litigation Counsel Jim Mason, "when Scott was in school they refused to evaluate him. Under IDEA's Child Find provision, school districts are required to offer an evaluation to all children who may have special needs."

The Fitzgeralds no longer desired any support from the school. Exasperated by the school's double standard, the family refused to consent to an evaluation.

The school then requested a due process hearing, stating that it was required by IDEA to conduct the evaluation. "We felt that we were in for a long ride," says Joann. The Fitzgeralds contacted HSLDA, and in February 2003, HSLDA Attorney Jim Mason moved to dismiss the hearing. He stated that the school had misinterpreted the federal statute governing Child Find, which clearly established that schools are not required to evaluate a privately educated child if the parents do not want services. HSLDA also argued that IDEA would be unconstitutional if it were intended to force parents to submit their children to an evaluation.

PART OF A BIGGER PICTURE (L–R): Joann, Chuck (10), Scott (12), and Ron Fitzgerald stood up for their family’s right to refuse an IDEA evaluation, choosing to use private evaluations and services to meet Scott’s needs.

The hearing panel, which was appointed by the Missouri Department of Education, sided with the school, holding that the federal statute that governs Child Find requires public schools to evaluate homeschooled children even when parents do not want public school services.

HSLDA then appealed the Fitzgeralds' case to the federal district court in Missouri, bringing suit against the school district and the Missouri Department of Education. The district court also misinterpreted the federal statute and ignored HSLDA's argument that such an interpretation was unconstitutional.

In October 2005, HSLDA defended the Fitzgeralds in the Eighth Circuit Court of Appeals. The court is expected to issue its decision in three to six months.

Both Scott and Chuck are doing well at home. Scott, now 12, takes classes at a local homeschool co-op as well as at home. For a short time, he visited a local hospital for help with language and hearing skills, but the hospital discontinued the lessons after Scott's quick progress. Joann teaches Scott using Orton-Gillingham lessons, which are designed to stimulate his reading and pronunciation abilities. Joann's husband, Ron, is now very supportive of homeschooling and helps teach math and science to his sons. "I enjoy school," says Scott. "I feel smart."

Contrary to her earlier fears, Joann has also found that her sons have many opportunities to socialize. They have made good friends through the co-op, and they are learning to interact well with people of all ages, instead of just their peers.

"At the start of every year, I ask the boys if they want to go back to public school," says Joann. "The answer is no. Scott once told me, 'Mom, I learn more in one day than I learned all year at the school.'"

As is evident in the Fitzgerald case, a misinterpretation of the Child Find provision can threaten the privacy of families and the liberty of parents to decide how to educate their children. The issue has affected homeschooling families across America for nearly a decade. What is the purpose of Child Find, and how has it become a problem for homeschoolers?

The trouble with Child Find

Under the Child Find provision, school districts are required to inform parents that their privately educated children may be eligible for some public school services, including a special needs evaluation. The provision does not require schools to evaluate privately educated children whose parents do not want services. As demonstrated by the Fitzgerald case, some public schools misinterpret Child Find and think they are required to override a parent's wishes in order to pursue an evaluation.

A careful look at the federal statute governing Child Find reveals the mistake in the public schools' reasoning. The federal statute establishes that the point of an evaluation is to determine whether or not a child qualifies for special services offered by the school.1 If a parent does not intend to accept services, there is no need for a public school evaluation. HSLDA Attorney Jim Mason says, "Schools readily acknowledge that they can't make a homeschooler accept services once he's evaluated. So a forced evaluation is a pointless -- and intrusive -- process."

What then are a school's responsibilities under IDEA? According to the federal statute, to be eligible for federal funds schools are required to make available a "free appropriate public education" to all children.2 Parents who decide to homeschool or place their children in private school waive their children's right to a public school education, but they still may be eligible to receive some special needs services through the public school. (For more information about these services, see the sidebar, "What are public services?") To receive federal money to fund the services they offer, schools must submit a plan to the U.S. Department of Education describing how they will inform the public that services may be available.

As attorney Jim Mason clarifies, "Under its Child Find provision, IDEA requires that states must merely have policies and procedures in effect to ensure that privately educated children with disabilities who are in need of special education and related services are made aware that free public services may be available. The provision does not, however, eliminate the right of the parents to refuse to allow the child to participate in such special education activities."3 Once they advertise the availability of services, the schools have satisfied their Child Find obligation.4

The federal statute as well as several court cases bolster the argument that the schools' responsibility under Child Find is to publicize the availability of services.5 Mason says the majority of past IDEA cases involved lawsuits from parents who had paid for private services, claiming they did not know free public services were available. However, in most of these cases, the court ruled that the schools did fulfill their Child Find duties because they advertised the availability of services. This establishes valuable precedent that Congress' intention through Child Find was to ensure that schools simply inform parents that public services may be available to them. The burden of responsibility then falls on the parents, who can request an evaluation if they are interested in obtaining services for their child.

Why do some public schools misinterpret the Child Find requirement? The principle cause of confusion is a procedure in the federal statute that allows schools to override lack of parental consent:

If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may [emphasis added] pursue the initial evaluation of the child by utilizing the procedures described in section 1415 of this title, except to the extent inconsistent with State law relating to such parental consent.6

The procedure described in § 1415 is the application of due process of law. Some schools view this override procedure as justification for enforcing Child Find. They think they can take a family to court if parental consent for an evaluation is denied. But neither IDEA nor Child Find is enforceable against parents; IDEA is an entitlement program designed to assist parents who desire public assistance and whose children are eligible for services.

The override procedure was designed to remedy situations in which parents desired public services but did not want to submit their child to a public school evaluation. Treating the override option as authority for across-the-board enforcement ignores the intent of the federal statute, which confirms that the purpose of an evaluation is access to services.7 Indeed, if Child Find were intended to force children to be evaluated against their parents' wishes, it would be an unconstitutional provision, ignoring the right of parents to privacy and control of their children's education.

Fear of lawsuits may also drive some schools to evaluate children regardless of parental consent. As mentioned above, many cases involving IDEA have been instigated by parents who claimed they were not made aware that free public services were available.

What are public services?

Public services include special education and related services. Special education is academic instruction, and since it takes the place of homeschooling, HSLDA does not represent families who have trouble obtaining special education. The services we refer to in this article are related services, such as speech therapy or the provision of special equipment, and we do represent families who need these "additional" services. Homeschooling parents can request these services to augment their child's home education, but the school has no obligation to provide services to any particular privately educated child.
Though the rulings in most of these cases established that the schools had fulfilled their Child Find responsibilities by publicizing the availability of services, fear of litigation almost certainly motivates some schools to compel an evaluation.

Schools may also compel privately educated students to submit to evaluations in order to increase the schools' allotment of federal money. The amount of money that schools receive under IDEA is proportional to the number of special needs children in their district. For privately educated children to be counted as special needs children, they must be evaluated. Even though this added portion of federal money can only be used to benefit private school students, the chance to receive increased funds likely provides further incentive for some schools to require evaluations.

Homeschooling families across America have been affected by the public schools' faulty interpretation of Child Find, but most cases are resolved before they reach the courts. Other cases, such as the Fitzgeralds', can span years. Though some school officials may try to hound families who refuse to consent to an evaluation, most schools either drop the issue after being convinced that they have misinterpreted Child Find, or resort to due process of law to resolve the situation. If your school district requires you to submit your child to an unwanted evaluation, contact HSLDA.

Solving the Child Find problem

"HSLDA is committed to helping you protect your right to teach a special needs child at home," says HSLDA President Mike Smith. "Our staff is working to resolve the Child Find issue and free homeschooled children and their parents from unwanted evaluations."

Resolution of this issue may be just around the corner. Every six years, IDEA is reauthorized-a congressional review process that allows for improvements in the law. After reauthorization, the Department of Education writes new regulations and accepts comments from the public about these regulations. In December 2003, Congress reauthorized IDEA, and the Department of Education wrote new regulations in 2004 and 2005. (See Freedom Watch for more information on current IDEA legislation.) Public comments were accepted in February 2005. In June 2005, the revised regulations were released, and they clarify that schools are not required to evaluate homeschooled children whose parents do not consent to the evaluation. The regulations will be finalized by the end of 2005, and HSLDA's goal is to make sure the final law includes these clarifications:

. . . consistent with the Department's position that public agencies should use their consent override procedures only in rare circumstances, proposed § 300.300(a)(3) would clarify that a public agency is not required to pursue an initial evaluation of a child suspected of having a disability if the parent does not provide consent for the initial evaluation. States and LEAs [local education agencies] do not violate their obligation to locate, identify, and evaluate children suspected of being children with disabilities under the Act if they decline to pursue an evaluation to which a parent has failed to consent.

In addition, paragraph (a)(3) of this section would permit consent override only for children who are enrolled in public school or seeking to be enrolled in public school. For children who are home schooled or placed in a private school by the parents at their own expense, consent override is not authorized.8

We received a welcome surprise. "The Department of Justice wrote a brief that supports our argument," says Mason.

Court countdown

Victory in the Fitzgerald case would help clarify the meaning of Child Find. Should the Eighth Circuit Court of Appeals side with HSLDA in this case, the right of parents to refuse to consent to an evaluation would be upheld. This interpretation would then be applicable to the seven states within the Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. The decision would also provide valuable precedent for similar cases.

In early October 2005, just days before HSLDA's oral argument on behalf of the Fitzgeralds, attorney Jim Mason and the Fitzgerald family received a welcome surprise. "The Department of Justice wrote a brief that supports our argument," says Mason. The brief, which was sent to HSLDA attorneys and Camdenton school district attorneys, clarifies that the federal IDEA statute does not require a homeschooled child to be evaluated if his parent refuses school services:

Subsection 1414(a)(1) provides that a state agency "shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b) of this section before the initial provision of special education and related services to a child with a disability under this part." (emphasis added). . . . [C]hildren whose parents refuse consent to an evaluation, who are being privately schooled, and whose parents have waived their child's claim to any benefits under the IDEA clearly will not receive "special education and related services" under the Act. As a result, the statute on its face does not require the evaluation of such children.9


A helping hand:
The Special Needs Children's Fund

Many homeschooling parents realize the benefit of private services for their special needs child, but often they cannot afford these services. That's why the Home School Foundation formed the Special Needs Children's Fund. The fund is available to HSLDA member families who need a boost toward meeting educational expenses, which include testing, professional services, specialized curriculum, and equipment. For more information, go to www.homeschoolfoundation.org, email us at info@homeschoolfoundation.org, or call 540-338-8899.

Thus, according to the Department of Justice, the Fitzgeralds' right to refuse to consent to an evaluation is established by a proper interpretation of the IDEA statute. In its final decision, the Eighth Circuit Court of Appeals will have to seriously consider this brief from the United States government.

Can IDEA benefit homeschoolers?

Child Find can certainly create problems for homeschoolers who do not want public school services, but what about those families who desire services? Are they entitled to any benefits? Under IDEA, the government grants to states a portion of money to fund services for private school children. However, the law does not define a private school.10

In 2000, the Ninth Circuit Court of Appeals ruled in Hooks v. Clark County School District that homeschools are distinct from private schools.11 This means that within the Ninth Circuit, states that do not consider homeschools to be private schools can refuse to offer services to homeschoolers. The decision also provides a strong precedent for other states. However, states considering homeschools to be distinct from private schools do not automatically refuse services to home-taught students.

For instance, HSLDA is currently litigating a case in New York (where homeschools are not considered private schools) that involves a school forcing an unwanted evaluation on a homeschooler. Another example is Nevada, a Ninth Circuit state that adopted a statute specifying that even though homeschools are not considered private schools in Nevada, homeschoolers should be treated as private schoolers.

Attorney Jim Mason says, "States in their discretion can treat homeschoolers like private schoolers even when they're not. And if they decide to do that, they must provide services [to qualified children]." Parents should consult their state laws in order to determine whether or not their homeschooled children will likely be eligible for services.

In states that consider homeschools to be private schools,12 homeschoolers may still encounter difficulties obtaining services. A homeschooled child with a disability does not have an individual right to services, because he is not enrolled in the public school. The decision to offer services rests with the school. If parents want their child to receive services, the child must be evaluated and must then comply with any related requirements of the school.

Homeschoolers who qualify for public assistance often find that they can only receive reduced services, and many have trouble gaining access to even these. Several factors contribute to this situation. For instance, schools allocate their private school funds (deciding to pay for some services and exclude others), affecting the availability of services from district to district. Another factor is the lack of sufficient federal funds for private school students; federal money may be thinly spread across a large number of private schools in a state.

Though HSLDA understands that some families cannot afford private services, we discourage homeschoolers from utilizing public services because they involve governmental regulation. (See the sidebar "A helping hand" for information on special needs grants for families who desire but cannot afford private services.)

What do I need to know?

"Be careful when asking for public school services," warns Joann Fitzgerald. "Try to avoid placing yourself in problematic situations." It is best not to get involved with a school district, because your homeschool is then subject to some form of governmental control. However, if you decide public services are your only option, familiarize yourself with your local public school requirements and state laws before applying for services.

"Be familiar with IDEA," Jim Mason recommends, "especially the Child Find provision. Be able to clearly and graciously explain the law to public school officials. Know whether your state considers a homeschool to be a private school.13 Understand that a privately educated child does not have an individual right to services under IDEA."

"Be aware of legislation affecting homeschoolers with special needs," Mason suggests. "Sign up for HSLDA's free e-lerts. These emails will inform you about current legislation and give you the opportunity to relay your opinions to the government."14

The big picture: Freedom to homeschool

As the Fitzgeralds' conflict with their school district intensified, the family considered moving to a new district. But they chose to stay, realizing that a victory in their case would benefit many other homeschooling families.

"First of all, you've got to believe in your child," says Joann Fitzgerald. "You've got to believe in your parental rights and in your children's rights."

As you homeschool your children, keep in mind the bigger picture of which you are a part. By standing up for your rights as parents and home educators, whether in court or in everyday life, you help protect the freedom of all homeschoolers.


Endnotes

1 20 U.S.C. 1414(a)(1). Clarified in Brief for the United States at 10, Camdenton R-III School District v. Fitzgerald, No. 04-3102 (8th Cir. Argued Oct. 10, 2005).

2 20 U.S.C. 1412 (a)(1)(A).

3 20 U.S.C. 1414(a)(1)(D)(i). Clarified in Brief for the United States at 3, Camdenton v. Fitzgerald.

4 Brief for the United States at 8, Camdenton v. Fitzgerald.

5 20 U.S.C. 1412(a)(10)(C)(i).

6 20 U.S.C. 1414(a)(1)(D)(ii).

7 20 U.S.C. 1414(a)(1). Clarified in Brief for the United States at 10, Camdenton v. Fitzgerald.

8 Federal Register 70, no. 118 (June 2005): 35799, http://www.ed.gov/legislation/FedRegister/proprule/2005-2/062105a.pdf.

9 Brief for the United States at 10, Camdenton v. Fitzgerald.

10 20 U.S.C. 1412 (a)(3)(A).

11 Hooks v. Clark County School District, 228 F.3d 1036 (9th Cir. 2000).

12 These states consider homeschools to be private schools: California, Illinois, Indiana, Kansas, Kentucky, Nebraska, and Texas. In Alabama, Arkansas, Louisiana, Michigan, and Pennsylvania, homeschools have the option of being private schools.

13 To learn about homeschooling laws in your state, go to www.hslda.org/laws.

14 Sign up for HSLDA's free E-lert Service at www.hslda.org/elert.


About the author

Andrea Longbottom is a student at Patrick Henry College and works part-time in HSLDA's Communications Department. She grew up in Southeast Texas and was homeschooled from kindergarten through high school. Andrea will graduate from PHC in December 2005 with a degree in literature.