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Special Ed Services Reinstated

After a legal tug-of-war, the Illinois Department of Education (DOE) has finally reinstated special needs services for homeschoolers.

In December 2005, several of Home School Legal Defense Association's Illinois member families contacted us because

their special education services from the local public schools had been suddenly terminated.

One member family, the Blunts, had received a letter from the director of special education of their local school district stating that, according to the federal Individuals with Disabilities Education Act of 2004, the school district was no longer required to offer special education services to any private school that was not recognized by the state.

Having worked on this issue for the last 10 years with staff on the United States House Education and Workforce Committee and the U.S. Department of Education legal counsel, HSLDA's legal department knew that the district's letter contained incorrect information. The United States Department of Education has assured us that private school children taught at home have access to special needs educational support through the public schools in states (such as Illinois) where homeschools are considered private schools.

HSLDA Senior Counsel Christopher J. Klicka sent a letter to the school district on behalf of the Blunts, explaining the district's error. He stated that special needs services should be restored to the Blunts' child.

HSLDA soon received a reply from the school district's attorney. The letter said that the district's policy was based on Memorandum #05-7, which had been drafted by the assistant superintendent of the state DOE and functioned as “interim guidance” for Illinois public schools. The memo based a student's eligibility for services on his enrollment in a “state recognized private school”.

Memorandum #05-7 was inaccurate and contradicted federal law.

The issue of whether home-educated students are eligible to receive special education services has already been acknowledged at the federal level. In a letter procured by HSLDA, the federal director of special education affirmed that if a state recognizes a home education program as a private school, then those home-educated students are eligible for special education services:

The determination of whether a home education arrangement constitutes private school placement must be made on the basis of state law. Thus, if home education constitutes enrollment in a private school under state law, then the requirements of Regs. 300.403 and 300.452 apply when deciding whether to provide special education or related services to a child with disabilities who is being educated at home. 18 IELR 742

Klicka sent a letter directly to the DOE assistant superintendent, who was responsible for the erroneous memo, and explained that the Illinois Supreme Court defines a home education program as a private school. Therefore, home-educated students in Illinois are eligible for special education services. Klicka's letter required a response within 10 days and demanded that the memo be corrected.

Within the 10-day time frame, Klicka received a phone call from both the DOE general counsel and a special director. Somewhat apologetic, they admitted their error and assured Klicka that they would soon revise their memo, removing the offensive language requiring a private school to be "state recognized" before its students could be eligible for special education services.

— by Christopher J. Klicka