The Home School Court Report
VOLUME XVI, NUMBER 6
- disclaimer -
NOVEMBER / DECEMBER 2000
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Cover Story
Erasing the Barriers for Children with Special Learning Needs

Special Features

An Interview with the Forstroms

An Interview with Betty Statnick: HSLDA’s Special Needs Coordinator

National Center Reports

Will the 2000 Elections Impact Home School Freedom?

106th Congress Wrap-Up

Across the States

State by State

Regular Features

Active Cases

Prayer and Praise

Notes to Members

Presidents Page

F. Y. I.

Association News

An Affirmative Plan: Debate Tournament

C O V E R   S T O R Y

Erasing the Barriers
for Children with Special Learning Needs

IMAGINE THE WORLD WITHOUT LIMITATIONS
Over 10 percent of Home School Legal Defense Association member families are teaching a child with special learning needs, and the number continues to grow. What does a parent do when his child needs extra help, a different approach, or special equipment to be able to learn? What if these services are not accessible through the private sector, and then denied by the public school?
In this issue:

Erasing the barriers:
What the law says

Seeking therapy:
Forstroms’ story

Practical help and advice:
Betty Statnick

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:

  1. Number of eligible children in public school = 300
  2. Number of eligible children in private school = 20
  3. 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.

Are there any particular kinds of services, or specified amounts of services, that must be provided to private school children with disabilities?

No. No private school child with a disability has an individual right to special education or related services under IDEA. Therefore, the local school district is not required to provide a private school disabled child any services he would receive if enrolled in a public school.

How are decisions made about the services that are to be provided to private school children, including the type and location of such services?

Each school district must consult with representatives of private school children with disabilities and decide what services will be provided, as well as how and where the services will be provided.

Is it possible for a school district, after consultation with representatives of private school children, to determine that it will provide no direct services to private school children with disabilities?

Yes, as long as the school district offers consultation services, or equipment and teacher training. The regulations specify that the local school district makes the final decision with respect to services to be provided to eligible private school children.

What should you do if you desire services such as speech therapy for your child, but the school district refuses to provide them?

Please contact our office immediately so we can address your particular situation. If you live in a state in which home schools are regarded as private schools, then your right to receive some degree of service is clearly established. If you live in a state in which a home school is a category distinct from private schools, then you should request a due process hearing in order to preserve your right for the current school year should the courts or Congress clarify the law in favor of home schoolers.

What is HSLDA doing to get Congress to amend IDEA to clarify its application to home school children?

Over the last two years, HSLDA’s National Center for Home Education has been working in Congress to pass two amendments to IDEA.

Our first goal is to end the discrimination against home schoolers in the application of IDEA in states that do not classify home schools as private schools. Our second goal is to exempt home schoolers who do not wish to comply with IDEA’s Child Find provisions which require local school districts to locate and evaluate “all“ special needs students.

In spite of resistance from House Education and the Workforce Committee staff to making these necessary changes, HSLDA succeeded in inserting language into the House and Senate Elementary and Secondary Education Act (ESEA) reauthorization that says:

Nothing in this Act or any other Act administered by the Department of Education, shall be construed to permit, allow, encourage, or authorize any federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school under state law. This section shall not be construed to bar private, religious, home schools from participation in programs or services under this Act or any other Act administered by the Department of Education.

This broadly worded language would accomplish our second goal to free families from IDEA Child Find provision, as well as our first goal to not “bar“ home schools from participation.

Unfortunately, while this language did pass the committee, the ESEA was never scheduled for floor action.

So as a fallback, National Center staff worked to include similar language in the Fiscal Year 2001 Education Appropriations bill. While only a one-year fix, it would be a good first step.

Majority Leader Dick Armey drafted alternate language and asked the House/Senate Appropriations Conference Committee to include the following language in the Appropriations bill:

Children with disabilities who are home-schooled shall not be prohibited from having access to programs and services under this Act whether or not their home school is treated as a private school or home school under state law.

Unexpectedly, the Consortium for Citizens with Disabilities Education Task Force wrote Congress in opposition to the Armey amendment to IDEA. HSLDA attorney David Gordon and General Counsel Mike Farris responded to the attack and urged support for the measure. Unfortunately, Congress never completed work on the language and is likely to postpone funding questions until next year.

We hope to make passage of these amendments a top priority in the 107th Congress.