This year, the Individuals with Disabilities Education Act (IDEA) is scheduled for reauthorization by Congress. The Secretary of Education has invited written comments from the public regarding the law and its implementation. In response, CAPSO has submitted the following letter:

February 18, 2002

Mr.Thomas Irvin
Office of Special Education
And Rehabilitative Services
U.S. Department of Education
400 Maryland Avenue, SW
Mary E Switzer Building, Room 3086
Washington, DC 20202-2570

Dear Mr. Irvin,

I write to you as President of the California Association of Private School Organizations (CAPSO) regarding the reauthorization of IDEA. CAPSO is a consortium of private school administrative units representing the majority of California's 640,000 private school students, their schools and parents. When applied to America's private school children, the Individuals with Disabilities Education Act is a cruel misnomer. Under the current law, children with disabilities whose parents refuse the provision of free, appropriate public education (FAPE) forfeit the status of "individual" and become members of a non-differentiated class. Those occupying this unwelcome status are denied individual entitlement to any particular service under IDEA (Section 300.454 (a)).

There is a coercive aspect to this dimension of the law that demands redress, as it forces significant numbers of parents to choose between two forms of involuntary group membership, one entailing the reluctant acceptance of FAPE, the other entailing forfeiture of their children's individual entitlements. Such a quandary is particularly acute for low-income families. Pierce v. Society of Sisters (1925) clearly established that states may not force children to receive instruction in public schools, exclusively. IDEA treads dangerously close to foreclosing parental options.

Moreover, this bifurcating element of IDEA is inconsistent with other, longer established Federal education laws, most notably, the Elementary and Secondary Education Act. In its recently reauthorized form, the "No Child Left Behind Act" (NCLB) continues to affirm the principle of "equitable participation of private school students." By "equitable," the law requires comparability "...to services and other benefits for public school children, teachers, and other educational personnel." (Section 9501 (a)(3)).

In NCLB, the principle of equitable participation applies to private school children who are at risk of educational failure (Title 1). The same principle applies to private school children who are at risk of failure through potential drug abuse (Title IV). Why then, under IDEA, does the same principle not apply to private school children who are at risk of educational failure owing to their particular disabilities?

Lack of equity has a direct and profound bearing upon level of participation. While the current law requires the provision of special education and related services for parentally enrolled private school students (Section 300.452), the actual incidence of such participation is distressingly low.

According to figures provided by the U.S. Department of Education's Office of Special Education Programs, 77,359 parentally enrolled private school children received special education and/or related services under IDEA, Part B, during the 1999-2000 school year. While the general incidence of disabilities addressed by IDEA is estimated at 10% or higher, this figure represents a mere 1.3% of the nation's 6 million private school children in grades K-12. A portion of this disparity may be explained by the ability of some to provide for their children's needs out of pocket. Nevertheless, it should be kept in mind that 2/3 of all private school students hail from homes with combined familial incomes of less than $75,000 (U.S. Bureau of the Census, 1999 figures). By any reasonable reckoning, vast numbers of parentally placed, private school children are not receiving needed services under IDEA.

In California, the under-representation of private school students is alarmingly acute. Of the state's 640,000 private school students, only 1,032—less than one-fifth-of-one-percent—received special education and/or related services under IDEA, Part B, in 1999-2000. Twice as many private school students received service in Louisiana; more than three times as many received service in Indiana; more than ten times as many received service in New Jersey.

The striking state-by-state disparities in levels of participation point to another aspect of IDEA requiring redress: the need for substantially greater accountability on the part of LEAs for the conduct of Child Find procedures required by Section 300.451. The regulations are clear and unambiguous: "Each LEA shall locate, identify and evaluate all private school children with disabilities, including religious-school children residing in the jurisdiction of the LEA..." Absent meaningful accountability measures intended to assure compliance with this requirement, it is a foregone conclusion that the participation of parentally-placed private school students with disabilities will continue to be grossly under-represented.

Beyond its direct effect on levels of participation, Child Find activities determine the amount of IDEA funding available to LEAs for the provision of service to eligible, parentally-placed private school children. The fewer the number of such children identified through Child Find, the fewer the resources received by LEAs to meet their needs. The fewer the resources, the greater the likelihood that actual services will be of a general and diffuse nature. Thus, the more inadequate the conduct of Child Find activities, the greater the disparity between need and service. Inadequate attention to Child Find, coupled with treatment of parentally-placed private school children as members of an undifferentiated class, yields the net effect of wasting resources.

In conclusion, CAPSO strongly encourages revisions of IDEA that: 1) restore the individual entitlements of parentally placed private school students; 2) strengthen accountability requirements pertaining to Child Find, and 3) otherwise serve to correct the serious under-participation of private school students in special education and related activities provided by IDEA.

Sincerely,

Dr. Ron Reynolds
President
California Association of Private School Organizations