Here’s an IDEA: Follow the Law!

In the state of Massachusetts a coalition of Catholic, Jewish, and Christian private school leaders had long suspected numerous public school districts of falling short on their obligation to identify, evaluate, and help parentally-placed private students with disabilities. Calling their initiative Project Access, the group submitted a complaint to the state’s Department of Elementary and Secondary Education (DESE) in which 27 districts were alleged to have demonstrated a pattern and practice of overlooking private school students with disabilities, in contravention of the requirements established by the federal Individuals with Disabilities Education Act (IDEA).  Not only did DESE’s Problem Resolution System (PRS) confirm the Project Access allegations, it found every public school district in the state, and DESE itself to be out of compliance with federal law.

The Project Access complaint contained proposed remedies: the provision of appropriate guidance from DESE, training designed to familiarize both public school district and private school officials with the relevant provisions of IDEA, and monetary recovery in the form of services owed.  When DESE offered a sum for compensatory services that – in the view of the Project Access leaders – fell woefully short of what was actually owed, a second complaint was filed, this time to the U.S. Department of Education (USDE).  It took the USDE nearly two years to sort things out, but when it finally issued its findings, in August, 2019, the coalition’s request for monetary recovery was upheld.  Every public school district in Massachusetts was ordered to estimate the number of parentally-placed private school students with disabilities that would likely have been identified had the districts followed the law, and to use the updated figures to calculate the amount of money that should have been reserved to furnish such students with services.  Whereas Project Access and DESE have yet to reach agreement on the amount owed, Project Access estimates the total over a five-year period to amount to approximately $120 million.

Are other states falling short of meeting their IDEA obligations?  The answer, which is readily deduced by the application of simple logic, is almost certainly, “yes.”  Nationally, the number of public school students identified as possessing disabilities requiring special education and related services is estimated to be approximately 13 percent of the total.  For private school students, the number is estimated at just under 3 percent.  The latter figure, meager as it is, is most likely inflated by data from a handful of states (Indiana, New Jersey, New York, and Ohio) with programs in place that both require and pay the cost of evaluating students (including private school students) to determine the presence of disability.  When those states’ totals are removed, the national estimate of identified private school students drops to below one percent.

Can such an estimate possibly be credible with respect to California?  Again, the answer is almost certainly, “yes.”  In the most recent year for which such information was obtainable, the total number of parentally-placed California private school students identified as possessing disabilities requiring special education and related services was 3,390.  Total enrollment in California’s nonprofit private schools (in grades K-12, inclusive) was 421,496 in 2018-19 (and higher in preceding years).  Thus, the percentage of California private school students identified as possessing disabilities is no greater than 0.8 (eight-tenths of one percent).

The federal law is clear.  IDEA Section 300.131 reads as follows:

Each LEA must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, in accordance with paragraphs (b) through (e) of this section, and §§300.111 and 300.201.

This element of IDEA, known as “child find,” is a civil right.  Once identified, evaluated, and found to possess disabilities requiring special education and related services, school districts are obligated to make an offer of a “free appropriate public education” (FAPE) that includes an individualized education program (IEP). Parents may either accept the offer of FAPE and enroll their child in a public school, or decline the offer, and enroll the child in a private school.  Children whose parents decline an offer of FAPE lose any individual entitlement to federally-funded services under IDEA and become members of a group of such children, for whom an equitable portion of federal funding must be set aside to provide services.  The specific nature of those services is to be determined through an ongoing process of consultation between public school district officials, private school representatives, and parents. (Districts may not simply dictate the nature of services to be provided.  Whereas a district possesses the final say in making such determinations, decisions cannot be made prior to the conduct of consultation.  Neither may districts condition the provision of services on private schools implementation of response to intervention (RTI) protocols.)

How many parentally-placed children with disabilities can be expected to possess disabilities requiring special education and related services?  Based on a number of surveys, it is reasonable to estimate a figure falling somewhere between 6-9 percent, or just over half the percentage of comparable public school students.  Most private schools are not equipped to meet the needs of children with the most challenging forms of disability.  And, because parentally-placed private school students with disabilities have no individual entitlement to federally funded services, the amount of federal funding available to help a given student is but a fraction of the amount made available to assist a public school counterpart.

That said, there are, undoubtedly, a great many private school students with disabilities whose needs can be better met if they are identified.  It is only through the effective conduct of “child find” that federal funding is generated to meet the needs of such students (in the aggregate, subject to the consultative process mentioned above). If the number of such private school students identified in California was to climb from the current 0.8 percent to, say, 5 percent, accompanying federal funding would increase from approximately $4.7 million to $29.5 million, annually.

We’ve got some work to do!

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