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FEDS OFFER GUIDANCE ON SPECIAL ED PLACEMENTS IN CHARTER, PRIVATE SCHOOLS

June 7, 2000

The U.S. Department of Education has released to the general public two new documents distributed this spring to state education officials and school administrators to explain how special education and civil rights laws apply to private schools and charter schools. Both documents are designed to make clear to those who oversee these schools that students with disabilities are entitled to the same rights and protections, and that compliance with the laws is monitored by the federal government.

Even though private schools do not receive federal funding in general, special ed students there are still protected by the Individuals with Disabilities Education Act, according to Ken Warlick, director of the Department of Education's Office of Special Education Programs. In a recent letter to Chief State School Officers, Warlick explained that the public school districts in which the students would have been placed, had they not gone to private schools, may still bear responsibility for ensuring those children receive the services they need.

Explaining Public Agency Responsibility

"In determining school district responsibility for children with disabilities in private schools, generally such children are in one of two groups, and public agency responsibility will vary based on the group into which the children fall," Warlick said in his memorandum, which has been posted online at the Idea Practices web site. A new question and answer sheet accompanying Warlick's memo outlines public agencies' legal responsibilities to students with disabilities in private schools.

"The Department believes that the right of parents to choose where their children should be educated, whether at public or private school, is extremely important," Warlick says. "Nevertheless, the rights of parentally-placed private school children with disabilities under Part B are not the same as those of children with disabilities who are enrolled in public schools and are served at public agency programs or public agency placements at private schools."

Children with disabilities placed at private schools by public agencies "as a means of providing special education and related services" are entitled to receive those services free. "The child and his or her parents have all of the rights that they would have if the child were served by the public agency," the memo states. If a free appropriate public education is available in their district, children with disabilities placed in private schools by their parents are not entitled to services under IDEA.

However, those attending private schools because their parents "believe that the public agency has failed to offer their child FAPE" may be entitled to free or subsidized services. If the public agency does not consent to the private school placement, a hearing officer or court must side with the parent for the family to be eligible for tuition reimbursement for part or all of the cost of the private school placement, Warlick explained in the memo.

"Let me emphasize that there is nothing in IDEA '97 or the final Part B regulations that alters or diminishes school districts' obligations to ensure the equitable participation of parentally-placed private school children with disabilities in programs assisted or carried out under Part B," Warlick told the school administrators. "Nor is there anything in the statute or the implementing regulations that is intended to confer an individual entitlement on these children."

Responding to Public Demand

Warlick's memo and the Q&A sheet grew from a flurry of questions OSEP received during regional seminars it held over the past 12 months on the amendments added to IDEA in 1997. A similar spate of questions has arisen about the responsibilities of public charter schools when educating students with special needs. To clarify that issue, the Department of Education and the Department of Justice issued a new guidebook for charter school administrators.

Applying Federal Civil Rights Laws to Public Charter Schools answers questions related to many different aspects of opening and operating a charter school, but it includes two sections that specifically address issues relevant to students with disabilities. The first offers guidance on how to select the appropriate facility for a charter school to ensure the school complies with the Americans with Disabilities Act and IDEA. The guidebook offers information on requirements for physical access and the differences in legal requirements for charter schools located in existing buildings and those in new facilities.

"For some people with physical disabilities, an otherwise outstanding program may as well not exist if it is located in an inaccessible facility," the agencies say in the booklet. The government cautions charter schools to be aware of federal laws protecting children with disabilities, "because charter schools often open in older buildings that may lack attention to accessible design or in contemporary or renovated buildings that were not originally designed for use as public schools."

Another section addresses charter schools' responsibilities when providing education and related services for students with disabilities. "Some children arrive at school with disabilities that affect their participation in the educational program. Sometimes, these disabilities are known; sometimes they remain hidden until a parent or teacher raises a concern. The challenge for all public schools is to identify children with disabilities, assess their individual needs and provide appropriate educational services without undue delay," the book explains.

This section discusses the various civil rights requirements that apply to charter schools, the federal funds and other assistance available to help charter schools meet the needs of students with disabilities and the difference between protections under Title II, IDEA and Section 504 of the ADA. The book also answers questions about inclusion, making it clear that charter schools "may not limit the participation of students with disabilities to certain aspects of [the] charter school's program."8