“Students with Disabilities in Faith-Based Schools: Public Schools’ Responsibilities under the Individuals with Disabilities Education Act” by Allan G. Osborne, Jr.

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This article is part of our “Children and Education Rights” series.
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The Individuals with Disabilities Education Act (IDEA) mandates states, through local school boards or education agencies, to provide a free appropriate public education (FAPE) to all children with disabilities.¹ The IDEA defines a child with a disability as one (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in [the IDEA] as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3)(A). To meet this requirement, the statute requires school officials to offer special education and related services to eligible students.²20 U.S.C. §§ 1401(9), 1412(a)(1)(A). The IDEA does not establish substantive criteria to measure the adequacy of services, but does define special education as specially designed instruction³20 U.S.C. § 1401(29). that conforms to students’ individualized education programs (IEPs).⁴20 U.S.C. §§ 1401(14), 1414(d). The IDEA also stipulates that school boards must provide related services, such as developmental, corrective, and other supportive services to assist students in benefitting from their special education programs.

The IDEA’s full definition of related services is: The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.⁵20 U.S.C. § 1401(26). The U.S. Supreme Court, in Board of Education of Hendrick Hudson Central School District v. Rowley,⁶458 U.S. 176 (1982). interpreted the law, at the time known as the Education for All Handicapped Children Act, to mean that students with disabilities are entitled to personalized instruction with support services sufficient to permit them to benefit from the education they receive. Thirty-five years later, in Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1,⁷U.S., 137 S. Ct. 988 (2017). the Court added that IEPs for students with disabilities must be reasonably calculated to enable them to make progress appropriate in light of their circumstances.

Despite the IDEA’s goal of providing FAPEs to all children with disabilities, the rights of those who attend nonpublic schools,⁸Although the IDEA uses the term private, rather than, nonpublic school, this article uses the preferred term nonpublic school except in direct quotes where the term private school was used in the original. including faith-based schools, are limited because the obligations of public school boards to provide special education services under the IDEA differs for these students, compared with their counterparts in the public schools. The IDEA requires public school boards to provide some, albeit minimal, funds for services to students in nonpublic schools, but nonpublic school children do not have individual rights to FAPEs. Thus, although nonpublic school students are still entitled to FAPEs under the IDEA, many have to enroll in the public schools to receive full services.⁹It should be noted that the IDEA treats students who are placed in nonpublic schools by public school boards for the purpose of receiving FAPEs as if they were public school students who have the same rights as children with disabilities educated in public school programs. 20 U.S.C. § 1412(B). This article addresses students who are voluntarily enrolled in nonpublic schools by their parents.

As could be expected, questions have surfaced regarding the amount of services to which students who attend nonpublic schools, especially faith-based schools, are entitled and whether school boards are required to offer those services on-site in the nonpublic schools. This brief review examines issues regarding the rights of students in nonpublic schools to receive special education services under the IDEA and the obligations the statute places on states and public school boards to serve these children.

The IDEA’s Provisions for Nonpublic School Students

The IDEA clearly makes a distinction between the entitlements to special education of nonpublic school children as a group and those of individual students with disabilities. The statute and its implementing regulations¹⁰The specific regulations may be found at 34 C.F.R. § 300.129-144. state that as a group, children whose parents voluntarily enroll them in nonpublic schools are entitled to some level of special education services, but that individual students have no entitlements.¹¹The IDEA expressly provides that public school agencies are not required to pay the costs of special education services for a particular child but rather are required only to spend proportionate amounts of the federal special education funds they receive on this class of students as a whole. 20 U.S.C. §§ 1412(a)(10)(A)(i)(I), 1412(a)(10)(C)(i). The IDEA adds that the on-site delivery of special education services for students with disabilities at faith-based schools is permissible “to the extent consistent with law.”¹²20 U.S.C. § 1412(a)(1)(A)(i)(III); 34 C.F.R. § 300.139(a). Although the Supreme Court, in Zobrest v. Catalina Foothills School District,¹³509 U.S. 1 (1993). ruled that a public school board could provide a sign-language interpreter on-site to a student attending a faith-based school without violating the Establishment Clause of the First Amendment,¹⁴U.S. Const. amend. I. providing on-site services could violate provisions of state constitutions.

“Bush signs in ADA of 1990” / Wikimedia CC0

Even though the IDEA stipulates that public school boards must allocate a proportionate share of their federal special education reimbursement for services to students with disabilities attending nonpublic schools and does not require that they spend more than the proportionate share, boards are not prohibited from using some of their own funds for this purpose. In fact, the IDEA indicates that state and local funds may supplement but cannot supplant the proportionate amount of federal funds allocated.¹⁵20 U.S.C. § 1412(a)(10)(A)(i)(IV).

Child-Find for Students in Nonpublic Schools

The IDEA mandates that public school officials “locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private schools, including religious elementary schools and secondary schools, located in the school district.”¹⁶34 C.F.R. § 300.131(a). To meet this requirement, public school personnel must undertake activities similar to those used for the district’s public school students.¹⁷34 C.F.R. § 300.131(b)(2), (c). The costs of child-find activities may not be included in calculating the proportionate amount of federal funds allocated for parentally-placed nonpublic school children with disabilities.¹⁸20 U.S.C. § 1412(a)(10)(A)(ii)(V).

The child-find responsibilities for students attending nonpublic schools lies primarily with the school boards in the districts in which the nonpublic schools are located.¹⁹34 C.F.R. § 300.131(a). Even so, courts have held that this provision does not excuse school board officials from identifying and evaluating students who reside within, but may attend school outside, their district boundaries. Nonpublic school students always have the option to enroll in public schools to access special education and related services; thus, the boards in the districts where children live must honor parental requests for evaluations or FAPEs. Even so, as a federal trial court in Pennsylvania explained, the parents must request that the school board evaluate their child or provide services to trigger its responsibility to conduct an evaluation and propose an IEP, if needed.²⁰A.B. ex rel. K.B. v. Abington Sch. Dist., 440 F. Supp. 3d 428 (E.D. Pa. 2020).

In this respect, a federal trial court in New Jersey asserted that board officials could not require a student to enroll in one of their schools before they would evaluate him or develop an IEP.²¹Moorestown Twp. Bd. of Educ. v. S.D. and C.D., 811 F. Supp. 2d 1057 (D.N.J. 2011). Similarly, a federal trial court in New York commented that the obligations of the board in a child’s home district did not end when her parents enrolled her in an out-of-state nonpublic school.²²J.S. and A.G. ex rel. J.G. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635 (S.D.N.Y. 2011). The court explained that the parents could seek equitable services from the school district of location as well as a FAPE from their district of residence. More recently, the federal trial court in the District of Columbia insisted that the board could not require a nonpublic school student to enroll in a public school before it would evaluate the child.²³District of Columbia v. Wolfire, 10 F. Supp. 3d 89 (D.D.C. 2014). The court maintained that a public board is obligated to offer a FAPE to a nonpublic school student residing within the district. According to the court, the parents must then choose whether to accept any offer of services and enroll the child in a public school or keep the child in the nonpublic school.

While students in nonpublic schools are entitled to evaluations, public school officials cannot use child-find as a vehicle to compel evaluations and the provision of services when parents who place their children in nonpublic schools decline offered services. In a case on point, the Eighth Circuit rejected a Missouri school board’s attempt to obtain an order to evaluate a child whose parents withdrew him from a public school so he could be homeschooled.²⁴Fitzgerald v. Camdenton R-III Sch. Dist.,439 F.3d 773 (8th Cir. 2006). The court, noting that the IDEA does not confer mandatory authority on boards to compel initial evaluations where parents have not granted consent, indicated that if parents refuse to consent to initial evaluations, boards may pursue evaluations via the statute’s dispute resolution procedures.²⁵20 U.S.C. § 1414(a)(1)(D)(ii)(I). Section 1415 of the IDEA delineates the procedures states must establish and maintain to resolve disputes between parents and boards over any matters pertaining to the provision of FAPEs.

Delivery of Special Education and Related Services

The IDEA instructs public school officials to provide “special education and related services” to students attending nonpublic schools located within the boundaries of their districts.²⁶34 C.F.R. § 300.132(a). Thus, the boards of the districts in which nonpublic schools are located are responsible for providing services rather than the ones in which students reside. Even so, this does not relieve the school board of the district of residence of its responsibility to offer a FAPE. In a case from Connecticut, the Second Circuit confirmed that a school board’s duty to provide a FAPE did not end when the parent of a child with disabilities enrolled him in a faith-based school outside the school district.²⁷Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440 (2d Cir. 2015), on remand 262 F. Supp. 3d 11 (D. Conn. 2017), aff’d in part, vacated in part. And remanded 962 F.3d 649 (2d Cir. 2020) The court stressed that the board was required to offer an IEP to the resident child even when he was enrolled in a faith-based school outside the district boundaries. In this respect, even when parents withdraw a child from the public schools, their local school district is still obligated to offer to provide a FAPE.²⁸Lague v. District of Columbia, 130 F. Supp. 3d 305 (D.D.C. 2015).

As the Supreme Court ruled in Zobrest, the IDEA permits, but does not mandate, public school boards to provide special education and related services to parentally-placed nonpublic school students with disabilities on the premises of their schools even when those schools are faith-based.²⁹20 U.S.C. § 1412(a)(10)(A)(i)(III). See A.H. ex. rel. D’Avis v. Indep. Sch. Dist., 466 S.W. 3d 17 (Mo. Ct. App. 2015) (holding that the IDEA does not create an individualized right to receive special education and related services. Some services, such as sign-language interpreters or one-to-one paraprofessionals, may only effectively be provided on-site. Even so, the federal trial court in Delaware maintained that a public school board was not required to provide a sign-language interpreter at a faith-based school for a hearing-impaired student where the school board had offered a FAPE at a public school and his parents had elected to send him to the nonpublic school.³⁰Bd. of Educ. of Appoquinimink Sch. Dist. v. Johnson, 543 F. Supp. 2d 351 (D. Del. 2008). The court observed that the cost of providing the interpreter would have been more than ten times the amount available for all parentally-placed nonpublic school students in the district.

When public school boards elect to furnish services to nonpublic school students off the premises of their schools, the children are entitled to transportation to and from the locations where such services are provided. Even so, boards are not required to provide children with transportation from their homes to their nonpublic schools.³¹34 C.F.R. § 300.139(B)(ii). The costs of transporting nonpublic school students may be included in calculating the proportionate amount of federal funds to be allocated for parentally-placed nonpublic school children with disabilities.³²34 C.F.R. §§ 300.139(b)(2), 300.133(b).

Comparable Services

Even though the IDEA’s regulations state that individual students do not have entitlements to special education services,³³34 C.F.R. § 300.137(a). they provide for the equitable determination and distribution of services to these children as a group.³⁴See generally § 300.137, 138. The regulations add that boards must do so in the framework of services plans for such children. Services plans describe the special education and related services that the boards will provide students within the context of the services the boards have chosen to make available to nonpublic school students as a group.³⁵34 C.F.R. § 300.138(b). “The services plan must be developed, reviewed, and revised consistent with the IEP requirements. In addition, the LEA must ensure that a representative of the private school attends each services plan meeting, and if the representative cannot attend, the LEA must use other methods to ensure participation by the private school.” U.S. Department of Education, Individuals with Disabilities Education Act (IDEA) 1997/Services to Parentally-Placed Private School Students with Disabilities, http://www2.ed.gov/about/offices/list/oii/nonpublic/idea1.html (2001). Services plans must outline the programs public school boards will offer and must be developed, reviewed, and revised using a process similar to that used to develop IEPs.³⁶34 C.F.R. §§ 300.132(b), 300.138(b). This process includes participation by children’s parents or guardians, and public school officials must give representatives of nonpublic schools, including faith-based schools, the opportunity to attend the meetings or participate by other means.³⁷34 C.F.R. § 300.137(c)(2). By the same token, the personnel delivering services to students with disabilities enrolled in nonpublic schools must meet the same standards as public school providers.³⁸34 C.F.R. § 300.138(a).

Dispute Resolution

The IDEA has a comprehensive scheme for resolving disputes between parents and school boards regarding the provision of special education services to public school students.³⁹These procedures are spelled out at 20 U.S.C. § 1415. Nonetheless, the dispute resolution process is not available to parents of students in nonpublic schools, except when they challenge a board’s failures to meet its child-find obligations.⁴⁰34 C.F.R. § 300.140(a). States are required, however, to create separate resolution processes to resolve complaints regarding denials of appropriate services. Within sixty days of receiving parental complaints, state education agencies must investigate and submit written decisions containing whatever corrective measures are necessary.⁴¹34 C.F.R. § 300.152(a).

Attempts by the parents of nonpublic school students to file complaints under the IDEA’s normal due process mechanism have not been successful. For example, a federal trial court in Florida dismissed for lack of subject matter jurisdiction a suit where parents sought services for their profoundly deaf son at a nonpublic preschool.⁴²E.W. and E.W. v. Sch. Bd. of Miami-Dade Cnty., 307 F. Supp. 2d 1363 (S.D. Fla. 2004). The court declared that the parents needed to avail themselves of the state’s complaint resolution process for a consideration of the specific services to which the child was entitled while attending a nonpublic school. Similarly, a federal trial court in New York rejected parental claims for related services for their daughter at a nonpublic school, asserting that the IDEA’s regulations made it clear that its due process mechanisms were inapplicable to a school board’s failure to provide services at a nonpublic school.⁴³Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313 (S.D.N.Y. 2005). In yet another case, the First Circuit rejected the claim of parents in New Hampshire that the denial of a due process hearing for parentally-placed children in nonpublic schools amounted to an equal protection violation, concluding that a statutory classification between public and nonpublic school students bore a rational relationship furthering a legitimate governmental purpose.⁴⁴Gary S. v. Manchester Sch. Dist., 374 F.3d 15 (1st Cir. 2004).

Discussion

The first stated purpose of the IDEA is “to ensure that all children with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”⁴⁵20 U.S.C. § 1400(d)(1)(A). Despite the use of the term all children in the stated purpose, the FAPE guaranteed by the IDEA is targeted primarily to students with disabilities attending public schools. Individual students in nonpublic schools do not have such a guarantee even though Congress made provisions for public school boards to spend a portion of their federal special education dollars on delivering services to these students.

There is no guarantee that individual students will receive the services they need, unless they enroll in public schools.

The IDEA includes provisions requiring public school boards to spend a proportionate amount of their federal special education funds on services for parentally-placed students with disabilities in nonpublic schools, as a group. There is no guarantee that individual students will receive the services they need, unless they enroll in public schools. The only requirement impacting individual students is that boards must locate and evaluate them, and if they are identified as needing special education services, offer them FAPEs. Beyond this, individual students lack entitlements to appropriate levels of services or to have services delivered on-site at their nonpublic schools.

Although school boards must offer FAPEs to all students with disabilities, if parents choose to enroll their children in nonpublic schools, they essentially waive the full entitlements of their children to receive services.⁴⁶See M.L. ex rel. Leiman v Starr, 121 F. Supp. 3d 466 (D. Md. 2015), aff’d sub nom. M.L. ex rel. Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017). (ruling that the IDEA does not require a public school board to pay for the education of a nonpublic school student with disabilities if the board had made a FAPE available and the parents elected to enroll the child in the nonpublic school.). In other words, absent a mandate for public boards to provide full funding for services to students in nonpublic schools, individual students do not have an entitlement to services, unless they enroll in public schools. Furthermore, boards are not obligated to provide services on-site as long as they offer students IEPs that can be implemented in the public schools. Even though the IDEA places the responsibility for providing special education services to nonpublic school students on officials in the districts where their nonpublic schools are located, the local school boards of children are still responsible for evaluating them and developing IEPs, if necessary, when their parents ask that they do so.

The majority of funds supporting special education programs in public schools come from state and local revenues. Although Congress has committed to providing grants to assist states in providing special education and related services of up to 40% of the excess average per-pupil expenditure,⁴⁷20 U.S.C. § 1411(a)(2)(A)(ii), (B)(ii). it has yet to live up to its pledge. Recent estimates indicate that the federal government is falling far short of this goal.⁴⁸Michael Griffith, EdNote, Is the Federal Government Shortchanging Special Education Students? (Sept. 4, 2018). Available at https://ednote.ecs.org/is-the-federal-government-short-changing-special-education-students/ If the proportionate share of federal special education funds allotted for nonpublic school students is not supplemented by state and local funds, they will not go far. As one court noted, the costs of providing services to one child could exceed the district’s allotment for all nonpublic school students with disabilities.⁴⁹Bd. of Educ. of Appoquinimink Sch. Dist. v. Johnson, 543 F. Supp. 2d 351 (D. Del. 2008). Thus, decision-makers face the difficult choice of providing a minimal amount of services to all students or more adequate services to some and none to others.

Although Congress has committed to providing grants to assist states in providing special education and related services of up to 40% of the excess average per-pupil expenditure, it has yet to live up to its pledge.

The IDEA and its regulations have created a process for addressing the needs of students with disabilities in nonpublic schools via services plans. Even so, public school officials have full discretion to determine which of these children will be served, what services they will receive, how services will be distributed, and how services will be evaluated. Further, the services students in nonpublic schools may receive can be, and generally are, quite different from those they would have been given had they enrolled in public schools.

Congress has made it clear that its priority is to provide funds for educating children with disabilities attending public schools. Even though the IDEA does provide for the expenditure of a proportionate share of federal special education dollars on services for nonpublic school students, those funds are given directly to states and passed down to local school boards. The accountability for the funds and the services provided rests with state educational agencies and public school boards.⁵⁰See St. Johnsbury Acad. v. D.H., 240 F.3d 163 (2d Cir. 2001) (holding that the responsibility for special education services for a child placed in a nonpublic school pursuant to a board’s contract with a nonpublic school remained with the public board and did not transfer to the nonpublic school because the board was the recipient of the IDEA funds). As a result, officials in nonpublic schools have little control over the amount, location, or timing of offered services.

School board officials have full discretion to provide services either at children’s nonpublic schools or local public schools. When children are required to come to public school sites to receive services, they miss class time because of the time it takes to travel between sites. While most public school educators attempt to minimize the inconvenience to nonpublic school students, they nevertheless prioritize their employees’ schedules to serve their own public school students. The result is that the amount of services offered and the locations where they are provided are important factors for parents to consider in deciding whether to send their children to nonpublic schools.

As stated throughout this commentary, the IDEA makes provisions for parentally-placed nonpublic school children as a whole to receive a share of federal special education dollars. However, because these children do not have individual entitlements to specific levels of services, there is no guarantee they will receive any needed services on-site at their nonpublic schools, or even that they will receive adequate levels of services. To this end, parents who enroll their children in nonpublic schools have no guarantees their children will receive services sufficient to effectively address their unique needs.

When nonpublic school children with disabilities do not get the services they would be entitled to if they attended the public schools, educators in their nonpublic schools face challenges in providing them with appropriate and adequate education. Nonpublic schools do not have legal obligations to meet the IDEA’s requirements but still may have requirements under Section 504 of the Rehabilitation Act of 1973,⁵¹29 U.S.C. § 794. if they receive federal funds, or Title III of the Americans with Disabilities Act,⁵²42 U.S.C. § 12181. The ADA’s regulations exempt “any religious entity,” defined as “a religious organization, including a place of worship.” 28 C.F.R. §§ 36.102(e), 104. which exempts faith-based institutions. Nonpublic schools coming under these statutes may not discriminate against students with disabilities and may be required in some instances to provide reasonable accommodations so that children may participate in their programs.

 Even for nonpublic schools that may be exempt from Section 504 and Title III of ADA, the options they face when IDEA services are limited or unavailable present difficult decisions. Decisions not to admit children with special education needs that nonpublic schools are unable to address properly could produce the undesirable effect of depriving their current students of exposure to the kind of diversity based on disabilities that public school students experience. Further, because many parents choose faith-based schools based on a desire to expose their children to curricula based on their religious or moral values, excluding any class of children may deprive parents of this option.

Conclusion

Statutory, regulatory, and judicial mandates regarding the delivery of special education in nonpublic schools have left the parents of children with disabilities in many of these schools caught between a rock and a hard place. In other words, while the IDEA makes it clear these students are entitled to some special education, the funding restrictions may actually limit the amount of services they receive on-site. Parents often must choose between having their children receive appropriate special education and related services in the public schools or accept a less-than-appropriate level of services in a nonpublic school. This dilemma is particularly difficult for parents who desire a faith-based education for their children. Consequently, it is important for officials in faith-based and other nonpublic schools to understand the parameters of the law of special education at both the federal and state levels so they can honestly advise the parents of students with disabilities so that they can make the best choice for their children.

It is unlikely that Congress will amend the IDEA or enact parallel legislation to create similar rights to services for students in nonpublic schools that are now given to students in public schools any time soon. Rather, as evidenced by the most recent IDEA amendments, Congress has moved in the opposite direction. Thus, it is imperative for educational leaders in nonpublic schools to work cooperatively with their public school counterparts to obtain sufficient financial resources, not only to support parental educational choices including those with a religious base, but also to assure that students in nonpublic schools are exposed to the diversity that is part of every public school student’s educational experience. The value of exposure to that kind of diversity cannot be overstated.

Commenting on the benefits of educating a hearing-impaired student with her peers who were not disabled, one federal judge said it best: “While she has benefitted from her exposure to her peers, they have also learned compassion, understanding and patience for one who is different and less fortunate. It is difficult to envision a lesson better worth learning.”⁵³Bonadonna v. Cooperman, 619 F. Supp. 401, 418 (D.N.J. 1985). That lesson should not be restricted to public school students but should also be available to those attending nonpublic schools. ♦

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Recommended Citation

Osborne, Jr. Allan G. “Students with Disabilities in Faith-Based Schools: Public Schools’ Responsibilities under the Individuals with Disabilities Education Act”. Canopy Forum, December 7, 2020. https://canopyforum.org/2020/12/07/students-with-disabilities-in-faith-based-schools/