RE-AUTHORIZING THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

May 2, 2002

This past winter when President Bush signed into law the reauthorization of the Elementary and Secondary Education Act (ESEA), a sweeping reform of the federal government’s role in education resulted, targeting the goal that “no child shall be left behind.” Congress intentionally retained (and strengthened) the provisions in the Act that guaranteed to children enrolled in the nation’s private schools the benefits of that same promise. Even still, a significant segment of the K-12 population – namely, children with special needs – continue to wait for their assistance.

This year, Congress and the President hope to bridge that gap through the federal re-write of the Individuals with Disabilities Education Act (IDEA). The Washington Federation of Independent Schools (WFIS) joins with its state and national affiliates in calling for the same equity in service for children placed by their parents in private schools as that which they have realized under ESEA.

Previous IDEA amendments in 1997 replaced somewhat vague language governing services to children in private schools with a quantitative formula. The resulting state level interpretations eliminated the opportunity for parentally placed private school children to participate equitably in the benefits of the Act. Although IDEA provides significant assistance to public school children in need of special education, it does not provide the same scope of service to children in private schools. Currently, no individual child in a private school is entitled to any services under IDEA, and collectively, children with special needs in private schools receive assistance that amounts to only a small fraction of the level of special education services available to public school counterparts with comparable needs. In the data gathered by the U.S. Department of Education during the 1999-00 school year, 11.26 percent of the nation’s students ages 6 through 17 received services under IDEA, but in private schools only 1.52 percent of students received the same assistance. A breakout of the figures for Washington State shows an equivalent discrepancy.

Specifically, the new formula prescribes that dollars expended by a school district for the provision of IDEA-related services to children in private schools should be “equal to a proportionate amount of federal funds” allocated to the state. Because IDEA funds cover only a small share of the total cost of special education services in a school district (currently about 12 percent), the net effect of the new formula is that children with special needs in religious and independent schools receive only a minimal portion of the services they would receive under an “equitability” standard. Subsequent regulations have made clear that no private school child with a disability has “an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” These rules specify that although a school district must consult with representatives of private school children in determining which children in private schools will be served, which services they will be provided, and how and where those services will be provided, the final decision regarding such matters rests entirely with the district.

Equity for Students with Special Needs in Private Schools
The real flaw in the current system lies in the fact that there is no reason to assume that any individual private school student receives all necessary services. Although the law requires services commensurate with the needs of students in public schools, it does not do so for students in private schools. Decisions as to which students are served and what services they receive are entirely matters of district discretion. WFIS calls for the inclusion of language that recognizes the right of special needs children in private schools to receive services that are equitable to those provided to comparable students in public schools. In 1925, the U.S. Supreme Court recognized the fundamental right of parents to choose a private school by ruling that the state has no right to force a child to attend a public school. Children with special needs should not be forced to attend public schools in order to receive services that address those needs under IDEA. The issue of equity in IDEA services is a simple matter of social justice.

Equity for students with special needs in private schools could be achieved through a variety of means, including a requirement that public schools provide the maximum amount of services to special needs private school students seeking such services. There are also other ways of approaching the goal, including those offered by the Council for American Private Education (CAPE), a WFIS associate organization, such as:

• A variation of Florida’s John M. McKay Scholarships for Students With Disabilities that would cover students already enrolled in private schools, simplifying a parent’s direction of available special education resources to follow their child to their school of choice;
   
• A child-service certificate for students with disabilities similar to what is in the Child Care and Development Block Grant;
   
• A tax credit for educational expenses incurred by parents of special needs children.
   

Obstacles to Equity for Private School Students
Current child-find practices and the proportionate share formula provide serious obstacles to equity for private school children. Regulations require school districts to “locate, identify, and evaluate all private school children with disabilities” who reside within the district. An accurate and transparent child-find process is essential because the count of students with disabilities in private schools determines the proportionate share of funds available for services to those students. However, the Department of Education does not require school districts or states to report the number of private school children with disabilities who have been located, only those who have been served. Thus, it is impossible to determine whether a district is expending the required share of federal dollars on services to private school children.

A more basic problem is the proportionate share formula itself. Because the share of federal dollars a district must spend on private school students is contingent upon the number of private school students with disabilities that the district actually locates, the law, in effect, provides school districts with a built-in disincentive to find private school children with special needs. The stark reality of the current formula is this: the more students with disabilities that a district finds in private schools, the less federal dollars available for services to students in public schools.

A straightforward solution to this problem would be to require school districts to set aside a share of funds equal to the share of resident students enrolled in private schools and to reserve those funds strictly for services to private school students. Because data on the number of students in a district who attend private schools are readily accessible, private school parents and officials would know the share of federal funds available for services to private school students with special needs.

Other Changes in IDEA
Although equity is the principal standard by which the reauthorization of IDEA should be measured, also identified are additional ways in which the law should be amended.

Services
 

• Require that private school special needs students receive appropriate services;
• Require on-site services, including assessments, for children in private schools;
• Require districts to consider a child's cultural and linguistic background in determining appropriate IDEA services;
• Strengthen the current child-find language to identify and evaluate eligible children in private schools and to include the use and payment of private evaluators;

Funding
 

• Increase significantly the share of federal funds for IDEA. (A significant increase in federal IDEA support from the current 12 percent would help districts meet the needs of all students with disabilities and would ensure a more equitable level of service and participation for students in private schools.);
• Require districts to spend the full proportionate share of IDEA funds on students in private schools, regardless of any separate state and local funds used to serve those children;
• Change the law so there is no fiscal disincentive for school districts to serve children in private schools;
• Ensure that any allocation of funds to provide for the professional development of teachers (especially the training of general education teachers to address the needs of special education children in a regular classroom setting) is proportionally available to staff in private schools.

Accountability
 

• Strengthen the bypass language to provide recourse to students whose districts do not provide equitable services;
• Require districts to report annually on all private school children located, referred, identified, evaluated, and served;
• Require districts to provide equitable due process procedures for parents of eligible students in public, private, and religious schools;
• Require federal monitors who evaluate the implementation of IDEA programs to include representatives of private and religious schools in this process;
• Require the full disclosure of the number of private school students identified, the number served, and the dollars expended on those services.

Conclusion
Unfortunately, the 1997 changes to the Individuals with Disabilities Education Act resulted in a cruel misnomer for special needs students in private schools. No longer were they to be considered as individuals, but as a separate and unequal class of children with few individual rights and little say in the process. This reauthorization of IDEA provides Congress a unique opportunity to recraft an act that will truly provide enhanced opportunities for an important group of young learners. Our hope is that the reauthorized legislation will truly leave no child behind and will offer all children an equal opportunity to receive the special services required by IDEA. No parent should have to forfeit the right to choose a child’s school in order to ensure that the child’s special needs are met. The above proposals would go a long way toward realizing the equity that IDEA has always sought.