• Molly Watson

Are private school placements appropriate for children with special needs?

Updated: Feb 28

An important case, Espinoza v. Montana Department of Revenue, has provoked a discussion about the appropriateness of private school placements for children with special needs. The United States Supreme Court heard oral arguments last week, and the justices will issue a decision in the next few months. At issue is whether the state of Montana is obligated by the United States Constitution to keep subsidizing religious school tuition under a scholarship program that violated the Montana state constitution.

As has been true of other cases concerning religious freedom in school choice, people are lining up on both sides of the issue. Notable are the disability advocacy and legal services organization that have forcefully come out in opposition to private school voucher and tax credit programs like Montana’s. Their opposition is not based on the question of religious freedom but on whether private school placement is appropriate for children with special needs.

Disability rights groups argue against private school voucher and tax credit programs for children with disabilities.

The Council of Parent Attorneys and Advocates "COPAA," a national group of parent attorneys and advocates that protect the legal and civil rights of students with disabilities, and the National Disability Rights Network, which works in Washington, DC on behalf of the nation’s largest providers of legal advocacy services for people with disabilities, along with other disability rights groups, have joined together to take a stand against the subsidizing of religious school tuition.

The disability groups do not take the position that religious schools are bad because of their religious nature. Instead, in a written brief submitted to the Supreme Court in the Espinoza case, the disability rights groups argue more broadly that voucher and tax credit school programs, such as Montana’s, are inappropriate because these programs redirect public funds to private entities that are largely not bound by federal laws that protect the rights of disabled students.

The disability groups point out in their brief that private school programs often fail to offer appropriate or integrated education to students with disabilities and commonly exclude disabled students from their programs. And these schools usually fail to inform parents that by enrolling their child with disabilities in the private school program, they are giving up many legal rights and protections. Additionally, sometimes these private schools dismiss disabled children with little or no warning, and the family may have no legal recourse to fight the dismissal.

Many statutory guarantees of an appropriate education evaporate for a parentally placed child with special needs in a private school.

The Individuals with Disabilities Education Act "IDEA" guarantees students a free appropriate public education, commonly called a "FAPE," in the least restrictive environment, and it offers students and parents many other rights. These are protections that ensure students with disabilities are properly educated. When a parent places a child in a private school program, most of the protections afforded to the child and the parents by the IDEA "evaporate."

* * * Please note: If a school district or a county office of education rather than a parent places a child with special needs in a private school program, the school district or county office of education remains responsible for the child's education. In that case, the child continues to be entitled to a FAPE.

Other federal laws that protect children with disabilities from discrimination may be unavailable to protect a child placed by their parent in a private school.

Other federal laws that protect disabled children enrolled in public schools from discrimination may be unavailable to protect a child with special needs who is enrolled in a private school. These anti-discrimination federal laws, including Section 504 of the Rehabilitation Act, which bans discrimination in programs, such as school programs, that receive federal funds, and the Americans with Disabilities Act, which prohibits disability discrimination by state and local governments. Unfortunately, too often children with special needs are discriminated against in school, and the loss of these protections may leave families unable to seek justice.

However the Supreme Court decides the Espinoza case, one thing remains clear: Before placing your child in a private school, make sure to consider whether such placement is appropriate and will meet your child's unique needs.

Education Attorney Molly Watson

A California special education attorney

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