Special Education in Private Schools

Question: Are public schools required to guarantee special education services to students attending private school?

Answer: It depends.

Yes, if a court decides the public school is not capable of providing a free, appropriate public education (FAPE) to a student, the student was moved to a private school for that reason and the services in the private school are appropriate to the child’s educational needs.

No, if a court decides the public school is capable of providing a free, appropriate public education (FAPE) to a student OR if the parents placed their student in a private school due to family preference or religious reasons.


• The Individuals with Disabilities Education Act (IDEA) is the federal law which gives aid to states and school districts for providing special education to students with disabilities.

• IDEA requires schools receiving federal aid to provide a free appropriate public education (FAPE) to students with disabilities.

• IDEA does not create a specific and enforceable entitlement to special education services in private schools – unless the public school is not meeting its FAPE obligation.


There are many court cases on the subject. This is a highlight of two cases in which the U.S. Supreme Court concluded that parents could be reimbursed for private school tuition for their special needs child.
Oregon: School didn’t diagnose disability
In 2009, some Oregon parents became fed up with their local school’s failure to help their son with his learning problems. Like many students, he had difficulty paying attention in class and he struggled to complete assignments. However, public school officials found he didn’t have a learning disability, so they denied the parents’ pleas for special education services.
After an outside specialist diagnosed the boy as having ADHD, his parents put him in a private school for children with special needs and he did much better. The US Supreme Court ruled that the public school district may have to pay back the boy’s parents for the cost of the private schooling.
New York: School recommended inappropriate program and parent chose appropriate program in private school
In 2007, a parent in New York disagreed with the public school’s recommended Individual Education Plan (IEP) and enrolled his son in a private school that specializes in educating students with special needs. The parent sought private school tuition reimbursement from the public school.
The public school followed all procedures in developing the IEP. However, the court agreed (on a 4-4 vote) with the parent that the school had not offered an appropriate education.
For example – Although the district determined that the student performed on a fourth grade level in math computation, they recommended he be placed in a class where some children perform math at a kindergarten level. The teacher tried to explain this discrepancy by indicating that the children work individually and then discuss their work in “circles.” The court said it was not altogether clear what a higher functioning child would learn when kindergarten-level materials are being discussed in the circles.

Note:  This is a strong case for parents.  The Court affirmed parents’ rights to challenge a school district’s IEP without first “trying out” the school recommended in the IEP.

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Special Education Students Must Stay in Abusive Situation to Seek Educational Remedies

Court: Special Needs Student Must Stay in Abusive Situation
to Seek Remedies for Consequences of Abuse

Schools are required under federal law to provide special needs students with a “Free Appropriate Public Education” (FAPE). What FAPE means in the real world is the subject of endless meetings, department hearings, mediation sessions and lawsuits.

Still, the law provides parents with important remedies if they believe their school is not appropriately educating their special needs child. It authorizes parents to seek educational remedies from the school. These remedies include: reimbursement for related services (transportation, medical services, audiology services; counseling and the like); additional educational services; and attorneys’ fees.

Unfortunately, the federal court in Minnesota consistently denies parents not just a remedy, but the right to seek a remedy, when parents move their child from one school district to another — what many would consider a reasonable measure of self-help. The court most recently confirmed its position in 2010 when it denied parents the right to seek a remedy for a special education student (C.N.) who attended Lincoln Elementary School in the Willmar School District.

The story of C.N:

• C.N. was diagnosed with language impairment and developmentally delayed speech. The student had an IEP which called for the use of restraint holds and seclusion when C.N. displayed “target” behaviors. An outside evaluator recommended against the use of seclusion and C.N. consistently objected to the use of restraints and seclusion.

• While attending Lincoln School, C.N. worked with a special education teacher who used the controlled procedures authorized in the IEP, sometimes to an excessive degree. For example, the teacher made C.N. sit and hold a physical posture at a “thinking desk”, demeaned C.N., once pulled C.N.’s hair when she would not hold a posture at the thinking desk and once denied C.N. use of the restroom, causing an accident.

• A paraprofessional reported the education teacher’s maltreatment to the Minnesota Department of Education (MDE), the third such report made against the teacher. In earlier investigations, the District found no misconduct by the teacher. When investigating complaints involving C.N., the district confirmed that the teacher had denied C.N. access to the restroom, but attributed the incident to bad judgment and issued no disciplinary consequences.

• Despite the district’s denial of the teacher’s wrongdoing, MDE investigators concluded that the teacher violated a number of C.N.’s rights as a disabled child and mistreated her by denying her access to the restroom. The district nonetheless allowed the teacher to return to school. When C.N. asked the Superintendent to notify her when and if the teacher would return to her school, the Superintendent said the school had no obligation to provide this information to C.N.

• C.N.’s mother then withdrew C.N. from Lincoln School and enrolled her at St. John’s, a private school in Atwater. The following fall, C.N.’s mother filed a complaint with MDE challenging the adequacy of educational services provided by the Willmar School District.

• The Federal District Court said C.N. could not pursue an action against the Willmar District, because she hadn’t filed a claim before transferring to a school outside the District.

In other words, the Willmar School District will not be required to pay for the services needed to help correct the educational deficiencies created, in large part, by the handling of her instruction in Willmar.

The lesson?

Until this law changes, parents who try without success to get a school to meet its educational responsibilities must – before leaving the district — officially notify officials of their intent to correct the instructional mess created by the old district at the old district’s expense.

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Court Says Special Needs Students Not Entitled to Bully-Free Education

Bullying – name-calling, exclusion or physical abuse – is a daily challenge for many students.  It’s a top concern for parents.  It also tops the charts as a public policy issue in state legislatures. Since 2005, 45 states have passed laws against bullying.  Many of those laws were kicked up a notch in 2010 with new training requirements for school staff. Bullying has even reared its ugly head in the White House, where the President announced the launch of an anti-bullying website and a new commitment to continually shine a spotlight on bullying issues. “With big ears and the name that I have, I wasn’t immune,” he said.

These policies are laudable and important.  But they don’t offer guidance on how to mitigate the bullying of special needs students, who are especially susceptible to disruptions in their relationships and learning environments.   The courts, for their part, don’t offer much help.

Case in point: In a recent case in Pennsylvania, a federal district judge ruled that parents’ fears about bullying didn’t authorize them to transfer their special needs child to a private school without the school’s consent.

The student – a 10th-grader — had been diagnosed with Asperger’s syndrome, reading, math, and writing disorders, as well as a learning disorder related to auditory and visual processing.  He attended a private school under the terms of an IEP negotiated by the school and his parents.

When the student was bullied at the private school, the parents took matters into their own hands (and thus technically violated the IEP) by transferring him to a different private school without the school district’s permission. When the parents sought reimbursement for tuition at the second private school, the school refused to pay the bill and said he must return to the public school, because since his transfer, they had developed a new class tailored to the needs of students with autism.

The parents rejected the offer for several reasons, including his risk of being bullied at the public school.

The judge said that the parents’ fear of bullying was not enough to warrant the student’s transfer to the second private school.  While federal law (IDEIA) requires schools to provide special education students with a free, appropriate, public education (FAPE)¸ the court said this standard didn’t mean that schools must agree to the placement of special needs students based on the risk of bullying by other students.   In the Judge’s words:  ”[The student] may face bullying, but a fair appropriate public education does not require that the District be able to prove that a student will not face future bullying at a placement, as this is impossible.”

When it comes to predicting the risk of bullying for general education students, the Judge may have a point.  For students with special needs, however, the odds of being bullied are virtually guaranteed. Las Vegas odds makers would take the bet in a heartbeat.

We can’t put special needs children in a risk-free bubble.  No school can guarantee that special needs students will never be subject to bullying.  Still, state legislatures and courts could at least set an example by demonstrating a more nuanced understanding of how bullying impacts our most vulnerable children.  Schools could do likewise, by fostering learning environments where students are encouraged to appreciate the different abilities of other students.


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First Amendment 2.0

Can schools discipline students for online speech?

Research has confirmed what parents already know: students are spending an increasing amount of time at the computer, usually on activities that are not related to school. A recent study by the Kaiser Foundation reports that, in the last five years, students between ages eight and eighteen have increased their personal time on the computer from one hour to one-and-a-half hours. For some parents, this may seem like an underestimate. Still, it does highlight a trend which parents generally know to be true.

New Internet capabilities and content largely account for this increase. Web 1.0 was a global library with “gated” scan and read capabilities. Web 2.0 is a different beast. It is a participatory global network where anyone with online access can create content that may be viewed in a highly public community.

Web 2.0 is creating a fault line in the usual methods of communication between students, school personnel and parents. It also confounds the legal system. Courts are struggling for consistent answers to previously unthinkable questions. For example: May a school discipline a student for posting potentially libelous Facebook comments about a teacher if those comments are posted off-campus?

In a single day, the confusion on this issue among legal “deciders” was made painfully obvious. Two federal judge panels in Pennsylvania arrived at two different conclusions on the same question of whether a school could discipline a student for online, off-campus speech. One panel protected a student’s right to speak freely off-campus. (Layshock v. Hermitage School District). The other panel permitted a school to punish students for similar conduct. (J.S. v. Blue Mountain School District.)

The lawyer who represented the students in both cases said “It’s difficult, if not impossible, to reconcile the two opinions.”

In the Layshock case, the student used an off-campus computer to create a false MySpace page to spread the message that the school principal used drugs. The court said it would be an “unseemly and dangerous precedent to allow school authorities to reach into a child’s home and control his or her actions there to the same extent that they can be controlled in school.”

In Blue Mountain, a middle school student used an off-campus computer to create a false MySpace page to make accusations, in sexually explicit language, about the principal’s behavior. The court said the district was authorized to discipline the student because “the profile was likely to cause a substantial disruption within the school.”

Lawyers and parents are left scratching their heads. Was the student use of vulgar language a factor in the different result? Possibly not, although the language in the case supporting discipline was more vulgar than in the case which did not.

Whatever the rationale, we do know this: Web 2.0 is continually creating new legal challenges that lawyers and parents need to watch. No one knows where or how the new fault lines might be drawn.


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