While public schools are required to serve children with disabilities under the Individuals with Disabilities Education Act (IDEA), private schools are not required to meet the same standards. The IDEA provides:
“[n]o parentally-placed 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.”
In essence, private schools are not required to provide disabled students with a Free Appropriate Public Education (FAPE) in the way that public schools are pursuant to IDEA. While public schools are required to make their premises physically accessible, the portions of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act to which they are subject do not require the individualized learning plans and accommodations that are required by the IDEA. Families have a lot to consider in making their placement decisions for students with disabilities in order to ensure their student receives the best possible services.
A recent news story of a disabled student’s tragic suicide following his dismissal from a private school highlights the catch-22 facing parents of children with disabilities. Clara Hemphill, founder of InsideSchools.org, a guide to New York’s public schools, interviewed in connection with the article, said:
“[a]s a generalization, public schools have the will but not the capacity, and the private schools have the capacity but not the will. And if your child has special needs, you’re in a very, very tough place.”
Ms. Hemphill’s statement will likely resonate with families facing these tough decisions. Part of the “will” of public schools to serve students with disabilities is related to the legal requirements placed on public schools to serve students with disabilities, and, much of the “capacity” to serve students with disabilities effectively comes down to funding and resources, which, in certain circumstances, may be higher at private schools.
Public Placement vs. Private Placement
Public Placement: Potential Pros
Disabled students at public schools have access to the full panoply of procedural protections offered by the IDEA. Public school students generally have the most robust legal protections and can access the most public funding per capita within their districts. Students with Individualized Education Plans (IEPs) under the IDEA have a meeting to evaluate the student’s progress once per year to ensure the student is making progress toward their individualized learning goals.
Public Placement: Potential Cons
While public placements provide the most robust legal protections to students, families must consider whether their students will thrive in the particular environment presented by their local public school. Robust procedural protections mean little if a particular district is severely underfunded, for example, or if the student-to-staff ratio at a public school may be less than ideal.
Private Placement: Potential Pros
Some families of disabled children seek a private placement for the very reason that the school may have more resources than a public option within the same district. Certain private schools advertise specialized instruction tailored to disabled students. Private schools may also offer an Instructional Services Plan or an Individual Service Plan, which are both referred to as “ISPs.” These plans reflect a specialized education program within the private school’s own system.
Students at private schools may also receive IDEA-funded evaluations and service plans through their local education agency (LEA)—and not through private schools themselves. The IDEA requires public school districts in which students at private schools reside to fulfill an obligation known as “child find” regardless of whether students within their district attend public or private schools. This means public school districts are required to fund evaluations of children suspected to have disabilities, even if those students attend private schools.
Where LEAs and families may disagree regarding whether a child should be evaluated for special education service eligibility, recourse is available through local education agencies’ due process and conflict resolution processes. The funds available for evaluations and services for private school students vary by locale. Private schools providing service plans funded through the LEA may require students to attend their local public school’s campus to receive certain services, such as, for example, one-on-one sessions with a speech therapist.
Private Placement: Potential Cons
As a result of the looser legal requirements facing private schools, private schools “counsel out” students fairly regularly, with few restrictions. “Counseling out” refers to the process through which students are advised to leave a private school without a formal or disciplinary process like an expulsion or dismissal.
The legal recourse for a family when their student faces disability-related struggles is significantly limited when that student attends a private school versus a public school. Students at private schools are generally relegated to enforcing the language of their “contract” with families. The typical private school “contract” includes the basic exchange of tuition dollars for educational services, subject to the terms of the contract (promise to pay on the part of the family, promise to abide by the terms of the school’s policies on the part of the school).
Contractual protections offered through student conduct manuals and tuition agreements are generally weaker than those offered by the IDEA. Although private schools have a profit motive to retain tuition-paying students, they are also able to boot students through conduct processes, regardless of whether a student’s disability may have contributed to the reason for discipline. For example, a student with ADHD may be repeatedly disciplined for leaving his or her seat and eventually suspended or expelled for this conduct, despite the potential relationship of the underlying conduct to the student’s disability.
An ISP offered by a private school does not have a regular schedule for review comparable to an annual IEP review. ISPs are generally reviewed on the private school’s schedule.
Important Questions to Ask When Considering a School Placement
The decision of where to send one’s child for school is an extremely personal decision, and families must make the best choice for their particular child and circumstances. A few good places to start the conversation surrounding school placement are in asking the right questions.
- How does this school identify and support students with disabilities, generally? What about my child’s disability, specifically?
- How does this school communicate with families regarding students’ learning progress?
- How does this school communicate with families regarding students’ behavior challenges?
- What is the class or instructional group size at this school?
- What is the staff-to-student and teacher-to-student ratio at this school?
- Is there tuition assistance at this school? Are families expected to provide financial support outside of tuition, for things such as class trips and activities?
- Is this school accredited?
- Do students have access to other supports, such as tutors?
- What is the “graduation” or “completion” rate for students at this school?
If your family is considering a placement for your child with disabilities, KJK can provide you with additional resources, drawing on the expertise of sophisticated and experienced special education professionals, ranging from consultants and advocates to partnership-level attorneys. For more information, or to discuss further, please contact Student & Athlete Defense Attorneys Susan Stone (SCS@kjk.com; 216.736.7220), Kristina Supler (KWS@kjk.com; 216.736.7217), or Anna Bullock (AEB@kjk.com; 216.736.7223).