Betsy DeVos, the former chairman of the American Federation for Children and the Trump administration’s pick for U.S. Secretary of Education, cleared her first hurdle Jan. 31 when the Senate education committee voted to send her nomination to the full Senate (but not without some drama!).
The night before the committee’s vote, Sen. Patty Murray, D-Wash., released DeVos’ responses to 139 questions relating to various aspects of educational policy. There was one question that offered DeVos’ most substantive views on special education policy to date.
But, as is common with special education, the topic is complex.
During DeVos’ nomination hearing earlier this month, she was pressed on whether students with disabilities enrolled in private schools should enjoy the same rights under the Individuals with Disabilities Education Act as students enrolled in public schools.
Murray asked a similar question (question number 104, if you’re reading along at home.) DeVos’ response:
No educational program, public or private, is ideal for all students, especially students with disabilities. Even today, there are public school districts that do not have the services to meet the needs of all students with disabilities and suggest to those parents that they should enroll their children in nearby charter schools or the district arranges to have those students to go to another district to have their needs met. So, let's be honest. No individual public school provides the full range of high-quality services for every student with a disability; this is true·for private schools as well. Public school systems have the right to establish specialized programs at certain schools for students with specific disabilities and, through the IEP process, to assign students with specific disabilities to these schools in order to meet their needs more effectively. When this occurs, the public schools that do not offer these services within the system are not "discriminating" against the students with these disabilities. In far too many cases, the parents of students with disabilities in the public schools are currently not satisfied with the services their children are receiving. In fact, public schools contract out educational services for almost 2 percent of students with special needs to ensure they receive their education in private schools where the student's educational needs are better met. But too often the only way that parents can obtain what is best for their child is through legal recourse. This can take months and sometimes years. Children don't have years to wait for courts to decide. I believe they should not have to wait. Offering parents of students with disabilities the opportunity to choose between a private school, a different public school, or a non-public school setting empowers the parents to receive what works best for their child. Just like in the public schools, not every private school will offer every service for every student with a disability. It would be misguided to seek to impose on individual private schools a standard that is also not imposed on every individual public school. If parents are not satisfied with the private options available, they maintain all of their current options and rights within their local public school system.
What Public Schools and Districts Must Offer Students With Disabilities
Unsurprisingly, DeVos, a strong advocate of educational options such as vouchers and charter schools, used this question as an opportunity to advocate for school choice. But is she right about public school policy here?
Answer: it depends on how you look at it.
First, a few stats: the vast majority of students covered under the IDEA are educated in public schools. About 1.5 percent were placed by their parents in private schools, according to 2015-16 data from the U.S. Department of Education. In comparison, 63 percent are educated in regular classrooms for 80 percent or more of the school day.
Under IDEA, “to the maximum extent appropriate,” children with disabilities in public school are to be educated with children who do not have disabilities—unless the nature of the disability is such that education in a regular classroom, even with supports, will not provide them an equal education. Those separate placements must provide similar services and facilities to other facilities and services in the school district. Districts are required to offer a continuum of services to students, including full inclusion, special classes and schools, and homebound instruction.
But, importantly, a student with a disability can’t legally be assigned to a special program just because they have a disability. The decision has to be made on an individual basis.
Courts have found that districts that offer centralized programs are complying with the IDEA. That was the situation in the 1989 case Barnett v. Fairfax County School Board, where the United States Court of Appeals for the 4th Circuit in Richmond, Va., found that Fairfax County, Va., was not violating the IDEA by offering a cued-speech program at only one high school instead of a particular student’s neighborhood school.
So, it is correct that individual public schools are not required to offer every type of program for every disability that may be present among their student body. However, public school districts—generally made up of more than one school— cannot require that a child leave the public district and seek services elsewhere. The student’s home district is still responsible for educating that child, whether it be through that child’s neighborhood school, a centralized program, some other part of the continuum of services, or in another school at public expense.
In contrast, a private school bears no responsibility for finding an appropriate educational option for a student whose needs don’t fit what that particular school has to offer. In that case, that child just doesn’t get to attend that school—or if the parents still choose to enroll their child, they have to understand that certain services may not be provided.
DeVos is correct that parents sometimes have to navigate an expensive and lengthy legal process if they want a different placement or set of services for their child. The U.S. Supreme Court is currently hearing a dispute between a family and a Colorado school district, Endrew F. v Douglas County School District. The student at the center of the case was in 5th grade when the dispute began; now he is a high school junior.
But the IDEA offers a path, even though it may be arduous, for parents to receive a free, appropriate education for their child at public expense. Parents who look for private schools for their students potentially have more freedom—if reasonable options exist for them. But that freedom currently comes with far fewer protections.
Photo: Education Secretary-designate Betsy DeVos testifies at her confirmation hearing before the Senate Health, Education, Labor and Pensions Committee on Jan. 17.—Carolyn Kaster/AP
A version of this news article first appeared in the On Special Education blog.