Less than 2 percent of school-aged students with disabilities—about 85,000 of them in fall 2016—are enrolled by their parents in private schools, according to records maintained by the federal government.
But the education of those students, including their rights under federal law and the resources available to them, has taken on an outsized importance since Betsy DeVos was appointed U.S. secretary of education under the Trump administration.
DeVos is a strong supporter of school choice, including vouchers that would allow parents to use public funds to pay for tuition at private schools. Her detractors say that parents may not understand that taking a voucher means that their students lose individual rights to services that are available only to public school students.
But federal special education law does not leave private schools entirely in the cold. The Individuals with Disabilities Education Act requires that school districts use a portion of their federal special education funding to provide services to students enrolled by their parents in private schools within the district boundaries.
New York City, the nation’s largest school district, offers an example of where the partnership with private schools works well enough that district-funded special education teachers offer inclusion and co-teaching services in some private schools. Statewide, 4.4 percent of New York’s special education students are enrolled in private schools, much higher than the national average of 1.4 percent.
“We’re fortunate to have service providers that are pretty flexible,” said Sara Rosenfeld, the principal of the lower school at Barkai Yeshivah, a 410-student school in Brooklyn that has used district-provided educators to offer “push-in” reading, writing, and math support to its students, rather than pulling those students out of regular instruction.
“We also do a lot of small group work and that also helps because each group is really getting taught at the level they need,” Rosenfeld said. “The special education provider can support this with each group.”
In other situations, however, private schools report that it’s a struggle to get legally-mandated support from districts.
A recent report by private school leaders in Massachusetts says some Massachusetts districts are failing to provide special education services to private school students, even though federal law requires it. It asks that the federal government reiterate to the state its duties under the IDEA, though so far they have not received a response, said Stephen Perla, a co-author of the report.
“The thing that’s so frustrating about all of this is that we’re talking about important services to kids,” said Perla, the superintendent of schools for the Fall River Diocese, which serves about 6,700 students in Catholic schools in southeast Massachusetts. “They’re the ones who are being impacted by all of this.”
About 0.7 percent of Massachusetts special education students are enrolled in private school, which is half the national average.
Special Education, Private Schools, and the Law
The federal special education law requires schools to spend a “proportionate share” of their federal IDEA dollars on “equitable” services for private school students.
A district is responsible for identifying all the children with disabilities within its boundaries, regardless of where they attend school or if they receive services. If 1.4 percent of those students are in private schools—the national average in 2016—the district must spend 1.4 percent of its federal special education dollars on private school students.
So, if the district receives $100,000 in federal special education funding, that’s $1,400 that must be spread among the private school students with identified disabilities.
The set-aside is unlikely to cover a full slate of services for every eligible private school student. So the federal law states that districts are to develop an equitable plan to serve private school students, in consultation with private schools. For example, a district might pay for speech and language pathologists, or for teachers to provide support to struggling readers. Or, it could pay for training private school teachers, and not offer direct services to children at all.
The 2004 reauthorization of the IDEA also changed which schools a district is responsible for. The process known as “child find”—locating and evaluating all students who might have disabilities—is borne by the school district for all the children who attend school in its boundaries, according to federal law. That is true even if the child lives elsewhere, which may be the case with private schools, where children may travel to the school from different jurisdictions.
That means a district with many private schools within its boundaries would have to use more of its federal special education money to serve private school students, compared to a school district that has no private schools.
Finally, the federal government has said that, generally, special education services for private school students are best offered at that student’s school, so as not to disrupt the student’s education. But it left the specifics of how that should operate to the districts and the private schools.
Working Together
New York City advocates have worked hard on making inclusive services for private school students a policy in the 1 million-student district. In 2017, a revision to the district’s “special education standard operating procedure manual” included language that specifically encouraged religious and private schools to create inclusion models “whenever feasible and appropriate for the student’s needs and goals.”
Channah Lepkiver, the director of support services for Luria Academy, a 300-student private school in Brooklyn, said that “generally our approach is push-in and as much inclusion as possible.” The goal is to have support and understanding between the general education private school teachers and the district-provided special educators. “We’re constantly looking and trying to tweak and see what we can improve,” she said.
David Rubel, a New York special education consultant who worked to get the inclusion language included in district policy, sees this as a model for other private schools around the country. “Children in private schools with an [individualized education program] ... can now receive the similar benefits of least restrictive environment and inclusion classroom model as millions of public school children already do,” he said.
In Massachusetts, however, private school leaders have said that some districts have refused to provide special education at private schools, saying that the services must be provided only at a public school or other neutral location. Private schools say that districts have not been accurately calculating the share of federal money that must be allotted to public school students.
Perla said this conflict is not unusual.
“I am invited to go to different dioceses from time to time,” he said. “I do know, anecdotally, that IDEA is probably one of the most underutilized [resources] when it comes to private schools.”
Perla said that he has seen some promising signs: The state education department released an advisory this summer reminding schools how they are to calculate the share of money that must be spent on private school services, and also saying that services can be provided on the private school grounds.
Jacqueline Reis, a spokeswoman for the Massachusetts Department of Elementary and Secondary Education, said the advisory and webinar were developed before the private schools released their report in May.
“We are committed to ensuring that parentally-placed private school children with disabilities receive equitable services in accordance with the law,” Reis said.
Perla said that he also sees as hopeful the fact that the state has also appointed an ombudsman to field complaints or concerns about special education services. The Every Student Succeeds Act required every state to appoint an ombudsman to oversee equity concerns about that law, but in Massachusetts, the state chose to add IDEA to the ombudsman’s portfolio.
“These are all steps in the right direction,” Perla said, but “we need the federal government to really provide some directives—and some teeth.”
