Students with disabilities placed in private schools at parent expense can receive some
publicly funded services under IDEA. The Code of Federal Regulations, for example, states
that:129
If a child with a disability has FAPE available and the parents choose to place the
child in a private school or facility, the public agency is not required to pay for the
child’s education at the private school or facility. However, the public agency shall
make services available to the child. . . . Each LEA shall provide special education and
related services designed to meet the needs of private-school children with disabilities
residing in the jurisdiction of the agency.
The Education Department General Administrative Regulations prescribe that a public
agency "shall provide students enrolled in private schools with a genuine opportunity
for equitable participation . . . and that such an opportunity must be comparable in
quality, scope, and opportunity for participation to the program benefits that the
(agency) provides for students enrolled in public schools."130 In general,
school districts have interpreted these regulations narrowly, providing minimal support to
private-school students.
Three federal court decisions in 1995, however, greatly expanded public services to
students with disabilities. In K. R. v. Anderson Community Sch. Corp.(Indiana), the
district court ruled that the public schools must provide a full-time aide to a
seven-year-old student with severe disabilities. Following that 1995 ruling, Russman v.
Board of Educ. of the Enlarged City Sch. Dist. of Watervliet (New York) and Cefalu
v. East Baton Rouge Parish School Board (Louisiana) resulted in similar decisions.
All three cases were appealed. The K. R. decision was overturned by the 7th
Circuit Court of Appeals in April 1996. In July 1996, the Russman decision was
affirmed by the 2nd Circuit Courts of Appeal. As of July 1996, a decision was pending on
the Cefalu case.
These cases may be ultimately decided in the U. S. Supreme Court. If the Supreme Court
rules in favor of the parents, there could be a significant national expansion of IDEA
entitlements to private-school students (including parochial-school students) whose
parents place them in private schools.
This could result in one of two outcomes. The total cost of special-education could
increase once IDEA services are extended to students in private schools who previously did
not receive public funding for such services. Conversely, the total cost of special
education could decrease as public-school students shift to the private sector where they
continue to receive publicly funded services directly related to their disability, but
tuition is privately paid. Under this scenario, the cost of educating a student with a
disability would be shared between parents or guardians and public agencies.
Beyond the issue of IDEA entitlements, the cases described above also invoke
constitutional issues since they involve parochial schools. In 1993, the U. S. Supreme
Court in Zobrest v. Catalina Foothills School District ruled that the First
Amendment does not prohibit a school district from paying the cost of a sign-language
interpreter for a deaf student in a parochial high school.
By contrast, the 4th Circuit in Goodall v. Stafford County Sch. Bd. ruled
against a student’s right to an interpreter. The 1995 decision found that the school
board’s refusal to provide an interpreter did not violate the student’s free
exercise of religion. The court also reaffirmed its previous ruling that IDEA did not
guarantee services to individual students in private schools. According to legal
observers, the contradictions involved in these rulings will likely be resolved at some
point by the U. S. Supreme Court.
