Appropriately Ambitious:

A Special Education Legal Blog 

“But [the student’s] educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives”

Endrew F. v. Douglas Cnty. Scl. Dist. RE-1, 137 S.Ct. 988, 1000 (2017).

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  • Patrick G. Radel, Esq.

A Private Chat - Private School as an Option for Students with Disabilities


Many parents of students with disabilities think about alternatives to public school. Some seek a faith-based education for religious reasons. Others feel their local public school is not meeting their child's needs and select a specialized private school. Sometimes the student's siblings attend private school and the family wants all the children in the same place.


Do students with disabilities have a right to attend private school? How do they get the special education supports and services they need?


A quick summary and some suggestions.

Students with Disabilities have a Limited Right to Access Private Schools


(This post is about students with disabilities placed at private schools by their parents' choice. Sometimes, the public school decides it cannot meet the student's needs and recommends a placement at a State-approved private school that offers specialized services to students with disabilities. I am addressing the situation in which the public school believes it can support the student in one of its programs, but the parents choose to place the student in private school instead.)


Private schools aren't required to follow IDEA, the main federal special education law. (IDEA gives students with disabilities the right to a free appropriate public education.)


Most private schools receive some federal funds (for example, free & reduced lunch) and must therefore follow anti-discrimination laws (Section 504 of the Rehabilitation Act & the Americans with Disabilities Act), but this provides a narrow scope of rights for students with disabilities, generally limited to "reasonable accommodations."


However, IDEA does not ignore students with disabilities attending private schools. IDEA requires local public schools to find and evaluate students with disabilities enrolled in private schools located within their district. Students with disabilities attending private schools are entitled to "equitable participation" in special education supports and services. Public schools must use a portion of their federal funding to support students with disabilities in private schools.


There are two (2) main categories of students with disabilities attending private school due to parental choice.


In the first category, the parents choose a private school placement based on personal/family preference. In this situation, parents are responsible for the private school tuition. The public school must consult with the private school and the family to develop a "services plan" that allows the student to "participate equitably" in special education. The student may not receive some or all of the supports and services he would get if enrolled in a public school. In addition, he may be transported from his private placement to a public school site to receive some services. 34 CFR § 300.134-138. The public school can provide special education services at the private school site, but the services must be "secular, neutral, and nonideological." 34 CFR § 300.138 (c)(2).


In the second category, the public school believes it can support the student in one of its programs, but the parents disagree and choose to place the student in a private school while they bring a legal challenge to the public school's decision. In this situation, the parents may be reimbursed for the private school tuition if their challenge is successful, but they are generally required to provide advance notice of the private school placement and give the public school an opportunity to address their concerns. 34 CFR § 300.148.

Radel's Ruminations


1. Make Sure the Private School is Committed to the Student. You need to have an open and honest conversation with the private school before enrolling your student. If the private school is unwilling to make a firm commitment to working with you and the local public school to meet the student's needs, you should consider carefully whether the private school placement is the right choice.

Many students with disabilities are successfully supported in private schools. However, this is unlikely to happen unless the private school is willing to cooperate with the local public school and the family. Private schools have significant flexibility in providing education to their students. Their teachers and staff may not be subject to the same certification and training requirements as their public school counterparts. Students with disabilities have more limited rights in terms of the supports and services they are entitled to receive when attending private school. Your private school must commit to "fill in the gaps" as necessary to meet the student's needs. In addition, students with disabilities have significant protections from student disciplinary rules in public school. This may not be the case in private school.


A cooperative, creative, respectful relationship between home and school is critical for all students with disabilities; it is essential for the student in private school. When disagreements arise between a public school and parents, the special education law has procedural safeguards that protect the student's rights and provide a forum for resolving the disagreement. The lack of such safeguards for parentally-placed private school students makes it vital that the private school and the parents share a vision for, and commitment to, helping the student succeed in that setting.


2. Watch for Deadlines. Check your state's rules for providing notice of your intention to place your child in a private school. In New York, parents must notify the school district where the private school is located by June 1st of their intent to place the student in private school for the upcoming school year. The public school may refuse to provide special education supports and services to the student if the parents miss that deadline.


If the parents believe the public school has not offered the student an appropriate program and intend to seek private school tuition reimbursement through a legal challenge (the second category discussed above), they should give at least 10 business days written notice to the public school of their intention to enroll the student in a private school at public expense. If this is your situation, you should consider contacting an advocate or attorney for guidance.


3. Push for Participation. Although students with disabilities at private schools may not have all the same rights as their public school counterparts, they are still entitled to "equitable participation" in special education supports and services. The public school must collaborate with the private school and family to develop a plan for equitable participation and must spend some of its federal funds on these students. If the public school doesn't collaborate and/or develops a plan that's not based on the student's needs, it has likely violated the law and the parents can challenge that violation.


The U.S. Department of Education has said that, absent a "compelling rationale" for providing off-site services, the public school should provide special education supports and services at the private school to avoid disrupting the student's education.


In New York, the courts have ruled that a student who needs a 1:1 aide is entitled to receive that support at his private school. Likewise, if the student needs support in her classroom from a special education teacher or therapist, then the public school likely must provide that service to the student at her private school.


A very small percentage of students with disabilities attend private schools. This represents a missed opportunity for many students with disabilities, their families, and typical students who attend private schools. We can, and should, expand those opportunities by pushing public schools to provide equitable services and by encouraging private schools to extend education to a more diverse set of students.

ATTORNEY ADVERTISING. Prior results do not guarantee a similar outcome. 

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