Newsline Volume 32, Number 4

Private School Students May be Entitled to Special Education and Related Services

By Melanie Riccobene Jarboe, Esquire

group of kids leaving school in white and grey uniformsUnder state and federal law, a student who is not succeeding in the general curriculum as a result of a disability is entitled to the special education and related services necessary for the student to access the curriculum and make effective progress. The Individuals with Disabilities Education Act (IDEA) requires public schools to provide services to enable students to make progress, but does not require private schools to provide any services. As a result, many parents believe that transferring to a public school is the only way their child will get meaningful services. Yet this is not always the case. In Massachusetts, public school districts must provide certain services and protections to eligible residents even when they attend regular education private schools. (The issue of students whose parents are seeking funding for private special education school tuition from the district is beyond the scope of this article.)

Massachusetts law and the "Child Find" requirements of IDEA require school districts to evaluate students suspected of needing services and to determine eligibility. Under Massachusetts law, the district must propose an IEP and provide special education and related services to all eligible students who reside in the district, including those attending private schools. Every eligible resident-student in Massachusetts has an individual entitlement to an IEP, which must be designed to meet the child's needs and provide the child with a genuine opportunity to participate in the public school special education program. Services provided to private school students must be comparable in quality, scope, and opportunity for participation to those provided to students attending public schools. In case of a disagreement over eligibility or services, Massachusetts students may access the state due process system through the Bureau of Special Education Appeals (BSEA)¹.

If the student's private school is outside the student's home district, the home district must make reasonable efforts to provide services at or near the private school. According to the Massachusetts Department of Elementary and Secondary Education (DESE), services provided using state or local funds must be provided at a public or neutral site (not at the private school). If federal funds are used, however, services may occur at the private school itself. School districts may contract with other providers, such as private agencies or the public school district in the community where the student attends school, to deliver services.

School districts must provide transportation between the private school and the location of special education services if transportation is necessary for the student to benefit from special education. Therefore, the district may be required to provide transportation when the district provides special education or related services at a location other than the student's private school. Factors that affect the district's obligation to provide transportation include the student's age, the distance the student must travel, the nature of the area through which the student must pass, the student's access to assistance en route, and the availability of public transportation. The school district may also need to provide transportation to or from the student's home, depending on the timing of services. For a comprehensive discussion of transportation obligations, see Weymouth Public Schools, BSEA #11-2663 (Jan. 19, 2011).

An eligible Massachusetts resident may receive publicly-funded special education services even though s/he attends a religiously-affiliated school. The U. S. Supreme Court has held that the First Amendment permits the use of public funds to support students attending religious schools because public funds expended for special education do not help the school as an institution, but rather help the student as an individual. On the state level, DESE's interpretation of state law regarding the location of services provided with state funds (discussed above) does not distinguish between sectarian and non-sectarian private schools. The fact that a child attends a sectarian school does not affect the district's obligation to provide services.

¹Federal law governs a Massachusetts district's obligations to residents of other states who attend private school within the district. Whereas Massachusetts law provides Massachusetts residents with both an individual entitlement to services and access to dispute resolution mechanisms, federal law does not provide similar protections to non-residents. Non-residents attending school in Massachusetts do not have an individual entitlement to services, and may access dispute resolution mechanisms only in very limited cases.

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Melanie Riccobene Jarboe is an Associate at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, MA. She concentrates with several colleagues in special education and disability law. Melanie can be reached at kcs@kcslegal.com.
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