Legal Considerations in Providing Special Education Services in Parochial Schools

Article excerpt

Congress passed the Individuals with Disabilities Education Act (IDEA) to assure that all students with disabilities were provided with a free appropriate public education in the least restrictive environment. (The law was originally titled the Education for All Handicapped Children Act. It was given its present title in 1990. For purposes of clarity, the current title will be used throughout this article.) The U.S. Supreme Court has defined an appropriate education as a program of instruction that is reasonably calculated to confer educational benefit and which is developed in accord with the IDEA's procedural requirements (Board of Education v. Rowley, 1982). The Court made it clear, however, that appropriate does not necessarily mean best.

IDEA further requires public school districts to provide special education and related services to students with disabilities who have been voluntarily enrolled in private schools by their parents [IDEA [sections] 1413(a)(4)(A)]. In addition, the federal regulations promulgated to implement the IDEA stipulate that when students with disabilities are enrolled in parochial or other private schools, and receive special education and related services from a public school, the public school is required to initiate and conduct meetings to develop, review, and revise an individualized education program (IEP) for each child (Assistance to States for the Education of Children with Disabilities, [sections] 300.349, 1994).

Furthermore, a set of regulations promulgated by the U.S. Department of Education, known as the Education Department General Administrative Regulations (1995) (EDGAR) provide additional requirements. The EDGAR regulations state that a school district must provide students enrolled in private schools with a genuine opportunity for equitable participation in a program of benefits [34 C.ER. [sections] 76.651(a)(1)]. The program of benefits provided for a student enrolled in a private school must be comparable in quality to the benefits provided to students enrolled in the public schools [34 C.F.R. [sections] 76.654(a)]. In developing a program of benefits, public school officials must consult with representatives of the private school and consider (a) which students will receive benefits, (b) how the students' needs will be identified, (c) what benefits will be provided, (d) how the benefits will be provided, and (e) how the program will be evaluated [34 C.ER. [sections] 76.652(a)(1)-(5)]. The EDGAR regulations have been a factor in much of the litigation surrounding special education.

Although most school officials understand the obligation to provide special education and related services to parochial school students who have disabilities, they are justifiably concerned about how those services can be provided without violating the Establishment Clause of the First Amendment to the U.S. Constitution. The Establishment Clause creates what has come to be known as "a wall of separation between church and state." Until the recent U.S. Supreme Court decision in Agostini v. Fehon (1997) it was generally thought that most special education services could not be provided on site at a sectarian school (Osborne, 1994).

Prior U.S. Supreme Court decisions had ruled that direct instructional services could not be provided by a public school district on the premises of a parochial school, but that some supportive services were allowed. This generated a fair number of lawsuits under IDEA concerned with how special education students attending religious schools could receive needed special education services. Now that the Supreme Court has held that direct instructional services may be provided on the premises of a parochial school, two important questions remain: Must private school students with disabilities be provided with the same level of services as their public school peers? Are school districts required to provide parochial school students with on-site special education services? …