Special Education, Private Schools, and Vouchers: Do All Students Get a Choice?
Taylor, Shanon S., Journal of Law and Education
The history of special education is long and varied. Almost as long as there have been structured education delivery systems in the United States, there have been special education systems. Additionally, just as long as those systems have existed, so have private schooling systems. Many times, private schools and special education systems have coexisted, but typically only in programs that were exclusively for students with special needs, and these programs tended to segregate students with special needs in private programs, separated from typically developing students. Rarely were students with special needs included in the regular education programs of private schools.
Because the practice of integrating special education into regular settings within private schools is relatively new, there is virtually no work that has been done on the topic. The concept of including students with special needs in the regular classroom of even public schools is a relatively new phenomenon. This practice of placing students with special needs in the least restrictive environment has been legally mandated in public schools since the passing of Public Law (RL.) 94-142 in 1975.1 Public education has since wrangled with the issue of educating children with special needs with typically developing peers, using terms such as the continuum of services, the regular education initiative, mainstreaming, and inclusion. Since PL. 94-142 applied only to public schools, and additional legislation such as the Rehabilitation Acts of 1973 only applied to entities that accepted federal funding, most private schools were unaffected. However, the passing of the Americans with Disabilities Act (ADA) in 1990 changed that distinction.
ADA was largely based on Section 504 of the Rehabilitation Act, but widened the application of the law to private facilities that are open to the public, even if they do not receive federal funding. Title III of the ADA specifies which facilities are considered public accommodations.
"A facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories . . .
(J) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education"2
There is one exception to Title III of the ADA, and that applies to "religious organizations or entities controlled by religious organizations, including places of worship."3 Because of this exemption, parochial schools that are owned and operated by the religious organization do not have to comply with ADA regulations. Schools must be cautious when claiming exemption because of this section. If a school is only renting space from a religious organization, they cannot claim the religious exemption.4 A possible guideline for this issue was illustrated in a case involving hiring practices at a private school, EEOC v. Kamehameha Schools/Bishop Estate.5 Kamehameha involved a school organization founded in the late 1800's that required teachers to be "Protestant." When a teaching candidate was refused a position because the applicant was a non-Protestant, the applicant filed a discrimination suit under Title VII. However, when the Court examined the practices of the school, they felt that the school no longer actively demonstrated adherence to any particular form of Protestantism, the pastor of an affiliated church had no control over school curriculum or decisions, the activities at the school did not differ substantially from those at local public schools, and that while there were some religious overtones in the use of hymns and religious coursework, there was no concerted effort to instruct students in any Protestant doctrine. While this case did not result from the religious exemption clause in ADA, it gives a good example of how courts have previously interpreted the idea of religious organizations.
Parents have become more aware of ADA and its stipulations, and many have asked private schools to accept their children with special needs. …