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Public schools are under attack and have been for some time. This trend is increasing and the popularity of private schools is growing. How does this societal trend relate to the education of children with special needs? The Education for all Handicapped Children Act (EAHCA) was originally passed in by Congress in 1975 and signed into law by President Gerald Ford. This act stipulated that children with disabilities would have the right to a free and appropriate education. Since its original passage, the law has been amended four times and is referred to today as the Individuals with Disabilities Education Act (IDEA) (Conroy, Yell, Katsiyannis and Collins, 2010, p. 1). This paper will examine how the law was originally founded and how it has evolved over the years. The difference between how services are delivered to students with special needs in public and private schools will be explored and who pays for such services will be researched. Finally, this paper will try to answer the question: Which is better - private or public - for students with special needs?
Prior to EAHCA, also known as Public Law 94-142, children with special needs were generally excluded from public education. With this landmark legislation, public schools were required to offer equal access to education and one free meal per day to students with special needs in order to receive federal funding. The basic premise of this law was that states must develop and implement policies that afford children with special needs a free and appropriate education. The four specific purposes of PL 94-142 were to provide a free and appropriate education to students with special needs, protect the rights of children and their parents, to assist states and localities with the provision of education and to assess the effectiveness of all of the aforementioned efforts. Inherent in EAHCA was parental involvement in the development of their child's special education program. The law provided opportunities for parents to bring civil lawsuits to federal district court (Conroy, Yell, Katsiyannis and Collinsw, 2010, p. 1). Since the inception of EAHCA in 1975 the US Supreme Court has heard eleven cases related to the law (Conroy, et. al, 2010, p. 3).
The law was first revised eleven years after its inception and was named the Handicapped Children Protection Act of 1986 (Conroy, et al, 2010, p. 2). The basic change to the law in this revision was that states had to provide services to children with special needs beginning at birth rather than age three. The 1990 amendment changed the name to the Individuals with Disabilities Education Act (IDEA) (Conroy, et al, 2010, p. 2). IDEA was amended in 1997 and included transitional services from school to adult living (Conroy, et al, 2010, p. 2). The fourth revision of the initial 1975 law occurred in 2004 with the Individuals with Disabilities Improvement Act, which in essence aligned the law with No Child Left Behind. The 2004 revision added the requirement for highly qualified teachers, goals for students with special needs and assessing student levels. IDEA defines the services and education that meet the standards for what constitutes a free and appropriate education. A basic premise of IDEA is the establishment of an Individualized Education Program (IEP) (Bradley, 2006, p. 405).
IDEA governs special education programs on a federal level. IDEA has four key components: States must ensure a free and appropriate education to students with disabilities in either public or private school; an IEP must be developed for each child with parental consultation; students must be educated in the least restrictive environment; and parents can request due process hearings with an independent officer when they object to the educational provisions for their child, whose decisions can be appealed to state education agencies and then to state and federal district courts (Buck, 2012, p. 653).
Although EAHCA required that school districts provide education and services to children with special needs in private schools, it was not clear if children in private schools would have equal access to services as their counterparts in public schools (Drang and McLaughlin, 2008, p. 3). Originally the jurisdiction over the private school fell on the LEA where the child lived. The jurisdiction has since changed to the location of the private school.
According to IDEA, the local education agency (LEA) must provide Child Find services to children in private schools (Drang and McLaughlin, 2008, p. 4). In Child Find, the LEA must locate, identify and evaluate students with special needs. Following Child Find, LEAs are required to allocate a proportionate amount of their federal funds to children with special needs in private schools (Drang and McLaughlin, 2008, p. 4). LEAs must also consult with private school officials and parents. Following Child Find activities, allocation of proportional federal funds and aforementioned consultation, the LEA decides which services to provide. According to Drang and McLaughlin, "Children enrolled in private school may receive a different type and/or amount of service than their public school counterparts with similar disabilities and educational needs." (Drang and McLaughlin, 2008, p. 5) In fact, federal court cases have determined that LEAs cannot require students with special needs to attend public schools in order to receive services but LEAs are not required to offer services at private schools (Drang and McLaughlin, 2008, p. 9). The 2004 amendment states that children with special needs in private schools are eligible for services but the law looks at them as a group, not as individual students. Therefore, "no child has an individual right to a specific service." (Drang and McLaughlin, 2008, p. 9)
The 2004 amendment included appropriations through 2011. Therefore, Congress is currently identifying issues for the next reauthorization of IDEA (Jones and Toland, 2009, p. 1). Some issues that will be examined include the amount of educational progress required to meet FAPE standards and what educational benefits are required to be written on an IEP? Congress will also be looking at if IDEA permits the use of restraints and seclusion and what rights does a non-custodian parent have? Many of the issues Congress will be debating stem from judicial decisions regarding IDEA.
Payment for Special Education
IDEA requires LEAs to use a proportionate amount of their federal funds on private schools but they are not required to use any of their state or local dollars (Drang and McLaughlin, 2008, p. 9).
Private school placement can occur for students with disabilities either based upon the IEP team's determination or parents' initiative (Buck, 2012, p. 653). In some instances it is not the parents who opt for private education but the school district. If the school district cannot adequately provide services that a student requires, the district may select placement in a private school. Courts can reimburse the cost of private education in such cases. This applies specifically to schools that are established to meet the special needs of students with disabilities. If the public school cannot adequately address specific needs, they should reimburse the tuition paid by parents (Bradley, 2006, p. 408). If parents enroll a child in a private school because the public school did not provide a free and appropriate education, then the courts can mandate that the public school reimburse the costs of the tuition to the parents (Buck, 2012, p. 654).
Current law is if a child with special needs is placed in a private school by a LEA or SEA (state educational agency) in order to meet the FAPE (free and appropriate education) the LEA or SEA must pay the full cost. If the child with special needs is placed in the private school by the parents, a hearing officer or court must decide of full tuition or some services are paid for by the public school (Jones and Toland, 2009, p. 29). Further, if parents placed their child in a private school because the LEA did not provide IDEA services, the public school must reimburse parents the cost of tuition (Jones and Toland, 2009, p. 20).
Public vs. Private Approach
As Drang and McLaughlin noted, there is a lack of research related to special education services delivery in private schools. Eigenbrood, however, examined differences in service delivery between sectarian and public schools in a Midwestern state in 2005. A noteworthy finding of the Eigenbrood research was that students in sectarian schools are not always formally diagnosed (Drang and McLaughlin, 2008, p. 9). Eigenbrood further noted that private schools report fewer numbers of children receiving formal evaluations and IEPs. Eigenbrood concluded that the results found might be attributable to private schools and parents being ill informed about Child Find services (Drang and McLaughlin, 2008, p. 9). Other researchers have supported that LEAs need to report how they publicize Child Find activities.
An important distinction between public and private education programs for students with special needs relates to teacher qualifications. No Child Left Behind (NCLB) required teachers in Title I schools to be "highly qualified" or have a bachelor's degree or state certification or license. Congress supported the "highly qualified" teacher requirement when reauthorizing IDEA in 2004 (Hensel, 2010, p. 326). Regulations require staff at private schools meet the same qualifications as those in public schools with the notable exception that they are not required to meet the "highly qualified" standard for special education teachers (Drang and McLaughlin, 2008, p. 5). Private school staff can be used to provide services but only outside of their specified job duties at the private school.
Some researchers note problems with how special education programs are funded in general. According to Jay Green with the University of Arkansas Department of Education Reform, the current system of special education provides financial incentives to over identify students with special needs and under serves student who are identified. Green reports that schools receive financial rewards when they place students in special education programs.
The Voucher System
Green recommends issuing vouchers for the cost of public school to be used at private schools. Green notes that the number of students defined as disabled has grown from 8.3% in 1976 to 13.3% in 2000 (Green, 2007, p. 705). He elaborates by saying that while the number of students classified as specific learning disabled has tripled from 1976 to 2000, the number diagnosed with severe emotional disturbances, developmental delays, blindness, deafness, autism and traumatic brain injury have only increased slightly during the same time period. Green suspects that the greater number of specific learning disabled students is the result of labeling rather than an increase in the incidence of the disability (Green, 2007, p. 706). He also notes that the diagnosis of specific learning disability is subjective and less expensive to treat. However, experts in the special education field do not subscribe to this belief. Berman, Davis, Koufman-Frederick and Urion found in 2001 that the number of children with learning disabilities has increased due to medical technology advancements, deinstitutionalization and increasing rates of childhood poverty (Green 2007, p. 707). Green refutes Berman and his colleagues' claims that there has been an increase in the rate of disability. Rather, Green suspects that the number of children requiring special education has increased due to the extra funding provided to schools when their enrollment in special education increases. Green reports that schools receive funding based upon their enrollment numbers, not services they provide. Green supports vouchers issued for the cost of educating students with special needs as a means to decrease over identification and increase service provision. According to Green, with a voucher system students can go to whatever school provides the best service. But is this really the case?
Wendy Hensel in her article titled, "Vouchers for Students with Disabilities: The Future of Education?" in the Journal of Law and Education offers a decidedly different impression. In her view vouchers are awarded primarily to students that are mildly impaired. Doing so impacts funding available to children with more pronounced disabilities than remain in the public school sector. The voucher system, if allowed to grow, could result in children with disabilities in public schools being segregated from their peer, in essence returning to how services were provided prior to 1975. Hensel argues that voucher systems are promoted by interest groups that support school choice in general due to dissatisfaction with public schools. Hensel cites that critics of the voucher system claim that vouchers primarily serve students from affluent families and that they disproportionally help white students (Hensel, 2010, p. 342). She goes on to say that affluent parents demand specialized services more than disadvantaged families.
In a 50-state survey conducted by Deborah Verstegen with the University of Nevada, Reno, results showed that states are modifying their funding to support students with special needs (Verstagen, 2011, p. 23). All but one state reported that they were providing additional funds to augment federal funding under IDEA for students with special needs.
The voucher system is operated by individual states. Each state is under the obligation to provide education. State law can impact extending public funding to private schooling (Hensel, 2010, p. 310). In 2010 three states provided vouchers to students with special needs - Florida, Utah and Georgia. At this same time, Ohio provided vouchers to students with autism. By 2012 three more states were added - Arizona, Louisiana and Oklahoma (Shah, 2012, p. 14). The following twelve states have introduced similar legislation over the past few years: Alabama, Arkansas, Colorado, Kansas, Kentucky, Maryland, Missouri, Mississippi, Nevada, Oregon, South Carolina and Texas (Hensel, 2010, p. 306). There is the concern that if more students opt for voucher programs, there will be less money to educate children with special needs in public schools where their level of disability can be more severe (Hensel, 2010, p. 318).
The United States Department of Education Office of Civil Rights (OCR) has ruled that students with special needs that opt for voucher programs essentially waive their rights under IDEA (Hensel, 2010, p. 316). The OCR recommended that parents who elect to participate in the voucher program be made aware that their children would not be entitled to FAPE (free and appropriate education) under IDEA while attending the private school. Their children would not be entitled to an IEP and they would lose their right for due process. However, supporters of the voucher system would argue that the majority of parents do not have the resources to litigate claims and therefore, IDEA offering legal rights for due process loses a lot of credibility.
Evidence shows that most students accepting vouchers to attend private schools receive no specific programming or individualized instruction (Hensel, 2010, p. 323). Furthermore, there are no special teacher requirements under the voucher program. Private schools under the voucher program need only employ teachers with "special skills, knowledge or expertise"; no specific education, license or certification is required (Hensel, 2010, p. 326). Stuart Buck in his article, "Special Education Vouchers are Beneficial: A Response to Hensel" in the October 2012 edition of the Journal of Law and Special Education contends that teacher quality is not related to teacher credentials (Buck, 2012, p. 657). Buck further supports the idea that public school requirements have no bearing on the quality of education. Buck supports offering vouchers to parents who are dissatisfied with the public schools. The only other alternative according to Buck for dissatisfied parents is to engage in lawsuits against the public school, which they likely would not win (Buck, 2012, p. 663).
Voucher programs vary from state to state. Some states require students to attend public school for a year while others do not (Shah, 2012, p. 14). Private schools have the option of not accepting students they do not want, whereas public schools do not have the same option (Shah, 2012, p. 14).
Teachers' unions have opposed the use of public tax dollars to support attendance at private schools (Hensel, 2010, p. 298). During the IDEA reauthorization debates of 2003, the National School Board Association and the National Coalition of Public Education prevailed in their opposition to federal subsidies of vouchers for special needs.
The voucher system was even debated during the 2008 Presidential campaign. Whereas Sarah Palin advocated for IDEA funding to go to any public or private school selected by the parents, Barack Obama prevailed and proclaimed his opposition to public monies being used to support private schools (Hensel, 2010, p. 310).
Proponents for religious education have also been involved in the voucher movement. Some have argued for example that Florida, one of the first states to get involved with vouchers, was more interested in vouchers for religious schools than for special needs (Hensel, 2010, p. 297). Religious schools have been trying engage in the voucher system for students with special needs much faster than non-religious schools (Hensel, 2010, p. 324).
Some parents prefer private schools to public because of smaller class sizes. Public schools would offer smaller class sizes if funding was available. Whereas private schools may be able to provide more individualized attention due to smaller class size, what is the quality of the instruction?
Reflection and Conclusion
This research led me to ask my aunt about her experience with her daughter with special needs. My aunt initially enrolled her daughter in a private school for religious purposes. The public school having jurisdiction over the private school identified a generalized learning disability. My aunt subsequently decided to keep her daughter enrolled in the private school feeling that smaller class sizes would provide more individualized instruction. A special education coordinator from the public school oversaw the annual IEP. Otherwise, my cousin did not receive any specialized instruction. A tutoring lab was present at the private religious school that students could attend as they so chose but were not required to. None of the teachers had special education credentials or experience. The accommodations my cousin received were textbooks and novels on tape and extended time/reduced work load. For tests, she received 1Â½ time to complete and for homework, she was only required to complete half of the assignment as determined by her teachers. My aunt was also under the impression that since teachers at the private school were not part of the teachers' union, they would be terminated for poor performance. As this was her first child, my aunt had nothing to compare her experience to. Once my cousin graduated and transitioned to college, she was referred to the Ohio Rehabilitation Services Commission and received services through the Bureau of Vocational Rehabilitation (BVR). BVR financed tutoring services, tuition assistance, assistive technology and specialized computer programs. My aunt did not know how her daughter's educational experience K-12 would be different had she been enrolled in public education. Public and private schools need to do a better job educating parents about their individual programs so parents can make a more informed choice.
So which system is better for students with special needs - public or private? The decision is unclear. However, considering that public schools are mandated to educate ALL children and have standards to meet relative to service provision such as teacher qualifications, it appears that funding should support public schools. Wendy Hensel provided the most compelling evidence to support public education. If the voucher system is allowed to grow, the service delivery model in public schools could convert back by nearly 40 years. The integrity of the 1975 law to provide a free and appropriate education to all students with disabilities must be protected.