IDEA and FAPE Special Education Services Are Not a 'Buffet'
D.L. was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and anxiety. He is a student at a private Yeshiva seeking special education services. Because Maryland does not allow dual-enrollment in private and public schools, his parents are seeking to have the Baltimore City Board of School Commissioners provide these services either part-time at the public school, or at his Yeshiva.
D.L. is eligible for these services under Section 504 of the Rehabilitation Act, which requires public school districts to make a Free Appropriate Public Education (FAPE) available to each special needs student in the district. As long as a FAPE is made available, the district will not have to pay for a private education.
The plain language of the statute and appendix are somewhat useless. While they say that if a parent chooses a private provider while public services are available, the district will not have to pay, they don't say whether a private student can access the services (part-time) from a public school itself.
The Department of Education issued an opinion letter ("Letter to Veir") interpreting their regulations that provides some insight.
"[W]here a district has offered an appropriate education, a district is not responsible under Section 504, for the provision of educational services to students not enrolled in the public education program based on the personal choice of the parent or guardian."
Though that would seem to be clear enough, the parents argued that it was issued in response to a home-schooled student seeking services at home. D.L. is educated in a Yeshiva and would receive services on the public school's campus.
The court didn't buy it. They used the IDEA amendments from 1997 to illustrate. That year, Congress limited the obligations of states by stating "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school."
Because all IDEA students fall under 504, if D.L's parents' interpretation of 504 were correct, that would contradict Congress' express limitations on the IDEA.
The parents then shifted to a Free Exercise Pierce and Yoder argument. In those cases, however, the parents faced criminal sanctions if their children did not attend public schools. D.L.'s parents retain full discretion.
Though staying in the Yeshiva will cost a substantial amount due to the need for special services, there is a long line of Supreme Court cases indicating that a statute does not violate the Free Exercise clause by simply causing economic disadvantage to individuals who practice their religion.
"The right to a religious education does not extend to a right to demand that public schools accommodate Appellants' educational preferences. [The district] has legitimate financial, curricular, and administrative reasons to require that D.L. enroll exclusively in a public school in order to take advantage of Section 504 services. The school board need not serve up its publicly funded services like a buffet from which Appellants can pick and choose"
- D.L. v. Baltimore City Board of School Commissioners (Fourth Circuit Court of Appeals)
- Special Needs Students Must Settle For Good, Not Great Education (FindLaw's Eighth Circuit Blog)
- Tenth Circuit Devises New Test for IDEA Reimbursement (FindLaw's Tenth Circuit Blog)