This post briefly reviews Allan G. Osborne, Jr., “IDEA and Alternative Education Choices: Legal Issues” in School Business Affairs 74, no. 10 (November 2008): 24-26.
Osborne, Jr., an authority on special education law, here explains the rights accorded homeschooled children by the Individuals with Disabilities Education Act (IDEA). The IDEA, Osborne explains, has explicit provisions for special education services to private schooled children. In many states homeschools are (or have the option of being) considered private schools. If a state considers homeschoolers to be private schoolers, then all of the law’s provisions for private schoolers apply to homeschoolers as well.
And what are these provisions? School districts have a responsibility to identify all children with special needs in the private sector. Once they have done this, they must spend a proportionate amount of their federal IDEA money on these children. Districts don’t have to provide the same full range of services they do for public schooled children, but the money must be spent somehow.
Several court cases have been filed as to whether or not provision of special education services on site of a religious private school violates the Establishment Clause, and it has been generally determined that it does not. Furthermore, if school districts opt not to provide special education on site, they must pay for transportation costs from the private school or the child’s home to the location where services are provided.
What does all of this mean for homeschoolers? First of all, it means that if homeschoolers live in a state where they are considered to be private schoolers, they are entitled to a cut of federal special education dollars. Furthermore, it means that school districts have a responsibility to find children with special needs in the homeschool community and offer services to them.
This of course raises a critical issue. Many homeschoolers don’t want State officials, however well intentioned, to initiate special education evaluations for their children. Osborne reports an interesting 2007 case in New York (Durkee v. Livonia Central School District) where parents sued a school district that was trying to evaluate their child for special needs. The school district argued, correctly, that IDEA requires them to find all children in the private sector with special needs. The parents argued, also correctly, that IDEA allows parents to refuse publicly-funded special education services. The court found that since the parents were going to refuse the services anyway, it made no sense to evaluate the child.
The take home message is that homeschoolers who are considered private schoolers can, if they so desire, take advantage of federal IDEA provisions and have their children evaluated for disabilities. If a child does have a documented need, he or she is entitled to receive special education services, either at home or elsewhere (if elsewhere, the school district must pay for transportation). But if homeschoolers don’t want to have anything to do with this government assistance, they are not required to submit to testing or to receive services.