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Last Updated: 10/31/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: My child attends a non-public K-12 school. What can I expect the private school to provide my disabled son? What about the local public school?
   

Answer:  As a review of the earlier postings to Ask the Attorney will reveal, there are three main federal laws that govern the treatment of disabled students.  They are the Individuals with Disabilities Education Act (IDEA), §504 of the Rehabilitation Act of 1973 (§504) and the Americans with Disabilities Act (ADA).  The later two being enforced by federal Department of Education - Office for Civil Rights (OCR).

 

IDEA - provides federal funds to the local school districts and charter schools via the Michigan Department of Education.  In agreeing to receive this federal money, the state and local school districts also agreed to be subject to IDEA’s rules and regulations.  Those regulations are extensive (see 34 CFR 300).  Among other items, they cover the provisions of a free and appropriate public education (FAPE) to an eligible student.  That includes such issues as eligibility classifications and determination of eligibility, service delivery models, procedural protections and discipline rules.  As private schools do not receive IDEA finds, they are not subject to these rules and regulations. 

 

§504 - is an anti-discrimination statute.  Any school, private or public that receives federal funds is subject to this Act.  It takes a careful case-by-case analysis to determine if a particular private school is subject to §504 protections as some private schools do receive federal monies through various federal programs such as school lunch programs, anti-drug programs, NCLB grants, etc.  A student is eligible for the protections of §504 by being found to have a disability that significantly impacts a life function, such as learning.  In order to level the playing field between disabled and non-disabled students, the §504 student is provided with accommodations.  Those accommodations are generally detailed in a written plan.

 

ADA – the ADA is also an anti-discrimination statute.  It works in conjunction with §504, IDEA and state disability law.  The eligibility definition is essentially the same as §504.  However, the prime focus of the ADA is full accessibility to buildings and programs for all disabled persons.  Title II of the ADA covers public facilities, including public schools.  Title III of the ADA covers non-religious private schools (religious schools are exempt).  Both Title I and II prohibit discrimination by public accommodations.  However, public schools must meet a higher standard in providing reasonable accommodations than required by a private non-religious school.

 

Michigan Law - The State of Michigan has a Persons with Disabilities Civil Rights Act. The Act provides the disabled students with a set of anti-discrimination rights that are separate and distinct from the federal ADA law.   The Michigan Act defines an “educational institution” as a public or private institution.  It does not appear to exempt religious schools as is done in the federal ADA.  T

 

The Michigan Act prohibits behaviors that discrimination in any manner so as to prevent a disabled student from the full utilization or benefit from the school, or to exclude or otherwise discriminate against an individual because of their disability.

 

Providing Private School Student with “Related Services” under IDEA and the Michigan Auxiliary Services Act - the public school district were a student resides is obligated under 20 USC 1412(a)(10)(A)(i) of IDEA, resident public school district are required to provide some related support services to an IDEA eligible student, even if that student is enrolled in a religious or non-religious private school.  However, as the amount to be spent for these services by the local educational agency is only required to be equal in proportion to the amount of Federal funds made available to the district, the amount and type of services provided is generally less than would be provided to a student attending the public school. 

 

Also, in 1955 the Michigan Legislature passed the Auxiliary Services Act.  This Act provides for auxiliary services to disabled students that attend private schools.  The Michigan Attorney General appears to be of the opinion that a private school student is eligible for ALL the related services provided to IDEA students.  However, I am aware that not all school districts (and their legal counsel agree with this interpretation).  It has been my experience that the type, amount and where the service will be delivered vary with each public school district. 

 

IDEA has a “child find” requirement that applies to all children who reside in a school district.  Therefore, most public school districts do a pretty good job of identifying IDEA eligible students that reside in their district, even if they attend private religious or non-religious schools.  However, if you are a parent of a privately placed student and your local district has not formally determined if you child is eligible for IDEA services you should write the special education director making them aware of your student and make a “referral” for an evaluation for eligibility for IDEA services.

 

Finally, private schools may elect to provide various services and accommodations to disabled students.  I have found this to be more common when the private school is affiliated with larger organization that can make funding available.  Also, the enrollment information and enrollment agreement may detail additional services available to disabled students.

 

Hopefully, this brief overview of what is a very complex area of the law provided you with a better overall understanding of how private schools fit into the scheme of disability law.

 

John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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