Ask the Attorney: What Happens to My Child’s Special Education Rights in a Private School?

I’m glad you brought this up. There are several layers to this question in terms of both your rights and your child’s rights under the special education law called the Individuals with Disabilities Education Act (IDEA).

The Basics

Let’s start with the fundamentals. Overall, there are two categories of schools: public and non-public. A public school is one that is available to you through your traditional school district, most likely paid through your town or city taxes, and is available to everyone. A non-public school is one that is not available to everyone. This includes private schools, religious schools, and homeschooling, as well as voucher programs and tuition scholarship programs. Most charter schools are considered public schools, though there are some exceptions.There are different rules for students with disabilities in non-public schools depending on whether you – the parent – placed your child there, or whether the district did so.

When the School Places Your Child in a Non-Public School

If the school district has placed your child in a non-public school and the school district is paying for your child to attend that school, you retain all the same rights as if our child was still attending a traditional public school. You keep all rights under the IDEA because the school determined the appropriate placement for that child is somewhere outside of the district. The school has proposed this placement on your child’s IEP, and you and the rest of the IEP team have agreed on this placement.

When You Place Your Child in a Non-Public School on Your Own

The rules change a bit if you have made the decision to place your child in a different school. You might decide to send your child to a particular school because of a religious affiliation or other personal or academic reasons. If the sole reason you are sending your child to a different school is your personal choice, you do not keep any protections under IDEA. Keep in mind, however, that if the non-public school accepts federal funds in any capacity (i.e., for sports programs), that school must still abide by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, both of which protect individuals with disabilities.

When You Place Your Child in a Non-Public School on Your Own for Potential Violation of Law

If you selected the non-public school for your child because you don’t think the school district has been providing a free appropriate public education (FAPE) to your child, which they are required to do under law, that’s a different story. In this case, you will want to send a letter to the school district at least 10 business days in advance of your switching your child to another school. You will want to say in that letter that you are making a unilateral placement decision because the school has denied your child a FAPE, and then you will likely proceed to mediation or a due process hearing. When you make this decision on your own, know that if you don’t prevail when you go to hearing, you might not receive any reimbursement for the school placement or other services. All of these expenses, including the hearing process, can add up very quickly. If you don’t provide the 10-day advance notice, if you purposely prevented your child from being evaluated, or if you didn’t inform the IEP team that you rejected its proposed placement, there is a decent likelihood that any reimbursement you request could be reduced or denied altogether.If your child is attending a non-public school for any of the above reasons, know that the local school district still has an obligation under the child find provision of IDEA to identify any students who might be eligible for special education and related services. This means they still need to go to the non-public schools and conduct evaluations where necessary, at no cost to the parents. By attending a non-public school by the parents’ own choice, your child isn’t necessarily entitled to all of the services they could get if they attended the traditional public school. The non-public schools can choose what, if any, services they’ll offer, as compared to the public schools which are required to provide all services that your child needs.The district might choose to provide services to your child and/or other students from that district at your child’s non-public school, even if it is a religious school. Any services the school district provides on the premise of that non-public school must be “secular, neutral, and non-ideological.” In other words, that non-public school serves only as a meeting place for the purpose of providing services.

The Exceptions

As always, there are exceptions to these laws. For example, if the school prevented you from providing that 10-day notice, because they never gave you a copy of your procedural safeguards (which would have told you about this 10-day notice requirement), then there should not be any reduction in potential reimbursement for expenses you incurred in enrolling your child in a non-public school.As is typical with special education laws, and laws in general, a seemingly straight-forward question can get complicated quickly. Check out our MA Special Education Guide or LA Special Education Guide for more information. You can also learn more through this parent-friendly PDF from the U.S. Department of Education.Sources: 34 CFR §§300.130-300.144