The U.S. Department of Education’s Office of Special Education and Rehabilitative Services has ordered the California Department of Education (“CDE”) to take statewide corrective action regarding how school districts carry out their responsibilities under the Individuals with Disabilities Education Act (“IDEA”) for students with disabilities who attend private schools. The decision follows complaints brought by the Archdiocese of San Francisco and Diocese of San Diego after they raised concerns about practices in the San Francisco Unified School District and several San Diego-area districts and were dissatisfied with CDE’s response.
Students who are placed in private schools by their parents generally do not have an individual right to receive the same special education services they would receive in a public school. But that does not mean IDEA has no application to them. Local public school districts have responsibilities to identify and evaluate private-school students who may have disabilities, consult with private schools and parents about how services will be provided, and spend a proportionate share of their federal IDEA funding on services for eligible private-school students.
The Department found problems with how the districts were consulting with private schools. In some instances, decisions about what services would be offered appeared to have effectively been made before private school representatives had a meaningful opportunity to weigh in. For example, private school representatives in the San Diego area asked the districts to consider direct speech-language and specialized academic instruction, including through third-party providers, but the districts continued their existing consultative model without demonstrating that they had meaningfully considered those alternatives or providing the required written explanation for rejecting them. The Department emphasized that IDEA consultation is intended to be a genuine discussion in which private schools have an opportunity to influence how services are designed, not simply a meeting to inform them of decisions already made.
The Department also identified concerns with child find, which is the process school districts use to identify and evaluate children who may have disabilities. Private school representatives had reported that students were sometimes expected to participate in interventions such as Response to Intervention (“RTI”) or Multi-Tiered Systems of Support (“MTSS”) before being referred for an evaluation. The Department clarified that districts may use these types of supports, but they cannot use them to delay or deny an evaluation once there is reason to suspect that a child has a disability and may need special education services. It ultimately found that the practices used by the districts did not adequately ensure that eligible private school students were being identified and counted.
That finding also has potential funding implications. The number of eligible private school students identified through child find helps determine the proportionate share, or amount of federal IDEA funding that districts must reserve for services benefiting parentally placed private school students with disabilities. The Department directed CDE to ensure that districts recalculate those amounts for federal fiscal years 2021 through 2025, determine whether there were funding shortfalls, and remedy any shortfalls using available funding sources.
The Department also found shortcomings in CDE’s handling of the underlying IDEA complaints, concluding that CDE did not consistently investigate and resolve all of the material issues raised by the private school representatives. CDE must revise its complaint procedures as necessary so that future investigations address the issues raised and clearly explain whether the district complied with IDEA and why.
This decision is not limited to the districts involved in these complaints. CDE has been directed to take corrective action designed to ensure compliance by school districts and Special Education Local Plan Areas (“SELPAs”) throughout California.
Note: Although parentally placed private-school students generally do not have an individual entitlement to IDEA services, private schools still have an important role in the process. This decision reinforces that districts must meaningfully engage private school representatives in decisions about equitable services and may be helpful for schools that have experienced challenges with consultation or obtaining timely evaluations for students.