Services for Private School Students Under the Individuals with Disabilities Education Improvement Act: Issues of Statutory Entitlement, Religious Liberty, and Procedural Regularity

Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 (“Improvement Act”) amends the Individuals with Disabilities Education Act (“IDEA”) with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private school children: (1) The existence of any individual entitlement that private school children and their parents may have to any particular level of publicly funded special education services; (2) Whether denial of equal, or even of any, services to some private school children unconstitutionally burdens free exercise of religion or parents’ rights to control their children’s upbringing; and (3) The risk of arbitrary decision making in allocating services among private school children. With regard to the first issue, this Article demonstrates that Congress has not created any enforceable individual entitlement to special education services for any given private school child. Some states, however, have established an individual entitlement. Regarding the second problem, this Article concludes that it is constitutionally permissible for public schools to refuse to fully subsidize private school children’s special education services; any contrary view would expand constitutional rights to public services of private school children and their parents beyond acceptable bounds. Regarding the third problem, this Article advances the position that the Improvement Act creates risks of arbitrary and unfair allocations of services that are unacceptably high, and that under due process principles, transparency of the allocation process needs to be guaranteed