Navigating Disability Rights: Can Private Schools Deny Students with Disabilities?

Understanding the legal landscape surrounding the rights of students with disabilities in private schools can be complex. While public schools operate under stringent federal mandates to provide a Free Appropriate Public Education (FAPE) to all eligible children with disabilities, private schools have different obligations. This article will provide legal information and explore the extent to which private schools can deny students with disabilities.

Understanding the Legal Framework

Two primary categories of laws protect children against disability discrimination: discrimination laws and special education laws. Special education laws, such as the Individuals with Disabilities Education Act (IDEA), primarily apply to public school students, ensuring their right to FAPE. Discrimination laws, on the other hand, have a broader reach.

Key Anti-Discrimination Laws:

The Americans with Disabilities Act (ADA): This act prohibits disability-based discrimination. Title II of the ADA applies to government entities, including public schools. Title III extends this prohibition to businesses or "public accommodations," which includes most private schools, but notably excludes religious schools.
Section 504 of the Rehabilitation Act: This prohibits disability-based discrimination by any school receiving federal funding. Most public schools are covered due to their receipt of federal funds. Private schools that receive any financial assistance from the federal government are also subject to Section 504.
The Unruh Civil Rights Act (California): This California state law prohibits disability-based discrimination by business establishments, including private schools within California.

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California Government Code Section 11135: Similar to Section 504, this prohibits discrimination by any program receiving state funding, which typically applies to public schools in California.
California Education Code Section 220: This mirrors Section 11135, prohibiting discrimination in any school-based program or activity receiving state funding in California.

The Crucial Distinction: IDEA vs. Discrimination Laws

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities the right to a free and appropriate public education (FAPE) tailored to their individual needs through an individualized education program (IEP) plan. Private schools, however, are not required to follow IDEA mandates. This means students with disabilities attending private schools may lose access to an IEP and other educational rights guaranteed in public schools.

Accommodation and Access: What is Required?

Even though private schools might not be bound by IDEA, they are often subject to anti-discrimination laws that necessitate providing reasonable accommodations.

Requesting Reasonable Accommodations:

Students and applicants with disabilities can request a reasonable accommodation from a covered school at any time. While the request can be made in any form, it is advisable to submit it in writing. A comprehensive request should include:

Details about the child’s disability.
A letter from a treating professional explaining the disability-related need for the accommodation.
Suggestions for specific accommodations that would be beneficial.

Schools receiving federal funding are often required to have a Section 504 Coordinator to whom accommodation requests can be submitted.

The Limits of Accommodation: Undue Burden and Fundamental Alteration

Schools are generally required to make reasonable accommodations unless doing so would impose an undue burden or fundamentally alter the school's program. The goal of an accommodation is to provide the child with an equal opportunity to access the same benefits as other students, not necessarily to guarantee identical performance levels.

Examples of Reasonable Accommodations and Modifications

A student with a disability may be entitled to reasonable modifications of policies, practices, or procedures to ensure the student has meaningful access to the school or school district’s programs or activities.

Grievance Procedures and Complaint Resolution

Under Section 504, schools receiving federal funding must have procedures in place for students who believe their rights have been violated. These procedures must include due process standards and provide for prompt resolution of complaints.

Filing a Grievance:

If you want to file an internal grievance with your school, ask your school's Section 504 coordinator for more information. Keep in mind that discrimination complaints must be filed within six months from the date the discrimination occurred, or from the date you first knew about the discrimination.

External Complaint Options:

Department of Education’s Office of Civil Rights (OCR): Investigates violations of schools that receive federal financial assistance. Complaints must be filed within 180 days of the discrimination, unless you have already gone through your school’s internal grievance process. If you have completed your school’s internal grievance process, you must file your complaint with the OCR within 60 days of your school’s decision.
Department of Justice (DOJ): Investigates violations of the ADA. Title II complaints (for public schools) must be filed within 180 days of the discrimination. Title III complaints (for private schools) can be filed at any time, but it is best to file as soon as possible.
California Department of Fair Employment and Housing (FEHA): Enforces California Government Code Section 11135 and the Unruh Civil Rights Act. You must file a complaint within one year of the discrimination.
California Department of Education (CDE): Investigates allegations of noncompliance with laws in public schools. The complaint must be filed within one year of the alleged violation.

Violations of these laws may also be enforced through private lawsuits. Statutes of limitations may restrict the timeframe for filing a lawsuit, and you could lose claims if you do not act within that timeframe. If you are seeking less than $10,000 in money damages, another option is to file a discrimination case in Small Claims Court.

Specific Scenarios and Considerations

Students Applying to Private Schools:

Private schools have the right to deny a child admission based on their disability and are generally not required to accommodate that child.

Private Schools and Vouchers:

The proposed expansion of the school choice system, under House Bill 1 and Senate Bill 202, will allow all Florida students to receive vouchers by eliminating the income cap and any other eligibility requirements for the program. These vouchers could be used to help pay the cost of attending private school as well as paying costs for homeschooling. Private schools that receive these vouchers have policies that affect the rights of students; particularly students with disabilities.

The Role of Section 504 Coordinators:

All school districts, colleges, and universities receiving federal financial assistance and employing 15 or more persons must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Section 504. This person is often, though not always, referred to as a Section 504 coordinator. Your school is required to publish your Section 504 coordinator’s contact information in your school’s notice of nondiscrimination, typically found in any bulletins, announcements, publications, catalogs, application forms, or other recruitment materials.

Evaluations and Assessments:

An initial evaluation is a process used by a public school to identify students who have a disability. Initial evaluations may also include determining whether a student who has a disability needs special education or related aids and services to receive a free appropriate public education (FAPE). These determinations must be made on a case-by-case basis for each individual student.

Section 504 requires that, for elementary and secondary school students, a group of people who are knowledgeable about the student, the meaning of evaluation data, and the placement options draw upon information from a variety of sources in making these determinations.

Section 504 does not allow a public school to delay an evaluation when it knows or has reason to believe the student has a disability. Schools must evaluate a student if they know or have reason to believe the student has a disability and the student needs or is believed to need special education or related services as a result of that disability. Section 504 prohibits delaying or denying an evaluation of a student who is known or believed to have a disability because the student is receiving RTI, MTSS, or similar supports.

There is nothing in Section 504 that requires a medical diagnosis or assessment as a precondition to a public school determining that a student has a disability and requires special education and/or related aids and services. The determination of whether an individual has a disability need not demand extensive analysis.

Individualized Health Plans (IHPs) vs. Section 504 Plans:

IHPs contain information, often supplied by a student’s treating medical provider or parent, about a student’s medical condition and the medical treatment of that condition. This information can include, for example, medical orders outlining prescribed medication or medical devices, instructions for administering medication, information concerning symptoms a student may experience and steps to take if those symptoms arise, and information about the ways in which the school setting may affect the student’s medical condition (such as a field day or classroom party with food). IHPs may also indicate, where applicable, what kind of training is required for school personnel who are responsible for providing any school nurse or health services.

In general, a Section 504 Plan describes a student’s placement. “Placement” is broader than a physical space; it includes the regular or special education and related aids and services a student with a disability needs to receive a free appropriate public education (FAPE) and the appropriate setting in which to receive those services. Although an IHP could include the same content as a Section 504 Plan, the information an IHP typically contains differs from the information about a student’s placement that would be in a Section 504 Plan. For example, the decision that a student with a disability requires nursing services as a related service is part of a placement decision that would be in a Section 504 Plan.

Related Aids and Services:

Related aids and services are used to meet the student’s educational needs. Supplementary aids and services are used to place a student in a regular educational environment to the maximum extent appropriate to the needs of the student with a disability.

If an aid or service is necessary to meet the student’s educational needs as adequately as the needs of their nondisabled peers are met, it would be a related aid or service for that student.

Section 504 does not limit the availability of any service required for a student to receive an education that meets their needs as adequately as the needs of their nondisabled peers. Related aids or services can be required under Section 504 for one student even if those same aids or services are provided to other students under the Individuals with Disabilities Education Act (IDEA). For example, if a student with a disability under Section 504 is not eligible under the IDEA but requires a related service such as speech-language therapy, occupational therapy, or counseling in order to receive an education that meets their needs as adequately as the needs of their nondisabled peers, the school district would be required to ensure the student receives the service.

Discipline:

Section 504 prohibits any disability-based discriminatory use of student discipline, including disciplining a student for behavior that is known by the school to be a manifestation of the student’s disability. Knowledge that the student’s behavior is a manifestation of the student’s disability may be based on any relevant information in a student’s records, including the result of a prior evaluation, the student’s Section 504 Plan, any teacher observations, and any relevant information provided by a parent.

Behavioral issues relating to a disability must be addressed through the provision of related and supplementary aids and services, not by reducing the length of the school day.

Understanding Section 504 and Title II

Section 504 is a federal law that prohibits any entity that receives federal financial assistance (such as grants or student loans) from discriminating against persons with disabilities.

Title II of the Americans with Disabilities Act is a federal law that prohibits state and local governments (such as public school districts, public colleges and universities, and public libraries) from discriminating against persons with disabilities.

In general, Section 504 and Title II nondiscrimination standards are the same, and in general, actions that violate Section 504 also violate Title II.

Under Section 504, to discriminate on the basis of disability means to unnecessarily treat someone with a disability differently than someone without a disability. But Section 504 requires more of recipients of federal funding (such as public schools or colleges and universities) than to simply treat individuals with disabilities identically to people without disabilities. Rather, recipients must provide individuals with disabilities meaningful access to their programs or activities in the most integrated setting appropriate.

Definition of Disability:

Person with a disability means a person with a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment. The determination of whether a student has a physical or mental impairment that substantially limits a major life activity (and therefore has a disability) must be made on a case-by-case basis. In addition, when determining if someone meets the definition of a disability, the definition must be viewed to provide broad coverage of individuals.

The Section 504 regulatory provision lists examples of physical or mental impairments, but does not list all possible physical or mental impairments. The list of physical or mental impairments in the Section 504 regulatory provision is not exhaustive. For example, anxiety disorders and ADHD are not specifically listed, but in many cases would be a mental impairment that substantially limits one or more major life activities.

The Section 504 regulatory provision lists examples of major life activities, but does not list all possible major life activities.

Coverage of Section 504 and Title II

All public school districts are covered by Section 504 and Title II - this includes public charter schools and magnet schools. All public colleges and universities are covered by Section 504 and Title II. Virtually all private colleges and universities are also covered by Section 504 because they receive federal financial assistance by participating in federal student aid programs.

All programs in a school or college are covered by Section 504 if the school district, college, or university receives federal financial assistance. Section 504 covers all the operations of a school or college that receives financial assistance including academics, extracurricular activities, athletics, and other programs.

Obligations to Locate and Identify Students with Disabilities:

Recipients operating public elementary and secondary education programs or activities must find every qualified student with a disability in their jurisdiction. Recipients must also ensure that parents of all students who are in their jurisdiction - regardless of whether the student is enrolled in a public school - are aware that their child has a right to a free appropriate public education (FAPE). The duty to locate and identify all students with disabilities includes those children who are not eligible under the Individuals with Disabilities Education Act (IDEA). To be eligible for Section 504 protections, a student need only have a physical or mental impairment that substantially limits one or more major life activities. A student’s ability to learn does not need to be substantially limited for the student to be eligible for Section 504 protections.

A student is in a public school’s “jurisdiction” whenever the student actually resides or is domiciled within the school district’s jurisdiction; or is receiving a public education from the school. A student’s residence is judged by actual living arrangements.

Navigating the Private School Landscape

Non-public schools are sometimes also called private schools. Charter schools are not private schools.

A student at a non-public school can receive an evaluation for special education eligibility. The Individuals with Disabilities Education Act (IDEA) is a federal law that requires a free appropriate public education (FAPE) is available to all eligible children with disabilities. Sometimes, a child might be placed in a non-public school as a means of providing FAPE. Parentally placed children with disabilities do not have an individual entitlement to services they would receive if they were in a public school. Districts are required to spend a proportionate amount of IDEA funds to provide services to this group.

When a determination is made through the evaluation process that a private school student has a disability and needs special education and related services, and a parent intends to keep their child enrolled in the private school, then the resident district is not required to make FAPE available to the student, no IEP is written. The district of location may develop a services plan.

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