What Recourse Families of Students with Special Needs Have When Their Schools Fail Them: Public vs. Private

Students with special needs are a vulnerable population. Often, they lack the ability to effectively advocate for themselves within the classroom or school house. Diagnoses can be complicated and contradictory—incredible strengths in one area can be tempered by profound deficiencies in others. No two children with special needs are alike.

This is perhaps why both school choice advocates and school choice opponents focus so intently on students with special needs. Advocates see the uniqueness of students and the diversity of needs and believe that no one monolithic education system can possible serve them. Opponents worry that same uniqueness makes them particularly vulnerable to the vicissitudes of the market.

That debate—and the opacity of many of the details around how traditional public schools and school choice programs treat students with special needs—makes Nat Malkus and Tim Keller’s recent paper on federal special education law and state school choice programs invaluable. In the paper, Malkus and Keller uncover and explain several issues that are worth understanding before we can have a good discussion on school choice for students with special needs.

The paper is particularly timely as the federal Government Accountability Office recently released a report that called for better information for parents about their children’s rights as they move from public to private school.

Options for Recourse in Public Schools

One of the first of these tidbits is their explanation of how parents who are unhappy with their child’s services in traditional public schools currently must go about remedying the situation. Because, as the authors point out, the district has the ultimate authority when it comes to drafting a student’s Individualized Education Plan (IEP), parents who disagree have one of two options:

• First, they can mount a challenge within the system and follow the lengthy, expensive and convoluted due process hearings and appeals process.
• If they don’t want to do that, they can “place and chase” by removing their child from the public school and placing him or her in a private school and then chasing the district to reimburse them for it.

As the authors argue:

“Both of these options are risky, because they can be long and expensive, and the outcomes are uncertain. If parents appeal the district’s decision through the administrative process, their student stays in a free but arguably inappropriate education setting, and they face lost time and risk foregoing private educational alternatives that could meet their student’s needs. Alternatively, they may place their child in a private program they believe to be sufficient, but they do so at their own expense unless and until a judge rules in their favor and requires the school district to reimburse their costs.”

Options for Recourse in Private School Choice Programs

While public schools might not provide the protections that folks expect them to, private schools provide more than most think.

When a family removes their child from the public system and places them in a private school either on their own dime or supported by a private school choice program, they forgo the right to a Free and Appropriate Public Education (the central guarantee of federal special education legislation) and cannot demand an IEP or the kinds of due process hearings and appeals that the Individuals with Disabilities Education Act (IDEA) provides.

But, the authors point out, families gain a contractual protection with the private school.

When families place their students in a private school, they are making an agreement of exchanging money for services. If the school fails to provide those services, families have legal recourse against them. Rather than navigating a complex web of federal laws and bureaucratic hearings, families can simply sue for breach of contract.

Families also gain “the recourse of the market” as the authors put it. If they find the services inadequate, they can leave. Schools have a powerful incentive to meet children’s needs because if they do not, the children, and the money that follows them, will leave.

The Freedom to Opt-In

There is a lot more in this paper that is worth digging into, but my fundamental takeaway is that when it comes to private school choice for students with special needs, parents are making a tradeoff. They can either choose the public school system that offers them a series of protections that it may or may not live up to, or they can chose a private system with a diverse set of offerings that may or may not live up to their expectations. Families who want IDEA can stay in the public schools. Families who want more options can leave.

It is a sad commentary on our current discourse that either of those options is considered verboten. Why not allow parents the choice to opt-in or opt-out? Isn’t that the whole point of taking special care to ensure that children with special needs are served appropriately?