Of the 50 million students enrolled today in public education, approximately 13 percent—6.5 million students—have a handicapping condition and are educated under an IEP.
While The Individuals with Disabilities Education Act (IDEA) is a federal law, there are dramatic state-to-state differences in its implementation, resulting in wide variation of services for students with handicapping conditions. One of the most significant variations is the availability and use of private schools, both non-profit and for-profit, to meet the needs of students.
Of the 50 million students enrolled today in public education, approximately 13 percent—6.5 million students—have a handicapping condition and are educated under an IEP. Approximately $100 billion of the $630 billion spent annually on K-12 public schools is for the benefit of students with special needs. Today about 100,000 students are placed in private special education schools through the IEP process—0.18 percent of all students in public education and approximately 1.5 percent of all students with an IEP. According to the Digest of Education Statistics, this percentage has held steady for the past 25 years.
Two States that Embrace the Private Sector
In 1972, three years before the passage of Public Law 94-142(the precursor to IDEA), Massachusetts passed a law known as Chapter 766. This law allowed public education funds to go to private schools to educate students with special needs. Today there are approximately 155 private schools, known as The Massachusetts Association of 766 Approved Private Schools, which are approved by the Massachusetts Department of Education and the New England Association of Schools and Colleges. The 766 Schools serve around 5,300 students 6- to 21-years-old, or about 3.4 percent of Massachusetts students with an IEP. The average tuition for day students is $65,000 and $184,000 for those requiring residential services.
As executive director of the Massachusetts Association of School Superintendents, Tom Scott said that his state “has a social consciousness approach to children. If a kid needs a service, we have an obligation to provide it. It is what the state values. Districts will fight the marginal issues, but no one is going to fight if a legitimate candidate needs appropriate services. I see that across the board for our superintendents.” At the same time, Scott noted, “Many superintendents feel the procedural process is stacked against the public districts.” Nonetheless, Scott is proud of special education in his state. “Families move to Massachusetts for the level of special education services” (personal communication, September 25, 2014, quoted in Claypool and McLaughlin 2015, 60-61).
California was also ahead of federal law that mandated special education. Shortly after World War II, three pioneers in special education established schools for students with exceptionalities in the Los Angeles area. In the 1960s, the state passed a bill which allowed property tax dollars to follow these students to private schools. A group of school leaders created the California Association of Private Special Education Schools (CAPSES) in the early 1970s, a regulatory and advocacy organization. Today California public schools place approximately 15,500 students in CAPSES schools via the IEP process. As an example, the Los Angeles Unified School District (LAUSD) enrolls more than 700,000 students and operates 22 special education centers. In addition, the LAUSD budget for 2012-13 included $115 million to fund approximately 3,500 students in private special schools.
Six Truths about Special Education
- Private special schools, advocacy organizations and a cottage industry of special education plaintiff attorneys forced environments where private sector options are utilized. California and Massachusetts did not come to embrace public-private partnerships in special education out of pure chance.
- IDEA is the only federal law that is parentally enforced. State directors of special education and school district attorneys know that special education improves when parents sue, and too often the status quo remains in place until the courts order change.
- There are a lot of states and thousands of school districts between Massachusetts and California, and most of them have little in the way of public-private partnerships in special education. Historical, regulatory, geographic and cultural factors are all reasons why there is such variation in the availability and use of private special schools. While children with handicapping conditions are spread evenly across the country, there are great differences in special education norms across public schools in the United States.
- The federal government has never fully funded its share of IDEA.
- The 1982 U.S. Supreme Court decision in Board of Education of the Hendrick Hudson Central School District v. Rowley remains the law of the land and requires that public schools only provide students with handicapping conditions with a basic floor of opportunity. While special educators do not strive to provide a “floor,” the language in Rowley is like driving with the brake on; Rowley remains an obstacle to maximizing opportunities for many children in special education.
- In 1999, Florida enacted The McKay Scholarships for Students with Disabilities. The program provides a voucher for eligible special education students to attend a participating private school. During the 2015-16 school year, more than 31,000 Florida students utilized the McKay Scholarship. Another ten states have developed McKay-like programs.
One Handicap that is Changing Everything
While autism is the primary handicapping condition for eight percent of children with IEPs, due process hearings today are overwhelmingly dominated by autism cases, with hearing officers frequently prone to activism and ordering applied behavior analysis (ABA) interventions at school district expense.
The fact that ABA is the preferred evidence-based intervention for autism creates challenges for public schools because school districts struggle to attract and retain board certified behavior analysts (BCBA), who plan and oversee ABA treatment. There are approximately 20,000 BCBAs in the United States. It is estimated that more than 100,000 BCBAs are needed just to treat children with autism and that more than two million are needed to address all children who could benefit from behavior analysis. Approximately 2,000 new BCBAs are minted each year.
Autism advocacy groups “broke the mold” for disabilities organizations. They are social media savvy and politically aggressive—44 states have passed autism-specific legislation. Today there are a growing number of disabilities advocates seeking a legislative remedy. Some 28 states have passed legislation designed by Decoding Dyslexia that reflects dissatisfaction with public education’s interventions for the disability.
One Thought to Conclude
The next re-authorization of IDEA, likely to occur in two to five years, will reflect the technological and political changes in society as well as research advancements in behavioral sciences and neurosciences that could leapfrog the capacities of many school districts. Education leaders have the opportunity to work with their professional organizations and state departments of education to shape the next iteration of the nation’s special education law. Providing an environment which reduces litigation and encourages partnerships between public schools and private providers with specific skill sets will greatly benefit the children for whom the law is written.