Disability rights advocates: Sununu mischaracterized special education rights in private schools

  • During a recent campaign event, Gov. Chris Sununu said students with disabilities will not lose their right to special education services if their parents use the state’s school voucher-like program to place them in private school. Staff photo by Ben Conant

New Hampshire Bulletin
Published: 10/3/2022 9:44:48 AM

During a recent campaign event, Gov. Chris Sununu said students with disabilities will not lose their right to special education services if their parents use the state’s school voucher-like program to place them in private school. 

That’s not true, according to disability rights advocates and the parental handbook put out by the Children’s Scholarship Fund, which administers the “education freedom account” program. When a parent chooses to enroll their children in private school, they forfeit their right to special education services because unlike public schools, private schools are not required to provide “free appropriate public education.” 

“…[C]hildren with disabilities shall not be entitled to a FAPE (free appropriate public education) in connection with their enrollment by their parents in a private school … while participating in the state-funded EFA program,” the handbook states.

There’s an exception when a public school district places a student in a private school because it cannot provide adequate services to meet federal requirements that the child receive a “free appropriate public education.”

Sununu made his remarks during a Sept. 20 town hall before an audience of nearly 200 people after he was asked about implications for special education under the state’s education freedom accounts. The program allows students in families making up to 300 percent of the federal poverty level to receive a third of the state funding that would have gone to their public school for private school and homeschool expenses. 

Host Scott Spradling posed the question, which was drafted by the several disability rights groups that sponsored the event, to Sununu.

“Through education freedom accounts, millions of dollars are moving from local public schools into private schools, which are not legally bound to follow IDEA, the Individuals with Disabilities Education Act. Some are also permitted to deny enrollment to students with disabilities,” Spradling read. “This type of financial loss places pressure on local districts who must deliver special education services. How will you ensure that special education students will receive an equitable and inclusive education…” 

Before Spradling could finish the question, Sununu interrupted him, asking for the paper with the question. 

Sununu took issue with two points. He rejected the characterization that “millions of dollars” are flowing out of public schools, calling the claim a “Democrat falsehood.” This year, 3,025 students participating in the program will receive $14.7 million in state money, according to the Department of Education. Twenty-seven percent of those students came from public schools; the rest were already in private school or being homeschooled, according to the department. Sununu noted that public schools retain a portion of the state funding after students leave for private school. 

Sununu also rejected the question’s premise that students who choose private school will lose their rights to the special education services deemed necessary to access a free appropriate public education.

“So, everyone has IDEA. You can’t lose your rights,” Sununu told the audience. “You cannot lose your rights as an individual with IDEA.” 

He reiterated that in a follow-up comment. 

“That individual (who uses the EFA program to leave public school) can go get services any which way they want,” he told the audience. “They can go to a private school, they can get home tutoring, they can get additional special education services. But let’s be very clear, no one loses their rights for IDEA.”

A video of the event is on the University of New Hampshire Institute on Disability website, and under it are links to an overview of special education rights in public versus private schools and a guide from the Parent Information Center. Executive Director Michelle Lewis said the latter assists all families and students with special education questions for both private and public schools.

Karen Rosenberg, policy director at the Disabilities Rights Center-NH, an event co-sponsor, said Sununu’s comments left her concerned that parents who opt for private school may not understand the implications for a child with disabilities.

“Once they pull their kids out of public school, the public school no longer has an obligation to make sure their child gets all the special education and related services their child needs,” Rosenberg said. “And neither does the private school.”

Lisa Beaudoin, executive director of ABLE NH, shared Rosenberg’s concern. 

Some families of students with disabilities know their rights to the special education services end when they enroll the child in private school, she said. She worries for the families who don’t. 

“I think the governor was missing some important nuanced information on federal regulations and New Hampshire rules,” she said. 

Students placed in private school by their parents regain their right to special education services only if they return to public school.

When asked the same question at the town hall event, Sununu’s Democratic challenger, Sen. Tom Sherman of Rye, said he’d first try to persuade the Legislature to abolish the education freedom account program. If that failed, Sherman said he would work to ensure students in private and public schools get the same services. 

That’s an unreachable goal under existing laws and rules, special education advocates said. 

The intersection of special education law and public and private school is complicated. 

Public school districts must identify all children in their district who qualify for special education, including those whose parents have chosen private school or homeschooling for their children. And they must set aside a small percent of the federal special education money they receive to provide what’s called “equitable” services for those students.

But school districts are not required to spend that money meeting the specific special education services needs of those students. Instead, they have broad discretion in deciding what equitable services to provide and which students qualify for them.

“If 10 kids go into private school, the (public) school district has to have a conversation with the school about how they will allocate that money,” Beaudoin said. “If nine need reading support and one doesn’t, (the district) can say, ‘We are hiring a part-time reading specialist’ and they have spent their IDEA funds.”

Rosenberg said the public school can target the money toward transportation costs for special education students, hire a tutor or specialized instruction in a single subject.

“Maybe they decided to focus on math, and your kid’s a math whiz and doesn’t need that,” Rosenberg said. “So your kid may get something, they may get nothing.”

The Bulletin asked the governor Monday to clarify his understanding of special education rights under the EFA program. The response from his office continued to confuse the issue.

It said, “Regardless of whether a child is enrolled in a non-public school or another public school within the state, children with disabilities are entitled to equitable services under the EFA program.”

Equitable services and special education services are not the same. Only students enrolled in public schools or placed in a private school by the district have a right to comprehensive special education services. Students placed in private schools by their parents may receive equitable services, but they do not have to address the student’s specific needs.

The statement continued: “Children in a private school setting may receive (individual service plans) which help guide the special education services for the child – often in their public school districts, but may also be provided out of district if necessary.”

That statement is in line with guidance provided by special education advocates. The key word, they say, is “may,” because services also may not be provided. 


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