Special Needs and School Choice

State and federal law requires that appropriate services must be provided to children with special educational needs, and that these services must be made available in an appropriate setting. If a parent can demonstrate that a child’s unique educational needs are not being met in their current placement, that can open the door to discussions of changing that placement, including the possibility of placing the child in a public or private school chosen by parents.

The provision of special education services in Maine is governed by a set of state regulations collectively known as "Chapter 101." Chapter 101 runs almost 250 pages and covers, as its title indicates, the provision of special education services for children from "birth to age 20," including assessment and identification of children with special needs, details regarding the accommodations those children are to receive, and an outline of the process by which disputes over special education services are to be resolved.

Part IV of Chapter 101 outlines which entities are responsible for the provision of special education services, with section 4 of this Part identifying "each school administrative unit" as being responsible for "providing special education services to all resident children [with certain exceptions] within its geographical jurisdiction." "Each SAU" the section continues, "shall provide special education services to all children with disabilities whose parent resides within the SAU and to all adult children who reside within the SAU. This shall include all eligible children who attend the public schools of the unit, or who attend other public schools or private schools on a tuition or contract basis at public expense." The local school district, in other words, is responsible for ensuring that the students it serves, no matter where they are placed, receive appropriate special education services. This includes providing services to students enrolled in private schools at public expense, as is found in communities served by Maine’s private Town Academies, for instance. In such instances, the law requires the school district to work collaboratively with the private school to ensure that proper services are being provided.

This section of Chapter 101 also requires that if a school district decides to send a child to a private school or facility in order to assure that proper services are provided, the school district must bear the costs to do so. This might occur, for instance, if the local public school is simply not equipped to deal with severe handicaps of one kind or another.

What if it is the parents who choose to enroll a student in a private school, rather than the school district? Though it takes some looking to find it, subparagraph (4) of subsection G of section 4 of Part IV of Chapter 101 deals with this very issue. Under the heading "payment for education of children enrolled in private schools without consent of or referral by the public agency," this subsection explains that "in general," a school unit is NOT required to "pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility." The issue thus becomes one of whether or not the school district did indeed provide a "free" and, importantly in the case of special education students, "appropriate" public education. "Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child and the question of financial reimbursement," the subsection continues, "are subject to the due process procedures" outlined elsewhere in state and federal law.

Chapter 101, though, is clear that a school district may indeed be responsible for private school tuition, at a school chosen by parents, if it is found that the district failed to provide appropriate services:

"If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had NOT made a free appropriate public education available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and SAUs."

This section of Chapter 101 is quite clear that, in the event that parents are able to convince a "hearing officer or a court" that the local school district failed in its responsibility to provide appropriate educational services as required by law, the district is obligated to pay for that student’s enrollment in a school of the parents choosing, assuming such a placement meets with the approval of the hearing officer or the court.

How hard such approvals are to come by is difficult to say. A review of state data on the tuitioning of students outside their own school district, which is available on our Data on School Choice in Maine page, suggests that a number of districts, even some of the state’s largest, do indeed tuition students to private schools for the purposes of providing services to students with special needs.

Though Maine is not among them, a number of states have adopted school voucher programs for students with special needs. In Florida, for instance, parents who are not pleased with the special education services their child receives may apply for a voucher to pay for tuition at a school of their choice, public or private. According to the Friedman Foundation for Educational Choice, more than 18,000 students took advantage of the program in 2006-2007. Similar programs are available in Arizona, Georgia, and Utah.

As with all the issues surrounding special needs students, the best course for parents is to get up to speed on special education policy and law. Our partners at GreatSchools.org feature an outstanding webpage on learning disability and child development issues. Closer to home, the Learning Disabilities Association of Maine provides additional information for parents and also advocates for special education issues before the state legislature.

Special education law is dizzying in its complexity, but there are terrific resources available to parents concerned about ensuring that their children are receiving appropriate services in their local public school.

This analysis of Maine’s law with regard to special education and school choice is offered as an informational service to site visitors and should not be considered legal advice.

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