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9/1/2007 - September 2007 Educational Update - Children with Special Needs in Church or Home Schools

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE, INC.TM

 

To:                  SLI Supporters                                 

 

Date:               September 2007

 

From:              A. Eric Johnston

 

Re:                  Children with Special Needs in Church or Home Schools

 

            SLI received information that the Alabama State Department of Education was proposing changes in the Alabama Administrative Code which provide for Special Education Services.  Chapter 290-8-9 was approximately 91 pages of proposed rules which govern provision of assistance to children with special needs.  State rules follow federal requirements to provide expert assistance to children with all types of disabilities.  Individual educational plans are tailored to meet the needs of a particular child.  The proposed definition of a school would have omitted children with disabilities who attend church schools and home schools. 

 

            Central to the provision of these services is what is called "Child Find." The law specifically requires that children between birth to twenty-one years, regardless of the severity of their disability, must be located and provided assistance. Federal law, to which state law must conform, specifically requires parentally-placed private school children, including religious school children, must be included, identified, and receive similar services to those undertaken for public school children.[1] 34 C.F.R. 300.130, 300.131(a) and (c). The controlling federal definitions state:

 

Elementary school means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under state law.  34 C.F.R. 300.13.

 

Secondary school means a nonprofit institutional day or residential school, including a public secondary charter school that provides a secondary education, as determined under State law, except that it does not include any education beyond grade 12.  34 C.F. R. 30.36.

 

However, when the State Department of Education published proposed rules, it defined "private school" as follows:

 

For purposes of these rules, private school includes only such schools that hold a certificate issued by the Alabama State Superintendent of Education reflecting that such school conforms to the Department of Education's private school requirements.  The term does not include home schooling.  Proposed Rule 290-8-9.00 (17).

 

            Secular private schools are issued a license (certificate) by the State Department of Education.  These schools must conform to rather strenuous requirements contained in 16-46-5, 1975 Code of Alabama.  This is but one legally authorized form of nonpublic education permitted under Alabama law.  It applies to schools that are not public and which are not affiliated with a church or otherwise not exempt.  Consequently, the proposed definition of a "private school" omitted several otherwise legally authorized forms of elementary and secondary education.  See 16-46-3(a), Id.  Specifically, we were concerned that church schools and home schools were being omitted.

 

            While public schools are required to be provided by the State of Alabama pursuant to Article XIV, Section 256, 1901 Constitution of Alabama, church schools are permitted as an educational choice as defined by Sections 16-28-1(2) and 16-46-3(3), Id.  In deference to the First Amendment, church schools are not required to be licensed or certified such as required of private schools by Section 16-46-5, Id.

 

            In addition to this definitional conflict, to have left the proposed rule omitting church and home schools would have violated the U.S. Constitution.  Meyer v. Nebraska, 262 U.S. 390, 400, 401 (1923) held "it is the natural duty of the parent to give his children education suitable to their station in life" and that a legislature could not materially "interfere with . . . the power of parents to control the education of their own."  Relying on Meyer, the court in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 521, 533 (1925) found unconstitutional an Oregon law that required children to attend only public school and the court permitted one family the choice of nonpublic religious education and another a nonpublic military education. 

 

            In the 1960s, religious influences were removed from public schools, i.e., Engle v. Vitale, 370 U.S. 421 (1962) (removing daily prayer) and Abington School District v. Schempp, 374 U.S. 203 (1963) (removing Bible reading and the Lord's Prayer).  As a result of this, many parents sought religious based education and many states specifically permitted church schools, including Alabama in 1982. 

 

            Based on this information, the State Department of Education omitted their proposed restrictive definition.  The federal definitions referenced above will be used and these will clearly include all schools in Alabama.  Church schools are specifically defined by law.  While home schools are not defined by law, neither are they prohibited.  Children who attend home schools that are a part of a church school program would clearly be covered and we believe students who are in a valid home school program would also be included.  These rules went  into effect on July 19, 2007.  We urge our readers to let us know if they encounter any problems.   



[1]  A related issue, whether a child with disabilities in a private school can obtain these services free or must reimburse the public school for them, will be argued before the U.S. Supreme Court on October 1, 2007.  New York City Bd. of Ed. V. Tom. F., on behalf of Gilbert F., a minor, No. 06-637.

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