K–12 education reform garners much media attention, particularly in my home state of New Jersey. Nowhere, though, is reform more perilous and lacking in accountability than in the realm of special education. As a result, this cohort of students repeatedly is denied a legal right of access to private programs due to the distortions and illegal tactics that drive the decision-making process.

A lack of sound fiscal accountability undergirds this process, as does the absence of real legal consequences for state and local actors who engage in these behaviors, the end result being the further hamstringing of a population of students who are some of our nation’s most vulnerable and underserved.

A better understanding of their plight requires some history. In 1974, President Gerald R. Ford signed into law IDEA (Individuals with Disabilities Education Act). This federal legislation was to ensure equal access to a free and appropriate public education, delivered through an individual education plan in the least restrictive environment for any child found in need of special education services. It was a watershed moment in the lives of special needs children.

The key provision in IDEA is that it requires a student’s current school to consider the full range of placement options (i.e., schools, whether public or private) when exploring an appropriate program-driven placement. Students deemed eligible to receive special education services are entitled to this, and public school districts must provide it. Otherwise they violate state and federal law.

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Statewide and nationally there are advocates who gamely seek to protect special education students’ legal rights. In New Jersey we have Gerry Thiers, executive director of the Association of Schools and Agencies for the Handicapped (ASAH), the premier state advocacy voice for students with disabilities. ASAH released in December 2011 its latest report, analyzing the varied costs of special education programs—in both public and private schools—and providing an algorithm by which to determine appropriate levels of financial support.

In light of the economic downturn, taxpayers understandably want to know where their tax dollars have gone. What’s needed is a smarter use of those dollars, which ASAH provides via its reporting of the differential costs to educate across placements. The results can be seen here in its Comparative Analysis Summary figures:

  • The average cost per student for special education services in New Jersey Department of Education (NJDOE)–approved private schools: $45,358
  • The average cost per student for a New Jersey local public school providing the same level of service as a NJDOE–approved private school: $59,051
  • The average cost per student for special education services in New Jersey local public schools receiving students on a tuition basis from sending public schools: $50,146
  • The average cost per student for special education services in New Jersey county–based public school districts: $65,266

Such a wide variation in tuitions is due to the fact that NJDOE–approved private school rates (set by the NJDOE) are required by that department’s accounting practices to include all costs. On the other hand, NJDOE public schools (township and county) are not held to this accounting standard, and so their “lower” tuition rates exclude the costs of pension, social security, health benefits on retirement, facilities construction, and associated debt service.

Also, in light of cuts in state aid, New Jersey schools have been illegally keeping more special education students in-district, although these programs are not at all lower in cost as the ASAH report indicates. In fact, in-district and county-based programs cost quite a bit more, as much as 44 percent more than their private school alternatives.

In addition, in-district programs are oftentimes nonexistent. If they do exist, they are not as competitive as their private school counterparts, and they are oftentimes discriminatory, with students being stigmatized and segregated away from their peers.

To discuss special education is to discuss future outcomes, something ASAH has been following for over a decade for the students in their member schools. Most recently, the study for the 2009–2010 school year examined the future plans of more than 1,500 students with significant disabilities from 72 private ASAH member schools.

The ASAH study shows that 64 percent of private-member school graduates left with plans to enter the mainstream: 43 percent to two- or four-year colleges or trade and technical schools, and 21 percent to competitive employment or the military. The outcomes of students leaving ASAH member schools compare favorably to the results of the National Longitudinal Transition Study, which looked at outcomes for public school students with disabilities, a population that generally has less severe disabilities.

In the end, educating students with disabilities, a federally mandated responsibility, is not one of the costliest services a school district provides, a falsehood some public school advocates would have taxpayers believe. If state and local agencies would simply comply with federal law and respect the legally mandated continuum of placement options parents are entitled to enjoy, students would be far better off and parents wouldn’t have to engage in time-consuming and costly legal battles.

Furthermore, a report from the Government Accountability Office stated that many districts planned to spend their 2010 special education stimulus dollars elsewhere. In order to shift the funds out of special education and into general education funds, schools had to show they had met certain criteria, to include graduation and drop-out rates of special education students. In addition, to allow more districts to qualify, some states simply ignored or lowered the standards, in effect lowering special education requirements. This was historic funding that could have had a tremendous impact on special education students, but some states chose to minimize the good and cut this group of students out of the fiscal pie. The consequences of this action aren’t immediate, although the newly lowered district-funding levels have become the new threshold for districts seeking to keep federal funds coming in and lower their spending on special education.

All told, securing special education services is a difficult task. Not only that, parents who seek to secure private placement for their children face an uphill battle, since districts seek to keep more of their students in-district. To that end, the NJDOE has managed to help keep them there in its awarding of grants in excess of $100,000 to New Jersey state colleges (at Rutgers University, for example) with teacher-training programs that ensure inclusion is being taught. This might seem like a noble endeavor, but the main goal appears to be to ensure that children are being kept in-district. Inclusion is an option, not a mandate, and it doesn’t work for everyone.

In light of the recent economy, there have been added reports of students being pulled back from private placements, “tight” budgets being named the culprit. But as Mr. Thiers reminds us, we need to be sure that the starting point for any discussion about education begins with children and ends with children. The first question has to be “is this what the child needs?” and not “is this what the budget needs?”

Equally problematic, the New Jersey fiscal accountability code includes a mandate ordering public school districts first to look at other public schools when placing a child out-of-district, the more expensive option. It should go without saying that this mandate directly violates the federal law and must be lifted.  It is a particularly egregious way of bypassing the law’s intent. Costs being a concern, state mandates are anything but fiscally responsible, since they tie up economic resources that can drive up property taxes. So, why have them? So that districts can keep special-education dollars earmarked for special education students in district coffers where there isn’t, oddly enough, any accountability.

The lesson of these bureaucratic missteps is that public school administrators should adhere to the federal law, which was put in place for a reason. They should give due diligence to the legal rights of the classified students in their care. To do otherwise is to frustrate the goals of parents seeking an appropriate education for their children and to violate those children’s civil rights. And irresponsible administrators can even open the door to class action suits, sometimes the only viable alternative parents have for overturning unjust and illegal practices.

In tough economic times, private special education schools have been under attack and children are getting caught in the crossfire. Authentic education professionals then find themselves on the front lines of this new war on special education, since school “leaders” conscious of budgets try to bring children back in-district, or are refusing to send them out in the first place. The true professionals sometimes find themselves trapped between doing what they know is right for the child, and doing what they are told is right for the bottom line, sometimes risking their own employment if they dare cross that line.

As the ASAH study figures show, private schools are a relative bargain. So why do school administrators  keep kids in-district when it would be cheaper just to do the right thing and provide the legally mandated continuum of placements? Because of their own self-interest, engaging as they do in what Manhattan Institute policy scholar Jay Greene likes to call the special education two-step: first provide colorful anecdotes of unreasonably expensive-sounding private placement, and then warn about how general education may suffer.

When my own son was in first grade, I endeavored over many months to have him placed in a private school since I could see early on that despite his superior IQ he was being relegated more and more often to his home school’s resource room. I also understood that due to a congenital heart defect that was corrected at birth, he might have learning difficulties, the collateral effect of the surgical fix to save his life.

Once I realized the school didn’t have a program fit for my son’s particular learning needs, I determined to work diligently for private placement. I was insistent that his educational life wouldn’t suffer and that he would meet his high potential. I am grateful I did, since he now enjoys a robust education in his present school, where he is in his first year of high school.

I continue this advocacy work because of my intolerance for the chronic injustices I see continue to this day. The laws are in place for a reason—to help students succeed—yet in many cases they are not being obeyed. Seeing firsthand the miracles wrought by my son’s educational program, I am morally obligated to speak out. Schools and programs akin to what my son now enjoys are lifesavers, yet so many children are illegally barred access to them.

Special education is a protected civil right, although a right not always locally protected. The federal commitment to educate special needs children was one of the most laudable education policy achievements of the twentieth century and it must be protected. Its most progressive aspect—the ability to tailor programs to students in an educational environment conducive to and least restrictive of their individual needs—is only possible because a continuum exists.

The lesson to be learned is that private programs work and no child found in need of one ever should be denied.