POLICY LETTER: May 10, 2002 to Florida Department of Education Bureau of Instructional Support and Community Services Chief Shan Goff

Dated May 10, 2002Ms. Shann GoffBureau ChiefBureau of Instructional Support and Community ServicesFlorida Department of Education325 West Gaines Street, Suite 614Tallahassee, Florida 32399-0400Re: Complaint #04-01-1146Dear Ms. Goff:This is a follow-up to the telephone conversation between you and members of our respective staffs that took place on September 5, 2001 regarding complaint No. 04-01-1146, dated February 22, 2001, filed with the Office for Civil Rights by parents of two students with disabilities (A copy of that complaint was previously forwarded to you by our Atlanta Office. Specifically, the Complainant alleged that Florida Department of Education (FDE) failed to ensure that the Students were provided with necessary related aids and services while they are enrolled in a private school under the Scholarship Program for Students with Disabilities (Scholarship Program.)We understand that in the particular circumstances giving rise to this complaint, there was a delay in the initiation of services because the complainants' sons' individualized education programs (IEPs) were not current prior to their enrollment in private school, and matrices of services, which form the basis for levels of State funding, could not be developed for them. Thus, the issues giving rise to the complaint raise questions regarding the extent of FDE's responsibility to Scholarship students with disabilities who are to receive special education within the private school setting.During our September 5, 2001 telephone conversation, we requested that you provide clarification of FDE's responsibilities for the administration of the Scholarship Program. Your preference was to provide the requested clarification in writing. We would like to take this opportunity to elaborate further on the scope of our request to you to enable you to respond. First, as we discussed in September, the Department's position, as stated in our letter of March 30, 2001, to Pinellas County School Board Attorney, John W. Bowen, is that private schools are not required to provide students with disabilities who attend private schools pursuant to State-funded scholarship programs, with a free appropriate public education at the private school. Such private schools are neither recipients of Federal financial assistance or public entities and are not subject directly to the requirements of Section 504 or Title II. In addition, the students with disabilities who are eligible for services under the Individuals with Disabilities Education Act (IDEA) who attend these private schools as a result of parental placements are considered private school children with disabilities, who have no individual entitlement to services under IDEA. However, since FDE receives Federal financial assistance, its administration of the SPSWD, must ensure that the requirements of Section 504, Title II, and other Federal civil rights laws are met. .In examining the scope of the referenced complaint, we obtained some information from FDE's Opportunity Scholarships/Opportunity Schools web site about the Scholarship Program. Because the website has created some potential ambiguities in the manner in which private school responsibilities has been articulated, we would appreciate some clarificationAs of May 13, 2001, the website stated that private school responsibilities were to Provide all of the necessary special education and related services to each scholarship student . . . In a later statement of private school responsibilities, dated June 13, 2001, website, the above statement was omitted. Would you please explain the reason for this deletion, and what provisions are in place to ensure that scholarship students with disabilities receive all necessary special education and related services. In the website posting of June 13th, the statement that the private school must agree to comply with the anti-discrimination provisions of 42 U.S.C. s. 2000d, to adhere to the tenets of your published disciplinary procedures prior to the expulsion of any John M. McKay Scholarships for Students with Disabilities Program student and to adhere to state and local health and safety codes was included.The statutory reference to 42 U.S.C. 2000d is to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin. There is no similar reference to other Federal civil rights laws, including Section 504 and Title II, which prohibit discrimination on the basis of disability. As you know, even though private schools are not directly subject to these laws, FDE must ensure that the requirements of these laws are met in its administration of its Scholarship Program.To summarize, in light of Complaint No. 04-01-1146, and in addition, in light of the ambiguities in the information describing private school responsibilities, we request that you provide further clarification of how FDE monitors the administration of the Scholarship Program consistent with its responsibilities under Federal civil rights laws. Thank you in advance for your attention to this matter. If you have nay questions, please feel free to call me.Sincerely,Gary S. Walker, DirectorAtlanta Office for Civil RightCc: JoLeta Reynolds, Office of Special Education Programs Susan Bowers, Enforcement Director, East, Office for Civil Rights Lilian S. Dorka, Litigation Coordinator, Office for Civil Rights ,..222h:t:z:~:H*hhPage 2A(copy enclosed) does and thus, 504, Title II, and other Federal civil rights laws do apply to all FED operations. Accordingly, FDE must ensure that the Scholarship Program for Students with disabilities () is administered in a nondiscriminatory manner. In order to address the allegations of the previously referenced complaint, it is important to understand what FDE believes is the scope of its obligation in administering the SPSWD in a non-discriminatory manner./s/.22T8V8f:h:v:x:|:~:1$$1$a$$a$CHECK/s/For example, onthe June 13, 2002 website The website posting of June 13, 2002 included the statement that the private school must agree to comply with the anti-discrimination provisions of 42 U.S.C. s. 20003 . . . . The statutory reference to 42 U.S.C. 2000d is to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin. There is no similar reference to other Federal civil rights laws, including Section 504 and Title II, which prohibit discrimination on the basis of disability. Accordingly, please explain the change in FDE s perception, if any, of its role relative to compliance with Section 504 and the ADA with respect to students with disabilities attending private schools under this program in light of your changes to your website.Page 3n