Home-Schooled Children and Public Special Education Services
Our Appellate Division has severely limited a trial court decision compelling schools to provide remediation services to home-schooled, handicapped students. In January 2000, in an opinion by the Honorable Isabel B. Stark in the matter of H.F. individually and on behalf of minor, G.F. v. Fair Lawn Board of Educ., et al., the trial court had held that school districts must provide remediation services to students with disabilities who are home-schooled. Prior to this decision, the New Jersey Department of Education had indicated that districts were not obligated to do so. The question turned on whether home education is comparable to education at a "private" or "nonpublic" school or facility under New Jersey law.1 Judge Stark's opinion was one of first impression in New Jersey and answered this question in the affirmative. In awarding the parent reimbursement for costs incurred in providing his home-schooled child with speech therapy, Judge Stark found:
(1) since New Jersey accepts home-schooling in satisfaction of the compulsory education laws, home-schooled children fall within the ambit of a nonpublic school. As such, they are entitled to their fair share of remediation funds under the IDEA. (2) in denying G.F. speech therapy, the Fair Lawn Board of Education violated his constitutional right to equal protection. The IDEA was intended to identify and remediate all eligible children and the location at which a child receives compulsory education has no rational relationship to the intent and purpose of the federal or state disability education public funding statutes.
The Appeal of the G.F. Decision On May 21, 2001, the Appellate Division significantly modified Judge Stark's decision. First, the Appellate Division reversed Judge Stark's conclusion that home-schooled children should be considered "nonpublic" school students and therefore entitled to remediation funds under the IDEA. The Appellate Division found that:
Federal law requires only that the state make [services] available to public school and [nonpublic] school students. There is no mandate that every child must receive them - the Legislature [of the State of New Jersey] intended to differentiate between nonpublic school students who qualified for such services and children who are home-schooled, at least in the context of where the services are to be delivered and who receives the federal and state funds for the services.
Therefore, home-schooled children are no longer entitled to services by virtue of being "nonpublic" school students. Second, although the Appellate Division found that there was no violation of equal protection in general, it did find such a violation as the law was applied to G.F. G.F. was not seeking to receive speech services at home or even on a 1:1 basis. Rather, H.F. was willing to bring G.F. to the public school to receive services in accordance with a recommended treatment plan (group therapy to include not more than 3 students, twice per week in sessions of not more than 30 minutes). The Fair Lawn Board of Education followed a policy of inviting nonpublic school students to participate in its public school program for speech services. Therefore, G.F. was not seeking to be treated any differently from the nonpublic school children already included in Fair Lawn's program. The Appellate Division concluded:
Under these circumstances, the rational basis for treating home-schooled children differently from nonpublic school children vanishes. If the services were provided for [G.F.] at the public school, as he requested, the local school district would receive exactly the same funding for [G.F.] as it did for other nonpublic school students who qualified for speech therapy services, and the services could be delivered at the same cost. Therefore, we hold that [G.F.] was denied equal protection under the law as applied in this case.
Based on this decision, we advise all school boards to carefully consider any existing and future requests for services for home-schooled students. Clearly, they are no longer to be treated akin to nonpublic school students in an entitlement to services. Home-school students may, however, raise valid equal protection arguments if your District has opened public school service programs to nonpublic school students. ******************* 1If home education constitutes enrollment in a private or nonpublic school or facility, then Part B requirements governing the obligations of school districts to parentally-placed disabled students would apply.