Washington State Allows Special-Needs Scholarships

Published October 27, 2009

Special-needs students who attend private, religious schools in Washington state will have an easier time getting their supplemental educational services, thanks to a policy change spurred by the threat of legal action.

For years, the state’s Office of the Superintendent of Public Instruction (OSPI) has said special-needs students requiring extra services through the federal Individuals with Disability in Education Act (IDEA) had to receive them on the campuses of nonsectarian schools—regardless of whether they were actually enrolled at those campuses.

Washington is one of 37 states whose constitutions still contain Blaine amendments—inserted in the 19th century when anti-Catholic bigotry ruled the nation—stipulating that no taxpayer dollars can be used at private religious schools.

‘Wasn’t Much of a Fight’

But after the Institute for Justice Washington Chapter (IJ-WA) filed a lawsuit in November 2008 arguing OSPI was violating the First Amendment rights of families with special-needs students throughout the state, it didn’t take long for the agency to change its policy. Within two months, OSPI officials announced they were considering reversing their stance on special educational services at private religious schools, then published the proposed rule change in July.

On September 3 interested parties were invited to testify in a public hearing, and the OSPI announced the official policy change on October 1. The lawsuit was immediately dropped.

“There wasn’t much of a fight there,” said Michael Bindas, the IJ-WA attorney on the case. “But I know for a fact that many parents and other interested organizations had complained about this policy for a few years and were not able to convince the state to change it. It was only after we filed the lawsuit that they took another look. I think, had it been resolved in court, we’d probably still be waiting for a decision.”

Equal-Opportunity Bigotry

Not only will special-needs children now be served on their private school campuses, the state is ordering district officials to find kids in need.

According to the official memo sent out October 1 by Douglas Gill, OSPI’s director of special education, “We have concluded that federal proportional share funds are specifically earmarked for the purpose of providing a proportional share of special education services to parentally placed private school students. Because of this, OSPI and districts act as conduits of the federal proportional share funds.

“[D]istricts are required to conduct child find activities to locate, evaluate and identify students eligible for special education who attend private schools located in district boundaries,” he added.

‘Unanimous Testimony’

Catholics weren’t the only ones affected by the state’s policy. Myriad groups turned out to testify against it in September, including the Jewish Federation of Seattle and the Washington Federation of Independent Schools.

“There were Catholics, Jews, [non-Catholic] Christian schools—it was unanimous testimony,” said Liv Finne, director of the Center for Education at the Washington Policy Center, a free-market think tank headquartered in Seattle, who also testified at the hearing.

“I was really moved by the testimony of the mothers of the children, who were shocked when they found out they could not get federal help for their handicapped children because they were enrolled at these religious schools,” she added. “It’s an appalling thing, completely undermining the efforts of parents with handicapped children, to have such rules. Anyone defending this policy would have to hang their head in shame.”

One of the parents, Margaret Hamilton of Linden, Washington, had made the difficult decision to transfer her 10-year-old son, Skyler, from the Lynden Christian School to a public school because of the lopsided policy.

Forced Transfer

“Skyler missed the entire second grade in order to receive treatment for brain cancer,” Finne said. When he was finally able to return, he needed the help offered through IDEA—services not available at Lynden Christian. “So at a time when Skyler was recovering from cancer and trying to make up an entire year of school—when he most needed a familiar environment and the support of his friends and teachers at Lynden Christian, he was required to enroll [elsewhere].

“We are so grateful for OSPI’s decision, which can help not only Skyler and our family,” Hamilton said after the rule change was announced, “but the many other families with special-needs children across the state who should be able to choose the schools that are best for their children.”

‘Neutral Position Toward Religion’

Though OSPI maintained for years it had to prevent IDEA funds from being channeled to religious schools because of the Blaine amendment, Washington state has for years sent Title I funds for economically disadvantaged students to religious schools. In 2004 the U.S. Supreme Court ruled Title I services could be administered on the site of religious schools without offending the constitution.

“I don’t know why the inconsistency was there,” Bindas said. “It was very strange because under certain circumstances, the same child could get the Title I services at his religious school, but not the IDEA. I never got a good explanation for why they treated on program one way and the other differently. We certainly pointed it out when we made our argument. I suspect [the OSPI was] not able to justify that distinction, and that may be why they openly adopted a consistent position across the board.

“Under the old policy, Washington singled out parents who chose religious schools. Under the new policy, it maintains a neutral position toward religion, and that’s exactly what the Constitution requires,” Bindas concluded. “It’s a home run for children with special needs and for educational policy in Washington.”

Karla Dial ([email protected]) is managing editor of School Reform News.