Subj: THE SPECIAL ED ADVOCATE, MAY 22, 2000 (V. 3, NO. 16)
Date: 5/22/00 9:14:42 AM Pacific Daylight Time
From: (Wrightslaw)

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Online Newsletter About Special Education and the Law

May 22, 2000 Vol. III, No. 16


1. NEWS FLASH! Judge Orders School to Provide Services to Private School Student

2. CORRECTION: Corrected Link for "Free CD-ROM Offer





1. NEWS FLASH! Judge Orders School to Provide Services to Private School Student

Must a school district provide special education services to a student who attends a private, non-profit school? 

Before May 8, the answer was "No."

But on May 8, a U. S. District Court judge ruled that while the federal special education law does not require school districts to provide special education services to students in private schools, Pennsylvania law does, so the child's rights under state law are "incorporated" into the Individuals with Disabilities Act.


John T., a child with Down's Syndrome, attends a private Catholic school in Pennsylvania. In 1996, John T. was enrolled in a public school special education program at Cooperstown Elementary School for a few weeks. But John was unhappy and missed his two older brothers who attended St. Denis, a private Catholic school. 

Three weeks after John entered first grade at Cooperstown Elementary School, his parents withdrew him from and placed him in St. Denis so he could be educated with his brothers and

The Judge found that John could not receive an appropriate education at the public school:

"John T. was not accepted or helped by his peers at Cooperstown Elementary School . . . [his] third grade teacher testified credibly that John's brothers and friends accepted and helped him; he wanted to wear the same uniform and be with his brothers and friends."

"John T. could not do well emotionally when at school away from his brothers and friends . . . he cannot receive an appropriate education at Coopertown Elementary School."


John's parents sought preliminary and permanent injunctive relief to require the school district to provide John with special education services at St. Denis under IDEA, the Rehabilitation Act, and Pennsylvania law.

The Judge found that the parents could not prevail under the Rehabilitation Act or the IDEA alone. The parties had stipulated that the services offered at the public school were adequate. The school district had offered a free appropriate education (FAPE):

"Courts of appeal addressing this issue have all held the IDEA alone does not require a state to fund special educational needs in a nonpublic setting if there is a suitable public school setting available that the parents have voluntarily rejected."

On what basis did the Judge determine that despite case law from courts of appeals, the school district had to pay for John's special education in the private school?


Under Pennsylvania law, the state established "intermediate units." Intermediate units have a "duty . . . to provide, maintain, administer, supervise, and operate such additional classes or schools as are necessary or to otherwise provide for the proper education and training for all exceptional children who are not enrolled in classes or schools maintained and operated by school districts . . ."

"The statute's plain language requires intermediate units to provide classes for all exceptional children not enrolled in public schools. John T. is an exceptional child not enrolled in a school operated by a school district; [Pennsylvania law] . . . imposes a duty on DCIU to provide the services to John T. at St. Denis."

* Establishment Clause *

Citing the Supreme Court's decision in "Agostini v. Felton," the Judge ruled that providing an aide, speech therapy, or occupational therapy to John at St. Denis would not violate the First Amendment because "it does not result in government indoctrination or create excessive entanglement between religion and the state."

* Pennsylvania Dept. of Ed's Claim of Immunity *

The Delaware Intermediate Unit joined the Commonwealth of Pennsylvania as a third party defendant in this case.

The Pennsylvania Department of Education argued that they must be dismissed from the suit because "a state agency cannot be held to answer in federal court for violations of state law under the Eleventh Amendment . . ."

The Judge disagreed. "A state agency can be sued for violations of federal law despite the Eleventh Amendment when Congress clearly and unequivocally expresses its intent to make states liable."

"Congress expressly abrogated the states' sovereign immunity for suits brought in federal court under the IDEA." 

You can download this new decision in "John T. v. Delaware Intermediate Unit" from the Wrightslaw Law Library in html and pdf formats:



To read this decision in pdf, you must have Adobe Reader installed on your computer. Adobe Reader is free software that you can download from the Adobe site:



On May 18, we sent out an announcement about the new "FREE CD-ROM OFFER" from Harbor House Law Press. Unfortunately, the link contained a typo!

The correct link for the "FREE CD-ROM OFFER" is:



The Wrightslaw FREE OFFERS are part of a promotional campaign to encourage bookstores around the country to stock WRIGHTSLAW: SPECIAL EDUCATION LAW.

Why do bookstores stock a new book? Bookstores stock new titles when they have evidence that there is a market for a new book. Orders from customers provide them with this "evidence."

When you order from your local bookstore, it is more likely that your bookstore will stock the book, and that other parents, educators and advocates will be able to purchase the book from
their local bookstore.

LESSONS FROM AMAZON.COM orders several boxes of books every week. Why? Because WRIGHTSLAW: SPECIAL EDUCATION LAW is the #1 bestseller in special education on the Amazon site -- and has been a bestseller for months.

Want to see for yourself?

Go to Amazon site at:

Go to the "Books" section and type "special education" in the search box. Click "go." You'll find that WRIGHTSLAW: SPECIAL EDUCATION LAW comes up #1!

We want local retail bookstores to learn what Amazon already knows - that WRIGHTSLAW: SPECIAL EDUCATION LAW is #1!



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