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Although federal law no longer requires public school districts to pay for special education services in private or parochial schools, a federal judge has ruled that Pennsylvania law still makes that promise and that the state law rights are “incorporated” into the federal Individuals with Disabilities Education Act. As a result, Senior U.S. District Judge Norma L. Shapiro ruled that a Delaware County Catholic school student with Down syndrome is entitled to receive speech therapy, occupational therapy, a classroom aide and an “itinerant teacher” at the county’s expense “at levels reasonably calculated to afford meaningful educational progress.” And significantly, Shapiro refused to dismiss the Delaware County Intermediate Unit’s third-party complaint against the Pennsylvania Department of Education, finding that the state agency is an “indispensable party” to the case and does not enjoy 11th Amendment immunity from suit under IDEA. The student, who is identified in court papers only as “John T.,” was originally enrolled at a public school, Coopertown Elementary School, but was removed by his parents, who said he was not being accepted by his peers and that he missed his brothers and other friends who attend the St. Denis school. Judge Shapiro found that John T. “could not do well emotionally when at school away from his brothers and his friends” and that “his resistance prevented him from getting an education [at Coopertown, Pa.].” But when his parents enrolled him at St. Denis, the DCIU refused to provide services, saying the public school was the appropriate placement. Attorney Dennis C. McAndrews filed suit on behalf of the parents, Joan T. and Paul T., asking that DCIU be ordered to provide the special education services necessary to compliment his regular classes. According to Shapiro’s opinion, DCIU currently provides handicapped students at St. Denis — including John T. — with one day per week of speech language services and two days per week of remediation services. To the extent that his parents are demanding more, Shapiro said DCIU is willing to provide the services at Coopertown Elementary but not at St. Denis. But Shapiro found that federal law alone did not entitle John T. to the services. The 1997 amendments to the IDEA, she said, made explicit that federal law “does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility.” Since then, she said, five federal appellate courts have held that 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. In John T.’s case, she said, the Haverford Area School District did not refuse to provide special educational services. Instead, she said, DCIU made the requested services available, but Paul and Joan T. placed their child in a private facility. Since the parents conceded that the services offered by the DCIU were appropriate under IDEA, Shapiro found they were not entitled to on-site special education services at the Catholic school unless a separate state standard controlled. LOOKING AT STATE LAW Turning to the state laws, Shapiro found that Act 89 requires intermediate units in Pennsylvania to “furnish on an equal basis auxiliary services to all pupils in the commonwealth in both public and nonprofit nonpublic schools.” And 24 Pa. Cons. Stat. Section 1372(4) is “more detailed and stringent than Act 89,” Shapiro said. When read together as part of the same educational code, Shapiro found that the two laws “require DCIU to provide for the proper education and training of John T.” McAndrews argued that the heightened standards of Pennsylvania law are incorporated into the IDEA and require DCIU to provide John T. with the services at issue. Shapiro said the plaintiffs could prevail only if the two laws are truly incorporated into the federal law and if doing so did not violate the Establishment Clause. Although the 3rd Circuit has never decided the issue, Shapiro said it has held that a predecessor of the IDEA incorporated higher state standards. And both the 8th and 10th Circuits, she said, have held that the IDEA incorporates heightened state educational standards. Forced to predict how the Pennsylvania Supreme Court would rule, Shapiro concluded that Act 89 would not be read to create a personal entitlement for John T. to the services at issue at St. Denis but that 24 Pa. Cons. Stat. Section 1372(4) would. Turning to the Establishment Clause question, Shapiro found that providing a classroom aide, speech therapy or occupational therapy at a Catholic school would not violate the Constitution because “it does not result in governmental indoctrination or create excessive entanglement between religion and the state.” While an itinerant teacher’s assistance in the religious instruction of John T. would raise serious constitutional concerns, Shapiro said the parties stipulated that the itinerant teacher would only facilitate John T.’s secular education.

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