On Wednesday, July 13, 2017, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit (the “Eighth Circuit”) made a significant decision regarding states’ ability to impose requirements for special education services to students.  The Eighth Circuit ruled that although under federal law the Individuals with Disabilities Education Act (IDEA) does guarantee nonpublic school students with disabilities a free appropriate public education (FAPE), states are not prohibited from granting that right to private school students.

This issue stems from a Minnesota case, in which a student was enrolled in a private school and began attending a Minnesota public school part time due to her special education needs.  After growing dissatisfied with the education the student was receiving at the public school, her parents filed a complaint with the Minnesota Department of Education and requested an impartial hearing claiming that the public school had denied the student a FAPE while she was enrolled in both the private and public schools.   The public school contended that the student did not have the right to either a FAPE or a due process hearing because she was a private school student. Eventually, the case made its way to a Minnesota district court, whose decision the Eighth Circuit ultimately affirmed.

The Eighth Circuit began its analysis by noting that IDEA’s 1997 amendments had stripped private school students of the “individual right to special education and related services based on their needs” under federal law.  However, the Eighth Circuit also pointed out that federal law simply represents a floor for the rights that states must provide to students with disabilities, and states may “impose additional requirements for special education services” beyond those of the federal government.

The Eighth Circuit then turned its inquiry to the interpretation of Minnesota state law.  Under Minnesota law, “every district must provide special instructions and services for all children with a disability.”  “Special instruction and services” is defined as “fair appropriate public education provided to an eligible child with disabilities” and directly aligns with IDEA’s definition of FAPE.  Moreover, under Minnesota Revised Statute § 125A.18, also known as the “shared time statute,” “no resident of a district who is eligible for special instruction or services under this section may be denied instruction and service on a shared time basis . . . because of attending a nonpublic school.”

The Eighth Circuit determined that “[a] plain reading of the Minnesota state law shows that private school students have a right to a FAPE,” and under § 125A.18, if a student is eligible for a FAPE then state law requires that public school provide the student a FAPE on a shared time basis.  Moreover, the Eighth Circuit concluded that a student disputing a state FAPE provision has a right to an impartial due process hearing.  The Eighth Circuit reasoned that if state standards provide for educational benefits exceeding the minimum federal standards, the state standards are enforceable through IDEA, and IDEA guarantees access to a due process hearing; therefore, the student has a right under both state and federal law to an impartial due process hearing to dispute the FAPE.

What This Means to You

While the Supreme Court has not ruled on this issue, this decision is binding in the federal courts of the states included in the Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota – and it will act as guidance for federal courts in all other states; thus, all school districts should be familiar with this decision.

Based on this decision, it is important that all school districts, especially those in the Eighth Circuit, be familiar with their state’s laws relating to FAPE and shared-time students, and to ensure that they are providing each student with the rights they are guaranteed under both state and federal law.