Signed March 30, 2001

John W. Bowen,

School Board Attorney

Pinellas County School Board

P.O. Box 2942

Largo, Florida 33779-2942

Dear Mr. Bowen:

Thank you for your letter to the U.S. Department of Education's Office
for Civil Rights (OCR) dated October 19, 2000, written on behalf of the
Pinellas County School Board and 17 other school boards in Florida as
well as certain organizations. Your letter primarily concerns the
application of the requirements of Section 504 of the Rehabilitation Act
of 1973 (Section 504) and the Individuals with Disabilities Education
Act (IDEA) to students with disabilities participating in your State's
program of Scholarships to Public or Private Schools of Choice for
Students with Disabilities authorized by Florida statute 229.05371
(referred to here as Scholarship Program).

The clarification that follows reflects requirements of Section 504 and
its implementing regulation at 34 C.F.R. Part 104, Title II of the
Americans with Disabilities Act of 1990 (Title II of the ADA) and its
implementing regulation at 28 C.F.R. Part 35, and Part B of IDEA and its
implementing regulation at 34 C.F.R. Part 300. Title II of the ADA,
which prohibits disability discrimination, applies to public entities
regardless of whether they receive Federal funds. The nondiscrimination
requirements under Title II of the ADA are similar to those under
Section 504. Please note that since the Department administers Federal
law, and not State law, this Office can not interpret the specific
provisions of Florida law discussed in your inquiry. We suggest that any
questions that you may have about specific interpretations of provisions
of Florida law be directed to appropriate offices in your State.

The specific inquiries and responses follow:

1\. Is a Florida student with a disability as defined in IDEA who
attends an eligible private school approved by the State under
Florida\'s Opportunity Scholarship Program for students with
disabilities entitled to special education and related services in
conformance with an IEP and all of the rights of a child with a
disability who is served by a public agency?

In 1990, the Department provided an explanation of the relevant
requirements of Federal law applicable to children with disabilities
enrolled by their parents in private schools pursuant to the Milwaukee
choice program in response to an inquiry from then Governor Tommy G.
Thompson (Thompson Letter). Because it appears to us that the
characteristics of the Scholarship Program bear similarities to those of
the Milwaukee choice program, we believe that the clarification provided
regarding the Milwaukee choice program serves as guidance in this
regard. A copy of that letter is enclosed for your information.

As we understand it, the Scholarship Program is not financed with
Federal special education funds or any other Federal funds. As noted in
the Thompson letter, "the private schools are not \`recipients' of
Federal funds and their programs and activities are not
federally-assisted.\" Therefore, Federal civil rights laws, including
Section 504, do not directly apply to the private schools participating
in the Scholarship Program. Further, Title II of the ADA does not
directly apply, as the private schools are not public entities.

However, because the Florida SEA receives Federal financial assistance,
Section 504 and Title II of the ADA do apply to all of the SEA\'s
operations, including the SEA\'s administration of the Scholarship
Program. Under Section 504 and Title II of the ADA, the SEA must ensure
that participating private schools do not exclude a Scholarship Program
student with a disability "if the person can, with minor adjustments, be
provided an appropriate education within the school\'s program." 34
C.F.R. § 104.39 (a). [^1] However, the SEA would not be required to
ensure that the participating private schools \"provide an appropriate
education to ... students \[with disabilities\] with special educational
needs if \[the participating private schools do\] not offer programs
designed to meet those needs." [See]{.underline} 34 C.F.R. Part 104,
App. A at 28.

With regard to IDEA, and consistent with the Thompson Letter, we also
conclude that if the FDE and its local school districts have made FAPE
available to eligible children with disabilities in a public school but
their parents elect to place them in private schools through the
Scholarship Program, then such children are considered "private school
children with disabilities" enrolled by their parents. [See]{.underline}
34 C.F.R. §300.450. Under IDEA, such parentally placed private school
students with disabilities have no individual entitlement to a free
appropriate public education including special education and related
services in connection with those placements. In order to avoid parental
misunderstanding, the Department strongly recommends that the State or
local educational agency notify parents who choose private school
placement under the Scholarship Program that the student may retain
certain rights under Section 504 and Title II of the ADA, although the
student will not be entitled to a free appropriate public education
under IDEA, while enrolled in the private school.

It should be noted that IDEA provides for a process by which limited
services may be provided to some parentally placed private school
students with disabilities. 34 CFR §300.453-300.462. This means that
those children with disabilities attending participating private schools
through the Scholarship Program must be considered for any limited
special education and related services that may be available to them, in
light of the available funding and the total number of private school
children with disabilities and their needs, in the same manner as other
children with disabilities enrolled in participating or nonparticipating
private schools. Under IDEA, if the parents decide to return or
re-enroll their IDEA-eligible child into the public school system, that
child would be entitled to FAPE.

2\. Is it a violation of Section 504 to exclude up to 95% of students
with disabilities from participating in the Opportunity Scholarship
Program \[for students with disabilities\] and to fail to ensure that
students with disabilities participating in the regular Opportunity
Scholarship Program are provided a free appropriate public education?

No. We note that the Scholarship Program at issue above is one
exclusively for students with disabilities. Therefore, prescribing
percentages for the participation of students with disabilities in this
Scholarship Program, with 5 per cent of disabled students participating
in the first year and incremental increases in participation of students
with disabilities in succeeding years is **not** a violation of Section
504. In further response to your second question and in light of our
response to your first inquiry, we believe that Section 504, Title II of
the ADA, and the IDEA do not apply directly to the private schools
participating in the regular Opportunity Scholarship Program. However,
as further discussed above, Section 504, Title II of the ADA, and the
IDEA do apply to the SEA with respect to its administration of the
regular Opportunity Scholarship Program.

We hope that you find this response to your questions helpful. This
letter is not intended to address any other compliance issues under
Section 504 or the other statutes that OCR enforces, including Title II
of the Americans with Disabilities Act of 1990, Title VI of the Civil
Rights Act of 1964, Title IX of the Education Amendments of 1972, or the
Age Discrimination Act of 1975. Similarly, this letter is not intended
to address any other compliance issues under Part B of IDEA. If you have
any questions about this letter, please contact Lilian Dorka in OCR at
202-205-5469 or JoLeta Reynolds in the Office of Special Education
Programs, at 202-205-5507.

Sincerely,

/signed Susan Bowers/

Susan Bowers

Acting Deputy Assistant Secretary

for Civil Rights

/signed Patricia J. Guard/

Patricia J. Guard

Acting Director

Office of Special Education Programs

cc: Shann Goff

Chief, Bureau of Instructional Support and Community Services

Florida Department of Education

Gary Walker

Director

OCR Atlanta Office

[^1]: This 504 regulations define an \"appropriate education\" as:

    the provision of regular or special education and related aids and
    service that (i) are designed to meet individual educational needs
    of handicapped persons as adequately as the needs of nonhandicapped
    persons are met and (ii) are based upon adherence to procedures that
    satisfy the requirements of §§ 104.34, 104.35, and 104.36.

    34 CFR 104.33.