School Law
Can nonpublic students enroll in virtual classes funded by Title 1 schoolwide funding?
The question presented is whether a nonpublic school or homeschooled student may participate in a virtual program such as funded with a Title I schoolwide grant.
New Jersey School Districts are permitted to allow nonpublic and homeschooled student participation in public school programs. “[A] local school board may adopt a program of shared time or dual enrollment whereby pupils attending private schools may participate in given educational programs or services offered at the public schools.” Att'y Gen. Form. Op. 1965-No. 4. The New Jersey Attorney General’s Opinion was cited by the Administrative Law Judge and confirmed by the Commissioner in Alpert v. Watchung Bd. of Ed. 13 N.J.A.R. 110 (1986). As a result, the New Jersey Department of Education posted the following on its website: “A board of education may, but is not required by law to, allow a child educated elsewhere than at school to participate in curricular and extracurricular activities or sports activities.”
Nonpublic and homeschooled students should be allowed to participate in Title I school wide programs.
1) Federal law, on its face, allows their participation. Title I schoolwide funding is found in 20 US.C.§6314. Federal law provides that: “(2)(A) No school participating in a schoolwide program shall be required (i) to identify particular children under this part as eligible to participate in a schoolwide program”
Federal law clearly targets the school and not the eligibility of the child. New Jersey districts have discretion under Alpert to determine whether nonpublic students participate in their programs. The federal statute does not preclude their participation.
2) Nonpublic school children are entitled to equitable participation in Title I.
The Department has offered the following guidance for schoolwide programs:
“In a schoolwide program, federal funds are not tracked to individual accounts, specific staff or services. Schools may use federal funds to upgrade the entire school, as long as the same amount or more of state and local funds are included in the budget from the prior year. Therefore, there is no distinction among staff supported by federal, state, or local funds.”
A negative answer to the question presented would effectively obliterate the Alpert discretion of the Board of Education to allow participation of nonpublic for all programs in the school once it receives schoolwide funding as “federal funds are not tracked to individual accounts, specific staff or services.” This is counter-intuitive because nonpublic students are required by 20 U.S.C § 6320 to be able to participate in Title I on an equitable basis. How can a federal law that has enhanced the opportunity of private school children in the states be the very tool to undermine the Alpert right created in our state?
3) Classification of a student as private school is a matter of state law.
New Jersey’s compulsory education law classifies students into those in three different settings:
“[1] public schools of the district or [2] a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or [3 who] to receive equivalent instruction elsewhere than at school.” NJSA 18A:38-25.
Title I and IDEA funding is provided for public school students and private school students. No statutory provision is made for the homeschool student that “receive[s] equivalent instruction elsewhere than at school.” In the case of the IDEA, and presumably Title I, the definition of public, nonpublic and homeschooled student is reserved to the states. “What constitutes a private school [student], however, is determined by state law.” Forstrom v. Byrne, 775 A.2d 65, 69 (N.J. Super., 2001).
4) Nonpublic school students participating in a virtual program are shared-time public school students.
Nonpublic student participation in local district courses or vocational school courses is called shared-time. Nonpublic students participating in county vocational programs and district shared-time programs under New Jersey law are public school students for the purpose of the program in which they are participating. “In shared time situations, pupils attending private schools on a full-time basis are permitted to attend public schools and avail themselves of particular educational programs, services or facilities of a public school district.” Alpert at 118. Concerning shared-time in the county vocational school, the Department posted, “Once a child educated elsewhere than at school is enrolled in a shared-time vocational school program, the child then becomes a public school student and is entitled to the payment of tuition through the resident district.” This is consistent with N.J. Stat. Ann. § 18A:54-20.1. “[E]ach pupil who resides in the school district or regional school district and who has applied for admission to and has been accepted for attendance at any of the schools of the county vocational school district.” The shared-time student is a public school student for the purpose of the program in which he or she is participating and for state funding in that program.
5) The exclusion nonpublic student from a virtual program might violate the equal protection clause of the New Jersey Constitution.
In the cited case Forstrom v. Byrne, Gregory, a homeschooled student was denied access to federally funded speech services in the local public school because the IDEA, like Title I, provided for private school students, not for homeschooled students. As mentioned above, the classification of who is a private school student is a determination of state law. The determination by New Jersey to exclude homeschooled students is generally rational and not a violation of equal protection “because monitoring special education and related services, and keeping down costs of transportation, are goals that are achieved by a narrow definition of ‘nonpublic school.’” Forstrom at 77. However, the Forstrom Court held that since the services that the homeschooled student requested were performed “at the public school, as he requested, the local school district would receive exactly the same funding for Gregory as it did for other nonpublic school students who qualified for speech therapy services, and the services could be delivered at the same cost. Therefore, we hold that Gregory was denied equal protection under the law as applied in this case.”
In other words, the classification of Gregory as a homeschooled student rather than a nonpublic school student had no rational basis vis-à-vis the particular federally funded service for which he applied even though it was completely rational vis-à-vis to exclude him from other services performed off-campus.