Abstract
The privatization of public K-12 education in the United States has accelerated dramatically in recent years, blurring the line between public and private schooling. This shift has raised critical constitutional and statutory questions, particularly for students with disabilities. Although the Individuals with Disabilities Education Act (IDEA) provides robust protections for this population of students in public schools, the rights of those placed in private settings by public agencies remain unclear. This Essay examines a critical, yet virtually unexplored, question: Do publicly placed private school students with disabilities retain their constitutional rights upon their placement in private schools, or does this population of students forfeit these protections upon such placement?
This Essay makes a vital normative contribution to the literature by arguing that publicly placed private school students with disabilities deserve full constitutional protection. When the state places a student with disabilities in a private setting, it does not relinquish its constitutional obligations. Applying the state action doctrine’s “pervasive entwinement test,” the Essay contends that the extensive regulatory oversight and public funding involved in such placements create a symbiotic relationship between the state and those private schools that elect to enroll this student population. This relationship is so entwined that the private schools’ actions, as this Essay demonstrates, become “fairly attributable” to the state, thus rendering these private schools subject to the same constitutional constraints as their public school counterparts.
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