Legal Memorandum: Equitable Participation Requirements in NJ

Issue: Whether 20 U.S.C. 1412(a)10 of IDEA 2004 supports a claim that nonpublic preschool children are ineligible for Equitable Participation Services in New Jersey.

Area of Law: Education Law
Keywords: Equitable participation; Nonpublic preschool children
Jurisdiction: New Jersey
Cited Cases: None
Cited Statutes: 20 U.S.C. § 1412(a)10 of IDEA 2004; N.J.A.C. 6A:14-1.3; Section 612(a)(10); Title VI of the 'Civil Rights Act of 1964,' Pub.L.88-352, (42 U.S.C. s.2000d et seq.); N.J.S.A. 18A:40-24; 20 U.S.C. § 1402(5)
Date: 06/01/2006

20 U.S.C. § 1412(a)10 of IDEA 2004, which provides, in part:

            IN GENERAL.—To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements: . . .

IDEA 2004 defines "elementary school" as "a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law."  This definition, however, is not materially different than the 1997 IDEA.  20 U.S.C. § 1402(5) ("The term 'elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law.").

Throughout the New Jersey Statutes, elementary education is distinguished from preschool education, although no specific reference is made in any “Definitions” section.  Numerous individual statutes refer to elementary education as grades kindergarten through 5, with middle school education beginning at grade 6.  N.J.S.A. 18A:40-24 defines “nonpublic school” as “an elementary or secondary school within the State, other than a public school, offering education for grades kindergarten through 12, or any combination of them, wherein any child may legally fulfill compulsory school attendance requirements […]

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