Charter Schools and Students with Disabilities: Preliminary Analysis of the Legal Issues and Concerns

In the wake of “National School Choice Week,” COPAA is pleased to release the brief  Charter Schools and Students with Disabilities: Preliminary Analysis of the Legal Issues and Concernswritten by the Center for Law and Education under contract with COPAA. The stated purpose of National School Choice Week is to “shine a spotlight on effective education options for every child.” Charter schools have long been touted as one of the most promising educational choice options, yet the research remains limited, inconsistent, and for the most part, inconclusive as to whether charter school students are actually more effectively learning and performing than students of similar backgrounds enrolled in traditional public schools. Disturbingly, data shows that students with disabilities (especially low incidence, more significant disabilities) are denied meaningful access to and a free appropriate public education within charter schools.

Having the ability to choose assumes parents of all children have available school options, yet research suggests that families’ access to the educational marketplace is unequally constrained. It is essential to the degree that such schools of choice continue to exist that they are held accountable for ensuring access to all students, for providing meaningful teaching and instruction designed to improve educational outcomes that are not limited to test scores but the kind of knowledge and skills all students need to be college and career ready.  Charter school administrators, LEA officials, and State education officials must be vigilant in the presence of competing incentives to ensure that each student with a disability has equal access and is provided with an education consistent with their rights under the law.

This paper examines the extent to which students with disabilities are being served by the approximately 5000 publicly funded charter schools, which are predominantly, but not exclusively, located in urban, under-performing school districts, and 20 percent of which are operated by charter-school management organizations (CMOs) controlling multiple entities. The paper:

1) provides a brief description of the rapid development of charter schools, including their purpose and intent as well as the characteristics that distinguish charter schools from traditional public schools;

2) describes the overriding legal principles and current federal statutes governing the operation of charter schools; and,

3) identifies an array of systemic issues and concerns that interfere with students with disabilities having meaningful access to charter schools that operate as part of an existing local education agency (LEA) and those that operate independently as their own LEA.  For example, attention is paid to the under-representation in charter schools of students who have more significant disabilities with more resource intensive educational needs and the exclusion of these students through selectivity, controlled outreach, counseling out, and other push out practices. In this context, the paper examines the legal rights of students with disabilities to be free from discrimination, to receive a free appropriate public education, to be educated with students without disabilities in the regular education classroom to the maximum extent appropriate, and to be provided an equal opportunity to access publicly funded charter schools.

Key Points

• The evidence suggests that the quality and performance of charter schools is very mixed and varies significantly from state to state. Despite what can only be described as underwhelming evidence of academic improvement (primarily based on test score data), charter school enrollment has dramatically increased to more than two million students.

• Research suggests that families’ access to the educational marketplace is unequally constrained by such factors as connection with social media or other influential networks through which knowledge about particular school choices and the process is shared; language barriers; socioeconomic status; and the ability of parents to arrange transportation for their school-age children.

• Charter schools as recipients of federal funds under Section 504 and as state or governmental entities under Title II of the ADA, cannot discriminate against individuals with disabilities, and have an affirmative obligation under both statutes to provide meaningful and accessible outreach to ensure the fair recruitment of school-age children with disabilities and an equal opportunity for admission.

• As compared to their traditional public school counterparts, there is evidence that charter schools in large urban districts and throughout the country tend to enroll disproportionately greater numbers of students with high incidence disabilities – such as specific learning disabilities – and lower numbers of students with low incidence, more significant disabilities (e.g., intellectual disabilities and autism) with more educationally intensive and costly needs.

• Eligible students with disabilities have a right to FAPE and cannot be excluded from “choice” programs as a result of their disability, nor can they be required to waive services as a condition of participation in any publicly funded choice program.

• Even among families who request that their child with a disability be admitted to a charter school as their “school of choice,” researchers have found that students are “counseled out” and encouraged to leave the school during and subsequent to the enrollment stage.

• Based on data reflecting the underrepresentation of students with disabilities enrolled in inclusive, diverse charter schools, it is evident that serious issues of unfairness and discrimination still need to be addressed in order to provide parents of children with disabilities an equal opportunity to exercise the same choice to enroll their children with disabilities in an inclusive and diverse charter school.

• With respect to students requiring extensive special education services, the imbalance is dismal. For example, during the 2005-2006 school year, there were only three children with intellectual disabilities in all San Diego non-conversion charter schools combined; traditional schools across the district, meanwhile, educated almost one thousand students with intellectual disabilities. New Orleans, Los Angeles, and Washington, DC – three districts that rely heavily on charter schools – currently face claims of systemic discrimination based on administrative and judicial actions brought under the IDEA and Section 504.

• A survey evaluating special education programs and services of 23 charter schools in New Orleans that found “an astonishing number of 504 plans.” As alleged in the administrative complaint filed against the SEA and Louisiana Board of Education, several of the surveyed special education coordinators acknowledged that the Section 504 plans were developed to avoid referring students for special education evaluations.

• Decisions governing the legal status of charter schools – i.e., the extent to which they are considered part of an LEA or an independent LEA as well as their respective relationships with the larger LEA of which they are a part, and with the SEA – have significant implications for the delivery of special education services to eligible students with disabilities enrolled in or seeking to enroll in charter schools. Educational researchers have identified this relationship between the charter school and the LEA as the most important factor affecting a charter school’s compliance with IDEA and Section 504 in providing special education and related services.

• Students enrolled in any charter school should have a clear expectation that they will be taught a curriculum aligned with their State’s challenging academic content and academic achievement standards by highly qualified teachers, will participate in the State’s assessments that are used to measure the progress of the schools and school districts and that their performance outcomes will be reported in the aggregate and disaggregated by the required subpopulation groups.

• Charter schools must be held accountable for ensuring access to all students, for providing meaningful teaching and instruction designed to improve educational outcomes that are not limited to test scores but the kind of knowledge and skills all students need to be college and career ready.

• As the charter school movement continues to expand nationwide, disability advocates are likely to find themselves positioned on both sides of the debate surrounding the efficacy of educating students with disabilities in charter schools. Regardless of the policy opinions driving the debate, the law is clear. Students with disabilities who are educated in public schools, either traditional or charter, must be provided FAPE in the LRE. Although charter schools may be freed from some of the restraints placed on traditional educational institutions, they are not free from the requirements of IDEA or Section 504.

• It is not legally or morally acceptable that these so-called “schools of choice” that are concentrated in urban communities and supported with public funds, should be permitted to operate as segregated learning environments where students are more isolated by race, socioeconomic class, disability, and language than the public school district from which they were drawn.