Students with Disabilities and Charter Schools – Legal Watch

Three weeks ago, I attended the Education Law Association Annual Conference.  Over the course of the three-day conference there were many discussions regarding whether charter schools are appropriately serving student with disabilities.  These conversations were quite intriguing considering that I handled special education legal matters for almost ten years.  Over the last decade, the number of students enrolling in charter schools has increased.  Many education professionals see charter schools  as a way to fix some of America’s failing schools.  To date, much research has shown that charter schools have not achieved the significant improvements in American education that were expected.  

Charters are not exempt from the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973.  They are still responsible for providing students with disabilities with a Free Appropriate Public Education (FAPE).  In the recent years, there have many complaints regarding charter schools and their ability to serve students with disabilities, and advocacy groups have began disseminating publications and information regarding parent’s rights. (See here, here, here, here , and here.)  Many charter schools are trying to find ways to appropriately serve students with disabilities, including joining together to collaborate special education services and attending trainings specific to servicing students with disabilities.  

As the number of students enrolling into charter schools increases, it is vital that education professionals and policy makers have appropriate data regarding the impact that these schools have on students with disabilities.  Currently there is a lack of research available pertaining to charter schools and their ability to serve students with disabilities.  In June, the U.S. Government Accountability Office (GAO) released a report that analyzed data from 2008-2010 and found that charter schools enrolled a lower percentage of students with disabilities than traditional public schools.  However, the GAO was unable to outline the factors that contributed to the difference.  The GAO also found that charter schools faced challenges serving students with severe disabilities.   After the GAO’s report, the findings became highly publicized. (See here, here, here, here, here.) This month, a study by Center for Reinventing Public Education (CRPE) also suggested that additional research is needed to understand why charter schools appear to have an lower enrollment of students with disabilities than traditional schools.  I am interested in seeing the data from the U.S. Department of Education 2011-2012 Civil Rights Data Collection (CRDC). Unlike the 2009-2010 CRDC, the 2011-2012 CRDC will include enrollment data from all public schools and school districts, including charter schools, therefore giving a nationwide picture of enrollment.  

There are lessons we should learn from the GAO and CRPE reports.  First, that there is insufficient data to effectively analyze or criticize charter schools’ overall ability to comply with special education law.  Second, in order to get appropriate data, it is imperative that charter school operators provides an open and untouched picture of what is actually going on in regards to students with disabilities.  Any research should take a very close look at the quality of service being provided to students with disabilities that are already enrolled in charter schools.

Based on the recent reports, I anticipate an increase in special education litigation as it pertains to charter schools.  There are already cases popping up that I will be watching.  The Louisiana case, Berry, et al. v. Pastorek, et al, is one of those cases.  In this class action lawsuit, the parents are suing the State Education Agency for the alleged violations of the charter schools.  I am waiting to hear the court’s ruling on this case because it might cause other State Education Agencies to start taking a closer look at their students with disabilities that are enrolled in charter schools.   

        

Many traditional charter schools have difficulty implementing services for students with disabilities, therefore it would not be a surprise to anticipate potential noncompliance issues with virtual charter schools.  In July, the National Education Policy Center released a study on virtual schools.  That study made recommendations for additional research questions pertaining to how virtual charters are providing services to students with disabilities and how the funding is being used? One can envision the potential complications of a virtual charter school implementing IEPs and 504 plans for some students with disabilities.  With the national campaign for digital learning, and as more school districts embrace digital charter schools, districts/charters will continue to try to determine how digital learning can work for students with disabilities.   
        

The bottom line is that we must invest in additional research in this area to ensure that student with disabilities are not discriminated against and are receiving appropriate services.  On another note, I wonder if voucher programs will receive the same scrutiny, considering some of the same arguments are being made regarding discrimination of students with disabilities.  Civil rights groups have filed a complaint with the U.S. Department of Justice (DOJ)  alleging that the Milwaukee Parental Choice Program discriminates against children with disabilities. (See here, here, here.) As policies change and school reform continues, new legal issues will arise, therefore we should be prepared to handle them.  

By:  Tiffany Puckett