Charter Schools and Special Education/ELL - Fifth in a Series

In researching Special Education/ELL as it relates to charter schools, it’s a lot of the same issues that you see in traditional public schools - money, service delivery and compliance with the law.   (Note: this part of the series does focus more on Special Education than ELL because there just isn’t as much information out there on ELL and charters.  If anyone has more information, please let me know.)

 Charter schools must serve children with disabilities just as does the district where the charter school resides.   As well, the funds provided to that district would also be provided to a charter school.  Again, money follows students. 

Charter schools are “responsible” for complying with federal civil rights laws.   I put “responsible” in quotes because being responsible and actually acting responsible (or being forced into compliance) are two different things. 

Charter schools: 

• Must be sure that parents in the community who are not English-proficient have the ability to understand your outreach materials that you provide to English-speaking parents.  If you have printed materials, they must be printed in other languages and if verbal, then those parents should have an opportunity to understand what is being said.  But again, it is not easy to force compliance so do I think it happens most of the time?  Probably not.

• Cannot deny admission to a child under Section 504 and Title II. 

• Cannot select a facility that would limit enrollment of students with disabilities.

Also about facilities, it depends on if it is a new building or older building (anything after June 1977 is considered “new”).  For older buildings, the charter’s program and activities must be readily accessible to disabled students but Section 504 and Title II give a lot of leeway on this issue.   For example if they needed two rooms out of one, they could just use a barrier rather than having to build a wall.

For new construction, Section 504 and Title II require that a new building (or one with a new/updated section) must be readily accessible to all students including those with disabilities.

Under 504 and Title II, students with disabilities and their parents are entitled to due process from the authorizing entity regarding identification, evaluation and placement. 

For ELL students there aren’t any particular federal requirements but if a program is set up, it must be based on sound theory, with qualified staff and adequate resources. 

As I previously mentioned, money follows a student.   There may also be funds beyond those provided by the feds.  Like traditional public schools, charters cobbled together funds from as many sources as possible to pay for special education needs.  Sometimes there is agreement between charters and the district they are in to pool money/resources/services.   Some charters even go out–of-district to other districts for help.   Special Ed and ELL issues are complicated and many charter operators do not understand the federal law and how to access resources.  

Charter may also have a harder time getting good Special Ed teachers because of the costs. 

Looking over what is out there state-by-state, well, it’s hard to say.  Both Alaska and Kansas charter law are completely silent on special education responsibilities and funding.    That’s frightening because I cannot understand how legislators could completely forget about a whole group of students.  

Minnesota law says that charter schools may bill a student's resident school district for any additional funds needed to cover excess costs over and above the state and federal funds allocated for that student.

Contrast that with New Jersey where the charter school is its own district.   The law there requires the school to provide and fund special education services except for low-incident, high-cost students, for which the resident school district takes the responsibility and funding obligation.

There are a couple of different models for funding including an “insurance” model that allows a charter to contract with a district for Special Ed services and the charter pays the school district what looks like an insurance premium for those services. 

I found a good blog, Randy Chapman’s Ability Law blog, and he states:

Tracking responsibility for ensuring charter school compliance with federal special education law can be confusing.   If the school district is the local education agency (LEA – a term to know when discussing charters), then that district has overall responsibility.  A parent could then complain to the district.

However if the charter school is its own LEA, then the charter school itself is responsible.   (But each state does have its own SEA – state education agency – and they are also responsible.)   But you would have to make sure you don’t get run in circles as it appears could happen.

So what about the programs?  Charter schools can create their own internal programs or affiliate with another entity (like an existing school district) to supply services to students with disabilities. 

A Special Ed student must be in an inclusion classroom and can only be placed in a separate environment if their educational needs cannot be met in the inclusion classrooms. 

One interesting study by the research firm, Westat, is called Charter Schools and Students with Disabilities; A National Study (by Fiore, Harwell, Blackorby and Finnigan in 2000).   It asked at 32 charter schools – asking parents, teachers and students – about why parents chose a charter school for their child.  They found:

• Enrollment of students with more significant disabilities in charter schools is relatively rare, except in schools specifically designed for these students.

• Staff at some charter schools may "counsel" parents of students with disabilities against enrolling in the charter school. However, other schools are specifically designed to serve these students and other at-risk learners.

• Most charter schools use the term "inclusion" to describe their approach to serving students with disabilities. The meaning of the term varies across schools.

• By almost all accounts, students with and without disabilities receive more individualized attention at the charter school than they did at their previous school.

•  Although accountability is a central feature of charter schools, most of them have little data to document the impact of their program on students with disabilities. However, parents and students themselves are confident about the students' success at charter schools. Factors identified as supporting student success include caring and dedicated teachers and small schools and classes. 

•  Some barriers encountered include lack of adequate funding, strained relationships with local districts, lack of extracurricular activities, and transportation.

One of the most important issues in Special Education and ELL and charters that is the hallmark of charter schools overall is accountability.   (I’ll have more to say on that topic when I get to the Landscape Today part of this series.)   

The charter document that a charter school creates can say it will be accountable but that is not the case in many charter schools.  They do not have to demonstrate to their charter grant overseer that they have the capacity to do what they say they will.

From the federal DOE:

To date, there is no case law establishing whether, or the degree to which, authorizers can be held responsible for special education in the schools they authorize, nor is there judicial precedent that explicitly releases authorizers from responsibility related to special education. This does not mean that authorizers cannot or will not be held responsible at some point in the future.

What is my role in ensuring that charter schools fulfill their mission while complying with their obligation related to adaptation, accommodations and modifications required by IDEA?  
Authorizers should require applicants to articulate their mission explicitly and ensure that the charter school is prepared to offer reasonable accommodations to children with disabilities who elect to attend the school. A key component of reasonable accommodations is a school culture that incorporates a commitment to offering accommodations to individuals with disabilities while guarding against substantively changing the nature of the school's mission.

While there are charters that are more friendly to Special Ed/ELL students, the majority still have lower numbers of these students than do traditional schools even in areas with a number of charter schools.  

So why would there be a gap between the number of Special Ed students in traditional public schools and those in charter schools?  There is speculation that either fewer Special Ed students choose charters or they avoid their diagnosis when they do attend a charter school.   Some charters may not be as willing as a traditional school to classify a student Special Ed if there is an indication they are a borderline student. 

Charters DO enroll Special Ed students but stats show they do not enroll the same variety as do traditional schools.  Meaning, the Special Ed students who attend charters have much lower levels of disability than their counterparts in traditional schools in their district. 

One state, Louisiana, and one city, New Orleans, both seem to have major problems with Special Education issues and charter schools.  Louisiana had a lawsuit filed against its DOE alleging that charter schools have been turning away parents with disabled students and shirking their responsibilities to make sure they do adequately serve those students they do enroll.    

New Orleans is an interesting case study as after Katrina, the city became one big charter district.  The lack of a centralized system of services makes it difficult for parents there to ensure service for their child.   But suspension of Special Ed students in New Orleans is sky-high; overall, nearly one-third have been suspended.   Two schools have suspended half of their Special Ed students. 

One interesting charter is Opportunity Charter School located in NYC which was founded to have a 50-50 population of Special Ed and non-disabled students.   In Colorado, after finding there were few charter options for learning-disabled students, “the Omar D. Blair Charter school was opened as the first charter-based multi-intensive center program for students with significant disabilities.”