Friday, March 15, 2019

Are Charter Schools Required to Provide Special Education Services?


OVERVIEW OF FEDERAL AND STATE LAWS ON PROVISION OF SPECIAL EDUCATION SERVICES IN CHARTER SCHOOLS
Although charter schools are exempt from many local and state regulations and state and local rules regarding operation and management, they are not exempt from federal and state laws regarding rights, access and discrimination against protected classes and students with disabilities, unless they do not receive federal funds (which will be discussed below).  Charter schools that receive Federal financial assistance from the United States Department of Education (the “Department”) must comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964 (which prohibits discrimination re race, color, national origin), Title IX of the Education Amendments of 1972 (which prohibits sex discrimination), Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (which prohibits discrimination on the basis of disability), the Family Education Rights and Privacy Act (“FERPA), and part B of the Individuals with Disabilities Education Act (the “IDEA”).  This paper focuses on Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 Code of Federal Regulation Part 104 (collectively herein, “Section 504”), and the IDEA and its implementing regulation at 34 Code of Federal Regulation Part 300. 

Note:  Charter schools are either “for profit” or “nonprofit.”  Only schools that are nonprofit are eligible to receive Federal financial assistance from the U.S. Department of Education.  Recipients of Federal financial assistance are subject to the laws and regulations enforced by the U.S. Department of Education and including the Office of Civil Rights.  However, for profit charters do not receive Federal financial assistance from the Department funds and are therefore not subject to these laws and regulations, and thus OCR is not responsible for enforcing these laws and regulations at for profit charter schools.  Although for profit charter schools can have students on IEPs, since they do not receive Federal funds as a means of serving this population, the Department does not have jurisdiction to enforce laws and regulations at such schools. 

Section 504 is enforced by the Office for Civil rights, and the IDEA is administered by the Office of Special Education and Rehabilitative Services (“OSERS”) which provides Federal funds to States which in turn provide the funds to local educational agencies (“LEA”) to assist in the provision of special education and related services to students with disabilities.

The Department has issued guidance to parents, students and charter schools explaining rights of students with disabilities in charter schools.[1]  Regarding IDEA, students enrolled in charter schools and their parents or legal guardians retain all of the rights and protections under Part B of IDEA that they would have if attending other public schools including procedural safeguards, the right to a FAPE in the least restrictive environment (“LRE”), and special education and related services in conformity with a properly-developed IEP.  The Department has cautioned that a charter school may not limit the services it will provide a student with a disability. States are responsible for overseeing and monitoring charter school compliance. 

With respect to Section 504’s prohibition against disability discrimination and right to a FAPE, students with disabilities as well as those seeking admission have the same rights as students with disabilities in public non-charter schools, including the right to a Free and Appropriate Public Education (“FAPE”), equal treatment and nondiscrimination in nonacademic and extracurricular activities such as sports and outings, and accessibility such as ramps.  Section 504 requires that charter school recruitment of students apply on an equal basis to all students, including both students with disabilities and nondisabled students, and to allow applications on an equal basis.  Accordingly, a charter school must not impose admission criteria that would tend to exclude or discriminate against students with disabilities.  In fact, it is a violation of Section 504 for a charter school to ask an applicant if he or she has a disability.  The question of whether a student has or ever had an IEP or Section 504 Plan may not be included on an application, and OCR deems such a question on an application as disability discrimination.  The question of whether a student has or ever had an IEP or Section 504 Plan may be asked only after the student has been accepted.  The exception is for schools chartered to serve students with a specific disability, but otherwise such a question is prohibited. 

Finally, the Department warns that charter schools may not “counsel out, i.e., try to convince a student (or parents) that the student should not attend (or continue to attend) the school because the student has a disability.”  That is, the school must not discourage a student and his family from applying for admission.


[1] United States Department of Education, Office for Civil Rights, Office of Special Education and Rehabilitative Services, “Know Your Rights: Students with Disabilities in Charter Schools,” December 2016, reformatted January 2017, https://sites.ed.gov/idea/files/dcl-factsheet-201612-504-charter-school.pdf


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