Professional Documents
Culture Documents
TABLE OF CONTENTS
Page Introduction I. Background and Development of Charter Schools A. Expansion and Growth of Charter Enrollment B. Federal Role Promoting Expansion of High-Quality Charter Schools C. Characteristics of Charter Schools II. Federal Statutes Governing the Operation of Charter Schools A. Application of Title I-Part A to Charter Schools B. Application of IDEA, Section 504, and the ADA to Charter Schools III. Issues and Concerns for Students with Disabilities A. Relationship of Charter School to the LEA and the Delivery of Special Education 1. Charter schools operating as their own independent LEA 2. Charter schools operating as part of a larger LEA 3. Charter schools that are neither an independent LEA nor part of an LEA 4. SEAs ultimate responsibility under IDEA B. Discrimination in Admission, Enrollment, and Retention C. Choosing Charters Identifiable as Schools for Students with Disabilities; Tension between Parental Choice and the IEP Team D. Effectiveness of Charter Schools and Accountability Conclusion 1 4 5 8 14 14 15 20 20 21 23 24 25 26 34 37 41
Kathleen Boundy would like to acknowledge the assistance of her colleague Joanne Karger and Noah Kaplan, a 2L at Harvard Law School, in the preparation of this brief.
Introduction
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. Part I of the paper 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. Part II describes the overriding legal principles and current federal statutes governing the operation of charter schools. Part III 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 underrepresentation 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. Despite a lack of evidence of their effectiveness, these schools are perceived as emblematic of school reform and educational excellence by state legislation and federal policy and funding priorities.
Bracey, G. (2005). Policy Brief, Charter Schools Performance and Accountability: A Disconnect. Retrieved from http://www.asu.edu/educ/epsl/EPRU/documents/EPSL-0505-113-EPRU.pdf; see also Fiore, T.A., Harwell, L.M., Blackorby. J., & Finnegan, K.S. (2000). Charter Schools and Students with Disabilities: A National Study (final report). Washington, D.C.: U.S. Department of Education (parents of students with disabilities enroll their child in a charter school for a combination of reasons related to attractive features of the charter school and negative experiences with the previously attended school); see also Gupta, N. (2010). Rationality & Results: Why School Choice Efforts Endure Despite a Lack of Improvement on Student Achievement, John Marshall Law Journal, 3, 199, 227. 2 See, e.g., US Department of Education, Charter Schools Program: Non-Regulatory Guidance, at 2 (2004). Retrieved from http://www2/ed.gov/policy/elsec/guid/cspguidance03.doc. According to the Center on Educational Governance (2008), fifteen states identify the opportunity for parent participation as one of the purposes of their charter school law. Center on Educational Governance (2008). Enhancing Charter Schools through Parent Involvement, National Resource Center on Charter School Finance & Governance. Retrieved from http://www.charterresource.org/promising_results.cfm?category=28; see also Zehr, M.A. (Nov. 10, 2010). Public Schools Taking Lessons from Charters, Education Week. Retrieved from http://www.edweek.org/ew/articles/2010/11/10/11charter.h30.html?tkn=STPFEMmPIedSPmqZL/YHtKkVgK EpCRCZl3AP&cmp=clp-edweek
Charter schools facing more scrutiny: CPS serving notice on poor performing campuses. Chicago Tribune. Retrieved from http://chicagotribune.com/news/education/ct-met-charter-school-struggles-120420111204,0,3822770.story 10 Laws of Minnesota 1991, chapter 265, article 9, section 3. 11 Elementary and Secondary Education Act of 1965 (ESEA), 20 U.S.C. 8061-8067 (amended in 1998). 12 20 U.S.C. 8061-8067. 13 20 U.S.C. 7221-7225g (2010). 14 20 U.S.C. 7221(3) (2010). 15 National Center for Education Statistics, U.S. Department. of Education (2011). The Condition of Education 2011 (NCES 2011-033), Indicator 3, at 24. Retrieved from http://nces.ed.gov/fastfacts/display.asp?id=30. 16 Education Commission of the States (ECS) (October 2010). Does the state have a charter school law? Retrieved from http://ecs.force.com/ecsforum/mbcsquest?rep=CS01&Q=Q2259. Only AL, KY, ME, MT, NE, ND, SD, VT, WA, and WV have yet to enact charter school legislation. 17 See Associated Press. (Dec. 7, 2011). Number of charter school students soars to 2 million as states pass laws encouraging expansion. Broadcast Newsroom. Retrieved from http://www.broadcastnewsroom.com/article/Number-of-students-attending-charter-schools-soars-1792768. 18 Id. 19 Id.
elementary or secondary education, or both; does not charge tuition; is nonsectarian and is not affiliated with a sectarian school or religious institution; is nondiscriminatory and complies with Title VI 29 (race, color, national origin), Title IX 30 (gender), Section 504 31 and Title II of the Americans with Disabilities Act (disability), 32 and with the Individuals with Disabilities Education Act (IDEA) 33; and is a school to which parents choose to send their children and that admits students on the basis of a lottery if more students apply for admission than can be accommodated. 34 In addition, a charter school recipient is bound by certain other federal requirements, including that it operates in pursuit of a specific set of educational objectives determined by the schools developer and agreed to by the authorized public chartering agency; and *** has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools 35
Federal funds and funding priorities have further encouraged state charter school laws providing for high-quality charter schools and state funding formulas that authorize equitable support to charter schools. Nowhere has the federal influence been more evident than in the City of New Orleans where post Katrina, USED released $20.9 million dollars in education funds specifically for charter schools, and these funds were supplemented the following year (2006) by an earmarked $24 million dollars. 36 The enactment of the American Recovery and
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. Title IX of the Education Amendments of 1972, 20 U.S.C. 1681. 31 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. 32 Title II of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12101 et seq. 33 20 U.S.C. 1400 et seq. (2010). 34 20 U.S.C. 7221i(H) (2010) 35 20 U.S.C. 7221i(1) (2010). 36 . See Institute on Race & Poverty, University of Minnesota Law School (May 15, 2010). The State of Public Schools in Post-Katrina New Orleans: The Challenge of Creating Equal Opportunity., 25-28.(Philanthropic funds followed, also with such conditions attached.as to constitute charter school aid)..Retrieved from http://www.irpumn.org/uls/resources/projects/NEW_ORLEANS_FULL_REPORT.pdf.
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Weber, T. (Dec. 2, 2011). Minneapolis teacher's union approved to authorize charter schools. Minnesota Public Radio. Retrieved from http://www.minnesota.publicradio.org/display/web/2011/12/02/teachers-unioncharter-school/ 52 Some examples of for-profit charter schools include K12 and White Hat Management schools. See http://www.k12.com/ (k12) and http://www.whitehatmgmt.com/about/faq/ (White Hat Mountain). 53 CMOs are sometimes distinguished from EMOs based on their receiving private foundation support for a particular program. Well-known CMOs include KIPP, SEED, and Green DOT schools. See http://www.kipp.org/ (Kipp); http://www.seedfoundation.com/ (SEED); http://www.greendot.org/ (Green Dot) 54 Robelen, E.W. (May 25, 2011). Georgia Ruling Leaves Charters' Fate Uncertain. Education Week. Retrieved from http://www.edweek.org/ew/articles/2011/05/25/32ga-charter-2.h30.html?qs=Gwinnett 55 Gwinnett County School District v. Cox, et al., 289 Ga. 265, 710 S.E.2d 773 (2011). 56 Id.,289 Ga. at 275.
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 schools compliance with IDEA and Section 504 in providing special education and related services.
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Id., at 275. The Chief Justice explained: Labeling a commission charter school as special does not make it so when the students who attend locally-controlled schools are no less special than those enrolled in commission charter schools and the subjects taught at commission charter schools are no more special than the subjects that may be available at locally-controlled schools. 58 Section 5203 of H.R. 2218, as introduced, supra note 40.. 59 Ryan, M. (March 2011). What Policymakers Need to Know: Highlights of State Charter School Laws. Retrieved from http://www.ecs.org/clearinghouse/92/22/9222.pdf. 60 Id. See Dillon, S., (Feb. 1, 2008). Online schooling grows, setting off a debate. N.Y. Times. (Nationally about 90,000 children get their education from one of 185 virtual or fulltime online charter schools. These schools are publicly financed, mostly elementary and middle schools drawing increasingly on students who were previously homeschooled.) Retrieved from: http://www.nytimes.com/2008/02/01/world/americas/01iht01virtual.9663237.html?pagewanted=all
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Rhim, L.M.,Lange, L.M., Ahearn, E.M., & McLaughlin, M.J. (2007). Research Report 6: Survey of Charter School Authorizers. College Park, MD: Project Intersect at the University of Maryland, College Park, MD. 63 Rhim, L.M. & McLaughlin (2007). Students with Disabilities in Charter Schools: What We Now Know. Focus on Exceptional Children, 39, 1,6. 64 Id., 6. See also Weber, M.C. (2010). Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System. Loyola Journal of Public Interest Law, 11, 217, 229-30 (discussion of evidence of New Orleans charter schools failure to comply with evaluation requirements of special education law; failure to report number of initial student referrals for special education).. 65 See e.g., N.Y. Educ. Law 2851(1) (For-profit education partners are prohibited from both applying for and operating charters.); also N.Y. Educ. Law 2851(2)(v), 2853(2)-(2-a) (provisions providing for greater transparency and ethics oversight of potential conflicts of interest that trustees, founders, and leaders may have.) 66 Miron, G.. & Urschel, J. (2009). Profiles of nonprofit education management organizations: 2008-2009 Boulder and Tempe: Education and the Public Interest Center & Education Policy Research Unit. Retrieved [date] from http://epicpolicy.org/publication/profiles-nonprofit-emos-2008-09
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A recent report on 40 non-profit EMOs examines the performance of AZ student subgroups in reading and math in public schools including disaggregated data for charter schools. Students with disabilities outperform ELLs in both reading and math at all levels in both traditional and EMO operated non-profits. The data shows very little difference between the performance of students with disabilities enrolled in charter schools and in regular public schools an important point since AZ has the highest proportion of charters of any state. Crane, E.W., Huang, M., and Barrat, V.X. (2011). Comparing achievement trends in reading and math across Arizona public school student subgroups (REL Technical Brief, REL 2012019). Washington, DC: U.S. Department of Education, Institute of Education Sciences, National Center for Education Evaluation and Regional Assistance, Regional Educational Laboratory West. Retrieved from http://ies.ed.gov/ncee/edlabs and .http://ies.ed.gov/ncee/edlabs/regions/west/pdf/REL_2012019.pdf 68 Miron, G.. & Urschel, J.,supra note 66. 69 Id., supra note 66, at 6. 70 Id., supra note 66 at 26; also see Miron, G., Urschel, J.L., Mathis, W.J., & Tornquist, E. (2010). Schools without Diversity: Education Management Organizations, Charter Schools and the Demographic Stratification of the American School System. Boulder and Tempe: Education Policy Interest Center & Education Policy Research Unit. Retrieved from http://epicpolicy.org/publication/schools-without-diversity 71 It has been estimated that the average charter school receives about 81 percent of the funding enjoyed by school districts in the same state. In large cities, the funding difference is greater with charter schools receiving about 72 percent of district funding. Batdorff, M., Maloney, L. and May, J. (2010). Charter School Funding: Inequity Persists. Muncie, IN: Ball State University. 72 Ryan, supra note 39. 73 Arizona State Board for Charter Schools v. U.S. Department of Education, 464 F.3d 1003, 1010 (9th Cir. 2006).
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Id., at 1010.. For a discussion of this case and the use of IDEA funds for charter schools see Evans, M.D. (2008). An End to Funding of For-Profit Charter Schools? University of Colorado Law Review, 70, 617. 75 The decision on its face restricts for-profit charter schools from eligibility for federal funds under IDEA and ESEA; it does not restrict schools from contracting with for-profit management organizations to run their programs. 76 20 U.S.C. 1401(6),(27); 20 U.S.C. 6333(a), (c); 20 U.S.C. 7801(18), (38).
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H.R. Rep. No. 107-334, at 702 (2001)(Conf. Rep.). 20 U.S.C. 1413(a)(5). 83 20 U.S.C. 1413(e)(B).
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The term charter school in Title V-B of the ESEA is defined, in part, by a reference to being a public school thatcomplies withSection 504 of the Rehabilitation Act of 1973, and Part B of the Individuals with Disabilities Education Act. 89 Section 504 90 as well as the ADA 91 and the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution ban discrimination on the basis of disability, and IDEA provides funds to implement procedures to ensure nondiscrimination in educational programs and institutions.92 Section 504 guarantees
34 C.F.R. 300.2(b)(1)(ii). 34 C.F.R. 300.2(b)(2). 86 34 C.F.R. 300.33. 87 20 U.S.C. 1412(a)(1)(A), 1412(a)(5)(A). 88 34 C.F.R. 300.209(a). 89 20 U.S.C. 7221i(1)(G) (2002) (internal references omitted; amendments not affecting quoted language proposed in H.R. 2218 9 (2011). Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.2218). 90 29 U.S.C. 794 (2010). 91 42 U.S.C. 12132 (2010); 28 C.F.R. 35.104 (2010). 92 Mead, J.F. (Jan. 2008). Primers on Special Education in Charter Schools, Charter Schools Designed for Children with Disabilities: An Initial Examination of Issues and Questions Raised, at 2., Retrieved from http://www.edgateway.net/specialedprimers/download/special_report_mead.pdf.
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34 C.F.R. 104.33. 34 C.F.R. 104.4(b)(1)(i), (3), (4); 42 U.S.C. 12132, 28 C.F.R. 35.104, 28 C.F.R. 35.130(b)(1)(i), (b)(7). 95 34 C.F.R. 104.4(b)(1)(ii); 96 29 U.S.C. 794(a); 34 C.F.R. 104.4(a),(b)(1)(v), (vii),,(3), (4); 42 U.S.C. 12132. 97 20 U.S.C. 1412(a)(1)(A); 34 C.F.R. 104.4(a), (b)(4), 104.33. See also Mead, supra note 92, at 4; see also Decker, J. et al (2010). Charter Schools Designed for Gifted and Talented Students: Legal and Policy Issues and Considerations, Education Law Reporter, 259, 1, 9 (Discussing requirements on charter schools designed for gifted students to use non-discriminatory admissions policies and provide services for students with disabilities who may also be gifted. Participation in school choice programs may still be limited by the determination of the IEP team if the school of choice is not able to provide appropriate services that are offered at another available school placement or if the school does not comport with the requirements of education in the least restrictive environment). 98 34 C.F.R. 104.4(b)(4)(b)(1)(i); and similarly under the ADA, 28 C.F.R 35.130(b)(8).. See Mead, supra note 92, at 11-12, 14-17.
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20 U.S.C. 1401(9); 34 C.F.R. 300.17. FAPE consists of specially designed instruction that adapts the content, methodology, or delivery of instruction [t]o address the unique needs of the child that result from the childs disability; and [t]o ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 34 C.F.R. 300.39(b)(3). 100 20 U.S.C. 1412(a)(1)(A); 34 C.F.R. 300.17(b), (c); 20 U.S.C. 6311(b)(1), 34 C.F.R. 200.1(a), (b), (c). Also see 34 C.F.R. 104.33(a). 101 34 C.F.R. 300.320(a)(1)(i), (a)(4). 102 20 U.S.C. 1412(a)(5)(A); 34 C.F.R. 300.114(a). 103 20 U.S.C. 1412(a)(5)(A). 104 34 C.F.R. 300.115. Note, in one major inclusion case, an appellate court defined a continuum of placements to meet the needs of [ ] children [with disabilities] as resource rooms, itinerant instruction, speech and language therapy, special education training for the regular teacher, behavior modification programs, or any other available aids or services appropriate to the childs particular disabilities. Oberti v. Clementon School District, 995 F.2d 1204, 1216 (3rd Cir. 1993). alternatives refers to the range of potential placements in which a district can implement a student's IEP, with the regular classroom being the least restrictive to meet the needs of students with disabilities. 105 20 U.S.C. 1414(d), 34 C.F.R. 300.114-300.116.
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34 C.F.R. 300.42 (2010) (Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with 300.114 through 300.116). 107 See Oberti v. Clementon Sch. District, 995 F.2d 1204,1216 (3rd Cir.1993). 108 34 C.F.R. 300.114 109 IDEA, consistent with its FAPE obligation, requires that all education placement decisions be considered on an individual basis considering each child's unique needs. Each placement decision should be uniquely tailored to reasonably promote the child's educational success. 64 Fed. Reg. 12,471 (1999). 110 See, e.g., P. v. Newington Board of Education,546 F.3rd 111 (2d Cir. 2008).); Letter to Wohle, 50 IDELR 13850 (OSEP 2008)(IDEA does not require a set percentage of students to be educated in a general education environment). 111 34 C.F.R. 300.116(e). 112 65 Fed. Reg. 36,591 (2000); see, e.g., Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir. 1988)(school board may not predetermine what school a student may be placed in before creating the students IEP and engaging in discussion over what schools are suitable under the IEP).
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1. Charter schools operating as their own independent LEA If the charter school is defined as its own LEA, independent and separate from any other schools or district, the charter school is responsible for providing the specialized instruction and related services necessary to meet the individualized needs of its enrolled students with disabilities. 120 Even though traditional public schools receive state and federal funds for educating children with disabilities, LEAs frequently incur significant additional costs as part of their operating expenses that relate to particular childrens more resource-laden special education needs. Unlike a traditional public school, however, which is part of an LEA and able to draw upon the districts resources including financial support, an array of special education programs, supplementary aids and services, and the continuum of alternative placements the charter school that is its own LEA must provide students with disabilities FAPE consistent with their IEPs solely through its own resources or through contractual arrangements. 121 All charter schools in Delaware, for example, are this type, and each charter in the State is responsible for identifying, locating and evaluating children and providing the array of specialized instructional programming and services needed for the diverse students it enrolls. 122 In the City of New Orleans the public school system is completely decentralized with 51 LEAs, including 49 independent charter schools operating as standalone LEAs, operating the citys 88 schools. 123
20 U.S.C. 1413(a). 34 C.F.R. 300.209(c) (This provision can be overridden by state law placing the responsibility for providing special education services to students in charter schools on a different entity, such as the local LEA or the SEA); See also R.B. ex rel Parent v. Mastery Charter School, 762 F. Supp. 2d 745, 752-53 (E.D. Pa. 2010) (Under Pennsylvania's statutory scheme, charter schools are independent LEAs and assume the duty to ensure that a FAPE is available to a child with a disability in compliance with IDEA and its implementing regulations. Under this scheme, Mastery Charter School bears full responsibility for providing special education services to students with disabilities) (internal quotations and citations omitted). 121 See Bordelon, S.J. (2010). Making the Grade? A Report Card on Special Education, New Orleans Charter Schools, and the Louisiana Charter Schools Law. Loyola University New Orleans Journal of Public Interest Law 11, 441, 449. 122 State Matrix, supra note 113. 123 See Garda, R. (2011). The Politics of Education Reform:Lessons from New Orleans, 40 J.L. & Educ. 57, 76-81.
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Bordelon, supra note 121 at 449-50. 20 U.S.C. 1413(a)(5)(A); 34 C.F.R.300.209(b). 131 State Matrix, supra note 113. 132 Id. 133 Id. 134 See e.g., Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996 (4th Cir. 1997), cert. denied, 522 U.S. 1046 (1998). 135 20 U.S.C. 1413(a)(5); 34 C.F.R.300.209(b); Section 504, 29 U.S.C. 794; 34 C.F.R. 104.4(a), (b). See also Weber, supra note 64, at 234-238. 136 20 U.S.C. 1413(a)(5)(B), 34 C.F.R 300.209(b)(ii).
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34 C.F.R.300.209(d)(1). 34 C.F.R. 300.209(d)(2). 139 20 U.S.C. 1412(a)(11); 34 C.F.R. 300.149.. 140 N.Y. EDUC. LAW 2853(4); N.H. REV. STAT. ANN. 194-B; OR. REV. STAT. 338.165. 141 CONN. GEN. STAT. 10-66ee.
20 U.S.C. 1412(a)(11)(A); 34 C.F.R. 300.149(a). See P.B. v. Pastorek, Case 2:10-cv-04049, E.D. La. (Complaint, 10/26/2010). Retrieved from http://www.splcenter.org/sites/default/files/downloads/case/pb_v_pastorek.pdf (Defendants motion to dismiss was denied and the parties motions for judgment on the pleadings and for class certification have been stayed pending settlement discussions).
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Id. at 17-29. Id. at 29-35, 146 H.R. 2218, supra note 40. 147 Id. supra note 40, at sec.5203(e)(1)(A)(vii).. 148 Id. supra note 40, at sec. 5203(1)(A)(x). 149 Weber, M. , supra note 64, at 219 (it appears that children with disabilities and their educational needs were at most an afterthought in the educational planning for a rebuilt New Orleans.) 150 See Ysseldyke, J.E., Lange, C.M., & Algozzine, R. (1992). Research Report 7: School Choice Programs in the Fifty States; Szabo, J.M. & Gerber, M.M. (1996) Special education and the charter school movement. Special Education Leadership Review, 3, 135-48 (In April 1995, only four of twelve state charter laws specifically mentioned special education). 151 See Rhim, L.M. (Feb. 2008). National Charter School Research Project. Special Education Challenges and Opportunities in the Charter School Sector 7. Retrieved from http://www.crpe.org/cs/crpe/download/csr_files/wp_ncsrp12_speced_feb08.pdf.
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Id. at 8 ([C]hildren with disabilities represent approximately 12.5% in the total enrollment in public schools nationwide [while only] 10.6% of charter school students had an IEP during 2003-2004 school year.). 153 See Louisiana Dept. of Educ., supra note 125, at 45-46. 154 Id. 155 Id. at 46. 156 See infra notes 163-164 and accompanying text. 157 Rhim, supra note 151 ([C]harter schools enrolled more students with specific learning disabilities (61% compared to 55%) and fewer students with mental retardation (2% compared to 6%) than traditional public schools). See also Miron et al., supra, note 70, at 16-17.; Howe, K.R. & Welner, K. (2002). School choice and the pressure to perform: Dj vu for children with disabilities? Remedial and Special Education, 23(4). 212-222; Fiore, et al., supra note 1. 158 See also Rhim & McLaughlin, supra note 63 at 7.
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Rhim, supra note 151; see also Weber, supra note 64, at 226. Louisiana Dept. of Educ., supra note 125, at 39 citing Educational Support Systems Inc. (2008). The Special Education Project: A Survey of 23 Charter Schools in the Recovery School District. 161 Louisiana Dept. of Educ., supra note 125. See also P.B. v Pastorek, supra note 143. 162 Louisiana Dept of Educ., supra note 125; see also Rhim, supra note 151.
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The picture is quite similar in Los Angeles. The enrollment of students in charter schools throughout the city is large (approximately 8%). The enrollment of students with disabilities across the district averages over 11%, while the enrollment of students with disabilities in independent charter schools averages fewer than 7% (Independent Monitors Office, 2009). 163 As in San Diego, the distribution of disability types within independent Los Angeles charter schools is skewed; for students with disabilities requiring extensive special education services, the likelihood they will be enrolled in independent charter schools is one-fourth that of traditional public schools. 164 Similar data emerges for charters serving urban areas in Massachusetts. For the 2006-2007 school year, the percentage of enrolled students with disabilities in traditional urban schools was 19.9%, while the percentage of enrolled students with disabilities enrolled in urban charter schools was significantly lower, 10.8%. As is the case in Los Angeles and San Diego, significantly fewer students who had more substantial needs, such as mental retardation, emotional disturbance, and autism, were enrolled in
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With respect to students requiring extensive special education services, the imbalance is even more dismal. For example, during the 20052006 school year, there were only three children with mental retardation in all San Diego non-conversion charter schools combined; traditional schools across the district, meanwhile, educated almost one thousand students with mental retardation.
Report on the Progress and Effectiveness of the Los Angeles Unified School District's Implementation of the Modified Consent Decree During the 2010-2011 School Year - Part I, Appendix E, Findings of the Review of Charter Applications and Enrollment Forms (June 13, 2011). Retrieved from http://oimla.com/pdf/20111005/AppendixE_CharterSchoolApplicationReviewFindings_Final.pdf. 164 Id., App. E
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Thomas Hehir, Ed. D., Testimony before the U.S. House of Representatives, Education and Labor Committee (Feb. 24, 2010). 166 Fuller, B., Elmore, R.F. & Orfield, G. Eds. (1996). Who Chooses? Who Loses? Culture, Institutions, and the Unequal Effects of School Choice 25-49. New York: Teachers College Press; Koedel, C. et al. (2009-10). The Social Cost of Open Enrollment as a School Choice Policy (University of Missouri, working paper 20092010). Retrieved from http://economics.missouri.edu/working-papers/2009/WP0910_koedel.pdf. 167 Innovation and Charter Schools Division, Los Angeles Unified School District, Charter Schools Pre- and Post- Lottery Enrollment Forms, Admissions Requirements and Materials (Aug. 30, 2011).
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See Louisiana Dept. of Education, supra note 125, at 42. Because of concerns about charter schools accelerating segregation of public schools, 16 states have regulations pressing charter schools to take steps toward ensuring diversity. Connecticut requires charter schools to recruit from all segments of the district, and in South Carolina, the racial composition of charter schools cannot differ by more than 20% from that of the traditional school district. See Miron et al., supra note 70 at 8-10. 176 Id. at 19-22.
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Frankenberg, E., Siegel-Hawley, G., and Wang, J. (2011). Choice without equity: Charter school segregation, Educational Policy Analysis Archives, 19(1), 1. Retrieved from http://epaa.asu.edu/ojs/article/view/779. 178 Recent NY state legislation seeks to address such serious charges by requiring that authorizers of charters shall ensure (1) that such enrollment targets are comparable to the enrollment figures of such students attending public schools within the school district . . . and (2) that such retention targets are comparable to the rate of retention of such categories of student . . . . N.Y. EDUC. LAW 2852(9-A)(B)(I)(1)-(2) (McKinney Supp. 2011). Comparability targets are based on the school district or community school district within which the charter school is located. N.Y. EDUC. LAW 2851(4)(E). 179 Carnoy, M. et al. (2005). The Charter School Dust-up: Examining The Evidence On Enrollment And Achievement; Finnigan, K. et al. (2004). Policy and Programs Study Service, U.S. Department of Education, Evaluation of the Public Charter Schools Program: Final Report. Retrieved from http://www2.ed.gov/rschstat/eval/choice/pcsp-final/finalreport.pdf; Frankenberg, E. & Lee, C. (2003). Charter Schools and Race: A Lost Opportunity for Integrated Education, Educational Policy Analysis Archives, 11(32), 1. Retrieved from http://epaa.asu.edu/ojs/article/download/260/386; Garcia, D. (2007). The impact of school choice on racial segregation in charter schools, EDUCATIONAL POLICY, 22(6), 805; Miron, G.& Nelson, C. (2000). Autonomy in Exchange for Accountability: An Initial Study of Pennsylvania Charter Schools (The Evaluation Center at Western Michigan University, Kalamazoo, MI); Renzulli, L. & Evans, L. (2005). School Choice, Charter Schools and White Flight, 52 Social Problems, 52, 298. 180 See Frankenberg, supra note 172, at 9. 181 Institute on Race & Poverty, supra note 36, at 37-41. 182 Id. at 4-5, 53. 183 LA. REV. STAT. ANN. 17:199 184 For a description of how New Orleans became the laboratory for a majority charter school district, see Bordelon, supra note 121. 185 Institute on Race & Poverty, supra note 36, at 29. See also LA. REV. STAT. ANN. 17:1990(F)(1)(2010) (open enrollment RSD).
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C. Choosing Charters Identifiable as Schools for Students with Disabilities; Tension between Parental Choice and the IEP Team
The procedural safeguards built into IDEA give both parents and schools the ability to contribute to decisions about the education of students with disabilities and the ability to check the authority of the other to make unilateral decisions about programming appropriate for a child. 187 This dual system of decision-making can create a policy tension with the parental choice emphasis central to the charter school movement. 188 [T]he consistent message from the U.S. Department of Education has been that those parental choices that are consistent with federal disability law can and should be honored and that conversely, a parental choice may not be implemented if it does not meet those requirements. 189 This suggests that for a student in need of special education, a parents choice of placement, including a charter school specifically for educating students with disabilities, should be honored only to the extent it complies with the decision of the students IEP team to provide FAPE in the regular education setting with non-disabled peers to the maximum extent appropriate. 190 This interpretation is consistent with the students and parents rights under IDEA and the childs rights under Section 504.
For example, because even New Orleans RSD charters can cap their enrollment to maintain a studentteacher ratio of 20-1 and have greater flexibility in discipline, transportation, marketing and recruitment, it is the open enrollment RSD traditional schools that are the schools of last resort. They do not have selective admissions; can operate on double shifts; can expand capacity by adding mobile classrooms; can raise class sizes; can enroll students who do not find spaces in charter schools; and can enroll special needs students who may be turned down by charter and/or selective admissions schools. Institute on Race & Poverty, supra note 36, at 29-33, 33, citing United Teachers o New Orleans (UTNO), Louisiana Federation of Teachers (LFT) and the American Federation of Teachers (AFT) (2006). National Model of Flawed Approach? The PostKatrina New Orleans Public Schools. 187 Mead, supra note 92, at 4. 188 Id. at 3 (citing Ahearn, E., Lange, C., Rhim, L., & McLaughlin, M. (2001). National Association of State Directors of Special Education, Project Search: Special Education as Requirements in Charter Schools, Final Report of a Research Study). 189 Id. at 5. 190 Id.
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Mead, supra note 92, at 10. See Decker et al, supra note 97, at 1. 196 Minow, M. (2011). Confronting the Seduction of Choice: Law, Education and American Pluralism. Yale Law Journal, 120, 814, 839-40. 197 Mead, supra note 92, at 11, 15-16. 198 Id. 199 Id. at 6 ([O]nly four (4) percent of children are educated in educational environments completely separate from their non-disabled peers). 200 Id. at 14-15.
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RAND Education (2009). Research Brief: Are Charter School Making a Difference? A Study of Student Outcomes in Eight States 2. See also National Center for Education Evaluation and Regional Assistance (NCEE). (June 2010). The Evaluation of Charter School Impacts Final Report 78 (Studies that covered a wide span of states and/or districtsfound nonpositive average impacts.). 210 Id. 211 Id. 212 New York City Charter Schools Evaluation Project (Sept. 2009) (principal investigators Caroline M. Hoxby, Sonali Murarka, Jenny Kang), How New York Citys Charter Schools Affect Achievement IV-1. Retrieved from http://www.nber.org/~schools/charterschoolseval/how_NYC_charter_schools_affect_achievement_sept2009. 213 Id. at V-3. See also Viadaro, D. (2009). NYC Charters Found to Close Gaps. Education Week. Retrieved from http://www.edweek.org/ew/articles/2009/09/22/05charter.h29.html?tkn=PNOFL6O3EutDM1KkM0LoKCxpsk tYYm1ClUdV.
209
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Center for Research on Education Outcomes (CREDO) (Jan. 2010) (principal investigator Margaret Raymond). Charter School Performance in New York City. Retrieved from http://credo.stanford.edu 215 Id.at 5-6. 216 Id. at 8-9. 217 Id. at 11. 218 Id.at 8. 219 Id. 220 Gleason, P., Clark, M., Tuttle, C., & Dwoyer, E. (2010). The Evaluation of Charter School Impacts: Final Report (NCEE 2010-4029). Washington, DC: National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education. Retrieved from http://ies.ed.gov/ncee. 221 Id. 222 Id. at xvii-xviii, 81-85, Table VI.1. Summary of Charter School Impacts on Achievement from Selected Research Studies.
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Conclusion
This paper has examined an array of issues associated with the education of students with disabilities in charter schools, including those that are autonomous It is not legally or morally schools functioning as part of an LEA, as an acceptable that these so-called LEA in and of themselves, or as a school schools of choice that are belonging to a network operated by an concentrated in urban overriding management organization (CMO communities and supported or EMO). We know from the evidence that with public funds, should be the quality and performance of charter permitted to operate as schools is very mixed and varies segregated learning significantly from state to state. Generally environments where students speaking, despite the impetus and national are more isolated by race, support for their expansion, charter schools socioeconomic class, disability, have failed to produce sustained evidence and language than the public of innovative policies and practices school district from which they associated with improved teaching and were drawn. instruction and presumably associated with enhanced levels of proficiency and growth compared to traditional public schools. Yet, despite what can only be described as underwhelming evidence of academic improvement (primarily based on test score data), charter school
223
Nirvi Shah, Academic Gains Vary Widely for Charter Networks. Education Week. Retrieved from http://www.edweek.org/ew/articles/2011/11/04/11charter.h31.html?tkn=YL (citing The National Study of Charter Management Organization (CMO) Effectiveness (Nov. 2011). Charter School Management Organizations: Diverse Strategies and Diverse Student Impacts, Ferguson, J. et al., Mathematica Policy Research & Bowen, M. et al., Center on Reinventing Public Education). 224 Id. 225 Id.
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See, e.g., Finn, C.E., Rotherham, A.J., & Hokanson, C.R. (2001). Conclusions and Principles for Reform. In C.E. Finn, A.J. Rotherham, & C.R. Hokanson, Jr. (eds.) Rethinking Special Education for a New Century. Washington, D.C., Thomas B. Fordham Foundation and Progressive Policy Institute.
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