Know Where the Icebergs Are (Don’t be the Titanic) Charter Summit, June 16 & 17, 2014 Karen L. Johnson Assistant Counsel Office of Legal Services Texas Education Agency 1

Federal Laws that Impact Charters Federal civil rights laws, regulations, and guidance that apply to charter schools are the same as those that apply to other public schools. Title VI of the Civil Rights Acts of 1964 – prohibiting discrimination based on race, color, or national origin. Title IX of the Education Amendment of 1972 – prohibiting discrimination based on sex. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 – prohibiting discrimination based on disability. These Federal civil rights laws and the specific legal obligations apply to all public charter school in the United States, regardless of whether they receive Federal funds. 2

Non Discrimination in Admissions Charter Schools may not discriminate in admissions on the bases of race, color, national origin, or disability. A school’s eligibility criteria for admission must be nondiscriminatory on their face and must be applied in a nondiscriminatory manner. 3

Free Appropriate Public Education for Student’s with Disabilities Under Section 504, every student with a disability enrolled in a public school, including a public charter school, must be provided a free appropriate public education-that is, regular or special education and related aids and services that are designed to meet his or her individual educational need as adequately as the need of students without disabilities are met. 4

Affirmative Steps for English-Language Learners Like all public schools, charter schools must take “affirmative steps” to help English-language learners overcome language barriers so that they can participate meaningfully in their schools’ educational programs. 5

Nondiscrimination in Discipline All public schools, including charter schools, are obligated to avoid and redress discrimination in the administration of school discipline on the basis of race, color, or national origin; disability; and sex. In Texas, Charters not covered under Chapter 37 but may have your own – Student code of Conduct – (TEC ) All full list of Office of Civil Rights guidance publications is available at 6

Admissions or Enrollment? (They are not the same) Terminology Admission Process – when student is initially seeking to be admitted to school. The admissions application must only request basic information (e.g., name, age, address, parent information). The School may request information regarding an applicant’s documented history of past discipline problems as permitted by TEC § (a)(6). Enrollment Process – after the student has been offered admission and is now registering. At this stage, information regarding past academic achievement, medical history, etc. may be requested. 7

Admission Process When student is initially seeking to be admitted to school. The admissions application must only request basic information (e.g. name, age, address, parent information). The school may request information regarding an applicant’s documented history of past discipline problems as permitted by TEC §12.111(a)(6). Student or parent fill out a simple application. There is no mandatory conference or required appearance by parent and no fee to pay. 8

Admissions Policies – Continued A set application period (beginning and ending dates) – usually 4–6 weeks. All students residing within the designated geographic area who meet lawful criteria must be eligible for admission. Admissions policy must prohibit discrimination on the basis of sex, national origin, ethnicity, religion, disability, academic ability, artistic ability, athletic ability, or the district the student would otherwise attend. TEC §12.111(a)(6) Texas law permits charter schools specializing in performing arts to admit students based on artistic ability and audition. Federal law and the non-regulatory guidance requires charter schools receiving federal funds to use a lottery when a school is oversubscribed. If you exclude students with documented histories of discipline problems under TEC §12.111(a)(6), the admissions policy in your charter must state so. 9

Admissions Policies – Continued Maximum Enrollment; Transfers “Students who reside outside the geographic boundaries stated in the open- enrollment charter shall not be admitted to the charter school until all eligible applicants who reside within the boundaries and have submitted a timely application have been enrolled. (19 TAC § (f)) A charter may not accept students who reside outside its geographic boundary. However, may have primary geographic boundary and secondary/transfer geographic boundary if the open-enrollment charter so provides. Very few charters have such transfer boundaries. 10

Lottery Federal law and Non-regulatory guidance requires charter schools receiving federal funds to use a lottery when a school is oversubscribed. 20 USC §7221(i)(1) – “charter school” means a public school that- (H) is a school to which parents choose to send their children and admits children on basis of lottery, if more students apply for admission than that can be accommodated. Texas Law – TEC § offers 2 options: Lottery or First come first serve – fill the positions in the order in which the applications were received before the application deadline. 11

Lottery Exemptions Exemptions allowed under lottery: a) Students who are enrolled in a public school at the time it is converted into a public charter school; b) Students who are eligible to attend, and are living in the attendance area of, a public school at the time it is converted into a public charter school; c) Siblings of students already admitted to or attending the same charter school; d) Children of a charter school’s founders, teachers, and staff (so long as the total number of students allowed under this exemption constitutes only a small percentage of the school’s total enrollment – 5%); e) Children of employee in a work-site charter school, (so long as the total number of students allowed under this exemption constitutes only a small percentage of the student’s total enrollment – 5%). 12

Enrollment Process When the student has been offered admission and is registering. At this stage, information regarding past academic achievements, special needs, medical history, etc. may be requested. 13

Enrollment Records Schools may not prohibit students from enrolling pending receipt of records from the prior school. Federal Law requires a school to enroll a homeless student immediately even if the student is unable to produce records normally required. 14

Enrollment Records – Continued Schools may not prohibit students from enrolling pending receipt of records from the prior school. 19 TAC § 74.26(a)(1). The failure of a prior school or the person enrolling the student to provide identification or records does not constitute grounds for refusing to admit the student. However, if identifying records are not furnished within 30 days, TEC § (c) requires the school to notify law enforcement and request a determination of whether the student has been reported as missing. Federal law requires a school to enroll a homeless student immediately even if the student is unable to produce records normally required. 15

Tuition & Fees There are no legal “blanket activity fees.” Cannot charge a set fee to be paid at registration. Free appropriate public education means free appropriate public education. An open enrollment charter school may not charge tuition (except for certain pre-K classes). The governing body of an open-enrollment charter school may require a student to pay any fee that the board of trustees of a school district may charge under TEC § (a). However, such fees are very limited and very specific. TEC § These fees are also optional and at the parent’s prerogative to decide if their child will participate in the extracurricular activity. Such fees have a “chilling effect” on prospective parents who may not even apply because of the listing of such fees, fees which by law can have no connection to any graduation requirements of a public school. Makes no difference if the school has “scholarships” or reduced rates for lower socio economic students etc. It is illegal to ask any parent rich or poor to pay for their child’s education. You may not ask a parent to “volunteer” their time in lieu of paying a fee for their child to attend your school. 16

Related Issues Promotional Materials & Websites – must be consistent with the admissions policy in the charter application. Applicant Interviews/Meetings – cannot be required as a condition for admission or enrollment. Assessments/Essays – cannot require pre-enrollment. 17

Related Issues Continued Parent or Student Contracts – cannot require pre-enrollment or require as a condition of enrollment; cannot require parents to volunteer or to donate money in lieu of volunteering. School Uniforms – TEC § doesn’t expressly apply; but, charter schools should ensure that policies are reasonable and consider disadvantaged students and students with bona fide religious or philosophical objections. Withdrawals – Withdrawals must be entirely voluntary. Discipline problems should be addressed following the school’s discipline policy 18

Questions and Answers Karen L. Johnson Assistant Counsel Office of Legal Services Texas Education Agency (512)