Delivering Services under IDEA 2004 in Charter Schools Julie F. Mead University of Wisconsin-Madison

Navigating the labyrinth of Special Education Law Special Education is complex. It is made more complex by parental choice. That complexity increases when: the school is an independent charter school. the school is designed specifically for children with disabilities.

Determining Charter School Responsibilities for Children with Disabilities 3 Sources are needed: Federal Law State Law Charter Contract

Federal Law Individuals with Disabilities Education Act Section 504 /Americans with Disabilities Act Charter School Expansion Act

Project Search: 2 Central Policy Tensions Balancing Procedural Regulations and the Goal of Autonomy Negotiating Parental Choice and Special Education Team Decision Making Ahearn, E., Lange, C., Rhim, L., and McLaughlin M. (2001). “Project Search: Special Education as Requirements in Charter Schools, Final Report of a Research Study.” National Association of State Directors of Special Education, Alexandria, VA. p. 43

Reconciling Choice and Equal Educational Opportunity Parental Choice Statutory & Regulatory Context formed by Federal Disability Law (IDEA, §504, ADA) Honor Choices Consistent with FAPE

Choosing Equal Educational Opportunity Statewide Open Enrollment Letter to Nebraska (OSPEP 1990) Letter to Evans (OSEP 1991) Letter to Lugar (OSEP 1991) Letter to Bina (OSEP 1991) Fallbrook Union Elem. Sch. Dist. (OCR 1990) Magnet Schools Chattanooga Public School District (OCR 1993) San Francisco Unified School District (OCR 1990) Charter Schools Letter to Bocketti (OCR 1999)

Underlying Premises Kids should be able to get FAPE at any public school. Parents cannot be asked to waive FAPE in order to get choice. Choices must be consistent with FAPE.

Underlying Premise #1 CHARTER SCHOOLS ARE PUBLIC SCHOOLS!!!!

Charter Schools Expansion Act public school “The term ‘charter school’ means a public school that – complies with section 504 of the Rehabilitation Act of 1973part B of the Individuals with Disabilities Education Act (G) complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, and part B of the Individuals with Disabilities Education Act” (20 U.S.C. 7221i(1))

IDEA 2004 Final Regulations Includes a definition of “charter school.” Uses definition from Elementary and Secondary Education Act (ESEA); 20 U.S.C. 7221i(1) Must be non-profit to be eligible for ESEA or IDEA

Arizona State Board For Charter Schools v. U.S. D.O.E. (9 th Cir. 2006) Arizona State Board & a group of for- profit charter schools brought suit to challenge ineligibility for funding under IDEA and ESEA 9 th Circuit Court of Appeals upheld denial “Because an interpretation that prohibits funding to for-profit charter schools is not only apparent from a natural reading of the text, but also consistent with the legislative purpose and history of the statutes, we hold that Arizona's for-profit charter schools are excluded from ESEA and IDEA funding.”

Underlying Premise #2: Kids can get FAPE at any Public School Traditional Public School District Charter School Independent Charter School FAPE FAPE FAPE No one should have to trade FAPE to get “choice.” Nor can schools allow such a trade.

So You’re a Charter School. Are You an LEA? Three types of charter schools with regard to special education responsibility: 1. “charter schools that are public schools of the local educational agency [LEA]” 20 U.S.C. 1413(a)(5); 34 C.F.R (b). 2. charter schools that are designated as LEAs independent of any larger district. 20 U.S.C. 1413(e)(1)(B); 34 C.F.R (c). 3. A charter school that is neither an LEA nor part of another LEA. 34 C.F.R (d).

IDEA 2004: 20 U.S.C et seq. Traditional Public School District Charter School 20 U.S.C. 1413(a)(5) 34 C.F.R (b) Independent Charter School 20 U.S.C. 1413(e)(1)(B) 34 C.F.R (c) FAPE FAPE FAPE District as LEA LEA

Project Search: Linkage Total-Link: Formal linkage established in statute or regulation that links a charter school and an LEA in all areas of special education; Partial-Link: Charter school is legally independent, but there is a legislated requirement for a negotiated relationship with the traditional LEA (or an intermediate district entity), or there is legislated protection for special education responsibilities at the LEA level; No-Link: Charter school is legally independent and operates autonomously from LEA control. Any relationship with the LEA is entirely voluntary for both the charter school and the LEA. Ahearn, E., Lange, C., Rhim, L., and McLaughlin M. (2001). “Project Search: Special Education as Requirements in Charter Schools, Final Report of a Research Study.” National Association of State Directors of Special Education, Alexandria, VA. p. 13

IDEA 2004: 20 U.S.C et seq. The State is the ultimate guarantor of FAPE: “A State is eligible for assistance... if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that... A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school” (20 U.S.C. 1412(a)).

State as Guarantor of FAPE 2006 Final Regulations: 34 C.F.R. 209(d): “Public charter schools that are not an LEA or a school that is part of an LEA. (1) If the public charter school is not an LEA receiving funding under § , or a school that is part of an LEA receiving funding under § , the SEA is responsible for ensuring that the requirements of this part are met.

LEA Responsibilities “A local educational agency is eligible for assistance... if such agency demonstrates to the satisfaction of the State educational agency that [it]... has in effect policies, procedures, and programs that are consistent with the State policies and procedures established under section 1412” (20 U.S.C. 1413(a)). Identify, locate and evaluate all eligible children (Child Find). Make FAPE available through special education and related services. Include children with disabilities in large scale assessments. Establish written policies and procedures for implementing law.

Translation: Each LEA has an affirmative obligation to identify and serve appropriately all eligible children with disabilities within its jurisdiction and have written policies and procedures in place to effect that result.

Friendship Edison Public Charter School v. Murphy (D.D.C. 2006) A parent of a child with a disability filed a due process complaint against the Friendship Edison Public Charter School alleging violation of the Individuals with Disabilities Education Act (IDEA). The District of Columbia Public Schools (DCPS) was also named in the complaint. The hearing officer dismissed the complaint against the DCPS and the charter school appealed. The federal district court affirmed that dismissal, holding that the charter school was the local educational agency (LEA) responsible for delivery of appropriate services to the child with a disability in compliance with IDEA.

State Statute Conundrum State participates in IDEA State passes laws & regs to satisfy SEA requirements Typically LEAs comply with laws & regs to satisfy IDEA requirements Charter schools are exempt from laws/regs Some Charters fall under District LEA plan Indep. Charters must still have written policies & procedures [LEA Plan] (20 U.S.C. 1413(a)). and so but whew ;-) but because ????? so

State participates in the IDEA State enacts statutes & promulgates regulations to satisfy SEA requirements under the IDEA Typically LEAs then comply with State statutes & regulations to satisfy the IDEA requirements. LEA charter schools are exempt from those state statutes & regulations through the state’s charter school statute. LEA charter schools must still have written policies & procedures for special education that meet the SEA’s satisfaction. Voluntarily follow state statutes & regulations to develop those policies & procedures given the existing template Create unique policies & procedures based only on federal law without regard to state statutes & regulations and submit to SEA for approval so and but so, they must choose State Statute Conundrum for Independent LEA Charter Schools Relieved From State Special Education Statutes & Regulations

Highly Qualified Teachers New IDEA provision defines the term for special educators Designed to reconcile IDEA & NCLB Typically a special educator must meet 3 standards certified by the state or has passed a licensing examination Is not working under an emergency, temporary, or provisional license. Holds at least a bachelor’s degree. Charter school teachers are exempt from the certification requirement and “the term means that the teacher meets the requirements set forth in the State's public charter school law.” (20 USC 1402 (10)(B)(i))

Final Regulations Clarify Resolves question regarding whether special education teachers are similarly excepted. Answer: Yes “Several commenters expressed concern regarding the exemption of charter school teachers from the highly qualified special education teacher requirements.” Response: “In addition to the certification requirements established in a State’s public charter school law, if any, section 602(10) of the Act requires charter school special education teachers to hold at least a bachelor’s degree and, if they are teaching core academic subjects, demonstrate competency in the core academic areas they teach.”

Other State Statute Issues From what, if any, state requirements are charter schools relieved? What certification requirements have been set by your state? What documentation does your state require?

Charter Contract A charter contract may contain provisions that add to or describe how obligations will be met. So the question is: Are there provisions specific to special ed. responsibilities? Charter contract provisions may not violate either state or federal law.

Charter Contract Provisions Remember that contract provisions dictate the relationship between the school & CSA. Questions to consider: Hiring? Supervision? Funding?

CSA Responsibilities Ensure compliance of charter contract. Failure to serve children with disabilities could become an issue of revocation and/or nonrenewal of the charter. Revocation for cause. Nonrenewal for any or no reason. Failure to take reasonable steps to insure compliance may create legal vulnerability for the CSA.

Issues with Respect to Charter Schools Designed for Children with Disabilities All LRE standards apply Maximize interaction with non-disabled children How do you insure that each child necessitates the level of separation (if there is any) characterized by the school? What happens if the child is successful?

Presumption of Legal Validity Each charter school has been vetted by: Charter school authorizer Contract process State Education Agency oversight A growing number of schools have apparently found a way through the labyrinth.

Placement Regulations Proposed Regulations (§ ): included phrase ‘‘unless the parent agrees otherwise’’ “Several commenters stated that including the phrase undermines the statutory requirement for children with disabilities to be placed in the LRE based on their IEPs and allows more restrictive placements based on parental choice. Many commenters interpreted this phrase to mean that placement is a matter of parental choice even in public school settings and stated that a child’s LRE rights should not be overridden by parental choice.”

Final Regulations Clarify “A parent has always had this option [sending the child to a charter, magnet, or other specialized school option]; a parent who chooses this option for the child does not violate the LRE mandate as long as the child is educated with his or her peers without disabilities to the maximum extent appropriate. However, we agree that this phrase is unnecessary, confusing, and may be misunderstood to mean that parents have a right to veto the placement decision made by the group of individuals... : We have removed the phrase ‘unless the parent agrees otherwise’’’...