Some Charter School Enrollment Practices Under Scrutiny: ACLU Aims Spotlight on Arizona
The federal Individuals with Disabilities Education Act (IDEA) requires that all children with disabilities ages three through 21 are entitled to a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living. This right is not a “special program” that charter schools can restrict. Instead, it is a right to attend public schools, including charter schools, to the same extent as non-disabled students are able.
Why Arizona is in the Spotlight for Charter School Enrollment Practices
As stated in a recent study by the ACLU of Arizona, out of the 471 charter schools that the ACLU of Arizona was able to analyze, the ACLU believes that at least 262 (56 percent) have policies that are clear violations of the law or discourage the enrollment of certain students, including students with disabilities, students who struggle academically, students with disciplinary history, and students from immigrant families. For instance, the investigation found six charter schools have an enrollment cap on the number of students with special education needs, which violates federal and state law.
The ACLU presented their “Schools Choosing Students” report to the Arizona State Board for Charter Schools (ASBCS) at its last meeting, and asked ASBCS to take immediate action against schools that are not complying with the law. “This report should be a wake-up call to Arizona charter schools that they are not fulfilling their ‘school choice’ promise,” said Alessandra Soler, executive director of the ACLU of Arizona. “Education leaders must act to remove discriminatory barriers to public charter school enrollment so that all students have an equal opportunity to attend a charter school if that’s what the student’s family wants,” stated Soler.
To learn a bit more about this and get some recommendations for how charter schools should best proceed, we spoke with Lynne Adams with the law firm Osborn Maledon in Phoenix, Arizona.
Adams shares that “ASBCS President, Kathy Senseman, made it clear that the Board was on the same page as the ACLU on this one, calling the practice of placing a cap on special education student enrollment ‘blatantly illegal,’ ‘absolutely illegal,’ and promising that the Board ‘will enforce the law’ with respect to such violations.” Adams pointed out that ASBCS has recently issued guidance warning against such practices, which is also consistent with guidance provided by the Arizona Department of Education (ADE) and the Arizona Charter Schools Association.
NOTE: If your child receives special education services, (s)he must have an Individualized Education Program (IEP). That’s the law. An IEP is an important legal document. It spells out your child’s learning needs, the services the school will provide and how progress will be measured. The IEP is meant to address each child’s unique learning issues and include specific educational goals. It is a legally binding document. The school must provide everything it promises in the IEP.
The Individuals with Disabilities Act (IDEA) is a federal law that guarantees all children with disabilities to have access to a “free appropriate public education,” often referred to by its initials – FAPE – that emphasizes special education and related services designed to meet their unique needs and prepare them for further education.
This means that special education is not considered a special program, it is a required service allowing special needs children to access the same curriculum as other students.
Not in Arizona? What does this mean for your charter school?
Adams warns that charter schools need to be paying close attention to their own enrollment practices.
Are you following both your local AND federal laws?
Do you admit special education students on the same terms as other students?
Do your enrollment documents ask questions about whether a potential student has an IEP, has been disciplined by a previous school or needs accommodations for a disability?
Failure to admit all eligible students on the same terms could subject your school to the same scrutiny—and even closures—as some Arizona schools may be facing.
Pay particular attention if you ask on charter school enrollment applications whether a prospective student has an IEP or Section 504 plan. According to Adams, “The Office for Civil Rights has taken the position that, in general, such information may only be asked after enrollment. (OCR FAQ) Many schools believe that it is essential to gather such information prior to enrollment in order to ensure continuity of services. However, if you include such questions in your enrollment application, you should consider including an explicit statement confirming that such information ‘is requested solely for purposes of ensuring continuity of services upon enrollment,’ and that it ‘will not be considered in making enrollment decisions.’”
“Despite the fact that the ACLU has primarily and presently focused its attention on Arizona schools, this should be a proverbial ‘canary in a coal mine’ warning, putting charter schools across the country on high alert,” says Adams. This is likely the next wave of attacks on the charter school movement—analyzing their practices to determine whether their doors really are open to all students.
Lynn Adams is a partner with Osborn Maledon, in the firm’s commercial litigation group. Her practice focuses on education law and complex commercial litigation. She represents numerous charter schools, traditional public schools, community colleges and universities in regulatory matters and litigation, and provides them with on-going legal advice, including compliance with Arizona’s open meeting and public records laws.
If you wish to contact Ms. Adams, you can connect with her via email: Ladams@omlaw.com
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