Do Students with Disabilities Have a Choice in “School Choice”?

By Emma Fennelly, Spring 2019 HeLP Legal Services Clinic Intern

Under the current administration, “school choice” has been heavily promoted by the Department of Education and its current Secretary Betsy DeVos as an alternative to traditional public schools, giving parents more choices when deciding how to educate their children. Charter schools are privately administered schools that are publicly funded, but still have the ability to accept additional funds from grants and organizations. Traditional public schools do not qualify for such funds.

In addition to funding differences, private charter schools differ from traditional public schools in administration: families must apply to charter schools and be accepted; charter schools do not follow the same state-mandated curriculums; and charter schools are not held to the same accountability requirements as traditional public schools. However, while charter schools may be exempt from certain state or local requirements, they are still a part of the public education system and, as such, are subject to all federal laws and regulations related to students with disabilities, particularly the Individuals with Disabilities Education Act (IDEA). Under this law, a child age 3 through 21 years old who is considered to have a disability under any of IDEA’s twelve categories of eligibility is entitled to Free Appropriate Public Education (FAPE). An “appropriate education” is construed broadly and can include anything from assistance in a general education classroom with an occasional classroom aid, to a separate classroom for students with similar learning disabilities, to the implementation of related services such as speech therapy, occupational and physical therapy, psychological counseling, or medical diagnostic services necessary for the child’s education.

While, in theory, the same law applies to both public schools and charter schools, in practice differences in administration can lead to differences in the treatment of students with disabilities. Across the U.S., charter schools enroll a significantly lower percentage of students with disabilities than regular public schools. While, under IDEA, charter schools cannot refuse to admit a child because of a disability, many such schools “counsel out” students with disabilities, discouraging parents of students with more severe special needs from enrolling, suggesting that the school is not prepared to meet those needs. This kind of segregation is also seen in populations of low-income students and English language learners. A recent study found a pattern of charter schools systematically counseling out students with disabilities rather than making accommodations. Administrators at one-fourth of the charter schools in the study reported having advised parents that the school was not a good fit for their disabled children. However, as stated above, charter schools are public schools, required to serve all families who seek them out. Regardless of where they are enrolled, children with disabilities are protected by the same federal laws and regulations guaranteeing FAPE. So, why are these families being counseled out of charter schools?

This is so for several reasons. First, there is some confusion over who has the legal responsibility to provide FAPE for students enrolled in charter schools. Depending on state law, a charter may be considered a separate local education agency (LEA), or it may be considered “linked” to an existing LEA. The degree of linkage with an existing LEA means that charters may occasionally share responsibility for special education with an LEA or may be solely responsible for service provision.

In addition to legal confusion, charter schools are likely to be newer. In 2010, more than half of all charter schools had been open fewer than seven years. With all the work that accompanies the creation of a new school, it is easy to put accommodations for special needs students on the back burner. Schools have to secure space, funding, and staff, leaving little room for the development of an effective special education program. Many new schools simply don’t allocate their time and resources to accommodating students with disabilities, especially when they can instead counsel out these students, sending them to public schools where special education is already highly regulated.

Lastly, charter schools were invented to be deregulated and autonomous. However, special education, as mentioned before, is one of the most regulated components of the education system. Often, state law doesn’t give charter schools guidance on the implementation of special education services. Despite their requirement to comply with IDEA, in practice, many charter schools lack the direction, planning, and funding to support students with disabilities.  In conclusion, it appears that disabled students are left out of school choice, despite the claim that charter school are open to everyone. The lack of accountability paired with the autonomy of charter schools allows them to exclude students with disabilities. Further, even students with disabilities who do attend charter schools may not be getting all the services to which they are entitled under IDEA.