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Written by Sussan, Greenwald & Wesler
Owe a Free Appropriate Public Education (FAPE) to Special Needs Students
What is a charter school? Most people know that charter schools are alternatives to local public schools. Charter schools are public schools, but are operated independently of local boards of education. They usually receive federal money as well as additional private donations or grants. Unlike their local public school counterparts, charter schools are privately managed by their own charter school Board of Trustees.
Charter schools have leeway in determining their policies and programming. For this reason, they can be attractive to parents seeking an alternative learning environment. However, charter school boards are not free of government regulation. In fact, for the most part, they are bound by the same rules as all other public schools when it comes to identifying and serving students with special needs.
It may come as a surprise to some parents and administrators that the following statements are all true:
1. Charter schools are bound to comply with Section 504 and IDEA.
Charter schools must comply with all federal education laws, including the Individuals with Disabilities Education Act (IDEA), Section 504 of the Vocational Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act (ADA).
2. Charter schools are not permitted to deny admission to students with special needs.
Charter schools may not decide that they will not accept students with disabilities. A charter school may not legally deny admission to a student because of that student’s need for special education and related services. In fact, charter schools must give students with disabilities the same opportunity to meet the charter school’s eligibility criteria in keeping with the charter school’s mission.
In practice, however, most charter schools serve many fewer students with special needs than their traditional counterparts, especially students with greater needs.
3. Charter schools need to provide IEPs where appropriate, and make determinations as to programming and placement.
In instances in which a student attends a charter school, it is the charter school that is responsible for providing special education services to disabled students. Charter schools are required to provide all students who are eligible for special education and related services with a free appropriate public education. In fulfillment of that obligation, a student’s charter school is responsible for identifying students who may be eligible for and require special education and related services. The charter school’s child study team must assess children identified as possibly needing services in all areas of suspected disability. The charter school’s child study team must meet with the student’s parents to develop an IEP.
4. Charter schools must provide for the needs of special education students as determined by the child study team. If the charter school cannot meet those needs, the child study team must locate an appropriate placement.
A charter school can recommend special education and related services, including aids and assistive technology, as would a traditional public school. Such programming may include speech therapy, occupational therapies, inclusion classrooms, resource room placements, classroom modifications, as well as home instruction where appropriate.
If a charter school cannot provide the education that the IEP determines a child requires, then the charter school must look for a placement that can meet those needs. Like the IEP team in a local public school, the IEP team at a charter school may even decide that a child requires an out-of-district placement in a private school that specializes in educating students with like needs. In this instance, the local school district may have a right to review the appropriateness of the team’s decision.
5. It is unclear whether students–both special needs and non-special needs–receive more educational benefit in traditional public schools or charter schools.
One study conducted in 2012 by the Center for Research on Education Outcomes attempted to examine outcomes for special education students in traditional public schools versus those who attended charter schools. As a general matter, the study found that special education students perform significantly worse than students not receiving special education services whether the special education students are enrolled in traditional public schools or charter schools.
The study also found that, in charter schools in New Jersey, special education students receive no significant benefit or loss from charter school attendance compared to their counterparts in traditional public schools in either reading or math. The study cautioned, however, that it is especially difficult to compare the outcomes of special education students regardless of where they enroll.
Charter schools have made headlines recently. On September 4, 2015, Washington State became the first state to invalidate its charter school laws. The Washington State Supreme Court held that Washington State’s charter schools did not qualify for public funding. The Court reasoned that Washington’s Constitution permits funding of “common schools,” and since charter schools have appointed boards, rather than elected boards, they do not fit the state Constitution’s definition of “common schools” and cannot receive public funding.
This recent news has Washington State parents concerned about when the ruling will take effect, and whether students in charter schools will be permitted to finish out their current school year without disruption.
While the Washington State ruling has no bearing on the legitimacy of New Jersey’s charter schools, the case does highlight the ongoing conversation about the role of charter schools in our educational system. For now, however, New Jersey charter schools remain, in general, public schools receiving public and private funding.
In short, special education students should know that, under current New Jersey law, charter schools not only are an option for them, but also are required to make themselves available to such students. Charter schools can help students with disabilities by recognizing that federal and state law empowers them to open their doors to students with special needs and to provide the services they need to make meaningful contributions.