The IDEA and Charter Schools

    

What are charter schools?

     Many parents, hoping to increase school accountability and improve school services for their children, are turning to charter schools. Public charter schools are public schools that are created by an agreement (charter) between the group founding the school and an authorizing agency, like a county or state school board. The authorizing agency  must have the legal authority under state law to approve the charter.  According to the special report  Charter Schools Designed for Children Disabilities: An Initial Examination of Issues and Questions Raised, at least forty states, the District of Columbia, and Puerto Rico have adopted laws authorizing charter schools. Charter schools are generally authorized for a set period of time, usually three to five years. The authorizing agency usually has some responsibility to oversee the charter school and that oversight is often linked to the charter school having its charter renewed. Charter schools under federal law must be non profits and since they are public schools, they may not charge tuition. (see What are some typical characteristics of charter schools?  Primers on Implementing Special Education in Charter Schools). 

 What about the IDEA, Section 504, and the ADA?

     Public charter schools may be exempt from some state or local laws or requirements, but charter schools must comply with the IDEA and may not discriminate against qualified persons with disabilities. The IDEA specifically states that children with disabilities and their parents retain all of their rights under  Part B of the IDEA.  And, since public charter schools receive public funding they are public agencies that must comply with Section 504 and the Americans with Disabilities Act (ADA). While charter schools may not deny admission to a student based on the student’s disability, charter schools may establish minimum eligibility criteria for admssion. Under 504 and the ADA a student with a disability would be entitled to reasonable accommodations and modifications to meet that criteria. Similarly, a charter school could require that students have completed certain subjects, if the charter school specializes in a specific area of study.  

     While charter schools must comply with the IDEA, Section 504, and the ADA, there is a tension between these federal laws and the independant and autonomous nature of charter schools. Thus, tracking responsibility for ensuring charter school compliance with federal special education law can be confusing. Charter schools may be licensed by a school district and operate just like any other public school in the district. In that circumstance, under the IDEA, the school district is the local education agency (LEA) and has the overall responsibility to ensure that the charter school complies with the IDEA, 504, and the ADA. If a parent believed the charter school was not complying with federal law, the parent could complain to the school district.

     But, in some circumstances, the charter school may be its own school  district and, for IDEA purposes, be the local education agency (LEA). For example, the state board of education may have granted the school it’s charter and the charter school is the local education agency and is not  under the direction of a school district. If the charter school is the local education agency, then the charter school is responsible for all aspects of providing special education to its students with disabilities (see ERIC Digest: Public Charter Schools and Students with Disabilities). Of course, under the IDEA, the state education agency (SEA) is responsible for ensuring that all students with disabilities in a state receive a free appropriate public education. So, when in doubt as to the responsible agency for ensuring that a charter school or school district complies with the IDEA, you can always contact your state education agency. If there are concerns about compliance with Section 504 and the ADA, you can contact the Office for Civil Rights.

For Some Families There’s No Place Like Home: The IDEA and Home Schooling

All fifty states have laws allowing parents to home school their children. Under the IDEA special education includes specially designed instruction in the home when that home based instruction is necessary to educate the child with a disability. Some families, however, prefer to educate their children at home because they prefer home schooling rather than public school. Similarly, some families prefer private school placement for their children rather public school. These families choose to place their child in a private school or to home school the child, not for disability related reasons, but as a parental preference. (For a discussion of special education services to parentally-placed private school children please see my post Services Plans for Parentally-placed Private School Children with Disabilities.) The IDEA does require some special education services for parentally placed private school children with disabilities. But it is up to the laws of each state  whether children with disabilities who are home schooled are entitled to special education services through the public schools.

In the Analysis of Comments and Changes to the IDEA 2006 Part B Regulations, the Department of Education stated that:

     “Whether home-schooled children with disabilities are considered parentally- placed private school children with disabilities is a matter left to State law. Children with disabilities in home schools or home day cares must be treated in the same way as other parentally-placed private school children with disabilities for purposes of Part B of the Act only if the State recognizes home schools or home day cares as private elementary schools or secondary schools.”

This comment follows the reasoning of the 9th Circuit Court of Appeals in Hooks v. Clark County School District (9th Cir. 2000). In that case the court followed a 1992 Office of Special Education Programs (OSEP) policy letter also stating that it is up to the individual states to determine whether home-education constitutes a private school placement and qualifies the student for services under the IDEA.

So, if your state law treats home schooled children the same as children who are unilaterally placed by their parents in private schools, then children with disabilities who are home schooled in your state are entitled to the same services as the private school child. But, if home schooled children are not considered private school children under your state law, then the home schooled child may not be entitled to any special education services from the school district.  Please note that even if your state law treats home schooled children the same as parentally-placed private school children, the school district is not required to offer as extensive services as a child in the public schools and the services the child receives will be through services plan, not an IEP.

For information regarding whether your state treats home schooled children the same as private school children you should contact your state education agency.

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