Special Education and Charter Schools

Yesterday's 11th Annual School Law Institute at the Practising Law Institute explored a number of important topics, including "Special Education in New York's Charter Schools," presented by attorney Matthew Delforte.

Charter schools are public schools and are funded by public funds, but they are not subject to many public school requirements and are operated by private charter organizations, rather than the state or local department of education. Still, they are required to comply with many laws that also impact regular public schools, including the Individuals with Disabilities Education Act (IDEA) and Section 504. Interestingly, rather than being part of any particular school district, charter schools are each considered to be their own district (or, more technically, LEA - local education agency).

So, what does this mean for students who are enrolled in charter schools and who are in need of special education services?

First of all, for their charter to be approved or renewed, charter schools must demonstrate that they accept and retain children with disabilities in numbers "comparable" to traditional public schools in their area. Students enrolled in charter schools are fully entitled to special education services: evaluation, planning by a Committee on Special Education, development of an IEP, and provision of appropriate services. However, it is the student's district of residence (where the student/parents reside), not the charter school, that is responsible for this identification and planning process. What this means is that the charter school must provide the services in the student's IEP but has limited input into the development of the IEP and determination of the services it specifies.

The consequences of this split responsibility between the student's home district, which determines services, and the charter school, which must provide them, are complicated and are of particular complexity when dealing with the most disabled students.

The law requires that the student's home district provide services to the student while he is in the charter school, but what if the charter school doesn't have the kind of class that student requires, or the kind of expertise that the child needs? Remember, the charter school doesn't set up the student's educational plan; that is done by the home district and the charter school often has little input into the IEP. Many IEP's specify the ratio of teachers to students for special education settings but charter schools set up their own class structures. Parents should also be aware that charter schools are not responsible for transportation; it is the responsibility of the student's home school district to provide transportation to the charter school if this is part of the IEP.

So, as this area is further refined in law and practice, parents may want to think carefully before enrolling a student in need of substantial specialized services in a charter school. Yes, the law says your child should be properly served in this setting, but conflicts between the autonomy granted to charter schools and their obligations to serve all children can impact their ability to provide optimal levels of service.