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Charter Schools and Special Education
By Phil Stinson, Esq.

A charter school is an independent publicly-funded school that operates autonomously from the local public school district. It has been almost ten years since the first charter school opened its doors for students in Minnesota. The charter school movement is fueled by the notion that increased autonomy in school administration and policy-making in exchange for local accountability will foster better schools and increased academic performance by students.

The 1997 Amendments to the Individuals with Disabilities Education Act ("IDEA") take into account the widespread interest in establishing charter schools as a major part of educational reform; clarify the fact that charter schools are entitled to federal special education funding; and, establish procedural safeguards to ensure that charter schools are in full compliance with the requirements of the IDEA. The organizational and financial structure of charter schools in the various states is established by the state legislatures, and is subject to review by the state educational agency ("SEA") and/or local educational agency ("LEA") through an application, or charter, process.

Most of the states have enacted legislation allowing for the establishment of charter schools. Each year, hundreds of new charter schools open in states across the country. Since their advent in 1991, parents have welcomed the addition of charter schools as viable options to their local public school districts. Currently, more than 1,400 charter schools operate in over 30 states, and currently serve over 300,000 students nationwide.

When reviewing program and placement options for their children, parents of children with special needs must carefully assess the ability of a charter school to implement a child’s IEP successfully so as to allow the child to make meaningful educational progress. On the one hand, parents of children with special needs must carefully assess the appropriateness of a charter school program and placement before enrolling their child in a charter school and should be forthright in disclosing information to the school administrators that might help the parents determine the appropriateness of the program and placement at the charter school. On the other hand, parents should be cautious in providing information to the charter school about the nature of the child’s disability, if there is any chance that the child will be discriminated against and not be accepted for enrollment in the charter school based on the child’s disability. Clearly, any adverse admission decision by a charter school based on a child’s disability would violate the civil rights of the child, as the denial of admission would be violative of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act of 1973 ("Section 504"), and the IDEA.

Special children who attend public charter schools retain all of their rights to special education and related services pursuant to the IDEA. Federal funding for the special education and related services of children in charter schools is structured in one of two ways: (1) charter schools that provide the special education and related services independent of the local public school district and are, thus, treated as an LEA under the IDEA, or (2) charter schools that are schools of an LEA.

If the public charter school is an LEA, that charter school is responsible for ensuring that the requirements of this part are met, unless state law assigns that responsibility to some other entity. If the public charter school is a school of an LEA that operates other public schools, the LEA is responsible for ensuring that the requirements of this part are met, unless state law assigns that responsibility to some other entity; and the LEA must ensure that it serves children with disabilities attending the charter school in the same manner as it serves children without disabilities in its other schools and must provide federal funds to the charter school in the same manner as it provides those funds to its other schools. If the public charter school is not an LEA receiving federal funds or a school that is part of an LEA receiving federal funds, then the SEA must maintain the ultimate responsibility for ensuring compliance with the IDEA.

A charter school that is an LEA cannot be compelled to receive IDEA funding as a sub-grantee of a regional intermediate unit of a regional education service agency that typically provide supports to local school districts, unless state law specifically allows for such joint eligibility requirements. This limitation might work to the disadvantage of children with special needs, if the charter school concludes that receiving supports for special education children from a regional agency somehow interferes with the operation of the charter school or impacts on the autonomy of the charter school.

If your child is enrolled in a charter school, and has an IEP, it is important to understand that the multidisciplinary evaluation ("MDE") and IEP development process should operate in the same manner as in public school districts. You should be provided with a copy of the Procedural Safeguards Notice annually by the charter school. The procedures to request mediation and/or a due process hearing when your child has been denied a free appropriate public education ("FAPE") are outlined in the Procedural Safeguards Notice, and operate in the same fashion as when requesting a hearing or mediation conference with an LEA and/or SEA.

Public charter schools can only be an effective choice for a student with special needs if the charter school administration commits the financial and staff resources to implement a child’s IEP. As such, it is imperative that all parents of special children attending charter schools be zealous advocates on behalf of their child.

Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

The Legal Files are provided by Special Child, The Resource Foundation for Children with Challenges, and Stinson Law Associates, P.C., for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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