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Discrimination of Students with Disabilities by Charter Schools

January 26th, 2012

Our guest blogger this week is Sarah Wieselthier, a third-year law student at the Maurice A. Deane School of Law at Hofstra University and a candidate to earn her J.D. in May 2012.  Sarah serves as an Articles Editor for the Hofstra Law Review and is interested in pursuing a career in education law.  Sarah can be reached at swieselthier@gmail.com.

While charter schools are celebrated for their ability to improve student outcomes through innovative curricula and instructional approaches, many have been accused of missing the mark when it comes to educating students with disabilities.  Despite being free from the regulation and oversight thought to plague traditional public schools, charter schools are still required to comply with the Individuals with Disabilities Education Improvement Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), and the Americans with Disabilities Act (“ADA”).  However, charter schools throughout the country have been accused of violating these federal laws that protect students with special needs.  Parents of students with disabilities have asserted that certain charter schools have succumbed to the discriminatory practices of: denying enrollment to students with disabilities, counseling students with disabilities to leave their school, failing to identify and evaluate students with potential special needs, failing to implement IEP’s and provide the necessary special education and related services, and failing to discipline students with disabilities in compliance with federal law.

In most cases, the charter school has not sought to violate the laws protecting students with disabilities, but rather it does not have the resources to provide these students with appropriate special education and related services.  Charter schools face significant challenges in balancing their mission to achieve academic success through creative and flexible teaching methods against complying with rigid federal disability laws.  No matter the underlying reason, the rights afforded to students with special needs by the IDEA, Section 504, and the ADA are being violated; these students are not receiving an “appropriate” education as required by law.

No court has weighed in on what it means for a charter school to achieve the appropriate balance of complying with its mission and obeying the IDEA, Section 504, and the ADA.  The few lawsuits alleging discrimination by charter schools have ended in settlements and without a decision on the merits.  In Scaggs v. New York State Department of Education, No. 06-CV-0799 (JFB)(VV), 2007 U.S. Dist. LEXIS 35860 (E.D.N.Y. May 16, 2007), students with disabilities alleged equal protection, IDEA, Section 504, and ADA violations against charter schools in New York.  A settlement was reached in which each plaintiff individually received sums ranging from $1,000-$18,000.

A settlement was also reached in United States v. Nobel Learning Communities, Inc., 676 F. Supp. 2d 379 (E.D. Pa. 2009).  In Nobel Learning Communities, students with disabilities attending schools operated by Nobel Learning Communities (“NLC”) charter school network alleged discriminatory practices in violation of the ADA and its implementing regulations.  Specifically, it was argued that NLC engaged in the discriminatory practice of failing to enroll or dis enrolling students with disabilities from its schools.  The federal district court dismissed the allegations of discrimination at NLC’s day care, elementary, and secondary schools because there were no facts creating a reasonable inference of a discriminatory policy.  However, the cause of action against NLC’s preschools survived a motion to dismiss.  The remaining allegations were that NLC’s preschools violated the ADA and its implementing regulations by instituting a policy to exclude, remove, or otherwise discriminate against children with disabilities from NLC programs and acted on the policy by excluding, removing, or otherwise discriminating against children with disabilities.  In January 2011, the Department of Justice entered into a settlement agreement with NLC, where NLC agreed, among other things, to adopt and implement a formal non-discrimination policy, make reasonable modifications to programs and services when necessary to afford its programs and services to students with disabilities, appoint an ADA compliance officer, and pay $215,000 to the children referred to in the lawsuit.  A summary of the settlement terms can be found on the Department of Justice’s website at http://www.justice.gov/opa/pr/2011/January/11-crt-051.html.

There is currently an ongoing class action lawsuit in the Eastern District of Louisiana alleging violations of the IDEA and the ADA by both charter schools and traditional public schools in New Orleans, Louisiana.  The case is P.B. v. Pastorek, No. 2:10-cv-04049 (E.D. La. Oct. 26, 2010).  Eight of the ten named students in the class alleged discrimination and noncompliance by public charter schools.  The alleged violations include failure to identify and evaluate students with suspected disabilities, failure to provide necessary special education and accommodations, failure to implement IEPs, and failure to discipline students in compliance with the law.  The complaint survived a motion to dismiss in April 2011.  News and developments regarding the litigation can be found on the Southern Poverty Law Center’s website at http://www.splcenter.org/get-informed/case-docket/new-orleans-special-education.  If a decision is reached on the merits of this case, it would be the first time a federal court establishes a charter school’s obligations when educating students with disabilities and reconciles the tension between charter school philosophy and the federal special education and civil rights laws.

Special education will continue to be one of the key challenges facing charter schools in the future.  The rigid and rigorous standards of the IDEA, Section 504, and the ADA are in congruent with the flexible and innovative structure of charter schools, making compliance a challenge.  A decision on the merits in P.B. v. Pastorek would provide guidance to both charter schools and students with disabilities and their parents about what is required of a charter school when educating students with disabilities, clarifying how a charter school can stay true to its mission and be in compliance with the laws.

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