ERIC EJ762922: Charter School Statutes and Special Education: Policy Answers or Policy Ambiguity?

2007·0.11 MB·English

by  ERIC

50 THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007/PP. 50–63
Charter School Statutes and Special Education:
Policy Answers or Policy Ambiguity?
Lauren Morando Rhim, Public Impact
Eileen M. Ahearn, National Association of State Directors of Special Education
Cheryl M. Lange, Lange Consultants
Charter schools are a growing and evolving component of the public education sector. These schools
may be exempt from state or local regulations,but they are part of the public system and subject to
federal laws and many regulations. Research has documented policy tensions and basic challenges as-
sociated with developing special education programs in charter schools. A key source of these issues
is ambiguity in individual state charter laws regarding roles and responsibilities related to special ed-
ucation. This article presents findings from a review of 41 charter statutes. The review reveals vari-
ability and lack of specificity among states in the legislative structures they maintain for charter schools
and how responsibility for special education is assigned. These findings highlight the importance of
federal,state,and district policy leaders developing a nuanced understanding of statutes shaping the
parameters of responsibility for special education in the charter sector.
Charter schools are a relatively new but growing and evolv- the federal,state,and district level are aware of the policy im-
ing segment of the public education sector. Charter schools plications of state charter school laws. The focus of our re-
are granted varying levels of independence from traditional search is how these laws address issues related to educating
school districts in return for increased accountability reflected students with disabilities.
in a renewable charter or contract with an authorizing agent. Charter schools may be exempt from state or local reg-
They join the menu of school choice options that emerged ulations,but they are fundamentally public and therefore sub-
from school reform efforts in the 1980s and 1990s. While ject to federal laws and regulations,including laws related to
many of the other school choice options are driven by district educating students with disabilities (Heubert, 1997). Special
initiatives and remain more closely aligned with the tradi- education,as it is organized in public schools,results from a
tional public school system (e.g., open enrollment, magnet complex and oft times confusing combination of federal law
schools,and public choice for students at risk for school fail- and regulation, individual state constitutions, state law and
ure),charter schools operate under the auspices of state char- regulation,and policy traditions. Research examining the spe-
ter statutes that afford these schools varying degrees of cial education policy issues associated with charter school
regulatory relief. The assumption underlying the charter con- statutes and subsequent practices has documented tensions
cept is that freedom from existing mandates,coupled with in- and misunderstandings emerging at the intersection of char-
creased accountability driven by charter contracts and parents’ ter school and special education goals and objectives (Ahearn,
ability to choose schools,will foster the creation of success- Lange,Rhim,& McLaughlin,2001; Fiore & Cashman,1998).
ful new schools and drive existing public schools to improve An analysis of the limited but growing case law documents
to compete for students (Kolderie, 1990). While the validity that state and district policy leaders are struggling to establish
of these suppositions remains debatable (Miron & Nelson, the parameters of charter schools’responsibilities related to
2002; Carnoy,Jacobsen,Mishel,& Rothstein,2005),the char- special education that are dictated by the Individuals with Dis-
ter sector is growing; as of fall 2005, there were approxi- abilities Education Act (IDEA, 1997; O’Neill, Wenning, &
mately 3,600 charter schools educating upwards of 1 million Giovannetti,2002).
students (Center for Education Reform,2005). Furthermore, While charter schools are frequently referred to as a
due to the fact that the No Child Left Behind Act of 2001 monolithic entity,they are by definition unique; each school
(NCLB) identifies conversion to charter status as one of mul- is designed and operated by a unique board that implements
tiple sanctions for schools that repeatedly fail to demonstrate its vision of a public school within a policy climate shaped by
Adequate Yearly Progress (AYP), the charter school sector state charter law and local practice. With the exception of their
will mostly likely continue to grow for the foreseeable future. autonomous governance structures and,on average,small size,
As the charter sector grows,it is critical that policymakers at these schools are best defined by their heterogeneity—both
Address: Lauren Morando Rhim, Public Impact, 4409 West Virginia Ave., Bethesda, MD 20814;
e-mail: [email protected]
THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007 51
between and within states—as opposed to their homogeneity ents or guardians writes an IEP and recommends a program
(Anderson et al.,2002). and placement to meet those individual needs. IDEIA speci-
The charter sector that exists today grew from a single fies parental rights throughout the process and prescribes due
law passed in Minnesota in 1991 (Nathan, 1996). By fall of process procedures to resolve differences that may arise be-
2005,a total of 40 states plus the District of Columbia (here- tween parents and school personnel (IDEIA).
after referred to simply as “states”) had adopted charter school Besides IDEIA (2004),charter schools are also required
laws. While there has been some legislative action related to to comply with multiple other federal laws that govern the ed-
charter schools in the remaining 10 states (i.e.,Alabama,Ken- ucation of students with disabilities in public schools (e.g.,No
tucky,Maine,Montana,Nebraska,North Dakota,South Da- Child Left Behind [2001], Section 504 of the Rehabilitation
kota,Vermont,West Virginia,and Washington),they have not Act of 1973,the Americans with Disabilities Act [1990],and
passed charter school laws (Center for Education Reform, Family Educational Rights and Privacy Act [1974]). Our an-
2005). alyses focused primarily on the implications of IDEIA,due to
The charter school sector is primarily a state-driven re- the magnitude of the law and the consequent implications of
form initiative. Individual states pass charter school laws that its regulations for charter schools. Given the importance of
define the legal status of their charter schools and articulate Section 504 of the Rehabilitation Act of 1973 to ensuring that
specific parameters within which charter schools may oper- students with disabilities are adequately supported in charter
ate. In turn, entities that have the authority to grant charters schools, we did examine whether state charter laws mention
(i.e.,authorizers or sponsors) and charter school operators in- Section 504. However,our analysis was limited and due to the
terpret and implement individual state charter school laws, nature of our data, we did not delve into the nuances of the
thereby translating policies into practices. Entities most com- policy implications of IDEIA versus Section 504 for charter
monly permitted to act as authorizers are local education schools.
agencies (LEAs),state education agencies (SEAs),institutions While special education and charter school advocates
of higher education, specially appointed charter boards, and approach their advocacy from different perspectives,and spe-
nonprofit organizations. Regardless of who grants a charter, cial education is characterized by regulations and charter
by definition, charter schools are public entities, funded by schools by deregulation,special education is not the antithe-
public tax dollars and they must offer open enrollment poli- sis of charter schools. Rather,at their core,special education
cies. To wit,while afforded varying levels of deregulation de- and charter schools are simply different approaches to pro-
signed to enable charter schools to operate independent of viding students with educational opportunities that ideally
district structures,these new schools must abide by the Indi- match their unique educational requirements. Special educa-
viduals with Disabilities Education Improvement Act of 2004 tion law grew out of abuse of rights and specifically a lack of
(IDEIA). Relative to other education policy issues (e.g.,stan- choice or opportunity for students with disabilities (Franklin,
dards-based reform,Title I,magnet schools),state and district 1994). Special education procedures may seem onerous, but
policy leaders have limited experience interpreting charter they evolved over time in an attempt to prevent abuses and ne-
school statutes and developing charter-related policy. glect on the part of the public school system. Along the same
In contrast,the federal special education law now known vein, charter schools attempt to offer parents and students
as IDEIA is a federal initiative,passed originally in 1975 (then choices and opportunities. Yet,the divergent manner in which
called the Education for All Handicapped Children Act) and the two programs manifest in practice can set up barriers to a
amended numerous times since then, most recently in 2004. harmonious merger.
The federal law requires states accepting IDEIA funds to as- From the perspective of governance and responsibility,
sure a free appropriate public education (FAPE) to all eligi- federal law designates that states are responsible for ensuring
ble children in the least restrictive environment (LRE). Part B that the rights of all eligible students with disabilities are pro-
of IDEIA and its implementing regulations, in conjunction tected and that they receive their entitlement to an appropri-
with related state laws,require compliance with a number of ate education at no cost and in the least restrictive setting.
detailed procedures concerning the provision of special edu- Although states retain oversight and monitoring responsibili-
cation and related services in schools. In practice,IDEIA dic- ties, states delegate responsibility for implementing IDEIA
tates policies and procedures related to identifying children (2004) to local districts.
with disabilities and thereafter,developing an Individualized Funding for special education in charter schools is a
Education Program (IEP) that articulates the services and sup- complex and frequently controversial matter (Nelson et al.,
ports required to enable the child with a disability to receive 2000; Speakman & Hassel,2005). Local districts pay for the
FAPE. A student who is identified as potentially having a dis- cost of special education using a combination of federal,state,
ability is referred for an evaluation to determine eligibility for and local funds (Parrish, Harr, Anthony, Merickel, & Esra,
programs and services under 1 of the 13 disabilities covered 2003). Part B of IDEIA (2004) provides an allocation of fed-
by the law. Each state has established specific procedures to eral funds for each state based on a standard formula, and
implement this requirement. If a child is found to have a dis- these dollars flow through the state to local districts. States
ability,a team composed of professionals and the child’s par- also fund special education using one of several formulas.
52 THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007
Local districts are responsible for all remaining costs associ- et al.,2001; Fiore & Cashman,1998; Fiore,Warren,& Cash-
ated with providing special education. How special education man,1998; Green & Mead,2004; Heubert,1997; O’Neill et
funds actually flow to support students with disabilities who al.,2002). An underlying tension that influences special edu-
attend charter schools differs from state to state. cation in the charter sector is a conflict between the core
IDEIA (2004) requirements are binding for all public premise of charter school autonomy and special education
schools,and this includes charter schools. However,the spe- regulation (Ahearn et al.,2001). Charter schools were created
cific level of an individual charter school’s responsibility for in part to infuse autonomy into the public education sector
special education depends on the legal status of the school. with the hope that such autonomy could breed innovation and
Within the public school system of its state,a charter school improve student outcomes (Kolderie, 1990). Federal, state,
may be either its own local education agency or part of an and local special education rules and regulations are gener-
existing LEA. IDEA noted this distinction in its 1997 amend- ally perceived to be somewhat counterintuitive in charter
ments and regulations, and these provisions were retained schools striving to reduce bureaucracy. For instance,the mul-
in the 2004 IDEIA amendments with only minor changes. tiple procedures that dictate the parameters of how students
IDEIA dictates that a charter school is an LEA for purposes with disabilities may be educated in public schools appear
related to special education if the school is established as such counterproductive to charter schools touted by advocates as
under its state charter law. Furthermore,the law dictates that deregulated or schools without rules (Heubert, 1997). Fur-
if a charter school is part of an LEA,then the LEA is respon- thermore, while charter schools must follow specific proce-
sible for educating students with disabilities who enroll in the dures to implement or change an IEP, charter schools are
charter school in the same manner as it educates students who schools of choice,so parents can enroll their child with a dis-
enroll in other district schools,including provision of supple- ability in a charter school without consulting with other mem-
mentary and related services and funding. bers of the existing IEP team.
The regulations for the 1997 version of IDEA expanded In addition to the policy tensions associated with nego-
on the provision of the law that pertains to the implications of tiating special education requirements in a less regulated en-
a charter school’s LEA status,and these regulations remain in vironment,the extensive responsibilities of special education
the regulations for the 2004 IDEIA. The 1997 amendments to mandated by federal legislation and regulations and the con-
IDEA and related regulations, along with the 2004 amend- sequent interpretation by state and federal courts pose unique
ments,underscore that charter schools are public schools and practical challenges for charter schools (Heubert, 1997;
therefore responsible for educating students with disabilities. O’Neill et al.,2002). In particular,charter schools struggle to
Furthermore,the statutes articulate the different levels of re- understand their roles and responsibilities related to special
sponsibility based on the critical distinction of whether a char- education and to amass the capacity required to provide spe-
ter school is part of an LEA or its own LEA. The regulations cial education and related services to students with disabili-
also explicitly grant states autonomy to delegate responsibil- ties (Ahearn et al.,2001).
ity to “another entity”(C.F.R. 34 300.209(c) and (d)2). This In an early legal analysis of charter school statutes and
provision is noteworthy because it grants states the opportu- their implications for special education,Heubert (1997) stressed
nity to shift responsibilities assigned by IDEIA from an LEA that language in IDEA (1990) regarding legal responsibility
to yet a different unnamed entity. dictates that a charter school’s legal identity as an autonomous
As the charter sector continues to grow,the importance LEA or as part of a noncharter LEA defines the school’s
of understanding how charter school and special education roles and responsibilities related to special education. If a
laws intersect,and the subsequent implementation of policies charter school is an autonomous LEA,it is solely responsible
in these schools is critical to ensuring that students with dis- for providing a full continuum of placements. If a charter
abilities can access and succeed in this new sector. This arti- school is part of a district,the district as a multisite entity with
cle presents findings from a legislative review conducted as resultant pooled resources is responsible. Fiore & Cashman’s
part of a national research study investigating special educa- (1998) analysis of charter statutes in 29 states documented
tion in charter schools. The following sections introduce the that while some laws contain provisions regarding discrimi-
existing literature regarding special education in the charter nation, targeted enrollment, special education funding, and
sector,our study methodology,and a discussion of our find- transportation,none of the state charter statutes include pro-
ings. A final section discusses the policy implications of our visions related to “goals,accountability,or assessment for stu-
findings and proposes steps key stakeholders should consider dents with disabilities”(p. 19). Furthermore,they found that
to ensure that charter schools are a viable option for students few states identify who is responsible for providing services
with disabilities. to students with disabilities. Rhim & McLaughlin’s (2001) in-
depth analysis of legal issues in 15 states also documented
ambiguity regarding legal identity and a limited understand-
Literature Review
ing of the implications of critical charter school characteris-
This study builds on the findings of previous national studies tics that reportedly cause problems associated with discerning
that revealed policy tensions and practical challenges emerg- lines of responsibility for state-, district-, and school-level
ing in the charter sector related to special education (Ahearn leaders.
THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007 53
A study conducted relatively early in the evolution of the receive special education dollars and found that some state
charter sector documented problems associated with simply funding systems provide incentives to both overidentify and
providing students with disabilities access to charter schools. underidentify students with disabilities (Nelson, Muir, &
While somewhat limited in terms of its scope, McKinney’s Drown,2000). Concerns regarding incentives to over- or un-
(1996) survey of charter schools in Arizona found that char- deridentify students with disabilities are not unique to charter
ter schools enrolled a disproportionately small number of schools, but Nelson et al. noted that small, nascent charter
students with disabilities relative to national trends. Charter schools and charter schools serving a high proportion of, or
operators reported that they regularly counseled students with developed specifically for,students with disabilities may face
disabilities away from their schools primarily due to fears unique challenges associated with funding special education
about the costs of educating students with disabilities. programs.
More recently, Fiore, Harwell, Blackorby, and Finni- McLaughlin and Henderson’s (1998) exploratory an-
gan’s (2000) national study of special education in charters alysis of special education in Colorado charter schools doc-
found that charter schools regularly discouraged students with umented that school leaders struggle to understand their
disabilities from enrolling in the schools out of concern about responsibilities related to IDEA and to hire qualified special
the focus of the curriculum or instruction and the child’s ed- education teachers. Nevertheless,the Colorado charter schools
ucational needs. Interviews revealed that special education is studied enrolled proportionate numbers of students with dis-
frequently an afterthought in the development of charter abilities. Students with disabilities enrolled in Colorado char-
schools and that most schools reported serving children with ter schools tended to have mild disabilities and attend class in
disabilities in inclusive classrooms. However,the efficacy of general education classrooms. In line with Fiore et al.’s (2000)
the inclusive practices was unclear. Fiore et al. documented a national research,McLaughlin and Henderson documented a
relatively high level of satisfaction on the part of parents of high level of parent satisfaction on the part of parents of stu-
students with disabilities related to their child’s experiences dents with disabilities in Colorado charter schools.
and growth in the charter schools. While it is arguably im- Ahearn et al. (2001) conducted multiple state-level case
portant to document parental satisfaction,discerning whether studies of special education in charter schools and found that
parent satisfaction is a valid measure of school quality is de- policymakers at all levels struggle to understand their respec-
batable given that parents choose to enroll their children in tive roles and responsibilities and that there is a notable gap
charter schools. between what charter operators know about special education
In their mixed methodology study of California charter and what they need to know to fulfill their obligations asso-
schools,Guarino & Chau (2003) found that slightly fewer stu- ciated with IDEA. They also documented tensions between
dents with disabilities enrolled in charter schools relative to charter schools and charter school authorizers stemming from
traditional public schools and that charter schools served a negotiating shared responsibility for special education.
greater percentage of their students with disabilities in inclu- Based on their comprehensive analysis of Michigan
sive general education classrooms. However, similar to the charter schools,Miron and Nelson (2002) found that charter
Fiore et al. (2000) study,it is unclear how charter schools de- schools struggle to provide adequate special education and re-
fine the notion of inclusion beyond simply placement in a gen- lated services. Based on their survey data,they attributed the
eral education classroom. Guarino & Chau also documented struggles to inexperienced teachers and administrators, lack
variability in how charter schools serve students with disabil- of established policies and procedures to evaluate and provide
ities (i.e., types of services provided) and found that many services to students with disabilities,fewer dollars dedicated
charter schools do not access funds to support students with to instruction and consequently even fewer to dedicate to spe-
disabilities due to “lack of information and capacity to study cial populations,and a shortage of certified special education
various options”(p. 173). teachers.
An in-depth analysis of charter schools in Washington, Finn, Manno, and Vanourek’s (2000) analyses of the
DC,revealed contrary trends to those documented in other re- charter movement in multiple states found that “some charter
gions. Henig, Moser, Holyoke, & Lacireno-Paquet’s (1999) schools do not meet all their students’special needs” but at-
analysis of charter school enrollment data found that,in con- tributed the shortcoming not to discrimination, but rather to
trast to early concerns about charter schools “creaming” the “lack of experience,expertise,or resources”(p. 159). In line
brightest students,charter schools in the District of Columbia with their support of the charter concept as a tool for school
were serving a greater percentage of students from special reform, the authors cautioned against pursuing regulatory
populations, such as students with disabilities and English channels to address charter schools’reported shortcomings re-
language learners. However,their study documented that char- lated to special education. Rather,the authors suggested that
ter schools in Washington,DC,educated fewer students with charter school authorizers should address special education is-
moderate and severe disabilities and the aggregate percent- sues during the application phase,prior to applicants receiv-
ages were somewhat skewed by schools designed specifically ing their charters.
for students with disabilities. Overall,the data about educating students with disabil-
A national study of charter school finance documented ities in the charter sector are relatively limited due to both the
an extremely varied landscape in terms of how charter schools scope and quantity of research that has been conducted on the
54 THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007
issue. However,the research that has been conducted has doc- Our identification of these seven issues emerged from
umented that charter schools struggle to understand their re- our review of previous literature that examined special edu-
sponsibilities related to students with disabilities, to enroll cation in charter schools (i.e.,Fiore & Cashman,1998; Rhim
their proportionate share of students with disabilities,and to & McLaughlin, 2001), a preliminary review of charter laws
provide required services. While charter schools also appear in selected states,and our collective understanding of the var-
to struggle with the same issues as traditional public schools ious issues related to special education that were emerging as
(e.g.,lack of resources,a shortage of special education staff), challenges for charter schools (Ahearn et al., 2001). Before
they also experience unique challenges associated with pol- this analysis,we conducted a study of special education in the
icy ambiguity,their status as schools of choice,and their lack charter sector that entailed studying charter school laws and
of both experience and resources. in-depth case studies of special education in charter schools
in seven states (see Ahearn et al., 2001; Rhim & McLaugh-
lin,2001). In addition,the authors were part of a team deliv-
Method ering technical assistance to state policymakers, charter
school authorizers,and charter operators under a federal grant
This article presents findings from a review of state charter to the National Association of State Directors of Special Ed-
school laws. The purpose of the review was to document how, ucation: Special Education Technical Assistance to Charter
after more than a decade of policy evolution and implemen- Schools (SPEDTACS).
tation, individual states are addressing special education in The review consisted of analyzing each individual
their charter school laws. These laws articulate,implicitly or state’s charter school law to document the seven key issues
explicitly,charter schools’roles and responsibilities related to we hypothesized collectively create the policy environment in
special education. The laws also convey, to varying degrees which charter schools operate relative to special education.
of specificity,the roles and responsibilities of charter school Our analyses were descriptive as opposed to evaluative in na-
authorizers, the entity legally permitted to grant charters. ture. We sought to document the language in each state’s char-
Given the importance of legal status and other legislative and ter school statute pertaining to the issues we identified to be
policy requirements on how special education is implemented important to special education. In some instances,our efforts
in charter schools,a review of state charter school laws pro- to standardize statutory language required that we make judg-
vides essential information that can inform the evolving pol- ments about the characteristics of the law. For instance,when
icy climate and therefore influence the experiences of students reviewing language related to finance, we characterized the
with disabilities. provisions as requiring “proportionate”funding if the statute
In January 2003, we initiated a comprehensive review did not embellish on the definition of proportionate but clas-
of all state charter school laws to document specific informa- sified the provision as “specific provision”if it provided ad-
tion about special education and students with disabilities ditional information about funding special education in charter
across all of the states with charter school laws (N= 41,which schools.
includes 40 states plus the District of Columbia). This inves- The data in this document were collected in 2003, and
tigation updated and expanded on data collected in previous the discussion that follows reflects the status as of the
studies (Ahearn et al., 2001; Fiore & Cashman, 1998; Rhim 2003–2004 academic year (see Note 1). The data from the leg-
& McLaughlin,2001) and further examined legal status as it islative review were entered into a Microsoft Access® data-
relates to charter schools. The legislative analysis was driven base and analyzed to document the status of the state-level
by a single question: What characteristics of state charter charter school policy condition related to special education.
school laws relate to special education?
To answer this question, we examined whether state
charter school statutes address the following seven special ed- Results
ucation issues:
To reiterate, our legislative analyses documented whether
• antidiscrimination language
state charter school laws (a) contain antidiscrimination lan-
• Section 504
guage, (b) mention Section 504 of the Rehabilitation Act,
• provision of special education services
(c) outline a plan for provision of special education services,
• school mission
(d) address school mission as it relates to enrollment,(e) de-
• legal status for purposes of special education
fine a charter school’s legal status for purposes of special
• special education finance
education, (f) describe flow of special education dollars to
• accountability
charter schools, or (g) outline accountability requirements.
Our analysis was limited to the provisions outlined in the state The following sections present our findings related to these
statutes and did not extend to statutes cited in charter school questions. Tables 1 and 2 present a summary of the statutory
laws. analysis.
THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007 55
Anti-Discrimination Language rado,District of Columbia,Delaware,Idaho,Louisiana,Mary-
land,Minnesota,Nevada,New Hampshire,and Oregon) spec-
All 41 state charter school laws contain specific language
ify that a plan for special education services must be included
(with minor semantic variations) prohibiting charter schools
in an application for a charter. For instance,the Maryland Pub-
from rejecting students on the basis of their disability and
lic Charter Schools Act of 2003 requires authorizers to en-
other traits such as gender,race,and religion. Charter schools
sure that applicants “address the roles and responsibilities of
are by definition a part of the state public education system
the county board and the applicants and operators of the pub-
and are therefore required to abide by all federal education
lic charter school with respect to children with disabilities”
laws regardless of what the charter statute articulates. Thus,
(Annotated Code of Maryland § 9-107 (B)). However,the Mary-
charter schools are prohibited from discriminating against stu-
land law offers little guidance regarding the expected speci-
dents regardless of whether specific antidiscrimination lan-
ficity of the “plan.”
guage is included in the state charter statutes. However, it is
Arizona,California,Colorado,Connecticut,Florida,Mas-
noteworthy that in eight states (i.e.,Georgia,Hawaii,Kansas,
sachusetts, Minnesota, Missouri, Nevada, New Hampshire,
Michigan, Mississippi, New Mexico,Texas, and Wisconsin)
New Jersey, New York, Oregon, and Pennsylvania provide
the antidiscrimination clause is the only specific mention of
some degree of detail regarding how special education ser-
students with disabilities in the state charter law.
vices are to be provided in charter schools. For instance,the
California charter school law dictates that school districts are
Section 504 responsible for special education in the schools they charter.
The law requires that services and instruction be provided to
Section 504 of the Rehabilitation Act (1973) defines disability students with disabilities in charter schools in the same man-
more broadly than does IDEIA (2004) and includes any indi- ner as they are to other students with disabilities who attend
vidual with a physical or mental impairment that substantively any school in that district. In Connecticut,the students’LEA
limits one or more major life activities. The federal govern- of residence is responsible for special education for all stu-
ment does not provide funds associated with Section 504,but dents with disabilities regardless of where the child attends
public schools are required to provide reasonable accommo- school. The Connecticut charter school law requires the LEA
dations to students with Section 504 plans. to invite representatives of the charter school to all planning
While all charter schools are required to abide by Sec- and placement meetings for students with disabilities who at-
tion 504, only two states specifically mention this federal tend that charter school. Although the LEA of residence is re-
statute in their charter school law. The District of Columbia sponsible for special education,the Connecticut law requires
statute contains provisions related to charter schools deter- charter schools to ensure that students receive the services de-
mining legal status for purposes of IDEIA (2004) and Section scribed in the IEPs.
504. The Maryland charter school law dictates that the state
board of education must provide technical assistance to the
School Mission and Enrollment
operators of charter schools to help them meet the require-
ments of IDEIA and Section 504. Charter schools must be open to all students who apply and
who are eligible for the grade levels the school offers. How-
ever, as schools of choice, charter schools face different en-
Plan for Provision of Special
rollment issues than noncharter schools in that enrollment is
Education Services
not dictated by residential catchment areas. Most state char-
A charter school proposal or application is essentially a blue- ter laws require that charter schools have a specific or unique
print of how the school founders plan to operate the school, mission, and some mission statements (e.g., arts based or
and charter school laws contain varying levels of specificity Montessori curriculum) may be interpreted to imply entry cri-
regarding the application process. We examined whether state teria. Yet, as public schools, charter schools are prohibited
laws require charter applicants to provide a plan for how they from accepting or rejecting students solely on the basis of
anticipate providing special education and whether the law ex- their ability.
plicitly states how special education services are to be deliv- Fourteen states specify that charter schools should pri-
ered. oritize educating “at-risk,”“high-risk,”or “academically low-
The most common provision articulated in nearly every achieving”students. However,in most of the statutes,there is
law requires only that charter schools ensure that they will fol- not an explicit definition of who these students are. The New
low specific state and federal laws,implicitly including laws Jersey statute includes provisions that stipulate that charter
pertaining to students with disabilities. Twenty-nine charter schools must enroll a “cross section of the community’s
school laws do not explicitly require charter applicants to in- school-age population,including racial and academic factors”
clude a plan for the provision of special education or related (N.J. Stat. Ann. §§ 18A:36A-1–18,2000). Colorado,Florida,
services. The laws in 12 states (i.e.,Alaska, California, Colo- Louisiana, and Tennessee charter laws specify that the term
56 THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007
at-risk students includes students with disabilities. The Ten- thorized the charter school, (b) the particular type of charter
nessee statute indicates that charter schools may be created school,or (c) a choice made by the charter school itself. The
specifically to serve students with disabilities,and the Nevada states that permit both types of legal status are noteworthy
law contains a provision explicitly stating that the law does because rather than all charter schools having a single legal
not forbid creation of schools specifically for students with identity predetermined by state statute,local stakeholders are
disabilities. It is unclear, based on these kinds of charter provided with flexibility to determine the legal identity of
statute provisions,how charter schools can operate open en- charter schools and,consequently,these schools’responsibil-
rollment policies while ensuring that their school meets its ities related to educating students with disabilities.
goals related to a specific mission. Identity based on the authorizing entity occurs in states
that have two or more identified authorizers. For example,
charter schools authorized by Arizona’s independent charter-
Legal Status for Purposes of
ing board are LEAs, while those established by a traditional
Special Education
LEA are part of the LEA that granted their charter. The same
As explained in the introduction,IDEIA (2004) defines char- distinction among charter schools exists in Georgia, Idaho,
ter schools as either LEAs or part of an LEA. The review of and Illinois except that,in these states,it is the state board of
state statutes confirmed the basic dichotomy related to legal education and traditional LEAs that are the authorizing enti-
identity, but also revealed multiple means of assigning that ties. Wisconsin has a slightly different basis for designating
identity. Based on our review, we developed a typology to legal identity:Charter schools in the cities of Milwaukee and
describe how states assign legal identity (see Table 1). Of the Racine are their own LEA, while those chartered by other
41 states with charter schools, 12 assign all of their charter LEAs are considered part of the LEA that charters them.
schools the status of an LEA and 18 assign all of their char- The determination of legal status by type of charter
ter schools to be part of a traditional LEA. The remaining 11 school occurs in two states. In Arkansas,charter schools that
states permit charter schools to be either part of an LEA or are new start-ups are their own LEA, while charter schools
their own LEA. In these states,the designation of LEA status converted from previously existing public schools are part of
is determined by one of the following:(a) the entity that au- the traditional LEA in which they are located. Louisiana dif-
TABLE 1. Legal Status of Charter Schools in 41 States
All All charter Status
charter schools schools are depends on Status depends Status chosen by
are LEAs part of an LEA authorizer on type of school the charter school
Delaware Alaska Arizona Arkansas California
Indiana Colorado Georgia Louisiana District of Columbia
Iowa Connecticut Idaho
Michigan Florida Illinois
Minnesota Hawaii Massachusetts
Missouri Kansas Texas
New Jersey Maryland Wisconsin
North Carolina Mississippi
Ohio Nevada
Pennsylvania New Hampshire
Rhode Island New Mexico
Utah New York
Oklahoma
Oregon
South Carolina
Tennessee
Virginia
Wyoming
Note.LEA = local education agency.
THE JOURNAL OF SPECIAL EDUCATION VOL. 41/NO. 1/2007 57
ferentiates four types of charter schools identified by combi- However, given the primacy of accountability in the charter
nations of start-up or conversion status and type of authorizer. concept,accountability for the academic performance for stu-
Determination of legal status by choice of the charter school dents with disabilities arguably should rise above basic com-
occurs in two states:California and the District of Columbia. pliance. While most charter laws include language dictating
In both instances,a charter school can choose whether to be that schools be held accountable for the provisions of the char-
an independent LEA or part of an LEA,explicitly for the pur- ter statute,the ambiguity related to special education may un-
poses of special education. dermine the meaning of this provision for students with
disabilities.
Five state charter school laws (i.e., California, District
Flow of Special Education Funds
of Columbia,Massachusetts,New Jersey,and Ohio) contain
to Charter Schools
specific language about accountability for special education.
Unlike other aspects of the state charter laws that we exam- The District of Columbia law states that a reason for a char-
ined, the language regarding special education finances var- ter revocation includes “violations relating to the education of
ied greatly from state to state. In 10 states,the charter school children with disabilities,” while California, Massachusetts,
law is silent regarding special education funding to charter and Ohio specifically require charter schools to report on the
schools (i.e., Arkansas, Hawaii, Iowa, Kansas, Michigan, number of students with disabilities who attend each charter
New York,Oklahoma,Tennessee,Texas,and Wisconsin). In school. New Jersey requires that charter schools provide the
the absence of explicit language dictating otherwise,a char- county superintendent with access to their facilities and
ter school’s legal identity theoretically determines how it re- school records to ensure compliance with civil rights. New
ceives federal and state special education funds. When charter Jersey also stipulates that the required state evaluation of char-
schools are their own LEA, federal and state funds flow to ter schools in the area of special education must cover two
them directly from the state. Charter schools that are part of specific special education matters: (a) a comparison of spe-
an LEA may receive funds and/or services from that LEA. cial education enrollment in the charter school with its district
The statutory provisions regarding special education of location and (b) verification of the compliance of charter
funding generally fall into one of two categories:a reiteration schools with special education laws and regulations.
of IDEIA (2004) language mandating that students with dis-
abilities in charter schools are to receive a “proportionate”or
“commensurate”share of federal and state special education Discussion
monies,or specific provisions associated with the unique pol-
icy context in the state (see Table 2). For instance, Massa- Findings from this legislative review indicate that few of the
chusetts and New Jersey charter laws mandate a limit on the existing charter school laws and regulations resolve or pro-
financial responsibility of charter schools to provide services vide clarity regarding the myriad of issues raised related to
for students with disabilities. The charter statutes in these educating students with disabilities in charter schools. In fact,
states dictate that charter schools are responsible for special in many states,the lack of specificity may contribute to con-
education for students who attend the school,but the laws as- fusion over roles and responsibilities—especially in areas re-
sign fiscal responsibility to the district of residence if a child lated to legal responsibility,funding,and accountability. Few
enrolled in the schools is determined to require placement in states specify requirements that might assist charter schools
a separate day or residential setting (i.e.,students with more in fulfilling their responsibilities. The lack of direction can
severe disabilities). In these two states,if a student with a dis- lead to a dynamic wherein charter school operators,authoriz-
ability enrolled in a charter school and required services that ers,and state education agency personnel are left to interpret
can only be provided in a separate restrictive environment,the how charter school law and special education laws intersect.
home district—not the charter school—assumes the cost of Absent specificity in charter school laws and regulations,
the specialized placement. charter authorizer policies and procedures may mitigate some
of the issues that arise when charter schools and authorizers
are unsure of special education roles and responsibilities.
Accountability
However,given the complex nature of special education,the
Accountability for special education, and specifically ac- variability of responsibility associated with legal identity,and
countability for outcomes,is a priority of IDEIA (2004) and potentially high stakes associated with noncompliance with
is also a core tenet of the charter school concept. Yet,very few IDEIA (2004),it is questionable whether it is prudent for state
state charter school laws reference special education in their policy leaders to bestow responsibility for interpreting the
accountability requirements. Every charter school law man- laws to charter authorizers and charter operators. With few
dates compliance with federal laws and regulations,and this states providing guidance through the charter school laws,is-
could be interpreted as an accountability requirement because sues are potentially exacerbated in each of the areas reviewed
charter schools are subject to IDEIA compliance monitoring for this study. We propose that of particular importance are
and NCLB requirements related to subgroup performance. the implications of policy ambiguity related to legal status,
58
s)
e
Has specific ccountability for special education? No No No Yes No No Yes No No No No No No No No No No Yes No (Table continu
a
Type of ecial education funding provided ecific provisions None Proportionate ecific provisions ecific provisions ecific provisions ecific provisions ecific provisions Proportionate Proportionate None None Proportionate Proportionate Proportionate None ecific provisions ecific provisions Proportionate
p p p p p p p p p
s S S S S S S S S
Legal status for special education Part of LEA Depends on type of school Depends on authorizer Choice of charter school Part of LEA Part of LEA Choice of charter school LEA Part of LEA Depends on authorizer Part of LEA LEA Depends on authorizer Depends on authorizer LEA Part of LEA Depends on type of school Depends on authorizer Part of LEA
ducation Has priority mission andenrollment? No Yes(at-risk) No Yes(at-risk) Yes(at-risk/students with disabilities) No No No At-risk/students with disabilities No No No No Yes(at-risk) No No Yes(at-risk/students with disabilities) No No
E
o Special Provides special education services? No No Yes Yes Yes Yes No No Yes No No No No No No No No Yes No
t
d
ns Relate a plan for pecial ucation rvices? Yes No No Yes Yes No Yes Yes No No No No Yes No No No Yes No Yes
visio Has sedse
o
r
y P ns n
utor entioectio504? No No No No No No Yes No No No No No No No No No No No Yes
at MS
t
S
ate Charter ntains anti-crimination anguage? Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
t osl
f S Cdi
o
y
r
a
m ar 95 95 94 92 93 96 96 95 96 93 94 02 98 96 01 94 95 93 03
m Ye 19 19 19 19 19 19 19 19 19 19 19 20 19 19 20 19 19 19 20
u
S
2.
E
L
B e
TA Stat AK AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS LA MA MD
59
cific bility cial on?
Has speccountafor speeducati No No No No No No Yes No No No Yes No No No No No No No No No No No
a
Type of ecial education funding provided None ecific provisions Proportionate Proportionate ecific provisions Proportionate ecific provisions Proportionate ecific provisions None ecific provisions None ecific provisions ecific provisions ecific provisions Proportionate None None Proportionate Proportionate None ecific provisions
p p p p p p p p p p
s S S S S S S S S S
Legal status for special education LEA LEA LEA Part of LEA LEA Part of LEA LEA Part of LEA Part of LEA Part of LEA LEA Part of LEA Part of LEA LEA LEA Part of LEA Part of LEA Depends on authorizer LEA Part of LEA Depends on authorizer Part of LEA
Has priority mission andenrollment? No No Yes(At-risk) No Yes(at risk) Yes(at-risk) Yes(at-risk) Yes(at-risk) Yespecial education) No No No No No Yes(at-risk) No Yes(at-risk/pecial education) No No Yes(at-risk) No No
(s s
Provides special education services? No Yes Yes No No Yes Yes No Yes Yes No No Yes Yes No No No No No No No No
r
o
a plan fpecial ucation rvices? No Yes No No No Yes No No Yes No No No Yes No No No No No No No No No
as sedse
H
ns n
oo?
entiecti504 No No No No No No No No No No No No No No No No No No No No No No
MS
ains anti-mination guage? Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
ntcrian
osl
Cdi
r 3 1 8 7 6 5 6 3 7 8 7 9 9 5 5 6 2 5 8 8 3 5
a 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9 0 9 9 9 9 9
d) Ye 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 20 19 19 19 19 19
e
u
n
nti
o
c
2
(Table State MI MN MO MS NC NH NJ NM NV NY OH OK OR PA RI SC TN TX UT VA WI WY