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NCAC: Research & Solutions: Policy: Schools without Rules?

Schools without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Deregulation

By Jay P. Heubert, ^* Assistant Professor, Harvard Graduate School of Education

• Introduction
• I. Background
•   A. The Literature
•   B. The Stakes
• II. Legal Analysis
•   A. The IDEA
•   B. Section 504 and Title II
•   C. Constitutional Equal Protection Guarantees
• III. Conclusions and Implications
•   A. Analysis of Legal Conclusions
•   B. Reducing Potential Conflicts between Worthy Objectives
•   C. Broader Conclusions and Implications for Further Research
• Footnotes

Introduction

A charter school is a public school created through a charter with the state, a school district, or some other public entity. State charter school statutes typically relieve charter schools of state and local regulations so the schools are free to innovate and experiment. In exchange, charter schools agree that renewal of their charters will be contingent on their success in improving student academic achievement. Depending on state law, charter schools may be subject to the control of traditional school boards or granted independence from local school authority. ¹

In the first Presidential debate of 1996, President Clinton characterized charter schools as schools "that have no rules." ² Similarly, Chester Finn, a leading Republican charter school proponent, wrote in August 1996 that "the best . . . [charter] schools have near total independence to decide what to teach and how to teach it, whom to hire and how to use their resources, what hours to operate and how best to meet students’ needs." ³

If federal disability laws and regulations apply to public charter schools, however, it is fair to say that such schools do have rules and do not have anything approaching complete independence with respect to curriculum, pedagogy, employment, facilities, and financing. In fact, federal disability laws and regulations are as detailed and far-reaching as any set of rules to which public schools are subject ⁴ and they are also quite costly; a significant portion of all public school funding is spent serving students with disabilities. ⁵

This Article explores the extent to which federal disability law requires public charter schools to serve students with disabilities. In so doing, it considers whether charter schools are actually schools without rules—and whether they should be. It also examines whether and how public school deregulation, which enjoys broad support, ⁶ can be reconciled with the application of detailed regulatory frameworks that themselves reflect fundamental and widely held educational and political values.

The current environment in education and politics makes this a timely and important topic for investigation. First, charter schools play an important role in the heated national debate over increasing "choice" in elementary and secondary education. Many parents and politicians believe that families should have increased freedom to select the elementary and secondary schools their children attend, as well as more varied choices. ⁷ There is disagreement, however, over whether publicly funded "choice" programs should include only public schools or private ones as well. ⁸ Though some voucher plans permit private schools to participate, virtually every charter school is a public school. Charter schools are thus a means of expanding parental choice within America’s current system of public education.

Second, this Article explores an important question of law and policy that is now being debated in law ⁹ generally as well as in public education in particular: ¹⁰ how to reduce regulatory burdens and promote initiative and innovation while protecting other values that society deems important. Where choice and charter schools are concerned, one challenge is to promote educational autonomy, flexibility, and innovation while maintaining protections for students with disabilities and others to whom public schools have historically denied equal educational opportunity. Both objectives enjoy broad, bipartisan support.

This Article reaches several broad conclusions. First, public charter schools and charter school boards are subject to all the rules and procedures of federal disability law to which traditional public schools and school districts are bound. Second, in two important respects, public charter schools, particularly those independent of local school board control, may paradoxically have greater obligations than most traditional public schools to serve students with disabilities. Third, federal disability law affects central aspects of charter school education—curriculum, pedagogy, hiring, use of staff time, school discipline, and budget priorities—at least as much as any other kind of governmental regulation of schools.

This Article also concludes that there would be grave consequences if public charter schools were not subject to federal laws that prohibit discrimination against students with disabilities. Such students would be denied the full range of educational choices available to their nondisabled peers, and any such inequality would only become more pronounced if, as is likely, charter schools become more numerous. Such a result would violate longstanding public policies that retain broad, bipartisan support.

In short, this Article suggests that deregulation in education—whatever support it may enjoy among parents, educators, and policymakers—is not so simple in practice.

This Article is timely for a third reason. Congress is currently considering reauthorization of the Individuals with Disabilities Education Act ("IDEA"), ¹¹ the principal federal statute that defines the rights of students with disabilities. While proposals now under consideration would not alter this Article’s conclusions regarding the federal legal duties of charter schools, ¹² its findings may nonetheless interest those involved in the reauthorization process.

The fourth reason is that the complex and potentially conflicting interactions between law and education pose challenges not only for charter schools and students with disabilities but for school reform more generally. This Article considers ways in which all concerned can address these tensions more productively:

For example, it identifies kinds of knowledge that can contribute to school reform and deregulation. It shows (a) how legal mandates are anything but marginal to the success or failure of educational policies and innovations; (b) how pre-existing legal mandates can apply to a new educational reform in ways that policymakers, researchers, and practitioners neither foresaw nor intended; (c) why policymakers and students of school reform must consider not only state law and federal law but also how the two interact; (d) why policy and legal questions should be explored before rather than after they produce conflicts and litigation that are costly in terms of money, time, and lost autonomy; and (e) how interdisciplinary collaboration between educators, lawyers, policymakers, and parents can contribute to the prevention and resolution of disputes that have legal, educational, and policy dimensions.

Also, in exploring how federal disability law applies to public charter schools, this Article provides practical guidance on specific questions that have already arisen as charter schools face their legal obligations under current federal disability law.

Additionally, it offers suggestions for reconciling more effectively the worthy but occasionally conflicting objectives of deregulation and protection of individual rights. Some of these are possible within current law and practice, while others would require modifications.

The remainder of this Article is organized as follows: Part I provides background information on state charter school laws, pertinent academic literature, and why it matters—to charter schools and children with disabilities—whether federal disability law applies to charter schools. Part II explores specific ways in which different provisions of federal disability law apply to public ¹³ charter schools, focusing on the requirements that seem to affect charter schools the most. It is beyond the scope of Part II either to study state disability law, which varies from state to state, ¹⁴ or to provide a comprehensive treatment of federal disability law. ¹⁵

Part III considers the implications of these legal conclusions for charter schools, students with disabilities, policymakers, and researchers. ¹⁶

I. Background

In recent years, twenty-five states ¹⁷ and the federal government ¹⁸ have enacted statutes that promote and help finance charter schools. Charter schools enjoy broad support ¹⁹ and growth prospects are good. ²⁰ In the current political climate, some see charter schools as the best alternative to broader choice plans that would include private schools and risk weakening the present system of public education. ²¹

State charter school laws create charter schools and define their basic legal status, ²² and while each state defines "charter school" somewhat differently, ²³ these statutes share certain objectives. One is to free charter schools from local and state regulations ²⁴ that may inhibit innovation and reform in traditional public schools. ²⁵ A second is to create models of educational practice that traditional public schools can emulate. ²⁶ A third is to give parents greater educational choice within the public education system. ²⁷

A. The Literature

Thus far, policy, legal, and empirical studies of charter school autonomy have focused almost exclusively on the extent to which state (charter school) statutes relieve charter schools of state and local legal restrictions, ²⁸ including rules regarding special education. ²⁹ One report concludes generally that state oversight of charter schools is scant. ³⁰

This emphasis on state and local regulation is understandable. First, since education is largely a state and local function, the vast majority of rules governing public schools have their source at the state and local levels. ³¹ Second, it is state legislation that authorizes the creation of charter schools, and state legislatures have little if any authority to relieve charter schools of obligations that federal law imposes.

At the same time, federal law, including federal disability law, affects charter schools in fundamental ways. It is unfortunate, therefore, that recent scholarship has not focused more on whether and how federal law may affect charter school autonomy and innovation. Nor are scholars alone in this oversight; Congress, federal regulators, and federal courts have yet to address directly many of the federal legal questions that face charter schools. ³²

As a result, the conversation over charter schools, nationally and within many states, has been limited. As noted above, President Clinton referred to charter schools as schools "that have no rules," and Chester Finn wrote that "the best of these mostly small [charter] schools have nearly total independence to decide what to teach and how to teach it, whom to hire and how to use their resources, what hours to operate and how best to meet students’ needs." ³³ However desirable freedom from rules might be, someone who recognized the scope of federal disability law would probably not make such statements. As this Article will demonstrate, under current law there is probably no charter school in America that has anything approaching "nearly total independence" to make decisions about teaching and learning, hiring of professional staff, and allocation of financial resources.

Indeed, charter school operators, scholars and government officials are increasingly recognizing the need to understand how disability law applies to charter schools. ³⁴ This Article attempts to fill these gaps in the research. First, it explores public charter schools’ basic obligations under federal law to serve students with disabilities. Second, it shows how federal disability law can affect teaching, learning, staffing, and finances at charter schools. Third, it shows why legislators, educators, scholars and advocates interested in charter schools should take into account not only state law and federal law but also how the two interact. State laws that seek to free charter schools from state and local legal constraints may have the unforeseen, unintended, and paradoxical effect of increasing charter schools’ obligations under federal disability law. Fourth, it considers ways of minimizing potential conflicts between policies that protect the rights of students with disabilities and policies that seek to maximize charter school autonomy and innovation.

Understandably, there is also a dearth of good research on whether existing charter schools are serving their fair share of students with disabilities. ³⁵ The limited research that does exist, however, suggests that charter schools are not yet serving the same proportion as traditional public schools of students with disabilities, as determined using federal and state standards and procedures for determining which students have disabilities. ³⁶

If these statistics mean that charter schools are serving children with disabilities effectively in regular classrooms, without resort to the special education system, it would hardly be a problem. In fact, many states already mandate "pre-referral intervention" procedures with precisely this objective. ³⁷ Given the widespread belief that some children placed in special education programs do not belong there, ³⁸ charter schools would make an important contribution to American public education if they identified strategies for serving more children effectively without formal special education referrals, evaluations and placements.

While some charter schools (like some traditional public schools) may actually be serving more children without resort to special education, documenting how many children would have been classified as disabled in other schools is difficult. If a charter school does not evaluate a child using the rules and procedures of federal disability law, it is impossible to say whether or not the child is, in fact, disabled. ³⁹ Thus it will usually be hard to determine whether a charter school’s lower special education placement rate represents an educational success story or a failure to admit and serve students who need special education.

Particularly given the absence of research showing that charter schools are, in fact, serving students with disabilities effectively, however, the preliminary statistics raise questions about whether charter schools, like other choice arrangements, may be increasing the isolation of students whose educational needs are greatest or who are costliest to educate. ⁴⁰ They also suggest that charter school proponents are premature if they claim that charter schools already serve their fair share of children with disabilities.

B. The Stakes

How much does it matter, to charter schools or to students with disabilities, whether and how federal disability law applies to charter schools?

These issues can affect charter schools in ways that are absolutely central to their educational mission(s). If charter school statutes aim to free charter schools from regulations that limit their room to experiment, it may be problematic to expect them to adhere to a set of rules and procedures as costly and intrusive as those associated with special education. While many laws apply to public schools, ⁴¹ few affect central aspects of schooling—curriculum, pedagogy, personnel, school discipline, and budget priorities—as much as federal disability law.

For example, if charter schools must educate children with disabilities in regular classrooms to the maximum extent appropriate, this will affect charter school curriculum and pedagogy in significant ways. ⁴² Similarly, if charter schools must hire specially trained and certified psychologists, teachers and aides to serve students with disabilities, it will limit the schools’ capacity to hire individuals who are uncertified or who lack formal training in special education. ⁴³ If charter schools must satisfy the elaborate procedural and paperwork requirements associated with special education, it will seriously affect allocation of staff time. Also, disputes over special education placements can sometimes create tensions between schools and families.

There are also significant financial costs associated with laws protecting students with disabilities. Nationally, a significant portion of all public school funds—two to three times as much per student with disabilities compared to nondisabled students, and one fourth or more of the budget in some school districts ⁴⁴ —is spent on making buildings physically accessible, evaluating students who may have disabilities, training staff, and, most important, actually providing educational and other services to students with disabilities. These expenses, which the federal and state governments cover only partially, ⁴⁵ often create serious challenges for school districts and schools, and can produce a backlash among parents of nondisabled children. ⁴⁶ There are also financial costs associated with resolving disputes over services for students with disabilities. ⁴⁷ The impact of such costs, moreover, is often greatest in schools and districts that—like many new charter schools—have low enrollments, small staffs, limited resources and cash-flow problems.

With such educational and financial concerns in mind, some have already proposed that charter schools be exempt from laws that protect children with disabilities. ⁴⁸ Such an exemption seems unlikely. But federal disability law plainly affects charter schools’ educational mission, operations and, ultimately, success in ways that are anything but marginal.

It would also be problematic, however, if charter schools were not obliged to serve students with disabilities. If a charter school’s educational success depended on whether it could exclude students who have special educational needs or who are costly to educate, the school could hardly be a good model for traditional public schools, which must serve all children. Certainly this would defeat a central charter school objective.

The stakes are also high for students with disabilities. The very breadth of the federal and state laws that protect persons with disabilities evinces a strong belief that discrimination on the basis of disability should not be allowed, especially in programs — such as charter schools — that are publicly operated and funded. The trend, moreover, is toward even broader prohibition of discrimination based on disability; in 1990 Congress voted almost unanimously to enact the Americans With Disabilities Act ("ADA"), which significantly expanded legal protections for persons with disabilities. ⁴⁹

Finally, the stakes are high for American education more generally. If charter schools play a central role in efforts to improve and preserve public education, and the success of charter schools depends in part on their capacity to serve students with disabilities without losing their sense of mission or going under financially, the application of federal disability law to charter schools is an issue with important legal, educational, financial, and political ramifications.

II. Legal Analysis

Taken together, three federal statutes and two constitutional provisions define the legal obligations of states, school districts and public schools to serve students with disabilities. The five are: The IDEA; ⁵⁰ Section 504 of the Rehabilitation Act of 1973 ("Section 504"); ⁵¹ Title II of the ADA ("Title II"); ⁵² and the equal protection guarantees of the Fifth and Fourteenth Amendments to the U.S. Constitution.

It turns out that each provision of federal disability law that applies to public schools also applies to public charter schools. Paradoxically, it also appears that public charter schools may in some respects have greater obligations than most traditional public schools to serve students with disabilities. For example, under the IDEA, Section 504, and Title II, charter schools that are independent of local school board control ⁵³ must meet the more extensive — and expensive — requirements to which traditional school districts and other "local education agencies" are subject. In addition, Section 504 and Title II apparently create heightened legal obligations for charter schools, magnet schools, and other public schools that offer distinctive or unique educational programs. As a result, charter schools — which are relieved of state and local regulatory burdens precisely so they can differ in ways that matter educationally — may be subject to heightened obligations under federal disability law precisely to the extent that they are autonomous or do differ educationally from most traditional public schools.

The IDEA, Section 504, Title II and the Equal Protection Clause all require state and local education agencies to serve children with disabilities. To some extent, these provisions (particularly Section 504 and Title II) overlap with one another, but each also contains requirements that the others do not. ⁵⁴ Accordingly, the IDEA, Section 504 and Title II, and the Equal Protection Clause are explored in separate sections below.

A. The IDEA

The IDEA applies to each public school in the U.S., including charter schools. Under the IDEA, the federal government offers state education agencies ("SEAs") money with which to serve children with disabilities. SEAs that accept these funds must comply with the IDEA’s many substantive and procedural requirements and are ultimately responsible for ensuring that all children with disabilities residing in the state receive the services and other benefits to which the IDEA entitles them. ⁵⁵ In a state that accepts IDEA funds, local education agencies ("LEAs") must comply with the IDEA and make services available to students with disabilities in whatever geographic area the LEA covers. ⁵⁶

At present, all fifty SEAs apply for and receive federal funds under the IDEA. Thus, every state and LEA must comply with the IDEA and its accompanying federal regulations.

The IDEA’s broad definition of an "LEA" is:

a public board of education or other public authority legally constituted within a State for either administrative control or direction of...public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State...

Every board that runs a public charter school meets this definition. It explicitly applies to any "public board of education" that operates a charter school. Significantly, however, the independent charter school boards that some state charter school laws authorize also meet this definition, since they are "public institution[s] or agenc[ies]" ⁵⁸ that have "administrative control and direction of a public elementary or secondary school." The only board that would not be covered is one that lacked "administrative control and direction of a public elementary or secondary school."

The IDEA applies to many public charter schools for a second reason. Eligibility for federal charter school grants ⁵⁹ is limited to schools whose governing boards have agreed in advance to abide by the IDEA, Section 504, and Title II ⁶⁰ . In sum, all public charter schools are subject to the IDEA for at least one reason and often for two.

The IDEA and its regulations ⁶¹ contain many specific federal rules concerning special education and other services for students with disabilities. While states bear ultimate responsibility for ensuring IDEA compliance, ⁶² many specific obligations fall first and foremost on LEAs, ⁶³ which do much of the actual work required under the IDEA. Despite important variations from state to state, SEAs can and do shift to LEAs many of the costs of serving children with disabilities. ⁶⁴ And because services for children with disabilities are federally mandated, an LEA must provide them, even if doing so means cutting funding for other programs or activities.

Every public school, whether a traditional public school or a charter school, is affected in significant ways by the obligation to comply with the IDEA. Certain IDEA provisions seem particularly relevant to charter schools. First, each SEA and LEA must attempt to achieve nondiscrimination "to the maximum extent appropriate" ⁶⁵ in admissions and access to any academic or nonacademic program or activity in which nondisabled children participate. ⁶⁶

Second, each child with disabilities is entitled to a "free appropriate ⁶⁷ public education" ("FAPE"). Under the IDEA, this means "special education and related services" that are provided at public expense. ⁶⁸

Third, each such child has the right to individualized assessment(s) ⁶⁹ and an individualized educational program ("IEP") that meets IDEA criteria and describes in detail whatever special education and related services the child needs. The child’s placement should be determined by the IEP rather than by what services the school already provides. ⁷⁰

Fourth, the IDEA guarantees each student with disabilities placement in the "least restrictive environment" (i.e., in "regular" classrooms and other settings, with nondisabled students) to "the maximum extent appropriate." ⁷¹ Alternatives to the regular classroom include special classes in regular schools, classes in special schools, home instruction and instruction in hospitals and institutions. ⁷²

There is growing consensus that most children with disabilities, even those with severe disabilities, can be educated appropriately in regular classrooms and programs. ⁷³ While "inclusion" is not without its detractors, federal courts now require schools to justify placements outside the regular classroom. ⁷⁴

Fifth, children with disabilities must be served by special education teachers who meet "the highest requirements in the state" for special education certification. ⁷⁵ Students with IEPs, especially those placed full-time in regular classrooms, will inevitably receive instruction from teachers who do not hold special education certification, but such teachers must consult regularly with teachers who do hold whatever special education certification the state requires for a child with certain disabilities. ⁷⁶

Other relevant IDEA requirements include: (1) special rules and procedures governing long-term suspensions, expulsions, and other "changes in placement;" ⁷⁷ (2) parental notice, involvement, and consent at the evaluation and placement stages, and communication between the school and the parent in a language the parent can understand; ⁷⁸ (3) a formal complaint and appeals process when parent and school cannot agree on such questions as the placement or services that a student needs; ⁷⁹ (4) a parent’s right to have attorney’s fees paid by the LEA if a parent-school dispute is resolved in the parent’s favor; ⁸⁰ and (5) the right to have all decisions made in accordance with specific procedures, timelines, and methods of written documentation that the IDEA requires SEAs and LEAs to adopt and use. ⁸¹

Reading this list, there can be little doubt that IDEA compliance will significantly affect the pedagogy, classroom organization, curriculum, staffing, staff time, and resource allocation of every public charter school no less than it does those of traditional public schools. Thus, even if the IDEA were the only federal disability rights statute — which it is not — there would probably be no charter school in America with "near[ly] total independence" ⁸² to make decisions about teaching, learning, and other core educational issues.

While the IDEA affects every public charter school, it imposes heavier obligations on some than on others. As noted above, LEAs do much of the work and, depending on state funding formulas, absorb much of the cost associated with IDEA compliance. Since charter schools with independent boards apparently satisfy the IDEA’s definition of an LEA, ⁸³ such schools and boards have IDEA duties and liabilities that exceed those of individual schools within traditional school districts. ⁸⁴

Apart from whatever state and federal aid they may get, for example, LEAs must absorb the many costs of providing FAPE to each child with disabilities they serve. ⁸⁵ These costs typically include: the evaluation of children thought to be disabled; ⁸⁶ the second, independent evaluations that parents are entitled to request if they disagree with the initial evaluation; ⁸⁷ the central special education administrative staff that LEAs need to ensure adherence to IDEA mandates; translators and the translation of written information; ⁸⁸ and fees for attorneys, including those who advise the LEA and those who represent parents who prevail in disputes over special education matters. ⁸⁹

Most importantly, to the extent federal and state funds do not suffice, LEAs must pay for the special education and related services to which the IDEA entitles children with disabilities. ⁹⁰ As the definitions of "special education" ⁹¹ and "related services" ⁹² reveal, these costs may include the specially certified special education teachers that LEAs hire and pay to serve children with disabilities in the LEA’s school(s); the nurses, psychologists and other costly specialists who provide services to children with disabilities in the LEA’s school(s); the aides, bus drivers, and bus monitors that serve the LEA’s children with disabilities; the buses or vans that transport children with disabilities; and the special equipment that may be necessary to serve children with different needs.

Moreover, if a child with disabilities cannot receive an appropriate education in the LEA’s own school(s), federal law requires that the SEA or LEA arrange and pay for the child to be educated at an appropriate public or private facility elsewhere. ⁹³ The extent to which SEAs impose such obligations on LEAs is a matter of state special education law; in many states, LEAs have long assumed much of the responsibility. ⁹⁴

Whether states expect autonomous charter schools to assume such responsibilities is also a matter of state law, and beyond the scope of this Article. ⁹⁵ To the extent that state law does impose such obligations on independent charter school boards, however, such boards may be even more concerned than traditional school boards about having to absorb such costs.

Since school districts typically serve more students than a single autonomous charter school does, they usually have larger budgets and larger "cushions" with which to pay for unusually costly or unanticipated special education placements. Depending on its enrollment, budget, and cash flow, however, a single charter school, like a one-schoolschool district, could face insolvency if it had to pay for very costly special education placements. State special education funding formulas could protect small LEAs in this situation, though some may not.

Most larger school districts can reduce per-pupil costs through economies of scale that small autonomous charter schools (like small school districts) may find it difficult to achieve. Under the IDEA, LEAs generally must serve students with disabilities in the schools they would attend if not disabled. ⁹⁶ There is some flexibility, however, where a child’s IEP "requires some other arrangement." ⁹⁷ Cost is one factor that could "require some other arrangement," ⁹⁸ especially where low-incidence disabilities require highly specialized, costly services.

In such circumstances, an LEA may cluster students having similar needs in one or more public schools within the LEA and avoid the need to provide expensive equipment, services, and staff at each school. An LEA may only consider cost, however, when selecting between appropriate alternative placements; cost considerations do not relieve an LEA of the duty to provide FAPE. ⁹⁹

Under the IDEA, clustering students at multiple schools within a single LEA is a viable option for charter schools that are part of regular school districts. Though Section 504 and Title II may limit charter schools’ participation in such arrangements, ¹⁰⁰ many charter schools are already doing so.

An independent charter school board that operates only one school has no other schools within the LEA at which to cluster students. Thus, such a school would require interdistrict cooperative arrangements, which the IDEA also permits. For an autonomous charter school, such an interdistrict arrangement could involve another autonomous charter school, one or more schools in the school district in which the charter school is located, and/or one or more schools in one or more different school districts nearby. For years small rural school districts have routinely "swapped" students with disabilities, each district offering a program for [*322] students with a different low-incidence disability that requires costly services. These interdistrict cooperative arrangements are contractual in nature. A contract between LEAs, however, cannot relieve either party of the obligations to which each is subject under the IDEA. Thus, as noted above, children with disabilities retain the right to be educated to the greatest possible extent with their nondisabled peers. Each LEA also retains its financial obligations under federal law ¹⁰¹ and, unless state law provides otherwise, under state law.

Interdistrict cooperative arrangements are somewhat less cost effective than "clustering" arrangements within an LEA, if only because it takes staff time and effort to draft the contracts and to agree on what the LEAs will pay one another. Many independent charter school boards already participate in such arrangements, though there is serious question as to whether Section 504 and Title II limit charter school use of such practices. ¹⁰²

Charter school boards also express concern about their duty to serve children with disabilities because of a lack of expertise. Since many charter school leaders are parents and teachers who have little special education experience, they are often ill-equipped to handle the many specific requirements of federal disability law. ¹⁰³ Traditional school districts have now had twenty years to learn the ropes, and often even they still have a lot to learn. ¹⁰⁴

B. Section 504 and Title II

Section 504 and Title II are civil rights statutes that broadly protect individuals against discrimination based on disability. Section 504 applies to any recipient of federal financial assistance from the U.S. Department of Education and to any program or activity ¹⁰⁵ that receives or benefits from such assistance. ¹⁰⁶ Title II, meanwhile, applies to "all services, programs, and activities provided or made available by public entities," ¹⁰⁷ and its regulations define "public entity" broadly. ^108.

Section 504 and Title II are treated together below for two reasons. First, the two provisions ¹⁰⁹ and their regulations ¹¹⁰ impose similar requirements on K-12 schools. ¹¹¹ Second, like the IDEA, Section 504 ¹¹² and Title II ¹¹³ both apply to public charter schools on one or more independent grounds.

Interestingly, Section 504 is quite short and general, with its regulations containing virtually all the specific requirements. Requirements established by regulation are somewhat less secure, since they could be altered through administrative rulemaking, without new legislation. In practice, however, Section 504 regulations are something of an exception because Title II of the ADA incorporates many of the same requirements into statutory language: "As mandated by the ADA, the requirements for public entities under Title II are consistent with and, in many areas, identical to the requirements of the section 504 regulations." ¹¹⁴

Both the Section 504 regulations and Title II contain general provisions as well as requirements that apply specifically to public school students. In some respects Section 504 and Title II mirror and even incorporate IDEA requirements. However, in other significant ways these statutes go beyond the IDEA.

1. Scope of Coverage

Section 504 and Title II allocate responsibilities among SEAs, LEAs, and individual public schools much as the IDEA does. ¹¹⁵ The provisions, however, are more extensive than the IDEA in the types of disability they cover, the class of individuals they protect, and the safeguards they provide against coercion and retaliation.

Regarding types of disability, IDEA eligibility hinges on whether a student’s disabilities require special education, defined as "specially designed instruction." ¹¹⁶ Such students are also protected under Section 504 and Title II; in fact, where special education and related services are concerned, a school or school district that meets IDEA requirements also meets its obligations under Section 504 and Title II. ¹¹⁷

Some students with disabilities (for example, a student who is HIV-positive, who is diabetic, or who has an orthopedic impairment) may not need specially designed instruction. ¹¹⁸ While such students are ineligible for special education and related services under the IDEA, by contrast Section 504 and Title II offer them protection. Each defines "disability" broadly enough to include almost anyone who has a physical or mental impairment that substantially limits one or more major life activities, has a history of such an impairment, or is regarded as having such an impairment. ¹¹⁹ Thus there are many situations in which Section 504 and Title II require public schools to serve or accommodate students that the IDEA does not.

A second difference concerns the kinds of individuals protected against discrimination. As noted above, the IDEA covers children who need specially designed instruction ¹²⁰ and are within a certain age range. ¹²¹ Section 504 and Title II, by contrast, forbid discrimination against almost ¹²² any qualified person ¹²³ with a disability. ¹²⁴ They cover not only students but also adults with disabilities, such as employees, parents, or members of the general public. ¹²⁵ As the discussion below indicates, however, Section 504 and Title II include specific protections for K-12 students that do not apply to adults.

Also, Section 504 and Title II include strong and explicit provisions that prohibit coercion against an individual with disabilities who wishes to exercise his or her legal rights, and retaliation against a student or parent who has exercised such rights. Under Title II, for example, "the prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights." ¹²⁶

Accordingly, if a student with disabilities wishes to transfer to a charter school capable of providing appropriate services, ¹²⁷ charter school staff may not condition admission on a parent’s willingness to abandon an IEP, in whole or part, or to surrender other rights that the IDEA protects. In fact, the school should inform the parent of the child’s right to continue to receive all services described in the existing IEP, and must provide each service in question, even if it does not already do so. ¹²⁸ The existing IEP should remain in effect, moreover, until the school and the parent voluntarily agree on a different arrangement or the student is reevaluated using the procedures and standards of federal and state disability law. ¹²⁹

At the same time, experts agree that some students are placed in special education programs improperly. ¹³⁰ Charter schools will thus make an important contribution to public education if they can demonstrate effective ways of serving more children without resorting to the formal special education process. ¹³¹ Thus, while charter school administrators cannot explicitly or implicitly condition admission on a parent’s willingness to forgo special education evaluation or to give up services listed in an IEP, they can discuss with parent and child how the charter school could serve the child’s needs without special education. As long as the parent is fully aware of the child’s rights under the IDEA and freely chooses—without any coercion, however subtle—-to forgo an evaluation or some or all of the services listed in the child’s IEP there should be no legal problem.

2. The Duty to Provide and Pay for FAPE

Like the IDEA, Section 504 regulations entitle each disabled public school student to FAPE in the least restrictive environment ("LRE") regardless of the nature or severity of the student’s disability. ¹³² Where a student requires special education—i.e., is eligible for services under the IDEA—one way to meet FAPE requirements under Section 504 and Title II is by implementing an IEP developed in accordance with the IDEA. ¹³³ Under most circumstances, then, FAPE has a similar meaning under each statute.

Where a child is ineligible for services under the IDEA, however, the FAPE requirements of Section 504 and Title II come into play. Some scholars have argued that the reliance on equality in the definition of FAPE under these two statutes ¹³⁴ may be harder to satisfy than those of the IDEA. This is because an "appropriate" education may not "meet individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met." ¹³⁵

The "equality" requirement may become an issue, for example, where an educational program "professes to maximize a non-disabled child’s educational benefit, or [to] make available educational services which provide more than some minimal educational benefit," ¹³⁶ or "in a district characterized by extremely high academic achievement." ¹³⁷ This issue may have particular force in situations where nondisabled students enjoy broad access to special programs such as charter schools. This is discussed more fully in the non-discrimination section below.

Like the IDEA, Section 504 generally on LEAs the duty to provide and (unless state law provides otherwise) pay for FAPE. ¹³⁸ As noted above, most LEAs are traditional school boards. Decisions in disputes involving a variety of "choice" plans suggest that independent charter school boards would also be required to provide and pay for FAPE under Section 504 and Title II, unless state law creates some other arrangement. ¹³⁹

3. Terminology as Applied to K-12 Students

As noted above, Section 504 and Title II operate differently in settings, such as employment and postsecondary education, that do not involve public preschool, elementary, or secondary education services. This difference is evident in the definitions of such key terms as "reasonable accommodation," "otherwise qualified," "undue hardship," and "fundamental alteration."

In employment, ¹⁴⁰ higher education ¹⁴¹ and other contexts other than K-12 education, Section 504 and Title II permit entities to exclude a candidate with disabilities if that candidate, even with "reasonable accommodation," is not "otherwise qualified" for the position or program in question. ¹⁴² In these contexts a person with disabilities is "otherwise qualified" only if he or she "meets the essential eligibility requirements" for a position or program despite his or her disability. ¹⁴³ Under Title II, eligibility criteria are permissible only if they are "necessary for the provision of the service, program, or activity." ¹⁴⁴ Plainly they are necessary in some cases. For example, there is no legal duty to hire a totally blind person for a position as airline pilot or to license that individual to perform brain surgery. ¹⁴⁵

At the same time, many individuals with disabilities, even without any "accommodation," can meet the essential eligibility requirements of a job or program notwithstanding their disabilities. Under Section 504 and Title II, discrimination against such individuals is illegal. ¹⁴⁶ Still other individuals may be able to meet essential eligibility requirements if the employer or institution makes "reasonable modifications to rules, policies or practices [or] removes architectural, communication, or transportation barriers, or...provides...auxiliary aids and services." ¹⁴⁷ Where reasonable accommodation will enable an individual to meet the essential eligibility requirements, Section 504 and Title II require a federal fund recipient or a public entity, respectively, to provide it.

Under Section 504 an accommodation is reasonable "unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program." ¹⁴⁸ What hardship is "undue" depends upon several factors, including (1) the overall size of the recipient’s program, (2) the "type" of the recipient’s operation, and (3) "the nature and cost of the accommodation needed." ¹⁴⁹ Similarly, under Title II, a public entity must make "reasonable modifications" to policies, practices, and procedures to avoid discrimination, unless the entity can demonstrate "that the modifications would fundamentally alter the nature of its service, program, or activity." ¹⁵⁰ The "undue hardship" and "fundamental alteration" standards are similar but distinct; one focuses on the recipient’s burden and the other on the nature of potential changes to a public entity’s program. ¹⁵¹

In several important respects, the general principles just described do not apply to public K-12 education. Under Section 504 and Title II, the term "qualified" is defined broadly enough to include virtually every student with a disability. ¹⁵² Thus, almost every child of school age, including one who is totally blind, is legally entitled to a public education. ¹⁵³

Furthermore, it seems that an LEA may not claim an undue hardship or the need for fundamental alteration when it comes to providing FAPE under Section 504 or Title II. In 1993, responding to an inquiry from Professor Perry Zirkel, the U.S. Department of Education wrote, "the key question in your letter is whether OCR reads into [Section 504’s FAPE requirement] a ‘reasonable accommodation’ standard, or other [financial] limitation. The clear and unequivocal answer to that is no. [34 C.F.R. § 104.33(a)] guarantees all qualified individuals with disabilities FAPE" as defined by Section 504. ¹⁵⁴ Despite strong support for this interpretation, in OCR’s response and the literature, ¹⁵⁵ and general judicial deference to agency interpretations of a statute it enforces, ¹⁵⁶ there is not complete judicial consensus on this point. ¹⁵⁷ Moreover, the rules on reasonable accommodation and undue hardship may still apply in public school contexts involving issues other than FAPE, such as nondiscrimination.

4. Nondiscrimination Provisions

Apart from provisions on FAPE, Section 504 and Title II have nondiscrimination provisions that extend beyond requirements of the IDEA. For reasons discussed below, these provisions apply with special force to schools that are educationally distinctive or unique, and to the LEAs that operate such schools. Since charter schools are usually educationally distinctive—offering unique, innovative programs is what charter schools are supposed to do and claim to do—these nondiscrimination provisions affect charter schools educationally and financially.

The IDEA is concerned principally with ensuring that children with disabilities receive the special educational and related services they need to be able to attend and benefit from public education. Not surprisingly, therefore, it describes mandated services and procedures at length, while its nondiscrimination provisions are somewhat general. ¹⁵⁸ By contrast, Section 504 and the ADA are civil rights statutes; as such, their emphasis is less on particular educational programs or services than on defining what policies and actions may constitute illegal discrimination.

These nondiscrimination requirements of Section 504 and the ADA are thus more extensive than those of the IDEA, particularly with respect to schools that offer educational programs that other schools do not. This, of course, is the very purpose of charter schools, magnet schools, and other innovative, unique programs. Precisely because these schools are distinctive, however — and because students with disabilities would not be similarly educated if assigned to different schools — those who operate charter schools and other unusual educational programs have a greater duty than traditional public schools to admit and serve students with disabilities. Further, because they often may not send children with disabilities elsewhere, those who operate charter schools possess fewer means (such as clustering or cooperative arrangements) by which they can pool resources and save money. This has important implications for charter school budgets and everything charter school budgets buy, including teachers, curricular materials, and facilities.

a. General Nondiscrimination Provisions

Both Section 504 and the ADA contain sweeping language mandating nondiscrimination against persons with disabilities. ¹⁵⁹ Both statutes prohibit covered entities from engaging directly or indirectly in the following: (a) excluding a student with disabilities from participation in a covered program or activity because of his or her disability; ¹⁶⁰ (b) denying a qualified handicapped person the opportunity to participate in or benefit from a covered aid, benefit, or service; ¹⁶¹ (c) affording students with disabilities an unequal opportunity to participate in or benefit from covered programs and activities; ¹⁶² (d) providing a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others; ¹⁶³ (e) providing different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others; ¹⁶⁴ or (f) otherwise limiting a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service. ¹⁶⁵

Section 504 and Title II also contain more specific prohibitions on discrimination. Even the general language cited above, however, suggests that legal questions would often arise when a student with disabilities was denied admission to or services at a public charter school.

It appears, for example, that a student with disabilities who sought to attend a particular, distinctive charter school would be "denied an equal opportunity to participate in or benefit from any covered program or activity" if school officials sought to assign the student to a school that was more traditional (or even nontraditional but different in focus). ¹⁶⁶ Such a student would also be limited in the enjoyment of a right, privilege, advantage or opportunity that nondisabled students enjoy if a charter school attempted to deny him or her admission or necessary services. ¹⁶⁷

This principle has already been applied in the magnet school context: "Where ‘magnet’ schools, or schools offering different curricula or instruction techniques are available, the range of choice provided to students with disabilities must be comparable to that offered other students." ¹⁶⁸ This principle should be no less true for charter schools, which are also "schools offering different curricula or instructional techniques." ¹⁶⁹

In the magnet school context, some commentators ¹⁷⁰ have suggested that the nondiscrimination provisions of Section 504 and Title II could be satisfied if students with disabilities have "meaningful access" to the choice system as a whole rather than to each distinctive school. As discussed below, this is true in situations where placement in the magnet (or charter) school of choice would result in an undue hardship on the LEA that must provide and pay for the placement or for a fundamental alteration in its program. It would also be true where placement at the school of choice would violate the obligation to provide an appropriate education in the least restrictive environment. ¹⁷¹

But where placement in a particular charter school would raise no issue of undue hardship, fundamental alteration, appropriate education, or least restrictive environment, ¹⁷² it would be problematic to say that meaningful access to a system of charter schools would provide genuine nondiscrimination. A student who seeks the distinctive program that a particular charter school offers is "denied an equal opportunity to participate in or benefit from any covered program or activity" if nondisabled students are free to select particular charter schools and students with disabilities are referred to another school, charter or non-charter, that lacks the school’s distinctive educational program. For a child who seeks an "Outward Bound" curriculum, for example, it would be small consolation to gain admission to a charter school with an Afrocentric focus, and vice versa. Such a student would obviously be limited in the enjoyment of a right, privilege, advantage, or opportunity that nondisabled students enjoy. ¹⁷³

Moreover, the undue hardship and fundamental alteration exceptions provide more sensitive and less discriminatory means of addressing legitimate concerns about cost or program than does any system that categorically defines the rights of children with disabilities in a manner different from those of their nondisabled peers. If an LEA that operates a charter school possesses very limited resources — which would include charter schools run by autonomous boards as well as some run by very small school districts — it could demonstrate undue hardship more easily than could a large school district with greater resources and means of achieving economies of scale.

These issues are discussed further below, as are the specific nondiscrimination provisions of Section 504 and Title II.

b. Admissions and Other Issues of Access

As the preceding discussion suggests, the nondiscrimination provisions of Section 504 and Title II require equality of access except in several specific situations. ¹⁷⁴ Denying a student admission to charter school based on his or her disabilities would be permissible only if the LEA could show ¹⁷⁵ that admitting the student would (1) impose an undue hardship on the LEA that must provide and pay for the placement or require a fundamental alteration in the school’s program; or (2) prevent the student from receiving an appropriate education in the least restrictive environment as determined by an IEP team or an appeal process.

A charter school, or the LEA that operates it, has the burden of establishing an undue hardship or the need to make fundamental alterations in a program. ¹⁷⁶ These standards will often be difficult to meet. For example, it is often not an undue hardship — even for independent schools, which are subject not to Section 504 or Title II but to the less stringent ADA Title III ¹⁷⁷ — to make reasonable modifications to their academic requirements. The National Association of Independent Schools, most members of which are neither federal-fund recipients nor public schools, advises that it would not be an undue hardship or fundamental alteration in program for a school to waive its foreign language requirement for a student who has certain learning disabilities, particularly if it has waived the requirement for other reasons in the past. ¹⁷⁸ Similarly, there are few schools where waiving a physical fitness test would fundamentally alter the nature of the school’s program. ¹⁷⁹

Thus, while cost is a permissible factor where there are multiple placements (some less expensive) available, concerns about undue hardship and fundamental alteration should not prevent most children with disabilities from attending a distinctive charter school. Charter schools that are part of larger, wealthier LEAs are even less likely than autonomous charter schools to be able to demonstrate that accommodating a student with disabilities would work real hardship. Finally, if nondisabled students have access to each charter school and the LRE for any student with disabilities is ideally the school that he or she would attend if not disabled, charter schools should also constitute the least restrictive placement for most students with disabilities. ¹⁸⁰

Section 504 and Title II also contain provisions applying specifically to admissions and access. Under Title II, for example, "a public entity may not impose eligibility criteria for participation in its programs, services, or activities that either screen out or tend to screen out persons with disabilities, unless it can show that such requirements are necessary for the provision of the service, program, or activity." ¹⁸¹ Section 504 regulations contain similar provisions. ¹⁸²

This "necessity" standard is consistent with the general nondiscrimination provisions discussed above; it would satisfy that standard for a charter school to demonstrate undue hardship, the need for a fundamental alteration in program, or that the school simply could not provide the student in question an appropriate education in the least restrictive environment, as would be the case for a student who needed a self-contained setting, for example.

Several more specific "access" rules do provide somewhat more detailed guidance than the general nondiscrimination provisions, and have been interpreted to prohibit certain practices and permit others. First, any public school (or fund recipient) that categorically excludes all students with disabilities — or all students having certain disabilities — violates Section 504 and Title II. ¹⁸³ Administrative rulings have been unanimous in applying these principles to magnet schools and magnet school programs, ¹⁸⁴ and there is no reason why they would not apply equally to charter schools. Categorical exclusions violate the basic notion, explicit in all federal disability law, that covered entities must treat children with disabilities as individuals, and make all decisions regarding such children on an individual basis. ¹⁸⁵

Second, federal disability law does not generally prevent a public school from practicing selective admissions as long as the school shows that its admissions criteria "are necessary for the provision of the service, program, or activity." ¹⁸⁶ An elite academic school, such as the Boston Latin School, may select only students who can demonstrate that they are academically superior. And while the Boston Latin School could not categorically reject students who are mentally disabled, it could deny admission to individual students whose mental disabilities prevented them from performing well on a valid test of academic achievement or ability. A charter school focused on the performing arts could probably deny admission to a student whose disability made it impossible to master a musical instrument, and an Outward Bound school could probably deny admission to an individual quadriplegic student whose disabilities made it impossible to engage in types of physical activity that are central to such a school’s program. On the other hand, a "back to basics" school that required each student to be able to read at grade level, or established some other academic condition for admission would probably violate Section 504 and Title II, if only because the requirement is not "necessary" to fulfillment of such a school’s mission.

The same is true for test conditions. For example, an elite academic charter school could not exclude visually impaired students or students with severe physical disabilities simply because they could not perform well on a traditional paper-and-pencil test. Since there exist other, more valid, means of testing such students’ academic prowess, school officials could not demonstrate that it is necessary to use an inappropriate test format that tends to screen out students with certain disabilities. ¹⁸⁷

Third, under laws creating federal charter school grant programs, a charter school that has more applicants than vacancies must fill vacancies randomly from a list of all students who apply. ¹⁸⁸ A school that does not receive federal charter school funds may practice selective admissions, state law permitting, but must select from a list of all students, disabled and nondisabled, who meet the school’s valid admissions criteria; to do otherwise would constitute disability-based discrimination in admissions, a violation of federal law. ¹⁸⁹

Fourth, a charter school may not offer a student admission on condition that the student give up some or all of what an existing IEP guarantees; federal disability law contains strong prohibitions on coercion and retaliation, ¹⁹⁰ and "no conditions on admission" requirements have repeatedly been found to apply to choice programs. ¹⁹¹

Fifth, it is permissible under federal law to deny diplomas to students who do not meet a school’s generally applicable graduation requirements, provided those requirements have not been adopted in order to discriminate against students with disabilities. ¹⁹² Students with disabilities thus have no federal right to receive a traditional diploma. ¹⁹³ State law, however, may require LEAs to provide regular diplomas to students with disabilities who satisfy the requirements of their IEPs. Moreover, even a student who does not receive a diploma may nonetheless be able to graduate, perhaps with a different kind of certificate. In fact, a charter school that did not allow a student with disabilities to graduate would be required under federal disability law to provide services to that student until he or she reaches the age, usually twenty-one or twenty-two, at which the state of residence ends access to public education for students generally. ¹⁹⁴

c. Access to Facilities

Section 504 and Title II have specific rules concerning physical access of persons with disabilities to facilities. ¹⁹⁵ Similar but distinct provisions cover site selection, new construction, existing facilities, and maintenance.

In determining a facility’s site or location, "a recipient may not make selections...that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives or benefits from Federal financial assistance." ¹⁹⁶ For charter schools that build new facilities, the rules governing new construction are even less flexible. Section 504 and Title II both require that new facilities be readily accessible to and usable by individuals with disabilities. ¹⁹⁷ Alterations must similarly be accessible and usable "to the maximum extent feasible." ¹⁹⁸

Federal rules are less stringent for entities that already occupy existing sites that are not fully accessible. In such situations, Section 504 and Title II both require covered entities to operate so that the service being provided is "readily accessible" when viewed "in its entirety." ¹⁹⁹ An LEA need not make every part of an existing facility accessible to each student with disabilities, and the modifications it does make are subject to "undue hardship" limitations. ²⁰⁰

Thus, charter school operators who have built inaccessible facilities or selected inaccessible sites may have violated Section 504 and Title II. Where previously existing public schools, occupying preexisting sites with limited access, have become charter schools, the rules are less stringent. ²⁰¹

Finally, there is an obligation to "maintain in working order equipment and features of facilities that are required to provide ready access to individuals with disabilities." ²⁰²

5. Implications for Charter Schools

For reasons discussed in this section, Section 504 and Title II carry important implications for charter schools, most of which have not been discussed in the literature or at charter school conferences.

First, Section 504 and Title II require charter schools (like other public schools) to serve students not eligible under the IDEA and to provide them with services not required under the IDEA. LEAs are ultimately responsible for providing these services and (unless state law provides otherwise) paying for them, regardless of the nature or severity of the student’s disability. ²⁰³ If only by increasing the numbers of eligible students with disabilities, Section 504 and Title II add to the obligations charter schools and LEAs have under the IDEA. As noted above, moreover, these statutes provide broader protection to K-12 public school students than to other beneficiaries, ²⁰⁴ and may contain a different standard for FAPE for students ineligible for IDEA services. ²⁰⁵

Second, and extremely important for charter schools and the LEAs that operate them, the general and specific nondiscrimination provisions of Section 504 and Title II apply with greater force to magnet schools, charter schools and other schools that are educationally distinctive than they do to traditional schools and school districts. Because each charter school makes some claim to be educationally different from traditional public schools, nondiscrimination provisions limit sharply the circumstances under which a charter school may refuse to admit and serve a student with disabilities. Such provisions also limit the extent to which an LEA may require the student to attend a school that does not possess the particular educational attributes of the charter school the student wishes to attend. In either case, to be denied access to the distinctive program would violate general and specific nondiscrimination provisions in Section 504, Title II, and their regulations.

Where charter schools are concerned, therefore, LEAs may not take full advantage of clustering, cooperative programs, and other arrangements by which LEAs usually can avoid having to duplicate services that nearby schools already provide. As a result, cost saving mechanisms permissible under the IDEA are restricted under the nondiscrimination provisions of Section 504 and Title II. These restrictions exist precisely because each charter school is distinctive and it would often constitute discrimination to deny a student with disabilities access to a distinctive program.

Instead, with only three exceptions, described below, a charter school must serve children with disabilities at the school, with the LEA absorbing the cost unless state law provides otherwise. ²⁰⁶ First, a charter school could establish clustering and cooperative arrangements with any other school that shared its distinctive educational mission, even if the two schools were not in the same school district. If there were two "back to basic" charter schools, for example, a student with disabilities could be assigned to either without violating the nondiscrimination provisions of Section 504 and Title II. Such arrangements could make a real difference depending upon the number of charter schools in an area.

Second, an IEP team could conclude that a school simply cannot provide the services a student with disabilities needs. This should occur only infrequently, however; where, for example, a student requires a more restrictive setting, such as a self-contained special education school, than a school serving nondisabled children could ever provide, it would violate the IDEA for a school to accept a student with disabilities to whom it could not provide FAPE. ²⁰⁷

Third, the LEA could meet the burden of proving that serving a particular student with disabilities at the charter school would constitute an undue hardship or require a fundamental alteration in program. ²⁰⁸

C. Constitutional Equal Protection Guarantees

Before the IDEA, Section 504, and Title II were enacted, federal courts had issued rulings under the Fourteenth Amendment’s Equal Protection Clause, applicable to the federal government through the Due Process Clause of the Fifth Amendment, that prevented public schools from discriminating against children with disabilities. In fact, Mills v. Board of Education ("Mills") ²⁰⁹ and Pennsylvania Association for Retarded Children v. Pennsylvania ("PARC") ²¹⁰ led to the enactment of federal statutes protecting children and other persons with disabilities against discrimination.

Because the IDEA, Section 504 and Title II provide public school students with such extensive and detailed protections against discrimination, students and other persons with disabilities usually rely on these statutes and their state counterparts rather than on the U.S. Constitution in seeking judicial relief from discriminatory practices.

As noted earlier, however, there are charter school proponents and prominent researchers who have already proposed that charter schools be exempt from laws that protect children with disabilities. ²¹¹ In the unlikely event ²¹² that Congress and the states acted to reduce statutory protections for persons with disabilities, the Equal Protection Clause would once again assume greater significance. It is therefore worth exploring briefly what legal protections are beyond the power of Congress to eliminate. Two basic principles emerge from court decisions interpreting the Constitutional rights of persons with disabilities.

First, a "non-exclusion" principle ²¹³ provides the basis for invalidating arrangements under which persons with disabilities are explicitly and categorically denied governmental benefits, such as public education, that are available to nondisabled individuals. This principle formed the basis of the PARC and Mills decisions: State officials excluded children with disabilities from public schools that most other children were required to attend. ²¹⁴ But PARC and Mills also involved situations in which children with certain types of disabilities were denied a public education and in which some such children were excluded only from some schools rather than all public education. Similarly, they focused not just on states but on other public officials, in education and other fields. ²¹⁵

These decisions imply that it would deny equal protection for any public entity to exclude students with disabilities, or entire categories of students with disabilities, from charter schools. That the U.S. Department of Education touts the charter school concept as "one of the most powerful and promising to emerge from the school reform movement of the past decade" ²¹⁶ reinforces the notion that any categorical exclusion of children with disabilities from charter schools would be a significant denial of equal protection.

As a result, even a single public charter school would probably violate the Constitution (along with federal disability-rights statutes) if it categorically excluded all students with disabilities or even students with certain types of disabilities, rather than considering each applicant individually.

A second constitutional principle, related to that of PARC and Mills, has emerged from a 1985 Supreme Court decision. In City of Cleburne v. Cleburne Living Center, Inc., ²¹⁷ the Court implicitly applied heightened judicial scrutiny to policies and practices that had the purpose or effect of excluding persons with disabilities. ²¹⁸ Given the long history of discrimination against persons with disabilities, the Court apparently found such scrutiny warranted even where those who practiced differential treatment claimed to be acting out of genuine concern, rather than animus, for persons with disabilities. ²¹⁹

While these constitutional principles are not fully developed (owing to the enactment of statutes such as the IDEA, Section 504, and the ADA), they will surely be invoked if legislatures weaken the right to public education that children with disabilities gained only a quarter of a century ago. Those who suggest that charter schools should be exempt from laws protecting students with disabilities should be aware that these students’ rights are not subject to legislative extinction.

III. Conclusions and Implications

This Part is divided into three sections. Section A summarizes this Article’s basic legal conclusions and explores policy and equity questions that these conclusions raise for charter schools, students with disabilities, and policymakers. Section B offers some short and long term suggestions on how to reconcile the worthy, though occasionally conflicting, objectives of charter schools and of federal disability law. Section C explores broader implications of this study for the role of law in school reform, and suggests avenues for further research.

A. Analysis of Legal Conclusions

This Article reaches two broad legal conclusions. One is that federal disability law applies fully to public charter schools and their boards. The second is that public charter schools and independent charter school boards may have duties under federal disability law that go beyond those of many traditional public schools in two key respects.

Legal conclusion 1: All the statutes, constitutional provisions, and rules apply. Each federal statute and constitutional provision that protects students with disabilities in traditional K-12 public schools applies with equal force to public charter schools and to independent charter school boards. The specific rules and procedures of federal disability law that apply to traditional public schools also cover charter schools that operate within traditional school districts. The rules and procedures that apply to traditional LEAs, mostly school boards, apparently apply as well to independent public charter school boards, which are also LEAs.

These conclusions have significant ramifications for charter schools and the LEAs that direct them. Federal disability law touches on the most central aspects of schooling: curriculum, pedagogy, personnel, school discipline, and budget priorities. Charter schools must accept children with widely varying abilities and disabilities, and educate them in regular classrooms to the maximum extent appropriate. They must hire properly trained special education professionals, train other instructional staff members, make necessary architectural modifications, and provide appropriate curriculum and pedagogy—modifying the regular curriculum and classroom structure if necessary. Furthermore, they must abide by rules and procedures governing special education referrals, evaluations, IEPs, reevaluations, discipline of students with disabilities; involve parents; and participate in legally specified mechanisms for resolving disputes with parents. Finally, they must cover the considerable costs associated with these requirements.

These conclusions also hold great meaning for children with disabilities, who have a legal right to participate equally in a public school reform effort of national scope. The importance of this right will only increase if the number of charter schools continues to rise.

That charter schools must abide by the same rules as traditional public schools raises important issues of policy and equity. It demonstrates, for starters, that they are hardly schools without rules. If that is so, however, what has happened to the original compact that led to the enactment of charter school laws—autonomy, experimentation, and educational accountability in exchange for reduced regulation?

The basic answer is that deregulation, however popular it may be among policymakers, educators, and parents, is not a simple matter; achieving it in this case would call into question a value of equal importance: equal rights for persons with disabilities.

While some charter school proponents disagree, it is reasonable for public charter schools to shoulder the same legal responsibilities as traditional public schools and school districts. Indeed, the charter school experiment will be valid only if charter schools serve the same student populations as do traditional public schools. Educators have known for some time that schools can produce educational success if they simply decline to admit students who are costly or more difficult to serve, and there is no need to create a new type of public or private school to demonstrate the obvious yet again.

Even if charter schools and their boards must serve students with disabilities, however, it is worth asking whether the schools could do so successfully without having to abide by all the rules and procedures that federal disability law embodies. Is it sound policy to require charter schools to observe all the rules and procedures from the start, rather than to let them first try less onerous means of reaching the same objective? More specifically, should charter schools be allowed to petition for waivers releasing them from special education requirements, as federal law allows in many other contexts?

One answer is that the current rules and procedures are the best—and only—way we know to minimize what historically has been grotesque discrimination against persons with disabilities. Current IDEA reauthorization proposals seem to reflect this view, since they do not contemplate releasing any schools from their current obligations. ²²⁰ That charter schools may have financial and other incentives not to serve students with disabilities, at least those whose needs are most expensive to serve and difficult to accommodate, raises questions about any departure from the existing framework.

A second answer is perhaps more satisfying. Charter schools already possess the means for obtaining the functional equivalent of waivers. ²²¹ A student is typically referred for formal special education evaluation only after having experienced serious problems in the regular classroom. Precisely to the extent that charter schools serve more children well in regular classrooms, as many charter school proponents claim they can, they will avoid the need for referrals, evaluations, and other aspects of special education. Moreover, in seeking to serve a wider range of children in regular classrooms, without resort to special education, charter school staff members can draw on the experience of educators who already consider a variety of prereferral interventions in regular classrooms.

Where a student already has an IEP, the situation is somewhat more complex. It is illegal to coerce or retaliate against a student with disabilities who declines to give up services to which the student is legally entitled. At the same time, a charter school with a documented record of serving students effectively in regular classrooms will be more likely to secure voluntary, informed parental consent to a suspension of some or all services listed in the IEP. Further, when the time comes to reevaluate the student, a school that has demonstrated its capacity to serve more students without special education may persuade the parent to revise the IEP or even seek that result through mediation or formal due process hearings. For these reasons, the present federal policy, under which charter schools must abide by the same rules as traditional public schools and school districts, seems wise.

Legal conclusion 2: In at least two important respects, charter schools and independent charter school boards may have greater obligations under federal disability law than do traditional public schools and school districts. One is the "LEA" issue: autonomous charter school boards have the same legal obligations as traditional school districts but, at least in theory, fewer resources with which to discharge those duties. The second is the "nondiscrimination" issue: precisely to the extent they are educationally distinctive, charter schools have less leeway to deny admission to students with disabilities or to achieve economies of scale through clustering or cooperative arrangements with other schools. These results were foreseeable, though probably not foreseen, as state legislatures enacted charter school statutes.

Not surprisingly, charter school proponents may see these consequences not merely as unfair but as a serious threat to the viability of charter schools. There is a problem if independent charter school boards serve the same proportions and kinds of students with disabilities but receive resources that, taking size into account, are less than those available to traditional school districts. There is also a problem if charter schools must serve more than their fair share of students with disabilities, or more than their fair share of students with costly, low-incidence disabilities that a traditional school could send elsewhere using clustering or cooperative arrangements.

As the complexity of the charter school legal environment becomes clear, moreover, certain paradoxes emerge. First, state level efforts to insulate charter schools from local school board control actually increase the federal regulatory burdens on independent charter school boards. Second, charter schools, which are supposed to be subject to less regulation, are actually subject to more regulation that significantly affects core educational activities. Third, charter schools, which are relieved of regulatory burdens so they can be free to differ in ways that matter educationally, are subject to extra legal obligations precisely to the extent that they do differ educationally from traditional public schools.

Plainly this is not how charter school proponents thought things would turn out. Indeed, some charter school proponents may wonder how such outcomes could seem rational or even compelling to those charged with enforcing federal disability statutes.

It is a serious problem if charter schools or their boards bear heavier legal or financial burdens than do traditional schools or school districts, unless they receive financial support sufficient to meet those additional responsibilities. The charter school experiment is threatened as much by extra costs and legal duties as it would be if charter schools had less of an obligation to serve children with disabilities.

At the same time, it is important to recognize that these consequences, however problematic they may be to charter schools and autonomous charter school boards, are neither unfair nor unreasonable from the standpoint of federal disability law, which existed long before charter schools came into being. Appreciating the legitimate underlying concerns of all concerned parties should help in finding ways to resolve potential conflicts.

This problem, common in the law, is one of determining how to apply preexisting legal mandates—in this case, federal disability law—to new legal entities and in the light of new policy objectives—here, charter schools and deregulation. Interactions between state law and federal law provide an added, though hardly unique, twist.

Regarding the LEA issue, for example, the federal government has an obvious interest in ensuring that the entity that controls each public school assumes responsibility for enforcement of federal disability laws there. If state legislatures decide to place charter schools under boards not subject to school district control, the federal government can hardly count on local school boards, the traditional LEAs, to ensure that charter schools meet their legal obligations. The federal definition of an LEA, in place before charter schools were conceived, could not have been adopted out of any motive to disadvantage independent charter school boards.

Similarly, the extensive nondiscrimination provisions of Section 504 and Title II are designed, among other things, to ensure that distinctive programs such as those offered by charter schools cannot exclude students with disabilities who find the program attractive and whose needs the school or program is capable of addressing. The objective is hardly an unreasonable one.

There is a further important caveat. Even if the IDEA, Section 504 and Title II seem in theory to fall more heavily on charter schools and charter school boards, there is little empirical evidence at this point that either confirms or disproves that conclusion. We do not know, for example, whether independent charter school boards serve the same proportions and kinds of students with disabilities as traditional school districts do or whether such boards are at any disadvantage compared with traditional single-school rural districts. Neither is it clear that the nondiscrimination provisions of Section 504 and Title II are actually producing higher concentrations of students with costly, low-incidence disabilities in charter schools; parents of such students may be understandably reluctant to alter the arrangements they have worked out with the traditional public schools those students already attend. More generally, we do not know whether there are discrepancies between charter schools and traditional public schools in terms of federal, state or local funding received, students served, types of students served, amounts spent, portions of budgets spent, or the impact of federal disability law on staff, curriculum, and pedagogy. If discrepancies do exist, we are not yet sure which way they run.

For these reasons, the actual scope of any potential problem identified in this article will only be clear once we have more empirical evidence on how the principles of federal disability law actually play out, in charter schools and in traditional public schools. Lawyers, policymakers, educators, parents, and scholars should recognize the importance of such empirical evidence as they attempt to address the potential problems that this article identifies.

B. Reducing Potential Conflicts between Worthy Objectives

Despite our uncertainty about the scope of these problems, it is worth discussing steps that educators, lawyers, and policymakers could take in the meantime to reduce whatever inequities may exist now or in the future. It would be unfortunate—for a charter school, its students, students with disabilities generally, and policymakers who endorse both charter schools and serious enforcement of federal disability law—if key actors addressed the issue only through costly, divisive litigation. Preventive measures are crucial. In fact, everyone concerned has an interest in addressing whatever conflicts may exist.

First, it is not in the interest of charter schools to exclude children with disabilities, particularly if their entitlement to public funds rests on the claim that they can serve the same populations for the same money and do it better. Of course, some charter schools, like some traditional public schools, will seek to save money by declining to serve students with disabilities, but fair rules and financial arrangements should reduce such incentives.

Second, students with disabilities have no reason to interfere with the charter school experiment. Unless they are denied an equal opportunity to participate, they stand to benefit from charter schools just as nondisabled students do. Federal law enforcement officials also have no reason to interfere; they may learn valuable lessons from charter schools about how to improve the academic achievement of students with disabilities.

Third, given the strong bipartisan political support both for charter schools and for programs that serve students with disabilities, government leaders have strong incentives to reduce possible conflicts between two sets of worthy objectives.

Ultimately, solving this problem will depend not only on additional empirical research but on a willingness of those concerned parties to think through together how best to minimize or avoid undesirable conflicts. What follows is a partial list, a first cut at possible remedies.

In the present legal and financial environment, interested parties can take numerous steps to reduce some of the problems identified above.

For example, as noted above, charter schools can reduce the number of children in special education if they demonstrate convincingly that they can and do serve children with disabilities effectively without resort to the formal system of referral, evaluation, and placement. Thus, charter school staff should make strong efforts to develop both effective techniques for serving a wide range of students in the regular classroom and trusting relationships with students with disabilities and their parents. Educators should also take pains to avoid behavior that could be construed as coercion of or retaliation against students with disabilities or their parents.

Cooperation among schools and educators will also ameliorate the situation. Even under the nondiscrimination provisions of Section 504 and Title II, clustering and interdistrict cooperative arrangements should be permissible where more than one school shares the same distinctive mission. Use of such techniques should produce savings in terms of all the financial, time, and staff resources that would otherwise be devoted to serving the children in question. It should also help reduce any discrepancy between charter schools and traditional public schools in the capacity to achieve economies of scale.

To the extent that nondiscrimination provisions prevent charter schools from entering into clustering arrangements or cooperative programs, they can still share special education staff members with other schools, charter or non-charter, and with other districts; they need not hire their own full-time staff to meet the needs of each student. This strategy should also reduce costs and the demands on full-time staff.

More generally, charter school operators should work to establish effective work relationships with school district and state education department officials. Despite possible feelings of competition or distrust, school districts and state education departments have twenty years of experience in serving children with disabilities and have a lot to offer charter school staff members, many of whom have not been administrators and have not dealt with special education issues. Perhaps state training on special education issues should precede the approval of charter school applications.

Educators can also work with lawyers to reduce the threat of costly litigation and to prevent the behaviors that give rise to lawsuits. Given the research suggesting the need for specialized legal expertise and the complexity of federal disability law, charter schools should look for attorneys who are specialists in special education rather than relying on good general practitioners who may be willing to donate legal services at low cost.

Lastly, interested parties could cooperate to find ways of reconciling federal disability laws with charter school objectives. Federal and state officials, charter school proponents, advocates for persons with disabilities, and policymakers should arrange small working-group sessions to discuss how to serve the interests of all while minimizing problems and conflict. Federal education officials—those interested in special education, and those who work with charter schools—should also prepare guidance on how to avoid potential conflicts of the kinds discussed here.

If current law and/or funding arrangements could be modified, additional measures would also help address potential problems. To the extent they do not already do so, state and federal funding formulas could be modified to cover any additional costs that charter schools incur in serving a wider range of students with disabilities. This could be achieved through a general change in the formulas for funding charter schools and special education, or through ad hoc supplements analogous to catastrophic health insurance.

Addressing financial concerns associated with the LEA issue is principally a question of finding funding formulas that account fairly for the greater economies of scale that larger LEAs can achieve compared to smaller ones. The LEA issue is generally not a problem where charter schools report to traditional school boards, since the school boards rather than the charter schools typically absorb any additional costs. As a matter of fairness and good policy, however, one-school LEAs, whether traditional school districts or autonomous charter school boards, should be treated the same under any such adjustment. ²²²

Addressing the potential nondiscrimination issue is principally a matter of ensuring that independent charter school boards need not absorb incremental costs associated with their obligations to serve a wider range of students with disabilities. As with the suggestion described above, this is less likely to be an issue where charter schools report to larger, traditional school districts, and more likely to matter where autonomous charter school boards are involved. To the extent that state funding formulas already take such incremental costs fairly into account, no change would be necessary.

Another possible remedy would be to modify federal and state special education law to allow at least some schools—both charter and traditional—to experiment with alternative, less burdensome means of identifying and serving students with disabilities. This could be done in small increments, beginning with waivers for specific substantive or procedural requirements that seem both burdensome and less directly related to ensuring quality education for students with disabilities. Any such waivers would need to be subject to careful assessment of student learning. Such an approach would bring special education more closely into line with developments in public education generally, where, as noted above, input regulation is gradually being exchanged for an emphasis on measuring what students have actually learned. Within special education, there exists no such quid pro quo at present.

Also, by modifying their charter school statutes, states could place even autonomous charter schools under the control of the local school board for special education or special education funding purposes. This would reduce charter school autonomy under state and local law but would increase autonomy under federal disability law.

Lastly, Congress could exclude independent charter school boards from the federal statutory definition of an LEA. This would be unwise, however, for it would leave no local entity with responsibility for ensuring that independent charter schools comply with federal disability law.

Conversations between charter school proponents, advocates for students with disabilities, and federal, state, and local officials would doubtlessly generate other proposals as well. There has been no comprehensive effort to date to explore how charter school statutes and federal disability law fit together—not from the federal courts, the U.S. Department of Education, charter school proponents, or advocates for children with disabilities. Charter schools are new legal creatures, and it will take serious effort to decide precisely how such entities ought to be treated under existing laws, including federal disability law. It is a question that all concerned should be working together to answer. ²²³ Since we do not yet know how serious the problems regarding this issue are, we should collect the data that would make such determinations possible.

C. Broader Conclusions and Implications for Further Research

Broader Conclusions

This article has implications beyond the domains of charter school education and services for students with disabilities.

First, this article demonstrates the importance of law in school reform and other educational enterprises. It shows how legal mandates are anything but marginal to the success or failure of educational policies and innovations. It offers specific examples of the crucial ways in which legal issues can affect teaching, learning, school leadership, school autonomy, staffing, and finance. This conclusion has important implications for educators, policymakers, advocates, and scholars who believe they can understand educational controversies without appreciating the legal context within which those controversies arise.

This article also shows that questions and conflicts will often arise when preexisting legal mandates are applied to novel situations, such as those involving new educational and legal entities. In the case of charter schools and federal disability law, preexisting legal mandates apply to a new state school reform initiative in ways that policymakers, researchers, and practitioners neither foresaw nor intended. Of special education no less than of charter schools, one could say that every solution brings with it new problems. Such problems are foreseeable, however, and concerned parties could do more to ensure that they are foreseen well enough in advance to avoid unnecessary conflict.

In addition, this article illustrates the importance of empirical research in discussing potential legal disputes. As noted above, whether the conflicts this article discusses are more than theoretical will depend on careful empirical research that has yet to be conducted. In part due to limitations in legal education, too few lawyers recognize the importance of empirical evidence in addressing legal questions.

The preceding conclusions strongly suggest that, from the start, policymakers, educators, lawyers, and scholars should consider not only state law, federal law, educational policy objectives, and empirical research but also how the four interact. Policymakers, educators, lawyers, or scholars will do a better job of understanding such complex interactions if they work collaboratively rather than in isolation. This article thus demonstrates the need for a degree of interdisciplinary collaboration that is rare in most domains.

Implications for Further Research

This article also has numerous implications for further research. For reasons noted above, it will take further empirical research to determine the actual extent of conflict between charter schools and federal disability law. For example, we need to know whether there are discrepancies between charter schools and traditional public schools in terms of the number or types of children with disabilities served, money spent, proportions of budgets spent, and the impact of special education on staff, curriculum, and pedagogy. If discrepancies do exist, it would be useful to know which schools the discrepancies favor.

It would also be helpful to study actual situations that illustrate how charter schools are dealing with federal disability law, what conflicts have actually arisen, and how such conflicts have been handled. Since autonomous charter school boards are similar in some respects to single-school districts, such boards should explore approaches that one-school districts have used for achieving economies of scale. From such research it may be possible to generate collections of promising practices in this complex area.

Finally, we need good research on situations where charter school people, parents of students with disabilities, policymakers and lawyers have managed to anticipate and avoid problems through collaboration and prevention. It would be helpful to know how and at what stage charter schools have used lawyers effectively, and what behaviors led to effective collaboration and the avoidance of legal problems. It would be equally valuable to have similar research on collaboration between federal and state officials, between charter schools and local school boards, and between charter school proponents and advocates for children with disabilities.

Much of the research described thus far focuses on charter schools and disability issues. Research in other domains would also be quite helpful. For example, two forthcoming research projects explore how law and lawyers have contributed and could contribute most effectively to school reform, ²²⁴ and ways of overcoming the barriers to effective collaboration between educators and their lawyers. ²²⁵

This article thus identifies the need for further research on a number of questions, some specific to charter schools and disability law, some focusing on the larger questions that these subjects raise. More generally, this study demonstrates the need for a broader vision of law among educators and the lawyers who serve them:

Law is not simply litigation. Law is more than a nuisance to which educators can react passively or defensively. Misunderstood or ignored, legal mandates and legal disputes can undermine much of what educators seek to achieve in terms of school governance, resource allocation, curriculum, policy making, and school reform. Properly understood, law is a powerful tool that educators can use to advance their most important aims. ²²⁶