The Office for Civil Rights has issued a “Dear Colleague” letter dated May 14, 2014, that provides information to charter schools of their obligations under certain federal laws and to public school districts of their obligations to ensure the compliance with those federal laws of the charter schools they’ve authorized.
In its letter, OCR underscored a charter school’s role as a laboratory for educational experiment. Relieved of some state laws and regulations, charter schools offer potential alternative models to traditional public schools. The OCR letter emphasizes, however, that charter schools are subject to, and must comply with, the same federal laws and regulations that apply to the traditional publics. For their part, the traditional publics that authorize charter schools have an obligation to ensure that their charter schools comply.
Charter schools, like traditional public schools, are subject to the federal civil rights statutes. Specifically, applicable to charter schools are prohibitions against discrimination based on race, color or national origin (Title VI), sex (Title IX) and disability (Section 504 and the ADA). Also applicable to charter schools is the IDEA which mandates that students with educational disabilities receive a free, appropriate public education (FAPE).
These federal laws apply to all aspects of a charter school’s operations, including admissions, academics, evaluations, programs, discipline, athletics, extra-curricular activities, accessibility and school climate.
The underlying issue is ensuring access to all of a charter school’s programs and activities to all of the charter school’s constituents.
One difference between most public schools and charter schools is that families elect a charter school and so engage the charter school’s admissions process.
Under federal law, charter schools may not discriminate in admissions on the basis of race, color, national origin or disability. Eligibility criteria for admission must be non-discriminatory on its face, must be non-discriminatory as applied, and may not be used to effectively exclude students on the basis of race, color, national origin or disability.
On the other hand, charter schools may choose to include students of diverse backgrounds. A charter school may promote racial diversity, but on a race-neutral basis. An example might be outreach to particular community. A charter school may also utilize generalized race-based approaches but which do not rely on the race of individual students. Such a race-based approach might include choosing a location based on the racial demographic of the neighborhood.
By law, students with learning difficulties or physical handicaps cannot be discriminated against in admissions and must have access to the education offered by the charter school. Students eligible for services under Section 504 or the IDEA must be provided with FAPE, including the specially designed instruction, services and access to accommodations designed to meet those students’ unique educational needs, and parents cannot be asked to waive their rights.
Similarly, charter schools cannot discriminate in admissions on the basis of race or national origin and must provide services to support English language learners so that they have meaningful access to their school’s programs. Like a traditional public school, a charter school must identify any student with limited proficiency in reading, writing, speaking or understanding English and provide language instruction and access to the charter’s academic curriculum.
Charter schools must ensure that students with physical disabilities are not excluded from admission and are able to access a school’s full array of programs and activities, including extra-curricular events.
As to discipline, the charter school must comply with the due process requirements of Section 504 and the IDEA and first consider whether or not the behavior in question may have been caused by the student’s disability.
Likewise, charter schools must ensure that not only students but also parents with hearing, speech or vision disabilities have access to all information provided to others by, for example, providing sign language interpreters and materials in Braille. Parents who are not proficient in English must receive meaningful access to the same information that is provided to English-speaking parents by providing, for example, interpreter and translation services.
By law, charter schools must ensure that parents with physical disabilities are able to access the programs and activities offered to non-disabled parents.
The Bottom Line
OCR emphasizes the role of charter school authorizers in ensuring that charters comply with their civil rights obligations. In Pennsylvania, school districts authorize charter schools. According to OCR, a school district, as the recipient of federal funds, has an obligation to ensure that any charter school to which it provides money or assistance is not discriminating.
District authorizers can provide technical assistance to charter schools, by, for instance, inviting charter school personnel to in-service opportunities offered on compliance by the district. A district must carefully review any charter school application to ensure compliance with federal law, including policies and procedures that evidence an applicant’s understanding of its obligations
If a school district has notice of an issue regarding a charter school’s compliance with a federal law, the school district has an obligation to follow up. According to advice from OCR, a district has an obligation to respond in the event that it receives notice that one of its authorized charter schools is in violation of federal law. Such notice can mean receipt of a specific complaint or it can mean any information that makes a district aware of a problem, including, for example, a newspaper article.
That obligation adds to the mandates already in place: that school districts publish statements affirming non-discrimination or retaliation in any education program, a grievance procedure and a mechanism to handle any concern of which it has notice. According to OCR, school district personnel designated as a district’s compliance officer for 504 or Title IX should also be prepared to receive and handle compliance issues with its authorized charters as well as with its own schools.
School district authorizers are to have mechanisms in place to attempt to remedy noncompliance by one of its authorized charters. We recommend that such follow up begin with a call to OCR or your legal counsel.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
