Schools without rules? Charter schools, federal disability law, and the paradoxes of deregulation

Harvard Civil Rights-Civil Liberties Law Review

Volumn 32, Issue 2, 1997, Pages

  Heubert, Jay P ^a,b,c,d  

^a HARVARD GRADUATE SCHOOL OF EDUCATION   (United States)

^b SWARTHMORE COLLEGE   (United States)

^c DUKE UNIVERSITY   (United States)

^d HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 7744243331     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (249)

1. Unlike traditional public schools, charter schools operate under charters or contracts with school districts, state education agencies, or other public institutions. They are designed by groups of parents, teachers, school administrators, other members of the community, and private corporations. Also, charter schools can operate with considerable autonomy from external controls such as district, state, and union requirements. Charter schools get this autonomy in areas such as curriculum, instruction, budget, and personnel in exchange for being accountable for student performance. U.S. GEN. ACCOUNTING OFFICE, CHARTER SCHOOLS: NEW MODEL FOR PUBLIC SCHOOLS PROVIDES OPPORTUNITIES AND CHALLENGES 1 (1995).
2. The White House: Hartford Debate '96 - The First Presidential Debate Between President & Senator Dole Part 3, M2 PRESSWIRE, Oct. 8. 1996, available in LEXIS. Market Library, Iacnws File.
3. Chester E. Finn Jr., Beating up on Charter Schools, N.Y. TIMES. Aug. 24, 1996, at 23. Harvard Civil Rights-Civil Liberties Law Review [Vol. 32
4. See infra Part II.
5. Sei Leslie Collins & Perry A. Zirkel, To What Extent If Any May Cost Be a Factor in Special Education Cases?, 71 EDUC. L. REP. 11 (1992) (stating that the "average cost of educating a handicapped student is approximately 2 and 1/2 times greater than the average cost of educating a non-handicapped student"); see also Special Care for Special Education, N. Y. TIMES, Nov. 9, 1996, at A22 (reporting that 25% of New York City's school budget is spent on special education).
6. Sei Leslie Collins & Perry A. Zirkel, To What Extent If Any May Cost Be a Factor in Special Education Cases?, 71 EDUC. L. REP. 11 (1992) (stating that the "average cost of educating a handicapped student is approximately 2 and 1/2 times greater than the average cost of educating a non-handicapped student"); see also Special Care for Special Education, N. Y. TIMES, Nov. 9, 1996, at A22 (reporting that 25% of New York City's school budget is spent on special education).
7. See SCHOOL CHOICE: THE CULTURAL LOGIC OF FAMILIES, THE POLITICAL RATIONALITY OF INSTITUTIONS (Bruce Fuller et al. eds., 1996) for a discussion of the proliferation of charter schools and other "choice" arrangements.
8. For example, Massachusetts Governor William Weld, a strong proponent of charter schools, predicts that parents will see the benefits of charter schooling and pressure legislatures to expand the number of charter schools: "Parents aren't stupid. They're going to insist on letting charter schools expand. If public schools can't stand up to competition, let's just get rid of public schools and replace them all with charter schools." Kate Zernike, Weld Bids on Alternative Learning, BOSTON GLOBE, Mar. 15, 1996, at A25.
9. Proponents of private sector involvement believe it will unleash the power of free market competition in K-12 education. See, e.g., JOHN CHUBB & TERRY MOE, POLITICS, MARKETS AND AMERICA'S SCHOOLS (1990). Critics fear school choice models that include private schools, for at least three reasons. First, they suspect that public funding for private schools will erode the already limited support for public education and call into question the very concept of public education. Second, they fear increased segregation of students along racial and socioeconomic lines, especially since most current private school choice proposals offer poor children only a fraction of the money they would need to cover current private school tuitions. See SCHOOL CHOICE: THE CULTURAL LOGIC OF FAMILIES, IHE POLITICAL RATIONALITY OF INSTITUTIONS, supra note 6. Third, 10 fund publicly students who attend private religious schools invariably raises concerns under the First Amendment's religion clauses. See, e.g., Rosenberger v. University of Va., 115 S. Ct. 2510 (1995) (requiring the university to fund a Christian student newspaper as it does other student organizations); Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (striking down a school district gerrymandered to be religiously homogeneous); Zobrest v. Catalina Hills Sch. Dist., 509 U.S. 1 (1993) (allowing a deaf Catholic school student to be provided with a publicly funded sign language interpreter under the IDEA); Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986) (allowing vocational rehabilitation assistance to a student at a private Catholic college); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (striking down a publicly funded and staffed supplemental education program in parochial schools): Aguilar v. Felton, 473 U.S. 403 (1985) (also striking down a publicly funded and staffed supplemental education program in parochial schools); Mueller v. Allen, 463 U.S. 388 (1983) (upholding tax deductions for educational costs associated with parochial schools). But see Agostini v. Felton, 1 17 S. Ct. 759 (mem.) (1997) (considering whether to overrule Aguilar); see also Agostini v. Felton, 65 U.S.L.W. 38 (U.S. Apr. 8, 1997) (No. 96-552) (discussing questions presented).
10. Proponents of private sector involvement believe it will unleash the power of free market competition in K-12 education. See, e.g., JOHN CHUBB & TERRY MOE, POLITICS, MARKETS AND AMERICA'S SCHOOLS (1990). Critics fear school choice models that include private schools, for at least three reasons. First, they suspect that public funding for private schools will erode the already limited support for public education and call into question the very concept of public education. Second, they fear increased segregation of students along racial and socioeconomic lines, especially since most current private school choice proposals offer poor children only a fraction of the money they would need to cover current private school tuitions. See SCHOOL CHOICE: THE CULTURAL LOGIC OF FAMILIES, IHE POLITICAL RATIONALITY OF INSTITUTIONS, supra note 6. Third, 10 fund publicly students who attend private religious schools invariably raises concerns under the First Amendment's religion clauses. See, e.g., Rosenberger v. University of Va., 115 S. Ct. 2510 (1995) (requiring the university to fund a Christian student newspaper as it does other student organizations); Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (striking down a school district gerrymandered to be religiously homogeneous); Zobrest v. Catalina Hills Sch. Dist., 509 U.S. 1 (1993) (allowing a deaf Catholic school student to be provided with a publicly funded sign language interpreter under the IDEA); Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986) (allowing vocational rehabilitation assistance to a student at a private Catholic college); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (striking down a publicly funded and staffed supplemental education program in parochial schools): Aguilar v. Felton, 473 U.S. 403 (1985) (also striking down a publicly funded and staffed supplemental education program in parochial schools); Mueller v. Allen, 463 U.S. 388 (1983) (upholding tax deductions for educational costs associated with parochial schools). But see Agostini v. Felton, 1 17 S. Ct. 759 (mem.) (1997) (considering whether to overrule Aguilar); see also Agostini v. Felton, 65 U.S.L.W. 38 (U.S. Apr. 8, 1997) (No. 96-552) (discussing questions presented).
11. See PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: How LAW Is SUFFOCATING AMERICA (1994); RICHARD A. POSNER, OVERCOMING LAW (1995).
12. See PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: How LAW Is SUFFOCATING AMERICA (1994); RICHARD A. POSNER, OVERCOMING LAW (1995).
13. At both federal and state levels, there has been a shift in emphasis from "inputs," or compliance with detailed rules and procedures, to "outcomes," or documented student mastery of basic and higher-order knowledge and skills. See, e.g., COUNCIL OF CHIEF STATE SCH. OFFICERS, HIGHER ORDER LEARNING FOR ALL (1990); NATIONAL COUNCIL ON EDUC. AND TESTING, RAISING STANDARDS FOR AMERICAN EDUCATION (1992).
14. At both federal and state levels, there has been a shift in emphasis from "inputs," or compliance with detailed rules and procedures, to "outcomes," or documented student mastery of basic and higher-order knowledge and skills. See, e.g., COUNCIL OF CHIEF STATE SCH. OFFICERS, HIGHER ORDER LEARNING FOR ALL (1990); NATIONAL COUNCIL ON EDUC. AND TESTING, RAISING STANDARDS FOR AMERICAN EDUCATION (1992).
15. See infra Part II.A for an in-depth discussion of the IDEA.
16. The only proposed amendments even indirectly applicable to the analysis below concern an increased IDEA focus on measuring and improving the academic achievement of students with disabilities. Under such a change, the proportion of children with disabilities who are subject to state and local assessment programs would increase. It does not appear, however, that the increased focus on student outcomes signals any reduction in the obligation to comply with existing rules and procedures. It is unlikely, therefore, that the reauthorization will lead to reduced regulation for charter schools or other public schools.
17. State charter school statutes almost always define charter schools as public schools. See U.S. GEN. ACCOUNTING OFFICE, supra note 1. One possible exception is Arizona, which permits private nonprofit organizations to enter into partnerships with public chartering agencies. This creates what a U.S. Department of Education official called a "fuzzy mix between a private nonprofit organization and a public school." Letter from John Fiegel, Director of Federal Charter School Office, U.S. Department of Education, to Jay P. Heubert, Assistant Professor, Harvard Graduate School of Education (Mar. 8, 1996) (on file with the Harvard Civil Rights-Civil Liberties Law Review).
18. Although state disability laws can affect charter schools significantly, federal law establishes a floor below which states may not go. See infra Part II.
19. See EILEEN L. ORDOVER & KATHLEEN B. BOUNDY, EDUCATIONAL RIGHTS OF STUDENTS WITH DISABILITIES: A PRIMER FOR ADVOCATES (1991); ALLAN G. OSBORNE, JR., LEGAL ISSUES IN SPECIAL EDUCATION (1996); STEPHEN B. THOMAS & CHARLES J. Russo, SPECIAL EDUCATION LAW: ISSUES AND IMPLICATIONS FOR THE '90s (1995); JULIE K. UNDERWOOD & JULIE F. MEAD, LEGAL ASPECTS OF SPECIAL EDUCATION & PUPIL SERVICES (1995) for more comprehensive discussion of federal disability law.
20. See EILEEN L. ORDOVER & KATHLEEN B. BOUNDY, EDUCATIONAL RIGHTS OF STUDENTS WITH DISABILITIES: A PRIMER FOR ADVOCATES (1991); ALLAN G. OSBORNE, JR., LEGAL ISSUES IN SPECIAL EDUCATION (1996); STEPHEN B. THOMAS & CHARLES J. Russo, SPECIAL EDUCATION LAW: ISSUES AND IMPLICATIONS FOR THE '90s (1995); JULIE K. UNDERWOOD & JULIE F. MEAD, LEGAL ASPECTS OF SPECIAL EDUCATION & PUPIL SERVICES (1995) for more comprehensive discussion of federal disability law.
21. See EILEEN L. ORDOVER & KATHLEEN B. BOUNDY, EDUCATIONAL RIGHTS OF STUDENTS WITH DISABILITIES: A PRIMER FOR ADVOCATES (1991); ALLAN G. OSBORNE, JR., LEGAL ISSUES IN SPECIAL EDUCATION (1996); STEPHEN B. THOMAS & CHARLES J. Russo, SPECIAL EDUCATION LAW: ISSUES AND IMPLICATIONS FOR THE '90s (1995); JULIE K. UNDERWOOD & JULIE F. MEAD, LEGAL ASPECTS OF SPECIAL EDUCATION & PUPIL SERVICES (1995) for more comprehensive discussion of federal disability law.
22. See EILEEN L. ORDOVER & KATHLEEN B. BOUNDY, EDUCATIONAL RIGHTS OF STUDENTS WITH DISABILITIES: A PRIMER FOR ADVOCATES (1991); ALLAN G. OSBORNE, JR., LEGAL ISSUES IN SPECIAL EDUCATION (1996); STEPHEN B. THOMAS & CHARLES J. Russo, SPECIAL EDUCATION LAW: ISSUES AND IMPLICATIONS FOR THE '90s (1995); JULIE K. UNDERWOOD & JULIE F. MEAD, LEGAL ASPECTS OF SPECIAL EDUCATION & PUPIL SERVICES (1995) for more comprehensive discussion of federal disability law.
23. This Article is written for a general audience of educators, parents, policymakers, researchers, attorneys, and other advocates. As much as possible, therefore, it is written in non-technical language.
24. See Peter Applebome, New Choices for Parents Are Starting to Change U.S. Education Landscape, N.Y. TIMES, Sept. 4, 1996, at B7. These states include: Alaska, see ALASKA STAT. § 14.03.250-.290 (Michie 1996); Arizona, see ARIZ. REV. STAT. § 15-181 to -189.02 (1996); Arkansas, see ARK. CODE ANN. § 6-10-116 (Michie 1996); California. see CAL. Hour. CODE §§ 47600-47625 (West 1996); Colorado, see COLO. REV. STAT. § 22-30.5-101 to -114 (1996); Connecticut, see CONN. GEN. STAT. §§ 10-1451f, 10-235 (1996); Delaware, see DEL. CODE ANN. tit. 14, §§ 501-516 (1996); Florida, see FLA. STAT. ch. 228.056 (1996); Georgia, see GA. CODE ANN. § 20-2-255 (1996); Hawaii, see HAW. REV. STAT. § 302A-1123 (1996); Illinois, see 105 ILL. COMP. STAT. 5/27A-2 (West 1996); Kansas, see KAN. STAT. ANN. § 72-1903 to -1910 (1996); Louisiana, see LA. REV. STAT. ANN. §§ 3972-3982 (West 1996); Massachusetts, see MASS. GEN. LAWS ANN. ch. 71, § 89 (1996); Michigan, see MICH. COMP. LAWS § 380.501-.507 (1996); Minnesota, see MINN. STAT. § 120.064 (1996); New Hampshire, see N.H. REV. STAT. ANN. § 194-B:1 to :21 (1996); New Jersey, see N.J. STAT. ANN. § 18A:36A-1 to -18 (West 1996); New Mexico. see N.M. STAT. ANN. § 22-8-A-1 to -7 (Michie 1996); North Carolina, see N.C. GEN. STAT. § 115C-238.29A to .29J (1996); Rhode Island, see R.I. GEN. LAWS § 16-77-1 to -11 (1996); South Carolina, see S.C. COBE ANN. S 59-40-10 to -190 (Law. Co-op. 1996); Texas, see TEX. EDUC. CODE ANN. § 12.001-.118 (West 1996); Wisconsin, see Wis. STAT. ANN. § 118.40 (West 1996); Wyoming, see WYO. STAT. ANN. § 21-3-201 to -207 (Michie 1996). The District of Columbia has also enacted a charter school ordinance, see D.C. , CODE ANN. § 31-1271 (1996).
25. Passed in 1994, the Improving America's Schools Act, which reauthorized the Elementary and Secondary Education Act of 1965, includes a new federal grant program to support the design and implementation of charier schools. See 20 U.S.C. § 8062 (1994). Similarly, the Goals 2000: Educate America Act and the School to Work Program allow states to use certain federal funds to promote charter schools. See 20 U.S.C. § 8061 (1994). Under these statutes, however, charter schools are eligible for federal charter school funding only if they agree in advance to comply with federal civil rights statutes such as the IDEA. See 20 U.S.C. § 8066 (1994); U.S. GEN. ACCOUNTING OFFICE, supra note 1. at 4-5; Priscilla Wohlstetter et al., Charter Schools in the United States: The Question of Autonomy, 9 EDUC. POL'Y 331 (1995); infra Part H.A. Charter schools also receive federal funding not specifically earmarked for charter schools. For example, they are eligible to receive federal grants through programs such as Title I, Title VI (Innovative Educational Programs), the Eisenhower Professional Development Program, the Safe and Drug Free Schools Act, the Perkins Occupational Education Act, and the IDEA. See Letter from Ronald Honesty, Grants Management Administrator, Massachusetts Department of Education, to Julia K. Landau, Massachusetts Advocacy Center (Dec. 8, 1995) (on file with the Harvard Civil Rights-Civil Liberties Law Review).
26. Passed in 1994, the Improving America's Schools Act, which reauthorized the Elementary and Secondary Education Act of 1965, includes a new federal grant program to support the design and implementation of charier schools. See 20 U.S.C. § 8062 (1994). Similarly, the Goals 2000: Educate America Act and the School to Work Program allow states to use certain federal funds to promote charter schools. See 20 U.S.C. § 8061 (1994). Under these statutes, however, charter schools are eligible for federal charter school funding only if they agree in advance to comply with federal civil rights statutes such as the IDEA. See 20 U.S.C. § 8066 (1994); U.S. GEN. ACCOUNTING OFFICE, supra note 1. at 4-5; Priscilla Wohlstetter et al., Charter Schools in the United States: The Question of Autonomy, 9 EDUC. POL'Y 331 (1995); infra Part H.A. Charter schools also receive federal funding not specifically earmarked for charter schools. For example, they are eligible to receive federal grants through programs such as Title I, Title VI (Innovative Educational Programs), the Eisenhower Professional Development Program, the Safe and Drug Free Schools Act, the Perkins Occupational Education Act, and the IDEA. See Letter from Ronald Honesty, Grants Management Administrator, Massachusetts Department of Education, to Julia K. Landau, Massachusetts Advocacy Center (Dec. 8, 1995) (on file with the Harvard Civil Rights-Civil Liberties Law Review).
27. In 1995, for example, the U.S. Department of Education called the charter school concept "one of the most powerful and promising to emerge from the school reform movement of the past decade." U.S. DEP'T OF EDUC., CHARTER SCHOOLS: AN OPTION TO ENCOURAGE INNOVATION AND PROMOTE SUCCESS IN TEACHING AND LEARNING 2 (1995); see Wohlstetter et al., supra note 18, at 332; Applebome, supra note 17, at B7 (noting that the charter school concept is "ardently endorsed by both Democrats and Republicans as well as by critics and proponents of school vouchers").
28. Between January 1995 and August 1996 the number of states that had enacted charter school laws jumped from 11 to 25. and charter schools themselves are proliferating: "The 269 charter schools enrolling 70,000 students [in school year 1995-96] figure to grow to at least 350 [in school year 1996-97], with many more sure to follow." Applebome, supra note 17, at B7.
29. See SCHOOL CHOICE: THE CULTURAL LOGIC OF FAMILIES, THE POLITICAL RATIONALITY OF INSTITUTIONS, supra note 6.
30. State regulations and policies often augment these state statutes. See, e.g., Memorandum from Robert Antonucci, Commissioner of Education, Commonwealth of Massachusetts to Superintendents of Schools and Charter Schools (Apr. 21, 1995) (on file with the Harvard Civil Rights-Civil Liberties Law Review) (describing state law requirements affecting admissions, special education, racial imbalance requirements, and financial issues at charter schools).
31. For example, some state statutes place charter schools under the control of local school boards, while others leave charter school governance to separate boards of directors. There is also variety in the extent to which charter schools must abide by state rules on such matters as teacher certification, collective bargaining, curriculum, and student assessment. Some states expressly encourage charter schools to serve educationally needy students, while others do not. See MARC DEAN MILLOT, AUTONOMY. ACCOUNTABILITY, AND THE VALUES OF PUBLIC EDUCATION: A COMPARATIVE ASSESSMENT OF CHARTER SCHOOL STATUTES LEADING TO MODEL LEGISLATION (1994) for comprehensive summaries of state charter school laws and a thoughtful analysis of how they differ.
32. As the General Accounting Office definition indicates, charter schools can operate with considerable autonomy from district, slate, and union requirements. See U.S. GEN. ACCOUNTING OFFICE, supra note 1. at 1.
33. Nearly every state's charter school statute expressly states that a goal of the statute is to promote innovation through freedom from regulations governing such matters as curriculum, class size, teacher qualifications, and other matters that states and school boards typically regulate. See MILLOT, supra note 23, at 9.
34. For instance, Illinois Governor Jim Edgar argues that "we'll be able to learn from charter schools and take the things that work and spread them throughout public schools." See Dave McKinney, DePaul, West Side Group Seek Quick OK for Charter Schools, CHI. SUN-TIMES, Apr. 11, 1996, at 12.
35. Charter schools often have well-defined educational missions different from those of most traditional public schools. See Applebome, supra note 17, at B7; see also DEL. CODE ANN. tit. 14, § 501 (1996) (stating that the mission is to "provide parents and students with . . . greater opportunities in choosing public schools within and outside their school districts"); FLA. STAT. tit. 14, ch. 228.056(2)(d) (1996) (stating that the mission is to "increase choice of learning opportunities for students"); MASS. GEN. LAWS ANN. ch. 71. § 89 (West 1996) (stating that the mission is "to provide parents and students with greater options in choosing schools within and outside their school districts"); N.J. STAT. ANN. § 18A:36A-2 (West 1996) (stating that "[c]harter schools . . . increase for students end parents the educational choices available when selecting the learning environment which they feel may be most appropriate").
36. See, e.g., LOUANN BIERLEIN & LORI MULHOLLAND, PHI DELTA KAPPA FOUND., UNDERSTANDING CHARTER SCHOOLS 18 (1995); CHESTER E. FINN JR. ET AL., HUDSON INSTIT., CHARTER SCHOOLS IN ACTION: A FIRST LOOK 6 (1996); MILLOT, supra note 23: Wohlstetter et al., supra note 18, at 346-48. These focus on the degree of autonomy that charter schools enjoy under state law; that autonomy varies considerably from state to state. This is an important topic, of course. At the same time, these studies do not note either that federal law (no less than state law) can influence charter school autonomy or that state law and federal law may interact in important ways.
37. See, e.g., LOUANN BIERLEIN & LORI MULHOLLAND, PHI DELTA KAPPA FOUND., UNDERSTANDING CHARTER SCHOOLS 18 (1995); CHESTER E. FINN JR. ET AL., HUDSON INSTIT., CHARTER SCHOOLS IN ACTION: A FIRST LOOK 6 (1996); MILLOT, supra note 23: Wohlstetter et al., supra note 18, at 346-48. These focus on the degree of autonomy that charter schools enjoy under state law; that autonomy varies considerably from state to state. This is an important topic, of course. At the same time, these studies do not note either that federal law (no less than state law) can influence charter school autonomy or that state law and federal law may interact in important ways.
38. See, e.g., The Treatment of Special Education in Charter School Legislation, POL'Y UPDATE (National Ass'n of State Bd. of Educ., Alexandria, Va.), Sept. 1996, at 1.
39. See Teacher Union Faults Oversight of Charter Schools, N.Y. TIMES, Aug. 4, 1996, at A27.
40. See, e.g., STEPHEN BAILEY, NATIONAL ACADEMY OF EDUC., THE APPROPRIATE FEDERAL ROLE IN EDUCATION: SOME GUIDING PRINCIPLES 1 (1979).
41. To date there have been no reported court decisions, no formal guidance from the federal government, and few published journal articles on the subject. See Charter Schools and Special Ed Law: An Imperfect Union, SPECIAL EDUCATOR, Oct. 25, 1996, at 1; Joseph McKinney, Charter Schools: A New Barrier for Children with Disabilities, EDUC. LEADERSHIP, Oct. 1996, at 22; Lynn Schnaiberg, Charter School Laws Are All over the Map on Disabled Students, EDUC. WK., Feb. 19, 1997, at 25, 25.
42. To date there have been no reported court decisions, no formal guidance from the federal government, and few published journal articles on the subject. See Charter Schools and Special Ed Law: An Imperfect Union, SPECIAL EDUCATOR, Oct. 25, 1996, at 1; Joseph McKinney, Charter Schools: A New Barrier for Children with Disabilities, EDUC. LEADERSHIP, Oct. 1996, at 22; Lynn Schnaiberg, Charter School Laws Are All over the Map on Disabled Students, EDUC. WK., Feb. 19, 1997, at 25, 25.
43. To date there have been no reported court decisions, no formal guidance from the federal government, and few published journal articles on the subject. See Charter Schools and Special Ed Law: An Imperfect Union, SPECIAL EDUCATOR, Oct. 25, 1996, at 1; Joseph McKinney, Charter Schools: A New Barrier for Children with Disabilities, EDUC. LEADERSHIP, Oct. 1996, at 22; Lynn Schnaiberg, Charter School Laws Are All over the Map on Disabled Students, EDUC. WK., Feb. 19, 1997, at 25, 25.
44. Finn, supra note 3, at 23.
45. See Lynn Schnaiberg, Spec. Ed. Rules Pose Problems for Charter Schools, EDUC. WK., Feb. 19, 1997, at 1, 1. In addition, a recent study concludes that "[c]harter schools need a great deal of support and information about the legal obligations and procedures associated with educating students under [federal disability law] . . . . [T]here is little evidence [in charter schools] of direct supervision of special education staff [and] . . . little understanding of the full array of special education services. " MARGARET J. MCLAUGHLIN ET AL., CENTER FOR POI.'Y RES. ON THE IMPACT OF GEN. AND SPECIAL EDUC. REFORM, CHARTER SCHOOLS AND STUDENTS WITH DISABILITIES 10 (1996). Similarly, in fall of 1996, California's Department of Education convened a "task force of charter school developers and special education experts to begin . . . exploring how charter schools relate to state and federal special education laws . . . . [This is] a little-explored and poorly understood area of law and policy. " Eric Premack, CDE Establishes Special Education Task Force, CONNECTIONS: THE NEWSL. OF THE CAL. NETWORK OF EDUC. CHARTERS (Cal. Network of Educ. Charters, San Carlos, Cal.). Aug. 1996, at 1. Charter school personnel and lawyers have also discussed issues of federal disability law at national conferences in Denver, Seattle, San Diego, and elsewhere. The subject was also the sole focus of a conference conducted at Harvard Law School in April 1996.
46. See Lynn Schnaiberg, Spec. Ed. Rules Pose Problems for Charter Schools, EDUC. WK., Feb. 19, 1997, at 1, 1. In addition, a recent study concludes that "[c]harter schools need a great deal of support and information about the legal obligations and procedures associated with educating students under [federal disability law] . . . . [T]here is little evidence [in charter schools] of direct supervision of special education staff [and] . . . little understanding of the full array of special education services. " MARGARET J. MCLAUGHLIN ET AL., CENTER FOR POI.'Y RES. ON THE IMPACT OF GEN. AND SPECIAL EDUC. REFORM, CHARTER SCHOOLS AND STUDENTS WITH DISABILITIES 10 (1996). Similarly, in fall of 1996, California's Department of Education convened a "task force of charter school developers and special education experts to begin . . . exploring how charter schools relate to state and federal special education laws . . . . [This is] a little-explored and poorly understood area of law and policy. " Eric Premack, CDE Establishes Special Education Task Force, CONNECTIONS: THE NEWSL. OF THE CAL. NETWORK OF EDUC. CHARTERS (Cal. Network of Educ. Charters, San Carlos, Cal.). Aug. 1996, at 1. Charter school personnel and lawyers have also discussed issues of federal disability law at national conferences in Denver, Seattle, San Diego, and elsewhere. The subject was also the sole focus of a conference conducted at Harvard Law School in April 1996.
47. See Lynn Schnaiberg, Spec. Ed. Rules Pose Problems for Charter Schools, EDUC. WK., Feb. 19, 1997, at 1, 1. In addition, a recent study concludes that "[c]harter schools need a great deal of support and information about the legal obligations and procedures associated with educating students under [federal disability law] . . . . [T]here is little evidence [in charter schools] of direct supervision of special education staff [and] . . . little understanding of the full array of special education services. " MARGARET J. MCLAUGHLIN ET AL., CENTER FOR POI.'Y RES. ON THE IMPACT OF GEN. AND SPECIAL EDUC. REFORM, CHARTER SCHOOLS AND STUDENTS WITH DISABILITIES 10 (1996). Similarly, in fall of 1996, California's Department of Education convened a "task force of charter school developers and special education experts to begin . . . exploring how charter schools relate to state and federal special education laws . . . . [This is] a little-explored and poorly understood area of law and policy. " Eric Premack, CDE Establishes Special Education Task Force, CONNECTIONS: THE NEWSL. OF THE CAL. NETWORK OF EDUC. CHARTERS (Cal. Network of Educ. Charters, San Carlos, Cal.). Aug. 1996, at 1. Charter school personnel and lawyers have also discussed issues of federal disability law at national conferences in Denver, Seattle, San Diego, and elsewhere. The subject was also the sole focus of a conference conducted at Harvard Law School in April 1996.
48. First, it is not yet known whether charter schools are as attractive to students with disabilities as to their nondisabled peers; at least in situations where placements are developed through a genuine consultative process involving students and parents, students with disabilities may be less inclined than other students to change schools. Second, charter schools in many states have just opened or are still a year away from beginning to operate. See FINN ET AL., supra note 28. at 11-13. In such states, it is too early to expect good statistics on the numbers and kinds of disabled children they serve. Third, it is unclear what statistics would tell policymakers about whether charter schools are serving their "fair share" of children with disabilities. The statistics that would make it easiest to compare charter schools with traditional public schools would be for students who already have individualized learning programs ("IEPs") developed in accordance with the IDEA. The determination is partly a question of aggregate numbers: how many students with (EPs do existing charter schools serve? Given the financial constraints of new charter schools, however, it would also be important to know how many of their students with IEPs have severe disabilities - the ones that are usually costliest to address - and how many have milder disabilities - and how wide a range of disabilities individual charter schools are serving.
49. McKinney contends that only 4% of charter school students in Arizona have IEPs, compared with a statewide percentage of 10%. See McKinney, supra note 32, at 22; see also Schnaiberg, supra note 34, at 24 (stating that "[i]n Massachusetts' 22 charter schools. 12% of the 5,465 students enrolled were identified as needing special education, compared with a statewide average of 17%.").
50. Telephone Interview with Rhoda Schneider. General Counsel, Massachusetts Department of Education (July 14, 1995).
51. See, e.g., James Lytle, Is Special Education Serving Minority Students?, 58 HARV. EDUC. REV. 116, 116 (1988).
52. If a charter school does evaluate a child and the child is found to have disabilities, an IEP team must be convened, and the charter school will have considerably less discretion in how to serve the student. If a child is evaluated and found not to require special education, the charter school would be like any public school in serving the student in regular education.
53. See, e.g., SCHOOL CHOICE: THE CULTURAL LOGIC OF FAMILIES, THE POLITICAL RATIONALITY OF INSTITUTIONS, supra note 6.
54. These include, to name a few, compulsory education laws, graduation requirements, student testing requirements, teacher certification standards, collective bargaining statutes, school finance formulas, "sunshine" and public meeting laws, rules protecting the confidentiality of records, due process requirements, and antidiscrimination laws.
55. Although current federal disability law requires that students with disabilities receive related services that will enable them to benefit from special education in the least restrictive environment, see infra Part II, it does not require schools to make structural or systemic changes to curriculum, pedagogy, and classroom organization that would often facilitate placement and service delivery in regular classrooms. More broadly, the law's current emphasis on identifying and addressing needs of individual students with disabilities does not promote, and sometimes impedes, systemic changes that would benefit children with disabilities.
56. Based on the author's conversations with charter school proponents in Massachusetts, it appears some charter school operators assume that state certification requirements do not apply to most charter schools. As discussed more fully in Part II, infra, however, this may be wishful thinking; federal disability law may compel a different result, at least for the teachers, administrators, and other professionals who constitute the special educa-tion staff.
57. See Special Care for Special Education, supra note 5.
58. The current federal share is under 10%. See Telephone Interview with Rhoda Schneider, General Counsel, Massachusetts Department of Education (Apr. 1, 1997).
59. See, e.g., Debra Viadero, Report Finds Record Jump in Special-Ed. Enrollment, EDUC. WK., Aug. 5, 1992, at 19; Debra Viadero, States Turn to Spec.-Educ. Education Programs for Budget Cuts, EDUC. WK., June 12, 1991, at 16; Joseph Berger, Cosily Special Classes Serving Many With Minimal Needs, N.Y. TIMES, Apr. 30, 1991, at Al.
60. See, e.g., Debra Viadero, Report Finds Record Jump in Special-Ed. Enrollment, EDUC. WK., Aug. 5, 1992, at 19; Debra Viadero, States Turn to Spec.-Educ. Education Programs for Budget Cuts, EDUC. WK., June 12, 1991, at 16; Joseph Berger, Cosily Special Classes Serving Many With Minimal Needs, N.Y. TIMES, Apr. 30, 1991, at Al.
61. See, e.g., Debra Viadero, Report Finds Record Jump in Special-Ed. Enrollment, EDUC. WK., Aug. 5, 1992, at 19; Debra Viadero, States Turn to Spec.-Educ. Education Programs for Budget Cuts, EDUC. WK., June 12, 1991, at 16; Joseph Berger, Cosily Special Classes Serving Many With Minimal Needs, N.Y. TIMES, Apr. 30, 1991, at Al.
62. Roughly a third of all federal-court decisions involving public schools concern special education and other disability issues, see Telephone Interview with David Tatel. Esq., Hogan & Hartson (July, 1992), and many more conflicts are resolved through mediation or in proceedings before administrative hearing officers and state court judges, see Telephone Interview with Rhoda Schneider, supra note 45.
63. See Chester E. Finn Jr. & Diane Ravitch, Charter Schools - Beware Imitations, WALL ST. J., Sept. 7, 1995, at A14 (stating that the "only regulations that charter schools should be expected to comply with are those governing health and safety and protections against racial discrimination").
64. See infra Part II.
65. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1401-1491 (1994 & Supp. I 1995), with accompanying regulations found at 34 C.FR. § 300.1-.754 (1996).
66. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994), with accompanying regulations found at 34 C.ER. § 104.1-.61 (1996).
67. 42 U.S.C. §§ 12131-12165 (1994), with accompanying regulations found at 28 C.F.R. § 35.101-.190 (1996).
68. According to the U.S. Department of Education. Massachusetts and Minnesota place all chaner schools under the control of separate, independent boards. In other states, a school's charter can provide either for an independent board or for control by the local school district. These states include Arizona, Michigan. New Jersey, Delaware, New Hampshire, North Carolina, Louisiana, California, and Texas. In some states charter schools must be subject to local school district control. These include Alaska, Arkansas, Colorado, Georgia, Hawaii, Kansas, New Hampshire, New Mexico, Rhode Island, South Carolina, Wisconsin, and Wyoming. Finally, in Florida, charter schools are part of county education systems. See Letter from John Fiegel, supra note 13.
69. For example, the IDEA is by far the most detailed source of federal rules concerning special education and related services for children with disabilities, but it protects only children who need or may need special educational services. Section 504 and Title II protect all the children that the IDEA protects. They also protect individuals that the IDEA does not, including children who do not need specialized educational services. (These would include, for example, a student who is HIV-positive but asymptomatic and a student who is orthopedically impaired and needs help getting to and from class.) Section 504 and Title II also contain broad nondiscrimination provisions under which charter schools may have legal duties that most traditional public schools do not. Finally, the Equal Protection Clause provides protections that are less specific than those in the federal disability statutes and regulations. Because these protections emerge from judicial interpretation of the Constitution, however, they cannot be altered by the U.S. Department of Education or even Congress.
70. See 20 U.S.C. § 1412(6) (1994); 34 C.F.R. § 300.110 (1996).
71. See 20 U.S.C. § 1414(a) (1994); 34 C.F.R. § 300.220-.227 (1996).
72. See 20 U.S.C. § 8801(18) (1994) (emphasis added).
73. In states where independent charter school hoards are allowed, charter school statutes often explicitly define such boards as public entities. Consider the following passage, taken from the opening lines of the Massachusetts charter school statute: A charter school shall be a public school . . . which operates independently of any school committee and is managed by a board of trustees. The board of trustees of a charter school . . . shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. MASS. GEN. LAWS ANN. ch. 71. S 89 (West 1995) (emphasis added). This language is quite similar to the IDEA'S definition of an LEA. cited above. Thus there is little doubt in Massachusetts - or in other states, such as New Jersey, whose charter school statute defines a charter school board of trustees as "public agents authorized by the State Board of Education to supervise and control the [public] charter school." N.J. STAT. ANN. § 18A:36A-3 (West 1996). that charter school boards meet the federal definition of an LEA. "These include the Goals 2000: Educate America Act. 20 U.S.C. §§ 5801-6084 (1994 & Supp. I 1995); School-to-Work Opportunities Act of 1994. 20 U.S.C. §§ 6101-6251 (1994): and Improving America's Schools Act of 1994. 20 U.S.C. §§ 6301-8962 (1994 & Supp. I 1995). which establish grant programs to support charter school development.
74. In states where independent charter school hoards are allowed, charter school statutes often explicitly define such boards as public entities. Consider the following passage, taken from the opening lines of the Massachusetts charter school statute: A charter school shall be a public school . . . which operates independently of any school committee and is managed by a board of trustees. The board of trustees of a charter school . . . shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. MASS. GEN. LAWS ANN. ch. 71. S 89 (West 1995) (emphasis added). This language is quite similar to the IDEA'S definition of an LEA. cited above. Thus there is little doubt in Massachusetts - or in other states, such as New Jersey, whose charter school statute defines a charter school board of trustees as "public agents authorized by the State Board of Education to supervise and control the [public] charter school." N.J. STAT. ANN. § 18A:36A-3 (West 1996). that charter school boards meet the federal definition of an LEA. "These include the Goals 2000: Educate America Act. 20 U.S.C. §§ 5801-6084 (1994 & Supp. I 1995); School-to-Work Opportunities Act of 1994. 20 U.S.C. §§ 6101-6251 (1994): and Improving America's Schools Act of 1994. 20 U.S.C. §§ 6301-8962 (1994 & Supp. I 1995). which establish grant programs to support charter school development.
75. In states where independent charter school hoards are allowed, charter school statutes often explicitly define such boards as public entities. Consider the following passage, taken from the opening lines of the Massachusetts charter school statute: A charter school shall be a public school . . . which operates independently of any school committee and is managed by a board of trustees. The board of trustees of a charter school . . . shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. MASS. GEN. LAWS ANN. ch. 71. S 89 (West 1995) (emphasis added). This language is quite similar to the IDEA'S definition of an LEA. cited above. Thus there is little doubt in Massachusetts - or in other states, such as New Jersey, whose charter school statute defines a charter school board of trustees as "public agents authorized by the State Board of Education to supervise and control the [public] charter school." N.J. STAT. ANN. § 18A:36A-3 (West 1996). that charter school boards meet the federal definition of an LEA. "These include the Goals 2000: Educate America Act. 20 U.S.C. §§ 5801-6084 (1994 & Supp. I 1995); School-to-Work Opportunities Act of 1994. 20 U.S.C. §§ 6101-6251 (1994): and Improving America's Schools Act of 1994. 20 U.S.C. §§ 6301-8962 (1994 & Supp. I 1995). which establish grant programs to support charter school development.
76. Moreover, while federal charter school grant programs allow schools to apply for waivers of federal requirements, civil rights laws may not be waived. See 20 U.S.C. § 8064(e) (1994).
77. 20 U.S.C. §§ 1400-1491(0) (1994 & Supp. I 1995), with accompanying regulations found at 34 C.F.R. § 300.1-.754 (1996). 7
78. See supra text accompanying note 35.
79. See 20 U.S.C. § 1414(a) (1994); 34 C.F.R. § 300.220-.227 (1996).
80. See U.S. GEN. ACCOUNTING OFFICE, supra note 1, at 11.
81. 34 C.F.R. § 300.553 (1996).
82. Each SEA and LEA must "take steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children." 34 C.F.R. §300.305 (1996); see also 34 C.F.R. § 300.304 (1996) (requiring each SEA to "ensure that each public agency establishes and implements a goal of providing full educational opportunity to all children with disabilities in the area served by the public agency").
83. An "appropriate" education is one that has been developed using the procedures that the IDEA prescribes and is "reasonably calculated to enable the child to receive educational benefits." See Carter ex rel. Carter v. Florence County Sch. Dist. Four, 950 F.2d 156, 160 (quoting Board of Educ. v. Rowley, 458 U.S. 176, 207 (1982)), aff'd, 114 S. Ct. 361 (1993). The IDEA requires that each child receive a program under which educational progress is likely, but does not require schools to provide the services that would enable a disabled child to maximize his or her personal potential. See Board of Educ. v. Rowley, 458 U.S. 176, 189 (1982).
84. See 20 U.S.C. § 1401(a)(18) (1994); 34 C.F.R. § 300.8(a)-(d) (1996). "Special education" is defined to mean "specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability." See 20 U.S.C. § 1401(a)(16) (1996); 34 C.F.R. § 300.17(a)(I) (1996). "Related services" include "transportation and such developmental, corrective and other supportive services as are required to assist a child with a disability to benefit from special education." See 34 C.F.R. § 300.16(a) (1996). Specific related services include: speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitative counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. See id.
85. The LEA must arrange and pay for an individual evaluation of a child with a suspected disability. See 34 C.F.R. § 300.531 (1996). A multidisciplinary team that possesses special expertise on the child's possible disabilities and needs must conduct the evaluation. See 34 C.F.R. § 300.532(e) (1996). If the parent disagrees with the evaluation and requests a second, independent evaluation of the child, the LEA must arrange and pay for it. See 34 C.F.R. § 300.503 (1996).
86. See 34 C.F.R. § 300.552(a)(2). "[T]he IEP must be developed before a placement is chosen. A school system violates IDEA if it writes an IEP to fit a placement it has already selected." ORDOVER & BOUNUY, supra note 15, at 45.
87. See 34 C.F.R. § 300.550(b)(1) (1996). "Special classes, separate schooling or other removal of children with disabilities from the regular education environment should occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id. § 300.550(b)(2) (emphasis added).
88. See 34 C.F.R. § 300.551(b)(1) (1996).
89. See Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in LAW AND SCHOOL REFORM (Jay P. Heubert ed., forthcoming 1998); Debra Viadero, Study Links Mainstreaming, Disabled Students' Success. EDUC. WK., May 27, 1992, at 8. As a result, schools and teachers are increasingly expected to restructure regular classrooms to accommodate a wider range of student needs. See ALICE DONAHUE & SHELLEY GROSS, MASSACHUSETTS BD. OF EDUC., A FOCUS ON INTEGRATION: INCLUDING ALL STUDENTS (1992); MARGARET C. WANG, EFFECTIVE SCHOOL RESPONSES TO STUDENT DIVERSITY: CHALLENGES AND PROSPECTS (1991).
90. See Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in LAW AND SCHOOL REFORM (Jay P. Heubert ed., forthcoming 1998); Debra Viadero, Study Links Mainstreaming, Disabled Students' Success. EDUC. WK., May 27, 1992, at 8. As a result, schools and teachers are increasingly expected to restructure regular classrooms to accommodate a wider range of student needs. See ALICE DONAHUE & SHELLEY GROSS, MASSACHUSETTS BD. OF EDUC., A FOCUS ON INTEGRATION: INCLUDING ALL STUDENTS (1992); MARGARET C. WANG, EFFECTIVE SCHOOL RESPONSES TO STUDENT DIVERSITY: CHALLENGES AND PROSPECTS (1991).
91. See Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in LAW AND SCHOOL REFORM (Jay P. Heubert ed., forthcoming 1998); Debra Viadero, Study Links Mainstreaming, Disabled Students' Success. EDUC. WK., May 27, 1992, at 8. As a result, schools and teachers are increasingly expected to restructure regular classrooms to accommodate a wider range of student needs. See ALICE DONAHUE & SHELLEY GROSS, MASSACHUSETTS BD. OF EDUC., A FOCUS ON INTEGRATION: INCLUDING ALL STUDENTS (1992); MARGARET C. WANG, EFFECTIVE SCHOOL RESPONSES TO STUDENT DIVERSITY: CHALLENGES AND PROSPECTS (1991).
92. See Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in LAW AND SCHOOL REFORM (Jay P. Heubert ed., forthcoming 1998); Debra Viadero, Study Links Mainstreaming, Disabled Students' Success. EDUC. WK., May 27, 1992, at 8. As a result, schools and teachers are increasingly expected to restructure regular classrooms to accommodate a wider range of student needs. See ALICE DONAHUE & SHELLEY GROSS, MASSACHUSETTS BD. OF EDUC., A FOCUS ON INTEGRATION: INCLUDING ALL STUDENTS (1992); MARGARET C. WANG, EFFECTIVE SCHOOL RESPONSES TO STUDENT DIVERSITY: CHALLENGES AND PROSPECTS (1991).
93. See, e.g., Sacramento City Unified Sch. Dist. Bd. of Educ. v. Holland. 14 F.3d 1398 (9th Cir. 1994); Oberti v. Bd. of Educ., 995 F.2d 1204 (3d Cir. 1993); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989). Education in the school nearest home (or in the school the child would attend if not disabled) is generally preferred, but it is less important than finding an educationally appropriate placement. See 34 C.F.R. § 300.552; tee also Hudson v. Bloomfield Hills Pub. Sch., 910 F. Supp. 1291 (E.D. Mich. 1995) (holding that the IDEA does not require the placement of a child in the school she would attend had she not had any disability); Murray v. Montrose County Sch. Dist., 51 F.3d 921 (10th Cir. 1995) (holding that the LRE provision does not establish a strong rebuttable presumption in favor of neighborhood schooling). This approach may not be uniform among the circuits; the Murray court pointed out its disagreement with the Oberti court to the extent that Oberti held that "the IDEA encompasses a presumption of neighborhood schooling." Murray, 51 F.3d at 929. The Murray court notes, however, that Oberti was about inclusion, not proximity to the home. See id. at 929 n.13. The Oberti opinion states that there is a "presumption in favor of placing the child, if possible, in the neighborhood school, and if that is not feasible, as close to home as possible." Oherti, 995 F.2d at 1224 n.31. This interpretation of the IDEA regulations would still permit a district to decide that it was not "feasible" for the child to be placed in the neighborhood school. Thus, it is unclear whether there is actually a disagreement here.
94. Under the IDEA, standards for personnel "(ajre based on the highest requirements in the State applicable to the profession or discipline in which a person is providing special education or related services." 34 C.F.R. § 00.153(a)(I)(i) (1992). Thus, if a state generally requires public school special education teachers to be certified in special education, or in special education subfields, special education teachers who teach charter school students must also meet that standard. See id.
95. See, e.g., DONAHUE & GROSS, supra note 73; WANG, supra note 73; see also 34 C.F.R. § 300.382(a) (1996) (stating that an SEA's plan for IDEA compliance must include "[a] system for the continuing education of regular and special education and related services personnel to enable these personnel to meet the needs of children with disabilities").
96. See 34 C.F.R. § 300.513 (1996).
97. See 34 C.F.R. § 300.340-.350 (1996).
98. See 34 C.F.R. § 300.506-.5 12, .660-.662 (1996).
99. See 20 U.S.C. § 1415(e)(4) (1994); 34 C.F.R. § 300.515 (1996).
100. See 34 C.F.R. § 300.110, .121-.154, .180, .220-.240 (1996).
101. See supra note 3 and accompanying text.
102. See supra text accompanying notes 56-60. See supra note 53 for a list of states in which charter schools constitute LEAs.
103. For reasons described in the following section. Section 504 and Title II may impose duties on charter schools without regard to their governance structures. See infra Part II.B.
104. See 20 U.S.C. § 1414(a) (1994): 34 C.F.R. S 300.220-.227 (1996).
105. See 34 C.F.R. § 300.220 (1996) ("The LEA is responsible for ensuring that all children with disabilities within its jurisdiction are identified, located, and evaluated . . . .").
106. See 34 C.F.R. § 300.503(a) (1996).
107. See 34 C.F.R. § 300.505(b)(2), (c)(1) (1996).
108. See 34 C.F.R. § 300.515 (1996).
109. See 20 U.S.C. § 1414(a) (1994); 34 C.F.R. § 300.220-.227 (1996).
110. See supra note 68.
111. See id.
112. See, e.g., 34 C.F.R. § 104.61(D)(¶ 23) (1996) ("Under §104.33 . . . [i]f a recipient places a child in a program other than its own, it remains financially responsible for the child, whether or not the other program is operated by another recipient or educational agency . . . .").
113. See Schnaiberg, supra note 32, at 25, 25 (quoting Jay P. Heubert) ("In general, the IDEA and many state laws place much of the responsibility for special education on school districts . . . .").
114. Some states may decide that autonomous charter schools, which are LEAs, must assume the same burdens as traditional school districts. Others may elect to assign responsibility to the school district in which the child with disabilities resides. Still others may split the difference; Massachusetts, for example, requires its autonomous charter schools to pay the costs of educating children with disabilities who can be served in other public school settings, but assigns to the district of residence responsibility for covering the costs of private school special education placements. See MASS. ANN. LAWS ch. 71, § 89(h) (Law. Co-op. 1996) ("Charter schools shall comply with the provisions of chapters seventy-one A and seventy-one B: provided, however, that the fiscal responsibility of any special needs student currently enrolled in or determined to require a private day or residential school shall remain with the school district where the student resides.") (emphasis added).
115. See 34 C.F.R. § 300.552(c) (1996).
116. Id.
117. The cost of providing IEP-mandated services at the neighborhood school may be a permissible reason for placing the student in a more distant school. For example, in Barnen v. Fairfax County School Board, 927 F.2d 146 (4th Cir. 1991), the Fourth Circuit held that a centralized location was the least restrictive environment for a hearing impaired student who required the services of a cued speech interpreter. Due to limited resources, the school district had centralized its cued speech services at one regular education high school. Cost was also a permissible factor in Hudson v. Bloomfield Hills Public Schools, 910 F. Supp. 1291 (E.D. Mich. 1995). While the central issue in the case was whether a student was able to benefit from her current placement at a regular education high school, the court's opinion pointed out that the only way for a student to benefit at that placement would be to add an entire special education basic classroom to the high school she wished to attend (an appropriate program was available at a different location). The court accepted the conclusions of the Local Hearings Officer that "[t]he costs involved in the replication of programs solely for placing [the student] in her home school cannot be justified." Id. at 1299.
118. See, e.g., Clevenger v. Oak Ridge Sch. Bd., 744 F.2d 514. 517 (6th Cir. 1984) (holding that cost considerations were relevant only when choosing among several options offering appropriate education and that where only school one is appropriate, there is no choice); see also UNDERWOOD & MEAD, supra note 15, at 76 ("[C]ost can be a determinant only when more than one possible least restrictive appropriate placement option exists. Neither low nor high cost can make an inappropriate placement appropriate.").
119. See infra Part II.B.
120. See supra note 93.
121. See infra Part II.B.
122. See Schnaiberg, supra note 34, at 1 ("Many charter school operators have felt overwhelmed, or at least unprepared, in dealing with special education procedures.").
123. See supra note 94.
124. Under the Federal Civil Rights Restoration Act, the non-discrimination provisions of Section 504 and similar statutes apply to all activities of a federal fund recipient, not simply activities that receive federal funding. See 20 U.S.C. § 1687 (1987). Section 504's regulations also prohibit a federal fund recipient from entering into contractual or licensing , arrangements with other entities that discriminate, 34 C.F.R. § 104.4(b)(1) (1996). and from providing "significant assistance" to any entity, public or private, that discriminates in providing services to beneficiaries of the recipients' programs. 34 C.F.R. § 104.4(b)(1)(v). The U.S. Department of Education's "Analysis of Final Regulations" points out that this provision may indirectly subject nonpublic schools to the substantive requirements of the Section 504 regulations. Thus, even a private school will be subject to Section 504 if it receives significant assistance from the state or a state entity. See 34 C.F.R. § 104 app. A(1) at 364 (1996). These regulations, and similar regulations under Title II. see infra note 108, strongly support Julie Mead's argument that states act illegally when they provide funds to private schools that do not comply with federal disability law. See Julie Mead, Including Students with Disabilities in Parental Choice Programs: The Challenge of Meaningful Choice, 100 Educ. L. Rep. (West) 463 (July 27, 1995).
125. See 29 U.S.C. S 794 (1996); 34 C.F.R. § 104.2 (1996).
126. 28 C.F.R. § 35.102(a) (1996).
127. A public entity includes "any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. S 12131(1)(A)-(B) (1994); 28 C.F.R. § 35.104 (1996). Moreover, Title II, like Section 504, prohibits public entities from entering into contractual or licensing arrangements with other entities that discriminate and from providing aid or assistance to entities that themselves discriminate on the basis of disability. See 28 C.F.R. § 35.130(b)(1)(v) (1996); U.S. DEP'T OF JUSTICE, THE AMERICANS WITH DISABILITIES ACT: TITLE II TECHNKAI. ASSISTANCE MANUAL 1 (1992).
128. Section 504 states that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. § 794 (1994). Title II provides that "[n]o qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any public entity." 28 C.F.R. § 35.130 (1996).
129. Section 504's regulations are found at 34 C.F.R. § 104.1-.61 (1996); Title II's regulations are found at 28 C.F.R. § 35.101-.190 (1996).
130. The U.S. Department of Education's Office for Civil Rights, which enforces Title II and Section 504 in education, has taken the position that Title II incorporates the substantive requirements of Section 504. See 28 C.F.R. § 35.130-.135 (1996); U.S. DEPT. OF JUSTICE, supra note 108, at 9: Most requirements of Title II are based on Section 504 . . . . The ADA . . . extends Section 504's nondiscrimination provisions to all activities of State and local governments, not only those that receive Federal financial assistance . . . . 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 regulation.
131. First, federal funds for many programs - Title I, the IDEA, Title VI
132. Charter schools that are part of public school districts are "public entities" subject to Title II, as are charter schools that are defined under state law as "public" or that answer to independent charter school boards defined as state entities under state law. See supra note 108. Even a wholly independent public charter school that receives its charter from the state or from an agency of the state, and/or receives funding from the state, would probably be covered by Title II. See Hoot v. Milan Area Sch., 853 F. Supp. 243 (E.D. Mich. 1994); see also Hoot v. Mich. High Sch. Athletic Assoc., 20 Individuals with Disabilities Educ. L. Rep. (LRP) 992 (E.D. Mich. 1994) (finding genuine issue of material fact as to whether a private, nonprofit association sanctioned by state law, composed primarily of public schools, and frequently utilizing public facilities, is a "public entity" under Title II). There is no evidence that this decision has been appealed. Finally, as noted earlier, charter schools that receive federal charter school grants agree in so doing to abide by Title II. See supra note 60.
133. U.S. DEP'T OF JUSTICE, supra note 108, at 9.
134. SEAs bear ultimate responsibility for ensuring compliance, but many specific obligations fall first and foremost on LEAs. SEAs can and do shift many of the costs to LEAs. LEAs must provide these federally mandated services (and, unless state law provides otherwise, pay for such services) even if they must cut funding elsewhere to do so.
135. 20 U.S.C. § 1401(a)(16) (1994); 34 C.F.R. § 300.17(a)(1) (1996).
136. See ORDOVER & BOUNDY, supra note 15, at 4; cf. U.S. DEP'T OF JUSTICE, supra note 108, at 9 (discussing similarities in requirements between Title II and Section 504).
137. See UNDERWOOD & MEAD, supra note 15, at 44-45.
138. See 34 C.F.R. § 104.3(j) (1996); 28 C.F.R. § 35.104(4) (1996).
139. See 20 U.S.C. §1401(a)(16) (1994): 34 C.F.R. § 300.17(a)(1) (1996).
140. 34 C.F.R. § 300.123 (1996) (providing that each state must provide "full educational opportunity to all children with disabilities aged birth through 21").
141. Current illegal users of drugs, for example, are not covered by Title II. See 29 S.C. § 706(8)(C)(i) (1994); 28 C.F.R. § 35.104(5)(iii) (1996).
142. See infra Part II.B.3 for a discussion of who is "qualified."
143. See supra text accompanying notes 104-107.
144. See 29 U.S.C. § 706(8) (1994); 42 U.S.C. § 12131 (1994); Mead, supra note 105, 466.
145. U.S. DEPT. OF JUSTICE, supra note 108, at 16.
146. The issue is not whether the charter school does operate a program appropriate for the student but whether it could. See Kasprzyk v. Banaszak, No. 95-C2131, 1996 U.S. Dist. LEXIS 11400 *12 (N.D. Ill. Aug. 6, 1996).
147. See UNDERWOOD & MEAD, supra note 15, at 97 ("An IEP remains in effect until supplanted by a new valid IEP. A change in the amount of services or placement cannot be made without a new IER").
148. See id.
149. See, e.g., Lytle, supra note 38, at 116.
150. Many states already require efforts to try different ways of serving children in regular classrooms before referring a child for special education evaluation. See, e.g., DONAHUE & GROSS, supra note 73.
151. See 34 C.F.R. § 104.33(a) (1996).
152. See 34 C.F.R. § 104.33(b)(2), .35-36 (1996); see also ORDOVER & BOUNDY, supra note 15, at 4 ("Many specific Section 504 requirements concerning issues such as the evaluation and placement of pupils with disabilities, the components of a free appropriate education, the circumstances under which a student with disabilities may be removed from the regular classroom setting, and procedural safeguards [also] mirror or complement IDEA mandates.").
153. For example, Section 504 regulations define FAPE as "regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adeauately as the needs of nonhandicapped persons are met." 34 C.F.R. § 104.33(b)(1)(i) (1996) (emphasis added).
154. Id.
155. See THOMAS F. GUERNSEY & KATHE KLARE, SPECIAL EDUCATION LAW 31 (1993) (discussing Section 504).
156. Perry A. Zirkel, The Substantive Standard for FAPE: Does Section 504 Require Less Than the IDEA?, 106 Educ. L. Rep. (West) 471, 476 (1996).
157. See, e.g., 34 C.F.R. § 104.61 (1996).
158. See Letter from Robert R. Davila, Assistant Secretary. Office of Special Education and Rehabilitative Services, U.S. Department of Education, and William L. Smith. Acting Assistant Secretary for the Office for Civil Rights, U.S. Department of Education to Joe E. Lutjenarms, Commissioner of Education, Nebraska Department of Education (Mar. 5, 1990) (on file with the Harvard Civil Rights-Civil Liberties Law Review): see also Letter from Robert R. Davila and William L. Smith to David S. Tatel and Marie Sneed, Hogan & Hartson (Feb. 9. 1990) (on file with the Harvard Civil Rights-Civil Liberties Law Review). These decisions hold that where states create "choice districts" separate from traditional school districts, states may transfer to such choice districts the responsibility to provide FAPE. These rulings also say that states may require these choice districts rather than the school districts of residence to pay for FAPE.
159. See 34 C.F.R. § 104.3(k)(1) (1996).
160. See 34 C.F.R. § 104.3(k)(3) (1996).
161. School Bd. v. Arline, 480 U.S. 273 (1987).
162. 42 U.S.C. § 12131(2) (1994).
163. U.S. DEP'T OF JUSTICE, supra note 108, at 12. Whether an eligibility criterion is "essential" depends upon the job or program and can often be determined only on a case-by-case basis. For example, it might be a reasonable accommodation for a college to waive its foreign-language requirement for a student with certain learning disabilities unless the student sought a degree in a field in which mastery of a foreign language was essential.
164. See id. at 14.
165. See 42 U.S.C. § 12132 (1994); 29 U.S.C. § 794 (1994).
166. 42 U.S.C. § 12131 (1994); 29 U.S.C. § 794 (1994).
167. 34 C.F.R. § 104.12(a) (1996); see also 29 U.S.C. § 794(d) (1994) (citing 42 U.S.C. § 12111 (1994)); Southeastern Community College v. Davis, 442 U.S. 397, 412-13 (1979) ("[S]ituations may arise where a refusal to modify an existing program might become . . . discriminatory.").
168. 34 C.F.R. § 104.12(c) (1996).
169. U.S. DEP'T OF JUSTICE, supra note 108. at 13. In the employment context, however, Title II, like Section 504, uses an "undue hardship" standard rather than a "fundamental alteration" test. Id. at 17-18.
170. Southeastern Community College, 442 U.S. 397, 410-12 (1979).
171. With respect to public preschool, elementary, secondary, or adult educational services . . . [a person with disabilities is qualified if he or she is] of an age during which non-handicapped persons are provided with such services, [is] of any age during which it is mandatory under state law to provide such services to handicapped persons, or [is someone] to whom a state is required to provide a free appropriate public education [under the IDEA]. 34 C.F.R. § 104(3)(k)(2) (1996).
172. Even a student who posed a direct threat to the health or safety of others would be "qualified" for a public education, though the appropriate placement for that child would be more restrictive. Under School Board of Nassau County v. Arline, 480 U.S. 273 (1987), as codified in the ADA, a valid determination that an individual poses a direct threat requires consideration by appropriate medical personnel of the following factors: the duration, nature, and severity of the potential harm; the likelihood the potential injury will occur; the imminence of the potential harm; whether a reasonable modification of policies, practices, or procedures, or the provision of auxiliary aids and services, might mitigate or eliminate the risk. See 28 C.F.R. pt. 35, app. A (1996).
173. Letter from Office of Civil Rights, U.S. Department of Education, to Professor Perry A. Zirkel, Lehigh University (Aug. 23, 1993) available in 20 Individuals with Disabilities Educ. L. Rep. (LRP) 134 (1993) (emphasis added).
174. For a thoughtful discussion of this decision and possible grounds for it, see Zirkel, supra note 137, at 476.
175. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984) (holding that the Court "has long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations").
176. Courts have on occasion imported the "reasonable accommodation" standard into cases involving K-12 educational programming and criteria. One court even went so far as to hold that if the Section 504 FAPE regulations required substantial adjustments in existing programs, beyond what was necessary to eliminate discrimination, then they exceeded the authority granted by Congress under the statute. See Lyons v. Smith, 829 F. Supp. 414 (D.D.C. 1993). For a discussion of these cases, and possible disagreements between the Department of Education and several lower courts, see David L. Dagley & Charles W. Evans, The Reasonable Accommodation Standard for Section 504-Eligible Students, 97 EDUC. L. REP. (West) 1 (1994).
177. As noted above, the IDEA requires each SEA and LEA to "take steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children," 34 C.F.R. § 300.305 (1996) (emphasis added), while Title 34 of the Code of Federal Regulations requires each SEA to ensure that each public agency "establishes and implements a goal of providing full educational opportunity to all children with disabilities in the area served by the public agency." 34 C.F.R. § 300.304 (1996) (emphasis added).
178. 42 U.S.C. § 12112 (1994); 42 U.S.C. § 12132 (1994); 42 U.S.C. § 12182 (1994). Similar prohibitions appear in the Title II regulations at 28 C.F.R. § 35.130 (1996).
179. See 34 C.F.R. § 104.4(a) (1996). Any student in public school would be included under this regulation since the school would be a recipient of federal financial assistance.
180. See 34 C.F.R. § 104.4(b)(1)(i), (iii) (1996); 28 C.F.R. § 35.130(b)(1)(i) (1996).
181. See 28 C.F.R. § 35.130(b)(1)(ii) (1996); 34 C.F.R. § 104.4(b)(1)(iii) (1996).
182. See 34 C.F.R. § 104.4(b)(1)(iii) (1996). To meet the "equally effective" standard does not mean that an aid, benefit, or service must produce identical results or the same level of achievement; rather it must "afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs." 34 C.F.R. § 104.4(b)(2) (1996).
183. See 34 C.F.R. § 104.4(b)(iv) (1996).
184. 28 C.F.R. §§ 35.130(b)(1)(vii), 36.202-.203; 34 C.F.R. § 104.4(b)(1)(vii) (1996) (extending similar types of prohibitions to the context of public accommodation); 42 U.S.C. §§ 12132, 12182(b) (1994).
185. It appears, for example, that if charter school officials sought to assign a student with a disability to a traditional public school, that student would be denied access to a unique program, a violation of 34 C.F.R. § 104.4 and 28 C.F.R. § 35.130. See Charter Schools and Special Ed Law: An Imperfect Union, supra note 32, at 1, 9.
186. If a charter school attempted to deny such a student admission or necessary services, it would infringe on his or her enjoyment of a right, privilege, advantage, or opportunity that nondisabled students enjoy, which would be a violation of 34 C.F.R. § 104.4(b)(1)(vii) (1996) and 28 C.F.R. § 35.130(b)(1)(vii) (1996).
187. U.S. DEP'T OF JUSTICE, supra note 108, 10.
188. See Charter Schools and Special Ed Law: An Imperfect Union, supra note 32, at 1, 9.
189. See, e.g., Mead, supra note 105, at 488-91; see also Joseph R. McKinney & Julie F. Mead, Law and Policy in Conflict: Including Students with Disabilities in Parental Choice Programs, 32 EDUC. ADMIN. Q. 107, 122-26 (1996); Mei-lan E. Wong, Note, The Implications of School Choice for Students With Disabilities, 103 YALE L.J. 827, 855-59 (1993).
190. See, e.g., Mead, supra note 105, at 488-91; see also Joseph R. McKinney & Julie F. Mead, Law and Policy in Conflict: Including Students with Disabilities in Parental Choice Programs, 32 EDUC. ADMIN. Q. 107, 122-26 (1996); Mei-lan E. Wong, Note, The Implications of School Choice for Students With Disabilities, 103 YALE L.J. 827, 855-59 (1993).
191. See Wong, supra note 170, at 857.
192. Regarding the least restrictive environment requirement, a charter school that draws non-disabled students from a district-wide or regional attendance area could not claim that a student with disabilities is limited to the school nearest home. Under the IDEA, such a placement is preferred but not required, and under the nondiscrimination provisions of Section 504 and Title II, it would be illegal to limit children with disabilities to neighborhood schools while their nondisabled peers selected educational programs of special interest to them from a much larger attendance zone.
193. See 34 C.F.R. § 104.4(b)(1)(vii) (1996); 28 C.F.R. § 35.130(b)(1)(vii) (1996).
194. See, e.g., 29 U.S.C. § 794(c) (1994) (exempting "small providers" from making structural alterations); 42 U.S.C. § 12112(c)(2)(B) (1994) (exempting "foreign operations of an employer that is a foreign person not controlled by an American employer" from coverage).
195. See supra text accompanying notes 148, 150.
196. See id.
197. Title III applies to any public accommodation, which includes "[a] nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education." 42 U.S.C. § 12181(7)(J) (1994); 28 C.F.R. § 36.104(10) (1996). Although there are no particular educational requirements under Title III, unlike Section 504 and Title II, Title III's nondiscrimination requirement creates some obligation for private schools to reasonably modify their policies and procedures to accommodate students with disabilities.
198. Cf. NATIONAL ASS'N OF INDEP. SCHS. & ROPES & GRAY, THE AMERICANS WITH DISABILITIES ACT AND INDEPENDENT SCHOOLS: PART II 4 (1993) (discussing member school that decided to waive requirement on such grounds).
199. See NATIONAL ASS'N OF INDEP. SCHS. & ROPES & GRAY, THE AMERICANS WITH DISABILITIES ACT AND INDEPENDENT SCHOOLS 6 (1991).
200. Cf. 34 C.F.R. § 300.552(0 (1996) (requiring that "[u]nless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.").
201. U.S. DEP'T OF JUSTICE, supra note 108, at 12.
202. As noted above, Section 504's mandate of nondiscrimination prohibits recipients from denying individuals with disabilities the opportunity to benefit from its programs and services or affording to them an unequal or less effective opportunity. See 34 C.F.R. § 104.4(b) (1996). Furthermore, the IDEA requires that students with disabilities have available to them "the variety of educational programs and services available to nondisabled children," 34 C.F.R. § 300.305 (1996). and. like Section 504, obligates LEAs to "provide nonacademic services and activities" in a manner that "afford[s] children with disabilities an equal opportunity for participation." 34 C.F.R. § 300.306(a) (1996). Under these provisions, children with disabilities plainly may not be excluded from the range of educational benefits available to nondisabled children, including, but not limited to, a free, appropriate, public education.
203. p; See 34 C.F.R. § 106.4(b) (1996); U.S. DEP'T OF JUSTICE, supra note 108, at 12.
204. See, e.g., Fallbrook Union Elementary Sch. Dist., 16 Educ. for the Handicapped L. Rep. (LRP) 754 (Jan. 22, 1990) (ruling that a school that accepted students from other districts could not exclude categorically students with disabilities); cf. Chattanooga (TN) Pub. Sch. Dist., 20 Individuals with Disabilities Educ. L. Rep. (LRP) 999 (Aug. I 1, 1993) (invalidating admissions criteria excluding all children who lacked "the capacity to function without special education services, other than speech, hearing and vision services"); San Francisco (CA) Unified Sch. Dist., 16 Educ. for the Handicapped L. Rep. (LRP) 824 (Mar. 28, 1990) (invalidating a policy under which no student requiring special education services could be admitted to an alternative academic magnet high school).
205. Analysis of the disputes mentioned in the preceding note illustrates possible ways in which charter schools or the LEAs that operate them would risk legal violations for failing to provide access to these innovative programs as well as services that enable the student to benefit from participating. First, one school district was found to have discriminated when it refused those students' requests to participate in an interdistrict transfer program, while permitting nondisabled students to participate. This exclusionary eligibility standard violated Section 504 by excluding students with disabilities from participating in the school district's programs and activities, as well as by denying the students the opportunity to benefit from the services offered by the district. See Fallbrook Union Elementary Sch. Dist., 16 Educ. for the Handicapped L. Rep. (LRP) 754 (Jan. 22. 1990). Second, a school district with an alternative high school program emphasizing "academic excellence in a highly structured educational environment" was found to have violated Section 504 when it required parents to sign a form indicating their understanding that no special education services were provided. This requirement had the effect of denying FAPE to students with disabilities who chose to sign the form and attend the school and subjecting such students to discrimination "by requiring them to participate in the program without the services needed for them to participate effectively. " San Francisco (CA) Unified Sch. Dist., 16 EDUCATION FOR THE HANDICAPPED L. REP. (LRP) 824 (Mar. 28, 1990). Third, a school district that limited enrollment in its magnet programs to students who could function without special education services other than speech, hearing, and vision services was held to have violated Section 504 and Title II by establishing discriminatory admissions criteria, failing to provide FAPE regardless of the nature and severity of the disability, failing to offer educational services equal to the services provided to students without disabilities, failing to offer an education designed to meet the education needs of handicapped students as adequately as the needs of a nondisabled student are met, denying students with other than hearing, speech, or vision disabilities the opportunity to participate in the school's program, and limiting such students in their enjoyment of an opportunity enjoyed by others. See Chattanooga (TN) Public Sch. Dist., 20 INDIVIDUALS WITH DISABILITIES EDUC. L. REP. (LRP) 999 (Aug. 11, 1993).
206. Analysis of the disputes mentioned in the preceding note illustrates possible ways in which charter schools or the LEAs that operate them would risk legal violations for failing to provide access to these innovative programs as well as services that enable the student to benefit from participating. First, one school district was found to have discriminated when it refused those students' requests to participate in an interdistrict transfer program, while permitting nondisabled students to participate. This exclusionary eligibility standard violated Section 504 by excluding students with disabilities from participating in the school district's programs and activities, as well as by denying the students the opportunity to benefit from the services offered by the district. See Fallbrook Union Elementary Sch. Dist., 16 Educ. for the Handicapped L. Rep. (LRP) 754 (Jan. 22. 1990). Second, a school district with an alternative high school program emphasizing "academic excellence in a highly structured educational environment" was found to have violated Section 504 when it required parents to sign a form indicating their understanding that no special education services were provided. This requirement had the effect of denying FAPE to students with disabilities who chose to sign the form and attend the school and subjecting such students to discrimination "by requiring them to participate in the program without the services needed for them to participate effectively. " San Francisco (CA) Unified Sch. Dist., 16 EDUCATION FOR THE HANDICAPPED L. REP. (LRP) 824 (Mar. 28, 1990). Third, a school district that limited enrollment in its magnet programs to students who could function without special education services other than speech, hearing, and vision services was held to have violated Section 504 and Title II by establishing discriminatory admissions criteria, failing to provide FAPE regardless of the nature and severity of the disability, failing to offer educational services equal to the services provided to students without disabilities, failing to offer an education designed to meet the education needs of handicapped students as adequately as the needs of a nondisabled student are met, denying students with other than hearing, speech, or vision disabilities the opportunity to participate in the school's program, and limiting such students in their enjoyment of an opportunity enjoyed by others. See Chattanooga (TN) Public Sch. Dist., 20 INDIVIDUALS WITH DISABILITIES EDUC. L. REP. (LRP) 999 (Aug. 11, 1993).
207. Analysis of the disputes mentioned in the preceding note illustrates possible ways in which charter schools or the LEAs that operate them would risk legal violations for failing to provide access to these innovative programs as well as services that enable the student to benefit from participating. First, one school district was found to have discriminated when it refused those students' requests to participate in an interdistrict transfer program, while permitting nondisabled students to participate. This exclusionary eligibility standard violated Section 504 by excluding students with disabilities from participating in the school district's programs and activities, as well as by denying the students the opportunity to benefit from the services offered by the district. See Fallbrook Union Elementary Sch. Dist., 16 Educ. for the Handicapped L. Rep. (LRP) 754 (Jan. 22. 1990). Second, a school district with an alternative high school program emphasizing "academic excellence in a highly structured educational environment" was found to have violated Section 504 when it required parents to sign a form indicating their understanding that no special education services were provided. This requirement had the effect of denying FAPE to students with disabilities who chose to sign the form and attend the school and subjecting such students to discrimination "by requiring them to participate in the program without the services needed for them to participate effectively. " San Francisco (CA) Unified Sch. Dist., 16 EDUCATION FOR THE HANDICAPPED L. REP. (LRP) 824 (Mar. 28, 1990). Third, a school district that limited enrollment in its magnet programs to students who could function without special education services other than speech, hearing, and vision services was held to have violated Section 504 and Title II by establishing discriminatory admissions criteria, failing to provide FAPE regardless of the nature and severity of the disability, failing to offer educational services equal to the services provided to students without disabilities, failing to offer an education designed to meet the education needs of handicapped students as adequately as the needs of a nondisabled student are met, denying students with other than hearing, speech, or vision disabilities the opportunity to participate in the school's program, and limiting such students in their enjoyment of an opportunity enjoyed by others. See Chattanooga (TN) Public Sch. Dist., 20 INDIVIDUALS WITH DISABILITIES EDUC. L. REP. (LRP) 999 (Aug. 11, 1993).
208. U.S. DEPT. OF JUSTICE, supra note 108, at 12 (1992).
209. Along these lines, Title II requires a public entity to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7) (1996).
210. Conversation with Jonathan Schnurr, Assistant to the Secretary, U.S. Department of Education (Jan. 13, 1996).
211. See supra text accompanying notes 181-182.
212. See 42 U.S.C. § 12203 (1994); 28 C.F.R. 35.134, 36.206 (1996); supra text accompanying note 126.
213. See supra note 183.
214. See supra text accompanying notes 160-165.
215. Cf. Brookhart v. Illinois State Bd. of Educ., 697 F.2d 179, 183 (7th Cir. 1983) ("Denial of diplomas to handicapped children who have been receiving the special education required by the Act but are unable to achieve the educational level to pass the M.C.T., is not a denial of a 'free appropriate public education.'" (internal citations omitted)).
216. The IDEA extends to individuals ages 3 to 21 the right to FAPE. See UNDERWOOD & MEAD, supra note 15, at 283. Thus, a student with disabilities who did not graduate at the age of 17 or 18 would be entitled to receive a free appropriate public education for several additional years. Moreover, if a state allows nondisabled students to remain in school beyond the age of 21, it would be illegally discriminatory to end services for children with disabilities any sooner.
217. See, e.g., 29 U.S.C. § 794 (1994) (Section 504); 34 C.F.R. § 104.21 (1996) (Section 504); 28 C.F.R. § 35.133, .149 (1996) (Title II).
218. See 34 C.F.R. § 104.4(b)(5)(i) (1996).
219. See 34 C.F.R. § 104.23(a) (1996); 28 C.F.R. § 35.151(a) (1996).
220. See 34 C.F.R. § 104.23(b) (1996); 28 C.F.R. § 35.151(b) (1996).
221. See 34 C.F.R. § 104.22 (1996); 28 C.F.R. § 35.150(a) (1996).
222. See 28 C.F.R. § 35.150(a)(3) (1996).
223. Some states' charter schools laws, including California's, allow such "conversions." See. e.g., MILLOT, supra note 22, § 47606, at 278.
224. U.S. DEPT. OF JUSTICE, supra note 108, at 15. "Isolated or temporary interruptions in access due to maintenance and repair of facilities are not prohibited." Id.
225. See 34 C.F.R. § 104.33(a) (1996).
226. The "otherwise qualified" limitation does not apply where K-12 students are concerned, since such students are all deemed "qualified." See supra text accompanying note 152. Similarly, the reasonable accommodation/undue burden limitation probably does not apply to the provision of FAPE under these statutes, as it would to beneficiaries other than students; LEAs must provide and (subject to state law) pay for FAPE regardless of cost. See supra text accompanying notes 154-157. These points should be useful chiefly to lawyers, judges, and others who have dealt with these statutes in domains such as employment or postsecondary education; such individuals should recognize that key legal provisions apply differently where K-12 students are concerned.
227. If a child meets IDEA eligibility standards, compliance with IDEA standards and procedures constitutes compliance with Section 504 and Title II. See ORDOVER & BOUNDY, supra note 15, at 4; cf. U.S. DEP'T OF JUSTICE, supra note 108, at 9 (discussing similarities in requirements between Title II and Section 504). If a student is eligible for FAPE under Section 504 and Title II but not under the IDEA, the standards for FAPE may be higher, requiring a level of service equal to that provided nondisabled students rather than merely "appropriate" education, as defined (rather minimally) under the IDEA. See supra Part II.B.2.
228. See supra text accompanying notes 85-93.
229. See supra text accompanying note 68 (defining FAPE).
230. See supra text accompanying notes 147-151.
231. Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972).
232. Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972).
233. See, e.g., Finn & Ravitch, supra note 48, at A14; see also FINN ET AL., supra note 28, at 8.
234. At present the likelihood is small, in part because federal laws protecting persons with disabilities enjoy such broad, bipartisan support in Congress. For example, the ADA was enacted in 1990 with lopsided majorities in both the House and Senate. See 136 CONG. REC. H4629 (daily ed. July 12, 1990); 136 CONG. REC. S9695 (daily ed. July 13, 1990).
235. At present the likelihood is small, in part because federal laws protecting persons with disabilities enjoy such broad, bipartisan support in Congress. For example, the ADA was enacted in 1990 with lopsided majorities in both the House and Senate. See 136 CONG. REC. H4629 (daily ed. July 12, 1990); 136 CONG. REC. S9695 (daily ed. July 13, 1990).
236. As the PARC court put it, "plaintiffs question whether the state, having undertaken to provide public education to some children . . . may deny it to plaintiffs entirely. We are satisfied that the evidence raises serious doubts (and hence a colorable claim) as to the existence of a rational basis for such exclusions." Pennsylvania Ass'n for Retarded Children, 343 F. Supp. at 297 (citing Brown v. Board of Educ., 349 U.S. 294 (1955)). In Mills, the court found a constitutional violation in "[t]he defendants' conduct here, denying plaintiffs and their class not just an equal publicly supported education but all publicly supported education while providing such education to other children" (emphasis added). Mills, 348 F. Supp. at 875.
237. See Mills, 348 F. Supp. at 868; Pennsylvania Ass'n for Retarded Children, 343 F. Supp. at 281-82.
238. For example, PARC dealt with statutes that singled out children with certain disabilities and that segregated some children while excluding others, see Pennsylvania Ass'n for Retarded Children, 343 F. Supp. at 282, while Mills involved a host of federal and municipal agencies in the District of Columbia, see Mills, 348 F. Supp. at 876 ("This requirement is equally applicable to the Department of Human Resources, Social Services Administration, [and to the Commissioner of the District of Columbia, their employees and attorneys].").
239. U.S. DEP'T OF EDUC., supra note 19, at 2.
240. 473 U.S. 432 (1985).
241. The majority opinion expressly stated that it was not subjecting the facts to any heightened level of scrutiny, see Cleburne Living Ctr., 473 U.S. at 441-42, but proceeded to analyze and dismiss each of the state's asserted justifications with a degree of care not found under the traditional "rational basis" test. id. at 447-50.
242. The Court neither accepted state officials' claims that they were motivated by concern for persons with disabilities nor that the ruling for plaintiffs turned on a finding of intentional discrimination: "The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded . . . ." Cleburne Living Ctr., 473 U.S. at 450.
243. See supra note 12.
244. For reasons discussed earlier, it will be hard to prove how many children would otherwise have been diagnosed as having disabilities.
245. To provide such relief only to autonomous charter schools would undermine their claims that they can serve the same population with the same money and do better, while ignoring the fact that some (though not all) of the challenges charter schools face with special education are ones that traditional public schools and school districts have been facing for decades.
246. See Charter Schools and Special Ed Law: An Imperfect Union, supra note 32, at 10 (quoting Jay P. Heubert).
247. See LAW AND SCHOOL REFORM, supra note 73.
248. See Jay P. Heubert, The More We Get Together: Improving Collaboration Between Educators and Their Lawyers, 67 HARV. EDUC. REV. (forthcoming Sept. 1997).
249. Id.