Studies show that charter schools are creating unique learning environments, generating innovation, and in many cases improving educational opportunities for our nation’s students. Since charter schools are exempt from certain rules and regulations, e.g. Teacher Union rules, they are allowed to provide more flexibility and freedom for teachers and administrators, allowing students to succeed and achieve at higher levels than traditional public schools. However, even with the flexibility to create innovative approaches to educating students, charter schools are still accountable to state and federal laws and regulations regarding the education of ALL students.

The U.S. Department of Education’s Office for Civil Rights (OCR) recently provided clarification on an issue important to charter schools and promulgated advice that Federal civil rights laws, regulations, and guidance that apply to traditional public schools also apply to charter schools. Two of the major civil rights laws enforced by the OCR, and of particular concern when it comes to students with disabilities, are Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA) of 1990. Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education; while Title II of the ADA prohibits discrimination on the basis of disability by public entities. These laws apply to all public charter schools, and are independent of a charter schools’ obligations under the Individuals with Disabilities Education Act (IDEA). Under IDEA, every SWD enrolled in a public school must be provided a free appropriate public education (FAPE) in the least restrictive environment (LRE). This means that all necessary aids and services that are designed to meet the individual educational needs of the student must be provided, including evaluation and placement procedures. FAPE and LRE are the protected rights of every eligible child, in all fifty states and U.S. Territories. The specially designed instruction which is the hallmark of the IDEA must be provided in charter schools as well as traditional public schools.

Charter schools, like all public schools, cannot discriminate against students with disabilities when it comes to any part of their education, including admissions. The Class Action suit recently filed against the Recovery District in New Orleans alleges that SWDs were systematically denied admission to the system of charter schools in that district. This lawsuit fuels the debate that SWDs are typically under-enrolled in charters compared to their numbers in traditional public schools. Moreover, charter schools are accused of admitting SWDs with mild disabilities, and denying enrollment to students with more significant disabilities. Advocates are encouraging charters to increase the number of students with disabilities served to help reverse this troubling trend. Advocates are also concerned about the growing number of charters that are serving only SWDs, causing concern about the lack of educating SWDs along with their non-disabled peers in inclusive settings, e.g. the general education classroom.

Some charter schools have demonstrated that they can serve students with disabilities and help them achieve at high levels. Data also suggest that some charter schools do a better job of educating low-income and minority students when compared to traditional public schools. While providing SWDs with the Free Appropriate Public Education in the least restrictive environment to which they are entitled under IDEA may be one of the key challenges faced by charters, there is no reason that the successes observed in some charters with low-income and minority students can’t be replicated and applied to SWDs enrolled in those charter schools. If the ultimate goal of the public charter school movement is improved academic performance for students enrolled, with flexibility and innovation purported to be the hallmark of charters, they are well positioned to provide students with disabilities an exceptional education. However, this goal of an exceptional education and improved academic performance must be applied equally to ALL students, including students with disabilities, if charter schools are to continue to succeed.