Florida

Putting Education Reform To The Test

Can Charter Schools Legally Turn Away Kids With Severe Disabilities?

Sarah Gonzalez / StateImpact Florida

Tonya Whitlock and her son Tres, 17, say they have not been able to get Tres into Pivot Charter School near Tampa. Tres has cerebral palsy, and the family said the charter school is concerned they cannot provide all the services Tres needs.

This month, an investigation by StateImpact Florida revealed that more than 86% of Florida charter schools don’t serve a single student with a severe disability, compared to half of traditional public schools.

State education officials say no school is required to take every student with every disability. But lawyers are divided on whether charter schools can legally turn kids away.

No one person decides where a student with disabilities can go to school.

That decision is made by a special education team.

Its made up of district staff, therapists, parents and sometimes the students themselves.

Paul O’Neill, an education lawyer who focuses on students with disabilities, says the team decides which services a student with disabilities needs and then creates an individual educational plan, or an IEP.

“So when you get a plan, when you get an IEP, it’s now a mandate,” O’Neill said. “It’s a responsibility that the school and the district and the state provide education in a way is consistent with that plan.”

Students with disabilities can only go to schools that offer the services listed in their plan.

Our investigation found that most Florida charter schools don’t offer services for students with severe disabilities, like Down Syndrome or autism.

So O’Neill says those students aren’t eligible to go to most charter schools.

“You’re not allowed to be any place that can’t implement that IEP. That isn’t an appropriate placement.”

An appropriate placement is the main measure in special education law for determining where a student will go to school.

Shawna Parks, a lawyer at the Disability Rights Legal Center in Los Angeles, says the idea behind appropriate placement was to make sure kids with disabilities could be with non-disabled students.

“And to the extent that anybody now is attempting to use that concept to exclude a group of children from a category of schools really turns the concept on its head,” Parks said.

Charter school advocates say there are other public schools that already have special education services in place.

O’Neil says federal law doesn’t require charter schools to start offering those services.

“The limitation on what you can impose on a school is that you can’t be forced to fundamentally alter your program,” O’Neill said. “You can’t place what’s called an undue burden on the program whether that’s financial or administrative or both.”

So for example, you can’t force a charter school to hire the staff to take a student to the bathroom.

But Shawna Parks said anti-discrimination laws are clear. She said schools cannot exclude kids because of a disability.

“If you look at why these charters exist, they exist because they’re unique educational opportunities. And so to say that children with disabilities won’t have access to those types of programs is to really cut them off from a huge segment of how we’re educating our children these days.”

A number of lawsuits have popped up around the country on this issue.

For now, there is no clear precedent on whether charter schools can turn away kids with severe disabilities.

Comments

  • Joy Zabala

    There are certainly “gray areas” in pretty much every law.  Certainly, there are areas of the Individuals with Disabilities Education Act (IDEA) that are open to interpretation and to individual case-by-case application.  It is disturbing, however, so see instances in which interpretations of some parts of IDEA are apparently being used to create BARRIERS to the implementation of other parts. 

    EVERY student with a disability who is served under IDEA is entitled a free appropriate public education education…In these stories it seems to be clearly understood that what this means for an individual student is that a team–made of up of educators, the family and, to the greatest extent possible, the student– develops an individualized educational program (IEP) that is aligned to the general curriculum and reasonably calculated to confer benefit. In addition to determining educational goals and the supports and services needed by the student, the TEAM is charged with determining the least restrictive environment in which the IEP can be implemented. It also seems to be generally understood that the decisions made by the IEP team are legally binding.

    What is of concern to me in these stories is the PROCESS by which placements are determined and what goes into placement decisions.

    To be perfectly clear, my overarching concerns are more about how
    policies and procedures that guide the work of the IEP team in
    determining placements rather than about individual placements
    themselves. Placement decisions, like all other decisions must be made
    on a case-by-case basis by the IEP team. Determination of placement
    takes place at the end of the development of the IEP with the full range
    of placement open to consideration. After considering the
    placements that offer instructional programs that match the the
    interests and abilities of the student and identification of the supports and services that COULD be reasonably
    provided in each placement, the team makes a decision about the best “match” for the student. If
    the team determines that needed services
    cannot be provided in some placements, then, of course, those placements
    would not be the LRE for that student and that placement would be
    inappropriate for that student.

    In these stories it appears that placement decisions are much more strongly influenced by whether the needed services are currently available in a particular placement – charter school or not – than by whether the curriculum and instruction in a particular placement – charter school or not – is the most appropriate LEARNING ENVIRONMENT for the student.

    In these stories it also appears that here are predetermined placements that are available for consideration by IEP teams rather than the full range of potential placements.

    If the IEP team is only able to consider a predetermine set of placements because other placements have been predetermined not to be appropriate for the student based on the severity of a disability, a good argument could be made that the resulting placement decisions (although legally correct because they are “made by the IEP team”) are made on what constitutes a categorical denial of access instructional programs for which the student is otherwise qualified to participate.  This would not be in keeping with the intent of either education or civil rights statutes.

    Joy Zabala, Ed.D., ATP

     
     

  • http://www.facebook.com/people/Mark-Halpert/1250455877 Mark Halpert

    While I am Co-President of the Learning Disabilities Association of Florida, these comments are my own.  As an education advocate, I find it very hard to find appropriate settings for students with severe disabilities — most public schools do not meet their needs — it is far better to have Centers of Excellence staffed with excellent professionals then to require every public and charter school to provide an appropriate setting.  Our students are far better served by these centers

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