Charter schools and federal disability law

A new paper from Robert A. Garda Jr., a professor at Loyola University of New Orleans College of Law, calls for stricter oversight of federal disability laws in regard to the admissions policies at charter schools, many of whom contain disproportionately fewer special education students than traditional public schools.

Do charter schools discriminate?

Under the Individuals with Disabilities Education Act, schools can deny admission to students with disabilities, as long as the Local Education Agency which the school belong to places the student at a school where the students can receive his legally entitled “free appropriate public education.”

The question of whether LEAs can transfer students in different LEAs has been interpreted inconsistently by courts and is an especially pressing issue for charter schools, many of whom are their own independent LEAs.

“This apparently unfettered right to deny admission and provide FAPE at another school or LEA, i.e. “off-site,” is troubling,” Garda states in the paper. “Taken to its logical extreme, individual schools and even entire districts could contract out all special education services off-site to private schools, state schools, or schools in other LEAs, and deny admission to all disabled students. While this may not violate the letter of IDEA it certainly violates the spirit.”

Garda argues that charter schools should have to prove that acceptance of a student with a disability is either unduly burdensome or would fundamentally alter the nature of the program to deny the student admission.

For Garda, the overlapping policies of the IDEA, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act necessitate clarification in regard to how they relate to charter schools, which have exploded in growth in recent years and now serve more than two million children nationwide.

“It is difficult, if not impossible, to resolve this conundrum as the law is written,” Garda states.