January 15, 2015 Articles

Due Process Rights in Charter Schools

By Kevin C. Moyer

Legal experts, advocates, and even our federal agencies are becoming increasingly concerned that the due process rights of youth, particularly black students and those with special educational needs, are being overlooked in public charter schools. While charter schools must comply with various constitutional and statutory requirements, in many respects, charter schools are governed and regulated in a different—often less restrictive—manner than traditional public schools. Available data and anecdotal evidence suggest a systematic (although not universal) problem with the manner in which charter schools are disciplining their students.

The webinar entitled "Due Process Rights in Charter Schools" explores this increasingly important subject matter, with a focus on the manner in which minority students are being disparately affected by charter school disciplinary practices. The webinar was sponsored by the American Bar Association Center for Professional Development, Section of Litigation Children's Rights Litigation Committee, Commission on Disability Rights, and Section of State and Local Government Law, and featured a panel comprised of attorneys and experts with extensive knowledge of and unique perspectives on the subjects of charter schools and student rights. The webinar discussed the following primary topics addressed below: (1) an overview of state charter schools; (2) the legal obligations of charter schools; (3) relevant data regarding disciplinary practices of charter schools; and (4) best practices to ensure compliance with legal obligations and due process requirements.

What Are Charter Schools?
Charter schools are becoming an increasingly prominent component of our public educational system. For example, in California alone, there are now over 1,200 charter schools. In Washington, D.C., approximately 36,000 students out of approximately 80,000—nearly 50 percent of all students in the public school system—now attend charter schools. Thus, understanding the manner in which charter schools operate and are regulated is essential in addressing public education issues at the macro level.

As the panel explained, a charter school is, essentially, a public school (a school that receives public funding) that operates independently of the state public school system. Some additional distinguishing characteristics of charter schools from traditional public schools are as follows:

  • Charter schools are statutorily exempt from some of the laws and rules that apply to public schools, including the state curricular, operational, and management requirements.

  • Charter schools are governed by performance contract or charter petition (rather than a locally elected school board of community members).

  • Charter schools focus on an educational mission (rather than a designated curriculum that applies to every school in the state).

  • Charter schools can be operated by organizational entities, including for-profit organizations.

  • Parents and guardians can select the charter school they wish their child to attend (rather than being assigned by geographic location).

It is important to understand these differences in addressing particular issues that may be affecting student rights or a charter school's compliance with its legal obligations.

While they are independent in many respects, charter schools still must be authorized by a state or local educational agency. For example, a charter school must have its performance contract or charter petition approved prior to its implementation. This is important because such documents may set forth the charter school's educational mission and disciplinary policies and procedures. Additionally, as with other public schools, charter schools are free of tuition and must be nonsectarian. And, perhaps most importantly, charter schools are subject to various federal antidiscrimination laws and due process requirements.

What Law Governs Charter Schools?
As a fundamental starting point, children in all public schools have baseline constitutional rights. Goss v. Lopez, 419 U.S. 565, 574 (1975) (students in public schools "do not 'shed their constitutional rights' at the schoolhouse door" (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969))). As explained by the United States Supreme Court in Goss,

The authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.

419 U.S. at 574 (emphasis added). The Goss opinion mandates that minimum due process rights be afforded to public school students facing serious suspensions. Such rights include notice and a fair opportunity to be heard. Goss, 419 U.S. at 582–83. Of course, these rights apply to children in pubic charter schools as well.

In addition to protections afforded under the United States Constitution, charter schools are also constrained by other federal laws, including

These laws, and others, are enforced by the Department of Justice, the Department of Education, and by private action. Yet, notwithstanding the applicability of these various laws and requirements, evidence suggests that students of color and students with disabilities are being disparately affected by charter school disciplinary procedures and practices.

Due Process Rights in Charter Schools: What Does the Data Say?
The Department of Education's Civil Rights Data Collection (CRDC) is and has been a valuable tool in furthering the national understanding of potential constitutional and civil rights issues in public schools. The CRDC collects data on a variety of key educational and civil rights issues from all of the nation's public schools. Every year, all public schools are required to divulge to the Department of Education information regarding suspensions and expulsions, and about students who have been disciplined, such as race, gender, religion, etc. The CRDC is critical to civil rights enforcement and improved public awareness.

Advocates have become concerned with disparities in discipline and possible violation of due process in charter schools as a result of the information the CRDC has revealed. For example, we know that black males are not significantly more prone to misbehave in or out of school. However, in charter schools around the country, 20 percent of black males were suspended compared to just 6 percent of white males in the 2011–12 academic year. There was also a similar suspension ratio with respect to black females compared to white females (12 percent and 2 percent, respectively). Students with disabilities also tend to be suspended at a higher rate, around 13 percent in the 2011–12 academic year. These numbers make clear that students in charter schools are not being treated equally as the law requires.

Although the panel explained that charter schools discipline students at roughly the same rate as traditional public schools, charter schools more frequently discipline students though suspensions and expulsions. Advocates are concerned with the sheer number of suspensions in charter schools around the nation. In one year, according to the CRDC, there were over 350 charter schools that suspended 25 percent of their total enrollment. While expulsion data is more difficult to interpret due to youth privacy rights and other variables, experts suggest expulsions are also far too prevalent at charter schools. Moreover, minority students are at a higher risk of attending high-suspending/expelling charter schools. The data, therefore, raises serious concerns about the impact charter schools are having on the civil rights of youth students, especially students of color.

Further, as the panelists explained, students are often being suspended and expelled for minor infractions. For example, most schools have rules in student codes of conduct or in the school's governing documents against "willful defiance" or "willful disruption," which are essentially catchalls that can encompass any range of misbehavior that a school official subjectively believes inappropriate. The data reveals that minorities and students with disabilities are more likely to be found to have violated these vague school rules. Without appropriate procedures in place, it is easy to see how disparate and unfair treatment of particular students can persist.

Though this data is critical to understanding the issues, advocates are concerned that the data received by the Department of Education may not tell the whole story, based on anecdotes from students and parents. Practices such as "counseling students out" of charter schools are sometimes used by charter schools as a substitute for expulsion because students can be encouraged to return to their neighborhood schools. One panelist told the story of a charter school principal who would call police officers for minor student infractions after obtaining confessions from students who had no legitimate reason to suspect the police would be notified of their behavior. These practices are difficult to track but demonstrate approaches that can ultimately contribute to the school-to-prison pipeline.

Best Practices of Charter Schools and How to Comply with the Law
It is important to note that although the problems highlighted above are widespread, they not universal among charter schools. Moreover, the same bad practices exist in traditional public schools as well. However, due to the unique operational framework of charter schools and the lack of direct state control, advocates believe that public charter schools with high suspending/expelling rates are particularly deserving of public scrutiny. Those charters that suspend at higher rates are those that are most likely violating students' due process rights. Expelling or suspending students for minor infractions without providing the opportunity to confront evidence or accusers is a common practice, which must be recognized and addressed. The federal government suggests that charter schools look at information provided in the CRDC as a starting point.

The panel suggested a variety of procedures and practices to enable charter schools to comply with their legal obligations. Such "best practices" should include an opportunity to meet with an administrator to determine what the behavior was and to allow the student to explain himself or herself. The Court explained in Goss that these practices are essential components of due process compliance. An administrative panel to confirm or deny the suggested punishment could add an additional layer of protection that is absent in many charter school practices. Such a process would usually satisfy due process minimum requirements and help students understand the basis for their discipline so that they can learn and adjust their behavior accordingly.

The panel of experts also suggested that charter schools look to the practices of lower-suspending charter schools, which tend to embrace restorative practices to keep suspensions low. Restorative practices may include engaging the community, mentoring programs, increased cooperation with parents, and increased communication with students and those being disciplined. These practices can help charter schools in uncovering the root of the problem so that it can be properly addressed. As the information in the CRDC suggests, there is little actual method behind the madness of suspending and expelling students at higher rates. Significant is the fact that those schools with lower suspension and expulsion rates also tend to have higher test scores.

To assist charter schools in their compliance with federal law, the Department of Education and the Department of Justice issued federal guidance in 2014 through the form of two official letters on school discipline containing recommendations to help schools develop and implement student discipline policies in an equitable manner, and in a way that complies with federal law. See U.S. Dep't of Justice & U.S. Dep't of Educ., "Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline" (Jan. 8, 2014). The letters also include evidence-based alternatives to exclusionary discipline, such as restorative practices, cared interventions, and parent and community engagement. The purpose of the guidance letters is to equip public school officials with an array of tools to support positive student behavior—thereby providing a range of options to prevent and address misconduct—that will both promote safety and avoid the use of discipline policies that are discriminatory or inappropriate.

Public schools in general must move away from the idea that we should remove all the "bad kids" from class so that the "good kids" can benefit. All kids have a right to a quality education, and it must not be easily disregarded on the basis of isolated instances of misbehavior. As public educators, charter schools have an obligation, of both the legal and moral variety, to ensure all students' right to a legitimate public education is protected against unfair and discriminatory practices.

Advocates and experts are increasingly concerned that students' due process rights are being disregarded in charter schools without constitutionally sufficient cause. The available evidence indicates that students of color and those with special education needs are being disparately impacted by charter school disciplinary practices, just as they are impacted at traditional schools. We must begin to recognize this reality in order to address these problems.

As charter schools are operated more independently than traditional public schools, however, perhaps they are uniquely tailored for improvement. With the proper operational framework in place, together with recent guidance from the Department of Education and the Department of Justice on civil rights and due process requirements, charter schools may begin to take appropriate steps in addressing the due process–related concerns that are the subject of the webinar "Due Process Rights in Charter Schools."

To listen to this webinar, visit the committee's Programs & Materials page.

Keywords: litigation, children's rights, charter schools, disciplinary practices, minority students, disabled students, civil rights, discrimination, due process, restorative practices

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Kevin C. Moyer – January 15, 2015