The History and Background of Charter Schools and School Choice
“School choice.” It’s a phrase we hear often in today’s education discourse, and the discussion around the nomination for U.S. Secretary of Education has put the issue front and center nationally. As parents and students look for higher performing alternatives to neighborhood schools that often suffer from a lack of resources, charter schools have arisen as one of those alternatives. Charter schools are public schools but are designed to be more innovative and free from constraints. Charters are often referred to as being publicly funded but privately run. Though they do not charge tuition and are open to all students, they can also be thought of as “laboratories” where new and different education policies and practices are tried. Charter schools are given this opportunity for innovation but also held accountable for student learning. They often have a special and unique focus, such as science, technology, engineering, and math; performing arts; or even a legal theme. Some take a structured “no excuses” approach to discipline, trying to prepare students for life beyond high school. Other charter campuses may be alternative schools, or even online schools, or specifically for students who have dropped out of a traditional public school and are trying to recover their credits in order to graduate. This article will cover the legal differences between charter schools and neighborhood public schools as well as the rights of students within charter schools.
Charter schools are a relatively recent phenomenon. In 1991, Minnesota passed the first charter law, and the first charter school opened in 1992. All charter schools operate independently through their charter (contract) between state education officials and community or school leaders. The contract specifies the goals and metrics that must be met in order for the charter school to be in operation. They receive public funding including local, state, and federal tax dollars just like other public schools. According to the National Alliance for Public Charter Schools (NAPCS), there are more than 6,800 charter schools across 43 states and the District of Columbia educating nearly three million children. Charter schools are also unique in that they choose their own management structure and do not have the traditional elected school board that is common to almost all other public schools in the country. The NAPCS reports that 67 percent of all charter schools are independently run, nonprofit, single-site schools; 20 percent are run by nonprofit organizations that run more than one charter school; and just under 13 percent are run by for-profit companies. For-profit charter schools do have to meet financial oversight regulations, just like any company the government would contract with to provide a service. Some networks are quite large. Achievement First operates 32 schools in Connecticut, New York, and Rhode Island. The Noble Network of charter schools in Chicago operates 16 high schools and serves over 11,000 students in the city. That makes it larger than most school districts in the state of Illinois. After Hurricane Katrina, New Orleans has essentially replaced a traditional public school system with charter schools. As the number of charter schools grows, it is important that advocates know how they operate and what rights students have.
Laws Governing Charter Schools
There is heated debate about whether charter schools are in fact higher performing than traditional public schools and whether they truly intend to educate all students, including students of color, English-language learning (ELL) students, and students with disabilities. But despite the debate, it is true that charters are here to stay and are a continually growing presence in the education landscape. It is important to reiterate that charter schools are public schools and therefore open to all students. They cannot discriminate on the basis of race, religion, disability, or any other protected basis. That means that any student is allowed to attend a charter school and should not be turned away unless it is by lottery for seats due to high demand. It is important to obtain information on the admissions procedure for a charter school in order to understand the process. If charter schools do discriminate in admissions or in treatment of students who are enrolled, a complaint may be filed with the Office for Civil Rights of the U.S. Department of Education. Equitable remedies are available.
Charters, much like other traditional public schools, are governed largely by state law, with some exceptions. What differentiates them is contained in the laws authorizing charter schools that vary from state to state, so it is important to know the charter law in your state. All charter laws should specify a few key points and procedures:
- The law should specify whether there is a cap on the number of charter schools allowed in the state. For example, in Colorado there is no limit to the number of charter schools established, while in Illinois there can only be 120 charters authorized, a maximum of 75 in Chicago and 45 in the rest of the state. It reserves five of the charters in Chicago for dropout recovery schools.
- It should specify what bodies authorize charter schools. Local school boards are often the authorizers of charter schools, but states also can have multiple authorizers such as a state charter commission. There should be a section on the charter application, review, and authorization process for charter schools.
- The law should specify what oversight is required, such as an annual or biannual report or specific data collection to monitor the performance of the charter school. It should also include grounds for renewal, nonrenewal, and revocation.
- The law should specify how the charter schools are exempt from state law and school district regulations, and from which ones. Most of the laws and regulations governing school districts do not apply to charter schools, which is what gives them the freedom to operate in a different way. The exemptions vary widely from state to state and can have implications for labor, civil rights, and teacher certification, just to name a few areas.
You can find a comparison of all state charter laws at www.publiccharters.org.
Protections under Federal Law: Homeless Students
Once a student has decided to attend a charter school, it is important for advocates to know what the student’s rights are. Though charters are exempt from certain state laws and regulations, students are entitled to the same federal protections in charter schools as in traditional public schools. Though it seems obvious, it is not always apparent given the fact that charter schools are often perceived as being different than other public schools. In addition, charter staff and administration may be unaware of federal requirements or suggest they do not apply in the same way. Education of students, parents, and staff can have a big impact in those situations.
If a student is homeless, or more specifically in a temporary living situation, he or she is protected by the McKinney-Vento Homeless Assistance Act (McKinney-Vento Act). The McKinney-Vento Act applies to local education agencies (LEAs)—i.e., school districts—and the charters authorized by them (or in some cases a charter school is its own LEA). It also applies to state education agencies (SEAs). According to the Department of Education, during the 2013–2014 school year, more than 1.3 million homeless children and youths were enrolled in public schools. Young people of color and lesbian, gay, bisexual, transgender, queer, and questioning (LGBTQ) students are also disproportionately represented in the homeless student population. The McKinney-Vento Act defines homelessness broadly as children and youth who lack a fixed, regular, and adequate nighttime residence. This includes not only students who don’t have a home or need to sleep elsewhere at night but also students who are living together with other friends or family members temporarily. Some states have their own laws that protect homeless students.
Homeless students often face problems with attendance, transportation, regular access to food, enrollment documentation requirements, and a lack of comprehension of these issues by school personnel. Under the McKinney-Vento Act, students are entitled to attend their school of origin even if they are temporarily in a different location because of homelessness, receive transportation to the school of origin (which could be a charter school), and can be entitled to enroll in a school immediately even if not able to produce the required records. Students and parents should also be entitled to an appeal or dispute resolution process if they dispute a decision. Homeless students are also automatically entitled to a free meal under any federal free meal program.
The McKinney-Vento Act also requires the LEA to designate a liaison to be responsible for posting public notices in the school listing the protections for students, ensuring homeless students in the school and community are properly identified, making appropriate referrals to outside agencies, and providing parents with opportunities for involvement, among other requirements. If the charter is authorized by an LEA, it is important to find out who the liaison is for that district. There are many other things charter school students and staff should be encouraged to do to support homeless students, including assessing their needs for academic and behavioral supports. Homeless students are entitled to participate in all the programming that other students are entitled to, but school staff should also be able to provide additional supports to address other needs particular to homeless students.
Protections under Federal Law: Students with Disabilities
The highly regulated legal area of special education clashes with the legal autonomy of charter schools. Charters should not turn down students with disabilities or “counsel them out” by suggesting that a student would receive better or more appropriate services at a traditional public school. Smaller networks and single-site charter schools operate on a smaller scale, meaning they might not have the resources that a larger school district has, including special education staff. It is important that any advocate be aware that charters have consistently enrolled a lower percentage of students with disabilities. A report by the Government Accountability Office published in 2012 showed that special education students—those with diagnosed disabilities from Down syndrome to attention-deficit disorder—made up 8.2 percent of charter school students during the 2009–2010 school year. While that was up from 7.7 percent the year before, it was below the average at traditional public schools of 11.2 percent in 2009–2010, and 11.3 percent the previous year. There also has been local evidence of charter schools requesting application information that would discourage students with disabilities from applying. In Illinois, the organization Equip for Equality conducted an audit of charter school applications in 2015. It uncovered that some schools ask for inappropriate and sometimes illegal information, such as disability status, Social Security number, and criminal history. Most enrollment forms lacked clear nondiscrimination statements and a clear process that ensures charter schools welcome all students. If charter schools are truly open to all students, they must include students with disabilities.
Two major federal laws that protect students with disabilities are:
- The Individuals with Disabilities Education Act (IDEA) that requires schools to serve the needs of students with disabilities and prepare them for further education, employment, and independent living.
- Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, that prohibits discrimination based on disability. Section 504 is an antidiscrimination, civil rights statute that requires the needs of students with disabilities to be met as adequately as the needs of nondisabled students. No otherwise qualified individual should, because of a disability, be excluded from participation in or denied the benefits of or subjected to discrimination under any program or activity receiving federal financial assistance, including public schools.
In practice, the application of these laws takes the form of an individualized education program providing services for a disabled student (IEP) and/or a 504 plan. IDEA specifies that a student with a disability must receive a free and appropriate education in the least restrictive environment. It also provides for parents and students to have a voice in this process of evaluating a student and forming the IEP. IDEA covers many different kinds of disabilities that are specifically named in the law, including learning disabilities. A parent can request an evaluation of the student if a disability is suspected, and the school has to provide it. Once a student is found eligible, a team will develop an IEP for the student, which specifically details the services and supports the school will provide to ensure success in school. In addition, the IEP will set out goals for the student. The school can also be responsible for identifying students with disabilities. If the parent disagrees with the services in the IEP or the process, there is a dispute resolution procedure. Often trying to resolve the issue within the district is possible before moving to more formal procedures.
A 504 plan is an accommodation plan. To qualify, the disability must substantially limit the child’s ability to receive an appropriate education as defined by section 504. Unlike in IDEA, there is not a specific list because it would be extremely difficult to exhaustively list all conditions that could qualify. A student may have a chronic condition that is not always obvious, or may have a temporary condition such as a broken arm or leg. Accommodations could include assistance carrying books, a preferred seating assignment, extra time on tests or assignments, assistance with note taking, or a plan for taking medication during the school day. Anyone can refer a student for an evaluation under section 504. Students with an IEP are also entitled to different protections in school discipline proceedings, which are further described below.
Discipline and the School-to-Prison Pipeline
Even once a student is properly enrolled and has appropriate services, multiple suspensions or an expulsion will not lead to success at a charter school. Keeping a student in school and addressing root causes of disciplinary problems can be critical for the future success of a student. Charter schools have been a large part of the discourse about school discipline and the school-to-prison pipeline, which describes the increasing amount of contact students have to the juvenile justice system because of the discipline practices implemented by schools. It also often reflects the disproportionate effect of discipline and arrests on students of color and disabled students. Zero tolerance policies have made it more likely for students to be suspended, expelled, or even arrested for what may have been previously considered a minor behavior that should be dealt with at school. Bullying issues, including on social media, have also made discipline even more complicated. Discipline is largely governed by state law and individual districts, and unless it involves special education students is not highly regulated. Districts are often given wide discretion to decide what discipline is appropriate within certain boundaries. Because charter schools are autonomous, they are given even more discretion, and some charter schools are formed around the idea of strict discipline and a highly regulated environment. Some, such as the Noble Network in Chicago, used to fine students for minor disciplinary infractions, though it has since discontinued that practice.
A 2016 study by the Civil Rights Project at UCLA analyzed charter school discipline records across the nation. The study identified 374 charter schools across the country that had suspended 25 percent or more of their entire student body during the course of the 2011–2012 academic year. It also found that more than 500 charter schools suspended black charter students at a rate that was at least 10 percentage points higher than that of white charter students, and 1,093 charter schools suspended students with disabilities at a rate that was at least 10 percentage points higher than that of students without disabilities. It is not true that every charter school is suspending or expelling more students, but it is concerning that charters are using exclusionary discipline at such high rates, especially when a lot of charter schools are serving communities that already face barriers to a quality education.
Procedural due process for discipline is determined by state law and board policy, and it is important to verify what the policies and procedures are for your state, and whether charter schools are exempt from those state laws and regulations. But some protections are the same in every school. Students have a state-created property right to an education, and that right cannot be taken away without due process. The Supreme Court found that students facing suspension should at a minimum be given notice and afforded some kind of hearing. Goss v. Lopez, 419 U.S. 565 (1975). The decision also specified the difference between a short-term suspension and a long-term suspension or an expulsion. Students have a right to a hearing and ideally should be provided notice in writing. But the practice of carrying that out as well as hearing procedures vary by state, so it is important to consult state law and board policies. Students should be given the opportunity to bring an attorney to hearings at their own expense. At a hearing, the student should have the opportunity to present evidence and question witnesses for the school.
There is a movement in some areas to hold charter schools more accountable for discipline practices, because out-of-school suspensions lead to lower academic achievements, higher dropout rates, and pushout into the school-to-prison pipeline as discussed in the UCLA study mentioned above. For example, Illinois recently passed Public Act 099-0456, which states charter schools are no longer exempt from the portion of the Illinois School Code concerning discipline. That means they are subject to the same improved discipline practices in the amended school code, including exhausting appropriate and available interventions before using the most severe forms of exclusionary discipline. Using autonomy to engage in harsh discipline especially threatens the most vulnerable students.
For students with an IEP who face disciplinary actions, it is important to note that there are special protections available under IDEA. For students facing a long-term suspension or expulsion, there must first be a manifestation determination review (MDR) that determines whether:
- the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
- the conduct in question was the direct result of the LEA’s failure to implement the IEP.
If either of these circumstances applies, the IEP must be corrected and the student cannot be suspended beyond 10 days or expelled. If they do not apply, the student can be suspended for more than 10 days or expelled, but still needs to be provided with services under the IEP wherever the student is placed. There is an exception for certain situations where there can be an emergency interim placement for 45 days in a situation involving a dangerous weapon or illegal drugs. These are very specific provisions in the statute that apply to all students, even those in charter schools.
The Future of Charter Schools
Despite the debate about charter schools and their effect on public education, it is clear they are an accepted innovation and will likely be a permanent part of the public school system. It is critical that the autonomy given to charter schools be used for innovation and not to curtail student rights. It is very important that students and parents know their rights and school staff be educated on them as well. While charter schools can present good opportunities for a high-quality education for many families, they also can present obstacles or cause confusion around the rights of students and parents. A strong legal advocate can protect those rights and ensure that a charter student has meaningful access to education.
Jessica Schneider is a staff attorney in the Educational Equity Project of the Chicago Lawyers’ Committee for Civil Rights Under Law.