Finding the Right Fit for Students with Disabilities

As our new presidential administration has moved school choice into the spotlight, the debate surrounding access and success for charter-school students with disabilities has grown increasingly heated. Unfortunately, this debate is frequently riddled with incorrect or overly simplified anecdotes. In this context, I appreciated Laura Waters’ thoughtful blog post from last week that drew attention to the complex issues that arise when students with disabilities exercise school choice. The National Center for Special Education in Charter Schools is the only national organization devoted entirely to ensuring that students with disabilities have ready access to charter schools that are prepared to help them thrive, and we have noticed that most articles mentioning students with disabilities seem less focused on the students themselves than on using those students as a tool to criticize charter schools. However, dissemination of accurate information about the responsibilities of charter schools toward students with disabilities is critical to helping parents make informed decisions. This information also helps charter schools understand and meet their obligations. On both of these fronts, Waters’ piece perpetuated a few misperceptions that I would like to clarify.

First, regarding special education in general: while ensuring that individual education programs (IEPs), the key documents that outline the specialized services and supports provided to students with disabilities, are “meticulous” and reflect a “consensus” of IEP team members is certainly the ideal, IEPs frequently fall short in practice. In reality, IEPs are all-too-often out of date and missing critical elements. Furthermore, many parents feel less than empowered to participate on IEP teams as equals alongside specialists employed by the school district. And, as most recently clarified by the Supreme Court’s Endrew F decision, school districts are not required to “maximize” a student’s “educational potential.” Instead, districts are merely obligated to develop “an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Unfortunately, there is a noticeable difference between maximizing potential and demonstrating appropriate progress.

Secondly, the construct of “least restrictive environment” (LRE) requires districts to determine what is appropriate for a student based on that student’s unique needs. In practice, however, determining LRE can be heavily influenced by other factors, such as the availability of existing programs and qualified staff. Furthermore, though my observation is far from scientific, I rarely hear a parent describe the process of developing his or her child’s IEP as either collaborative or consensus-driven. And, while parents absolutely have access to due process and litigation under the Individuals with Disabilities Education Act (IDEA), the bar to file formal complaints is notably higher than a simple failure to reach consensus. Parents shoulder the burden of demonstrating that the school has failed to comply with procedural requirements and associated regulations. Of particular note, the ability to actually file a due process complaint is contingent on a parent knowing his or her rights and having the resources (that is to say, time and money) to pursue this path. This is an arguable challenge for most parents, especially those living in poverty and struggling to navigate their many day-to-day challenges while raising a child with a disability. In other words, the protections outlined in IDEA can work for well-educated parents positioned to advocate for their child, but these protections are less effective for other types of parents in different socioeconomic situations. Accordingly, relying on parents to enforce IDEA is hugely flawed. You only have to look to the state of Texas and the fact that it took 12 years and a tenacious reporter from the Houston Chronicle to expose an egregiously and artificially low cap on special education and related services that led to the denial of services to thousands of students. Such a debacle only confirms that a system predicated on parents’ ability to file due process does not serve students well.

Finally, regarding how students with disabilities enroll in charter schools, or in any public school district in New Jersey, Waters’ statement that placement is determined solely by child-study teams is inaccurate. Charter schools in New Jersey operate as Local Education Agencies, the federal term for school districts. As such, they are responsible for providing a full continuum of special education placements to any student who enrolls like any other district in the state of New Jersey. The only exception is that, in acknowledgement of the fact that many charter schools do not have a traditional district’s breadth of resources, the New Jersey charter school law stipulates that, “the fiscal responsibility for any student currently enrolled in or determined to require a private day or residential school shall remain with the district of residence.” In practice, students who require these types of highly restrictive settings represent a very small percentage of all students with disabilities.

New Jersey charter schools must offer open enrollment and conduct blind lotteries if demand exceeds the number of seats available, and all students, including students with disabilities, have an equal right to enroll in a charter school. Like any other parents, parents of students with disabilities, and ideally the students themselves, choose to apply to a charter school and, assuming they are selected through the lottery, enroll. While parents may confer with a child-study team when considering enrolling in a charter school, the choice of whether or not to apply to enroll is the parents’ alone, not a matter delegated to the child-study team. Once a student enrolls in a charter school, the school typically convenes the child-study team to review and potentially update the student’s IEP given the change in school. In turn, charter schools must offer the accommodations, modifications, and supports to enable the student to access the general education curriculum. As noted above, the single exception is if a student requires a private placement, in which case the district of residence assumes financial responsibility. If a child-study team denies a student with a disability the opportunity to exercise choice, that team is violating the student’s rights, which are protected under multiple federal and state statutes.

Multiple factors influence the extent to which students with disabilities exercise their right to choose which schools they attend. As Waters noted, such factors include parents’ concerns that charter schools may not offer adequate programs. Unfortunately, some charter schools have demonstrated an unwillingness to provide adequate services, and this is unacceptable. Over time, however, the charter sector has grown in both knowledge and capacity, and as a result, the percentage of charter-enrolled students with disabilities has grown. Based on analyses by the Government Accountability Office and U.S. Department of Education’s Civil Rights Data Collection, the difference between the percentage of students with disabilities enrolled in charter schools and the percentage of students with disabilities enrolled in traditional public schools is decreasing and is now less than 2 percentage points (see table below). While there is still room for improvement, the tired claim that charter schools don’t serve students with disabilities is simply untrue.

Providing a free and appropriate public education to students with disabilities in the least restrictive environment suitable for their unique needs is complicated for all schools. However, as state legislatures and the Trump administration look to grow school choice, we must commit to ensuring that increases in choice do not lead to decreases in access to quality schools for, or greater segregation of, students with disabilities. Absent this commitment, choice is neither scalable nor sustainable. Through efforts such as the “Newark Enrolls” universal enrollment system and the New Jersey Special Education Collaborative, Newark Public Schools and most of the charter schools that operate within its borders are working to make sure that all students have an equal opportunity to exercise choice when it comes to selecting their schools. Notably, this extends even further to students with disabilities, who can be given an enrollment preference within Newark Enrolls at schools with lower percentages of students with disabilities. I applaud Newark’s schools for their efforts, even if imperfect, to build the systems and capacity to provide high-quality programs to students with a diverse range of disabilities. Supporters of school choice and advocates for students with disabilities must work together to provide accurate information, correct misperceptions, and ensure that all children are provided equal access to a quality education.

— Lauren Morando Rhim

Lauren Morando Rhim is cofounder and executive director of the National Center for Special Education in Charter Schools, which is currently incubating the New Jersey Special Education Collaborative to build charter schools’ capacity to serve students with disabilities in Newark and Camden.