PowerPoint Presentation

Maura McInerney, Esq. Education Law Center www.elc-pa.org

Your Childs Rights:Legal Rights of Children with Disabilities Who Are Home Schooled or Placed by Parents in Charter, Cyber Charter, Parochial and Private Schools

1School-Age Children With Disabilities Educated in Non-traditional Settings Charter Schools, Cyber Charter Schools = Public School Home Schooled Placed by Parent in Parochial/Private SchoolIssues Considered: Admissions/Enrollment Right To Request Initial Evaluation & Content of Eval. Right to a Free Appropriate Public Education Type of Plan or Services Required to be Provided Right to Inclusion Protection in School Discipline & Transportation Dispute Resolution

Todays TrainingEducation Law Center, PA22A charter school is an independent public school established and operated under a charter from a local school board.22 Pa. Code 1703-A (Emphasis added)

Charter & Cyber Charter SchoolsEducation Law Center, PA33Charter schools are created and guided by PAs Charter School Law, 24 P.S.17-1701-A et seq. (1997)The legislative intent of the law was to:Improve learningInnovate teaching methodsCreate professional opportunities and responsibilitiesProvide expanded options for parents in public educationIncrease accountabilityCharter schools cannot:Unlawfully discriminate in admissions, hiring or operationBe sectarian in any operationsProvide religious instruction or display religious objects or symbols on school premisesAdvocate unlawful behaviorpennsylvanIAs CHARTER LawEducation Law Center, PA442 states and the District of Columbia have laws authorizing charter schools. Only Alabama, Kentucky, Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia have no charter school law.

The National Landscape

Source: http://dashboard.publiccharters.org/dashboard/students/page/age/year/2012Education Law Center, PA5Charter schools are not unique to Pennsylvania.States began passing laws authorizing charters schools in the early 1990s and since 2000, the number of charter schools has tripled. According to the National Alliance for Public Charter Schools, there were 2,050,168 charter school students nationally in the 2011-2012 school year. 5Where are The Charter Schools In Pennsylvania?

l 88 chartersl 20 chartersl 10 chartersl 5-9 chartersl 1-4 chartersl 0 chartersSource: Pennsylvania Department of Education Charter School Directory. Map created using http://diymaps.net/pa.htm Education Law Center, PA6Walk group through the map.

This is a map of the counties (not school districts) in Pennsylvania. It gives you a rough idea of the distribution of charter schools throughout the state. You can see that the majority of charter schools are concentrated in the School District of Philadelphia. According to the Pennsylvania Department of Educations 2012-2013 charter school directory, there were 173 charter schools, 88 of which were in Philadelphia. There are an additional 20 in Allegany County, which includes the Pittsburgh School District. 7 of the 20 in Pittsburgh are Propel charter schools. Chester County has another 10.These counts include both brick and mortar and cyber charter schools. 6108,942 students in Pennsylvania were enrolled in charter schools in October 2012.

Of those students, approximately 34,000 were in cyber charter programs.Who is Attending Charter Schools in PA?Education Law Center, PA7QUESTION: Are the 30,000 part of the 108 or in addition we According to the 2011-2012 enrollment data from the PA Department of Education, there were 72,825 students enrolled in brick and mortar charter schools. 65% of those students (or 47,288 students) were enrolled in Philadelphia charter schools. For comparisons sake, there were 1,765,327 students in Pennsylvania public schools total in 2011-2012, and 154,262 students in the School District of Philadelphia (those include pre-k and kindergarten numbers). 7Students with Disabilities enrolled in Charter SchoolsCountyDistrictCharter% Special Education% Both Special Education and SLD/SLI% Special Education

% Both Special Education and SLD/SLIPhiladelphia14%65%12%86%Chester15%67%14%68%Beaver14%68%10%66%Allegheny16%60%18%68%Montgomery16%68%13%63%Cumberland15%61%17%65%Delaware18%70%25%91%Pennsylvania Charter and School District Special Education Enrollments (2009)Data from: Bruce Baker, Parsing Charter School Disability Enrollments in PA andNJ, School Finance 101. Aug. 23, 2012. http://schoolfinance101.wordpress.com/2012/08/23/parsing-charter-school-disability-enrollments-in-pa-and-nj/Education Law Center, PA88An independent public school established and operated under a charter from the PDE and in which the school uses technology in order to provide a significant portion of its curriculum and deliver a significant portion of instruction to its students online or through other electronic means. A cyber charter school must be organized as a public, nonprofit corporation.

What is a Cyber Charter School?Education Law Center, PA9Typically, students enrolled in a cyber charter school are educated in their homes with a computer provided by the school.Any student in Pennsylvania is eligible to attend a cyber charter school.The charter is issued by PDE, rather than a local school board.Cyber Charter SchoolsEducation Law Center, PA10Most cyber charter schools expect that every student will have an adult who is available to help the student manage her day-to-day responsibilities. However, cyber schools cannot require an adult to be involved in the childs education as a condition of enrollment. It is the cyber charter schools responsibility to provide the appropriate educational instruction for every student, not the parents. A child with disabilities in a cyber school is protected by federal disability laws. Cyber charter schools cannot discriminate on the basis of disability and must provide a student with a disability with FAPE, modified instruction, related services, and the full range of federal special education rights and protections.10There are currently 16 cyber charter schools in Pennsylvania. In 2012-2013, students from 498 school districts were enrolled in cyber charter programs.34,694 students attended PA cyber charter schools in 2012-2013Just over 5,000 of those cyber charter students were students with disabilities

Who is attending cyber charter schools in pa?Education Law Center, PA11students With Disabilitiesand charter schoolsCharter schools in Pennsylvania are educating an equitable share of children with disabilities overallBut most students with disabilities in charter schools have either speech/language impairment (SLI) or a specific learning disability (SLD) (more mild disabilities). Charters serve a very small number of students with complex support needsEducation Law Center, PA12ELIZA - not sure what we are trying to tell folks in this slide12Charter schools legal mandates require all charter schools to:Comply with all federal laws, policies and case law relevant to public schoolsComply with the Charter School Law, and other PA laws and policies specific to charter schoolsComply with all other state laws and policies applicable to charter schoolsSet forth in the charter meaningful strategies for parent and community involvement and accountabilityProvide a minimum of 180 days of instruction per yearParticipate in the PA State Assessment system in the manner in which the school district where the charter is located is scheduled to participate

Legal REQUIREMENTS for pa charter schools Education Law Center, PA13Barriers for Students with Disabilities Some charter schools may discourage parents of students with disabilities from applying. Some charters may suggest that they are not equipped to meet the needs of students with disabilities, leading parents to be concerned the schools are not able to meet their childrens needs.All charter schools are schools of choice; parents may choose to withdraw their child if their special education needs are not being met.Some charter schools enforce strict discipline codes, and students with disabilities may be more likely to be suspended or expelled.Education Law Center, PA1414AdmissionsApplications and documentsCriteriaConcentration and grade levelsTimelines and deadlines

Provision of special education supports and servicesCounseling regarding availabilityCosts and expenses

Least restrictive environment (LRE) mandate

Barriers and Obstaclesfor Students with DisabilitiesEducation Law Center, PA15Children are sent to cybers when the district fails to meet or ignores the needs of a students disabilityQuality of education Currently, there is no high quality research to prove that full-time virtual school is an adequate replacement for traditional face-to-face teaching (Note: Cyber AYP rates) The students who attend cyber schools for a short period of time and return to their neighborhood schools are often further behind other studentsThere is currently only anecdotal evidence to support the idea that cyber charter schools are appropriate for at-risk students

Emerging Issues Regarding CybersEducation Law Center, PA16Children may be sent to cyber programs within a school district.This may be offered as an educational placement or in response to school discipline issues. These programs are NOT independently monitored or reviewed nor is disaggregated data collected regarding student achievement. Raises change in placement issuesQuality of education same concerns

Emerging Issues Regarding CybersEducation Law Center, PA1717Charter schools cannot discriminate against a student for admission based on intellectual ability or disability.

Students with disabilities enrolled in charter schools are entitled to all of the same rights as non-disabled peers.

Students with disabilities retain ALL federal rights and protections guaranteed by federal disability laws (e.g., IDEA, 504 and ADA) & certain rights under Chapter 14.Legal Protections for Students with DisabilitiesEducation Law Center, PA1818Charter schools are subject to all federal education and civil rights laws, and relevant federal case law, including:Individuals with Disabilities Education Act (IDEA)Section 504 of the Rehabilitation Act of 1973 (504)Title VI of the Civil Rights Act of 1964 (Title 6)Title IX of the Education Amendments of 1972 (Title 9)McKinney-Vento Homeless Education Act (McKinney-Vento)No Child Left BehindFamily Educational Rights and Privacy Act (FERPA)FEDERAL LAWS APPLYEducation Law Center, PA19All students with disabilities enrolled in a charter school are entitled to all the rights and protections of the IDEA. These include:Free multidisciplinary evaluationsEligibility determinationsIndividualized program development (IEP)Inclusion in the least restrictive environment (LRE) Procedural safeguards and due processIndividuals with Disabilities Education Act (IDEA)Education Law Center, PA20Procedural safeguards = Notice to parents and dispute resolution mechanisms

20Chapter 14 of state public education regulations, which details public schools legal responsibilities to students with disabilities, does not apply to charter schools.There is a special set of regulations in Chapter 711 which deals specifically with charter schools and students with disabilities. (22 Pa. Code711) Chapter 711:Specifies how Pennsylvania charter schools will comply with federal disability laws, including the IDEA and Section 504Mostly incorporates federal regulations into state regulationsAlso requires that all special education teachers be state certified, notwithstanding the charter school law, which requires that only 75% of charter school teachers be state certifiedPA Regulations for Chartersand STUDENTS with disabilitiesEducation Law Center, PA2121Charter schools must comply with Section 504.Charter schools are prohibited from discriminating against students on the basis of disability.Students with disabilities may not be excluded from participation in some activity OR treated differently due to disability.504 ProtectionsEducation Law Center, PA2222Child should not be excluded from participation from some activity, or be treated differently due to his or her disability (unless necessary to ensure equality of opportunity).Examples of illegal discrimination:Shortening of school day for student with a disability due to transportation scheduleExcluding students with disabilities from after-school activities by failing to provide them with late activity buses provided to nondisabled students

All resident students in Pennsylvania are eligible to attend a charter school

Charters cannot discriminate in admissions policies or practices on the basis of:Intellectual abilityAthletic abilityMeasures of achievement or aptitudeStatus as a person with a disability Proficiency in EnglishAny other basis that would be illegal if used by a school district

CHARTER SCHOOL AdmissionsEducation Law Center, PA23Pennsylvania law mandates that charter schools, like school districts, immediately enroll eligible students upon the presentation of four documents (four in the door): Proof of the childs ageProof of immunizations required by lawProof of residencyStatement of parent regarding any current school exclusion for weapons offense

Enrollment Laws Applicable to Charter Schools Education Law Center, PA2424The schools charter must set forth its admission criteriaCharter schools can limit admission:To a particular grade levelTo an area of concentration (e.g. science or the arts)By establishing reasonable criteria to evaluate prospective students re area of concentration. Admissions (Cont.) Education Law Center, PA25Charter schools can admit with first preference:Students who reside in the district where the charter school is authorizedChildren whose parents who have been actively engaged in development of the schoolSiblings of enrolled students

Otherwise, charter schools must admit students selected at random from a pool of candidates who meet the charters legally established criteria (e.g., lottery)

Charters can enroll, if space permits, nonresident students

When there are More applicants than SpacesEducation Law Center, PA26Charter schools are subject to all federal education and civil rights laws, and relevant federal case law, including:Individuals with Disabilities Education Act (IDEA)Section 504 of the Rehabilitation Act of 1973 (504)Title VI of the Civil Rights Act of 1964 (Title 6)Title IX of the Education Amendments of 1972 (Title 9)McKinney-Vento Homeless Education Act (McKinney-Vento)No Child Left BehindFamily Educational Rights and Privacy Act (FERPA)FEDERAL LAWS APPLYEducation Law Center, PA27All students with disabilities enrolled in a charter school are entitled to all the rights and protections of the IDEA. These include:Free multidisciplinary evaluationsEligibility determinationsIndividualized program development (IEP)Inclusion in the least restrictive environment (LRE) Procedural safeguards and due processIndividuals with Disabilities Education Act (IDEA)Education Law Center, PA28Procedural safeguards = Notice to parents and dispute resolution mechanisms

28Chapter 14 of state public education regulations, which details public schools legal responsibilities to students with disabilities, does not apply to charter schools.There is a special set of regulations in Chapter 711 which deals specifically with charter schools and students with disabilities. (22 Pa. Code711) Chapter 711:Specifies how Pennsylvania charter schools will comply with federal disability laws, including the IDEA and Section 504Mostly incorporates federal regulations into state regulationsAlso requires that all special education teachers be state certified, notwithstanding the charter school law, which requires that only 75% of charter school teachers be state certifiedPA Regulations for Chartersand STUDENTS with disabilitiesEducation Law Center, PA2929Charters schools are responsible for conducting evaluations to determine if an enrolled student is eligible for special education supports and services.When a parent requests an evaluation of a student enrolled in a charter school, the charter school must conduct the evaluation and give parents a written Evaluation Report within 60 calendar days (excluding the summer months) from the date the parent agrees to an evaluation in writing. Charter schools must have a system for screening children to determine whether they should be referred for a special education evaluation. Charter Schools:RIGHT TO An Evaluation Education Law Center, PA3030Parent MUST make request in writing. If request is oral, school district MUST present parent with Permission to Evaluate/Evaluation (PTE) Request form within 10 calendar days of oral request. Parent MUST sign Permission to Evaluate/Consent form to trigger schools duty to perform initial evaluation.Parent has a right to refuse proposed evaluationIf a parent believes an evaluation by charter school is deficient, parent may request independent evaluation (IEE) and challenge schools decision to deny such a request. Right to re-evaluation every three years or, in the case of a child with an intellectual disability, every two years. Rights of Parents in Evaluation processEducation Law Center, PA31Parents of students with disabilities have a number of procedural safeguards, including:Opportunity to meaningfully participate in the evaluation process & development of their childs IEPPrior written notice (PWN) of any change to their childs IEPOpportunity to appeal when they dont agree with the school district about their childs IEPRight to Procedural SafeguardsEducation Law Center, PA32If a student is found eligible for special education:The IEP team must meet within 30 calendar days after the evaluation report is completed. The IEP team must include the parent, at least one regular education teacher of the child, one special education teacher of the child, an administrator, and the child (when appropriate)Parent may bring other individuals who have knowledge or special expertise about the childThe IEP team must review the IEP at least once every year.Parents or the school may request an IEP team meeting at any time.

RIGHT to a Free, Appropriate Public Education (FAPE) Education Law Center, PA33An IEP is a written statement for a child with a disability, which outlines the childs special education program and related services.The IEP must be tailored to meet the childs unique needs.If a service is listed on a childs IEP, the child must receive it. Child must receive specially designed instruction, modifications, support services, transition plan etc.Child must make progress. Type of Plan/ServicesEducation Law Center, PA34Caseload Requirement: Each student with a disability must be assigned to a special education teachers caseload. 22 PA Code14. 105 No such requirement in charter schools

Age Range: The maximum age range in specialized settings shall be 3 years in elementary school (grades K6) & 4 years in secondary school (grades 712). A student with a disability may not be placed in a class in which the chronological age from the youngest to the oldest student exceeds these limits unless an exception is determined to be appropriate by the IEP team of that student and is justified in the IEP. 22 PA Code14.146 No such requirement in charter schools Charter School: Important Differences Education Law Center, PA35State due process laws for suspension/expulsion of pupilsExpulsions require a formal hearingSuspensions require only an informal hearingA charter school may not expel or suspend students for failure to meet the charter schools academic requirements. ALL IDEA protections apply e.g., right to manifestation determination, etc. CANNOT be disciplined due to disability

Protection In School DisciplineEducation Law Center, PA36To the maximum extent appropriate, children with disabilities should be educated with their non-disabled peers. Removal from the regular education classroom should occur only when the nature or severity of the childs disability is such that education in regular education classes (with the use of supplementary aids and services) cannot be achieved satisfactorily.

The IDEA requires that each LEA offer a full continuum of placements for students.RIGHT TO INCLUSION:Least restrictive environment (LRE)Education Law Center, PA37Students with disabilities are entitled to free and appropriate transportation when necessary to attend their special education program.

When it is needed, the type and amount of transportation must be included in the IEP as a related service.

Right to TransporTationEducation Law Center, PA38If parents disagree with the IEP or with any other proposal or refusal of the school district or charter/cyber charter relating to the childs special education program, they can agree to mediate or request a formal due process hearing. Parents or anyone else acting on behalf of a child can also file a complaint with the Department of Education alleging a violation of the special education laws such as not providing the child with all of the services listed on the IEP.Rights in Dispute Resolution Education Law Center, PA39Case Study Examples40Education Law Center, PA

Legal Challenges:P.D. v. Pastorek (E.D. New Orleans)

In 2010, Southern Poverty Law Center filed an administrative complaint & federal lawsuit on behalf of thousands of students with disabilities alleging denial of FAPE and access to the citys charter schools where over 70% of schools are charters:Children with disabilities WERE significantly underrepresented in charter schools Some charter schools suspend children with disabilities at rates 100% higher than the state average. Only 6.8% of students with disabilities graduated with a high school diploma & 49% of students w/disabilities failed to finish school.Education Law Center-PA4141Advocacy Opportunities Advocacy in the Charter School context:Public Schools ARE obligated to admit, educate & provide a FAPE in the least restrictive environment. IDEAs requirements apply with equal force in all cases. State programs cannot exclude or deny equal benefit to students with disabilities.Advocacy in the Cyber Charter context:Cyber charters cannot refuse to educate children with disabilities & must monitor and ensure progress. Cyber charter schools must provide specially designed instruction & make modifications to the curriculum.Cyber charter schools must provide related services They must comply with all applicable procedural safeguards, including parent participation in IEP meetings etc.4242Rights of Students Who ArE HOME SCHOOLED43Education Law Center, PA

Right to EvaluationEducation Law Center, PA44 Parents request for an initial evaluation and re-evaluations should be made in writing to the childs resident school district.

The childs resident school district must evaluate the child and explain the results to the parent.

The evaluations should be conducted according to the same rules as for children attending public schools.

These students have no right to FAPE. Right to a FAPEEducation Law Center, PA45A home education plan for a child eligible for special education must address the specific needs of the child and be approved by a PA certified special education teacher or a licensed clinical or certified school psychologist.

The school district or IU can agree with the Program Supervisor to provide some services. There may be a right to some services if the child is dual enrolled in public school.

Type of Plan/Services ProvidedEducation Law Center, PA46 Pennsylvania law allows children who are home schooled to participate in some extra-curricular activities offered by their home school district. Local school districts may, but are not required to, offer some academic courses to students who are home schooled. As with all federallyfunded programs, students may not be excluded from participation in programs offered by the public school district on the basis of their disability.Right to InclusionEducation Law Center, PA47Any services agreed upon must take place at a public school or a licensed private school.Services will not be provided at home.Transportation services may be agreed to by the school district or IU with the Program Supervisor. Right to TransporTationEducation Law Center, PA48 Any special education services must be agreed upon by the supervisor (the home school instructor) and school district or intermediate unit. Since there is no duty to provide FAPE, the parent cannot use the hearing or complaint system to challenge a school districts refusal to provide services. However parents can use the hearing process or mediation if it relates to the school districts duty to evaluate the child.

Right to Dispute ResolutionEducation Law Center, PA49Case Study Examples50Education Law Center, PARights of Students Placed by Parents in Parochial or non-profit Private School51Education Law Center, PA

Right to EvaluationEducation Law Center, PA52 Parents request for an initial evaluation and re-evaluations should be made in writing to the childs resident school district.

The IU where the private school is located must evaluate the child.

The evaluation must be conducted according the same rules as for children attending the public schools.

These students have no right to FAPE. Right to a FAPEEducation Law Center, PA53Children placed by their parents in a private school are entitled only to equitable participation services which should be listed on an Equitable Participation Services Plan. Unlike an IEP, the IU does not have to provide all of the services listed on the EP Services Plan if circumstances change (e.g., the IU exhausts the state and federal funds for EP Services). A child may be able to get services from local school district if dual enrolled. Non-religious private schools have a duty to provide reasonable accommodations for children with qualifying disabilities (a/k/a Service Agreement or 504 Plan).Type of Plan/Services ProvidedEducation Law Center, PA54 Federal law (ADA) prohibits discrimination by private, non-parochial schools. Private, non-parochial schools must eliminate unnecessary eligibility standards that deny access to individuals with disabilities and make reasonable modifications in policies practices and procedures unless such a change would be an undue burden or be a fundamental change to the nature of the program.Right to InclusionEducation Law Center, PA55School district must provide students with transportation to and from a non-profit private school that is in the district or within 10 miles of its boundaries.

The IU is responsible for transportation to a service it has agreed to provide.

Right to TransporTationEducation Law Center, PA56Students do not have any special disciplinary protections.

Protection in School DisciplineEducation Law Center, PA57Since there is no duty to provide FAPE, parent cannot use mediation or the hearing system to challenge a school districts refusal to provide services. However parents can use the hearing process or mediation if it relates to the IUs duty to evaluate the child.

Right to Dispute ResolutionEducation Law Center, PA58Case Study Examples59Education Law Center, PAPDE issues Basic Education Circulars (BECs), which provide guidance on the implementation of law, regulation and policy; these include:The charter school BEC (meant to serve as a guide for charter schools, school districts, parents, and students)The cyber charter BECEnrollment Q&A, which includes information on charter schoolsOther special education BECs include sections on the responsibilities of charter schools to serve students with disabilitiesResources:PA Dept of Ed (PDE) BECs

Education Law Center, PA60

Contact Information Maura McInerneySenior Staff Attorney

Education Law Centermmcinerney@elc-pa.org

215-238-6970 Ext. 316

Education Law Center 1315 Walnut Street Suite 400Philadelphia, PA 19107

702 Law & Finance Building429 Fourth Ave.Pittsburgh, PA 15219www.elc-pa.org

Education Law Center-PA6161Chart13497144586645800296660387894798976431019620116520012935601445954162740318128892050168

Student NumbersCharter School Student Enrollment Nationally

Sheet1YearsCharter School Enrollment Nationally1999-2000349,7142000-2001458,6642001-2002580,0292002-2003666,0382003-2004789,4792004-2005897,6432005-20061,019,6202006-20071,165,2002007-20081,293,5602008-20091,445,9542009-20101,627,4032010-20111,812,8892011-20122,050,168

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Student NumbersCharter School Enrollment Nationally

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