Lawyers Divided on Whether Charter Schools Can Turn Away Students with Disabilities

Tres Whitlock, 17, has cerebral palsy. He was told he cannot go to Pivot Charter School near Tampa because the school cannot provide all the services he needs.
MIAMI (2011-21-12) -

This month, an investigation by StateImpact Florida and the Miami Herald revealed that more than 86 percent of Florida charter schools don't serve a single student with a severe disability. That's compared to half of traditional public schools.

State education officials say no school is required to take every student with every disability. But lawyers are divided on whether charter schools can legally turn kids away.

No one person decides where a student with disabilities can go to school.

That decision is made by a special education team.

Its made up of district staff, therapists, parents and sometimes the students themselves.

Paul O'Neill, an education lawyer who focuses on students with disabilities, says the team decides which services a student with disabilities needs and then creates an individual educational plan, or an IEP.

"So when you get a plan, when you get an IEP, it's now a mandate," O'Neill said. "It's a responsibility that the school and the district and the state provide education in a way is consistent with that plan."

Students with disabilities can only go to schools that offer the services listed in their plan.

Our investigation found that most Florida charter schools don't offer services for students with severe disabilities, like Down Syndrome or autism.

So O'Neill says those students aren't eligible to go to most charter schools.

"You're not allowed to be any place that can't implement that IEP. That isn't an appropriate placement."

An appropriate placement is the main measure in special education law for determining where a student will go to school.

Shawna Parks, a lawyer at the Disability Rights Legal Center in Los Angeles, says the idea behind appropriate placement was to make sure kids with disabilities could be with non-disabled students.

"And to the extent that anybody now is attempting to use that concept to exclude a group of children from a category of schools really turns the concept on its head," Parks said.

Charter school advocates say there are other public schools that already have special education services in place.

O'Neil says federal law doesn't require charter schools to start offering those services.

"The limitation on what you can impose on a school is that you can't be forced to fundamentally alter your program," O'Neill said. "You can't place what's called an undue burden on the program whether that's financial or administrative or both."

So for example, you can't force a charter school to hire the staff to take a student to the bathroom.

But Shawna Parks said anti-discrimination laws are clear. She said schools cannot exclude kids because of a disability.

"If you look at why these charters exist, they exist because they're unique educational opportunities. And so to say that children with disabilities won't have access to those types of programs is to really cut them off from a huge segment of how we're educating our children these days."

A number of lawsuits have popped up around the country on this issue.

For now, there is no clear precedent on whether charter schools can turn away kids with severe disabilities.

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