National Council on Disability

November 15, 2018

School Choice Series

Charter Schools—Implications 

for Students with Disabilities
National Council on Disability (NCD)

1331 F Street NW, Suite 850

Washington, DC 20004

School Choice Series: Charter Schools—Implications for Students with Disabilities

National Council on Disability, November 15, 2018

Celebrating 30 years as an independent federal agency

This report is also available in alternative formats. Please visit the National Council on Disability (NCD) 

website (www.ncd.gov) or contact NCD to request an alternative format using the following information:

ncd@ncd.gov Email

202-272-2004 Voice

202-272-2022 Fax

The views contained in this report do not necessarily represent those of the Administration, as this and 

all NCD documents are not subject to the A-19 Executive Branch review process.
Letter of Transmittal

November 15, 2018

The President

The White House

Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I submit this report for your consideration entitled 

Charter Schools—Implications for Students with Disabilities. The National Council on Disability is an 

independent federal agency mandated with the responsibility of providing the President and Congress 

policy recommendations that promote equal opportunity, economic self-sufficiency, independent 

living, and inclusion and integration into society for people with disabilities. This report is one of two 

independent analyses by NCD concerning school choice and its intersection with disability rights law. 

Considering the heightened interest of parents in charter school options and the current national dialogue 

regarding charter schools and school choice, we hope you find this report both pertinent and timely.

This report provides an in-depth overview of the current landscape of the education of students with 

disabilities in charter schools. The report highlights the widespread inconsistency that exists across 

the charter school sector. While some charter schools experience serious challenges with respect to 

the provision of special education programming and services to their students with disabilities, others 

have developed innovative educational approaches that can serve as models for all schools. The report 

recommends that policymakers and interested stakeholders build on the practices used by charter schools 

that have been successful in meeting the unique learning needs of students with disabilities, while also 

addressing areas of concern that have been highlighted in the research and have persisted over many 

years. Finally, this report makes multiple recommendations for federal and state agencies and Congress to 

address problems that may deprive students with disabilities and their families of an equitable education.

NCD stands ready to work with federal agencies, state governments, the disability community, and 

other stakeholders to improve federal protection of the rights of students with disabilities in a manner 

consistent with parents’ right to choose the method and venue of education that best fits their 

children’s needs.

Sincerely,

Neil Romano

Chairman

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the 

U.S. House of Representatives.)
2 National Council on Disability
National Council on Disability Members and Staff

Members

Neil Romano Chairman

Benro Ogunyipe, Vice Chairperson

Billy Altom

Rabia Belt

James Brett

Daniel Gade

Andrés Gallegos

Wendy Harbour

Clyde Terry

Staff

Phoebe Ball, Legislative Affairs Specialist

Stacey S. Brown, Staff Assistant

Joan M. Durocher, General Counsel & Director of Policy

Lisa Grubb, Executive Director

Netterie Lewis, Administrative Support Specialist

Amy Nicholas, Attorney Advisor

Nicholas Sabula, Public Affairs Specialist

Amged Soliman, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Ana Torres-Davis, Attorney Advisor

Keith Woods, Financial Management Analyst

School Choice Series: Charter Schools—Implications for Students with Disabilities 3
4 National Council on Disability
Contents

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Summary of Key Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Enrollment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Provision of Special Education and Related Services . . . . . . . . . . . . .  1

Special Types of Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Outcomes and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Implications for Students with Disabilities Who 

Remain in TPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Summary of Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Local Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

State Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Federal Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

List of Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Research Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Policies and Secondary Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Quantitative Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Qualitative Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Chapter 1: Background and Overview of Charter Schools . . . . . . . . . . . . . . . . . . . . . .  2

Charter School State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Types of Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Authorizing Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Funding of Charter Schools and Students with Disabilities...

Foundation Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Funding for Special Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

School Choice Series: Charter Schools—Implications for Students with Disabilities 5
Expansion of Charter School CMOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Concentration of Charter Schools in Large Urban Cities . . . . . . . . . . . . . .  3

Chapter 2: Federal Legal Requirements Pertaining to Students 

with Disabilities in Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

ESEA as Amended by ESSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Title IV-Part C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

IDEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Section 504 and the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Chapter 3: Access to Charter Schools: Recruitment, Enrollment, 

and Retention of Students with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Overall Enrollment of Students with Disabilities in Charter Schools . . . .  4

Enrollment of Students with More Significant Disabilities 

in Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Factors Underlying the Special Education Enrollment Gap 

Between Charter Schools and Traditional Public Schools . . . . . . . . . . . .  5

Charter School Enrollment Policies with Implications for Students 

with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Reasons Why Parents of Students with Disabilities Choose 

Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Summary of Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Chapter 4: Provision of Special Education and Related Services 

in Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Relationship of the Charter School’s Legal Status to the Provision 

of Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Challenges That May Make It Difficult for Charter Schools to 

Provide Services to Students with Disabilities...

Limited Knowledge and Understanding of Special Education 

Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Limited Availability of Special Education Funds Distributed 

in Complex Ways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Potential Tension Between Charter School Focus and Special 

Education Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Model Practices for Educating Students with Disabilities 

in Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

6 National Council on Disability
Case Studies of Two Students with Disabilities Who Have 

Attended Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Summary of Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Chapter 5: Special Types of Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Disability-Specific Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Virtual Charter Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Summary of Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Chapter 6: Accountability for Students with Disabilities in Charter Schools . . . . . . . 101

Outcomes of Students with Disabilities in Charter Schools . . . . . . . . . . . 101

Charter School Monitoring, Oversight, and Accountability . . . . . . . . . . . . 103

Summary of Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Chapter 7: Potential Implications of Charter Schools for Students 

with Disabilities in Traditional Public Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Potential Fiscal Impact on Students with Disabilities in TPS . . . . . . . . . . . 109

Increased Segregation and Inequities for Students 

with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Summary of Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Chapter 8: Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Recommendations for Charter School Authorizers . . . . . . . . . . . . . . . . . . 117

Recommendations for Charter School Operators . . . . . . . . . . . . . . . . . .  12

Recommendations for SEAs....

Recommendations for State Legislatures . . . . . . . . . . . . . . . . . . . . . . . . .  12

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12

Appendix: Ongoing Legal Challenges in the Area of Charter Schools . . . . . . . . . . . . 145

Can Taxpayer Funds Support Privately Managed Charter Schools? . . . . . 145

A Second Look at the Doctrine of Nondelegation . . . . . . . . . . . . . . . . . . . 145

Erosion of Separation of Church and State . . . . . . . . . . . . . . . . . . . . . . . . . 146

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

School Choice Series: Charter Schools—Implications for Students with Disabilities 7
8 National Council on Disability
Acknowledgements

The National Council on Disability thanks Denise Marshall and Selene Almazan of the Council of Parent 

Attorneys and Advocates; Kathleen Boundy of the Center for Law and Education, and Joanne Karger, 

Sky Kochenour, Lawrence Rose and Nathan May for the research conducted in developing this report.

School Choice Series: Charter Schools—Implications for Students with Disabilities 9
10 National Council on Disability
Charter schools are publicly funded schools 

that are privately managed and operate 

under a contract (i.e., a “charter”) that 

delineates the particulars regarding how the 

school will function and be governed. The school’s 

charter typically grants charter administrators 

greater autonomy from constraining state and 

local requirements applicable to traditional public 

schools (TPS) in areas such as governance, 

budgetary decision making, and staffing. In 

exchange for this greater flexibility, the charter 

holder commits the school to a heightened level 

of accountability, usually tied to improved student 

academic outcomes. Since the first charter 

school law was enacted in 1991, 44 states (plus 

the District of Columbia and Puerto Rico) have 

enacted charter school statutes. From 2004 to 

2014, the percentage of students enrolled in 

charter schools increased from 2 to 5 percent 

(0.9 million to 2.7 million).

In 2013 to 2014, students with disabilities 

made up nearly 11 percent of the population of 

students enrolled in charter schools. Because 

they are public schools, charter schools must 

comply with certain legal requirements under 

federal and state laws concerning the education 

of students with disabilities. These requirements 

include provisions pertaining to a high-quality 

education with respect to all students under Title 

I of the Elementary and Secondary Education 

Act (ESEA), reauthorized as the Every Student 

Succeeds Act (ESSA) of 2015, as well as 

obligations specifically relating to students with 

disabilities under the Individuals with Disabilities 

Education Act (IDEA) and state special education 

law. Moreover, charter schools must satisfy the 

requirements embedded in the disability civil 

rights statutes, Section 504 of the Rehabilitation 

Act of 1973 (Section 504) and the Americans 

with Disabilities Act (ADA). The extent to which 

a charter school itself is responsible for ensuring 

compliance with specific legal obligations 

pertaining to students with disabilities depends 

on the school’s legal status under state law 

and the school’s charter. Some charter schools 

operate as their own school district—or local 

education agency (LEA)—while others function 

as a public school within an existing LEA.

This report provides an in-depth overview 

of the current landscape of the education of 

students with disabilities in charter schools. The 

report underscores the widespread variability 

that exists across the charter school sector. 

While some charter schools experience serious 

challenges with respect to the provision of 

special education programming and services 

to their students with disabilities, others have 

developed innovative educational approaches that 

can serve as models for all schools. The report 

recommends that policymakers and interested 

Executive Summary

School Choice Series: Charter Schools—Implications for Students with Disabilities 11
stakeholders build on the practices used by 

charter schools that have been successful 

in meeting the unique learning needs of 

students with disabilities, while concomitantly 

addressing areas of concern that have been 

highlighted in the research and have persisted 

over many years. Moreover, the report advises 

stakeholders to keep in mind and address the 

needs of students with disabilities who do not 

attend charter schools and, instead, remain in 

TPS. These students may experience cuts in 

their programming as TPS struggle to reconcile 

a decline in enrollment and revenue without a 

reduction in fixed operating costs. The seemingly 

competing interests of charter schools and TPS 

are not mutually exclusive. Rather, this report 

proposes a strategy focusing on students with 

disabilities in charter schools, as well as those 

in TPS, as the most effective means by which 

to move the dialogue forward and improve 

educational opportunities for all students with 

disabilities.

To gain a better understanding of the 

experiences of students with disabilities with 

respect to charter schools, the present study 

utilizes a mixed-methods approach that includes 

analysis of existing policies and secondary 

literature, review of quantitative data, and 

examination of qualitative data. The policy and 

literature review consists of analyses of key 

federal and state statutes, regulations, and 

administrative guidance as well as relevant case 

law and administrative due process hearings. 

Experimental studies, articles, and other pieces 

appearing in the literature and on the Internet 

are also included. The second component of 

the study is an examination of descriptive, 

quantitative data pertaining to students with 

disabilities and charter schools available from 

the National Center on Education Statistics 

(NCES), the U.S. Department of Education’s Civil 

Rights Data Collection (CRDC), and various state 

websites.

To gather the perspectives of interested 

stakeholders, the study’s qualitative component 

consisted of a series of six focus groups with 

parents and parent advocates in different regions 

across the country. In addition, 18 semistructured 

interviews were conducted with a variety of 

stakeholders, including state department of 

education officials, charter school teachers 

and administrators, representatives of charter 

school organizations, representatives of 

disability organizations, parents of students with 

disabilities, and parent advocates. Moreover, two 

case studies were conducted, focusing on the 

contrasting experiences of two students with 

disabilities who have attended charter schools.

Summary of Key Findings

This report presents findings on the challenges 

and best practices associated with the education 

of students with disabilities in charter schools. 

Key findings include the following:

Enrollment

■ While charter schools tend to enroll lower 

percentages of students with disabilities 

than TPS, the gap appears to be narrowing. 

Students with more significant disabilities 

(e.g., intellectual and developmental 

disabilities), however, have particularly 

low levels of enrollment. Charter schools 

also tend to provide instruction to higher 

percentages of students with disabilities in 

general education classrooms.

■ Researchers have begun to examine factors 

underlying the enrollment gap between 

12 National Council on Disability
charter schools and TPS. These factors 

include the following: (1) Parents of students 

with disabilities are less likely to apply to 

charter schools. Among possible reasons 

is the fact that students with disabilities 

may already be connected to specialized 

programs within TPS or that charter schools 

may be discouraging parents of students 

with disabilities from applying to the school. 

(2) Charter schools are more likely to 

declassify and less likely to classify students 

as needing special education services 

than TPS. (3) There have been qualitative, 

anecdotal reports of charter schools 

engaging in the practice of “counseling out” 

students with disabilities who are enrolled 

in these schools, including for discipline or 

behavior-related issues. The small numbers 

of studies that have examined this practice 

from a quantitative perspective, however, 

have found no evidence to support its 

occurrence.

■ Certain aspects of the charter school 

enrollment process may pose challenges 

for parents of students with disabilities: The 

process can be confusing, parents do not 

always have access to enough information 

to make informed choices, and parents 

sometimes struggle to decide when to 

disclose the fact that their child has a 

disability.

■ The primary motivations for parents of 

students with disabilities to choose charter 

schools appear to be dissatisfaction with 

their child’s prior experience in TPS and 

attraction to certain positive elements of 

the charter school model such as smaller 

class size.

Provision of Special Education 

and Related Services

■ When a charter school operates as an 

independent LEA, the school is responsible 

for complying with the full array of legal 

obligations incumbent on all LEAs under 

IDEA, including those concerning the 

availability of a continuum of alternative 

placements. When a charter school is a 

public school of an existing LEA, it is the 

LEA, rather than the charter school, that is 

responsible for ensuring the provision of a 

free appropriate public education (FAPE).

■ Several challenges may make it more 

difficult for some charter schools to 

deliver appropriate educational services 

to their students with disabilities. These 

challenges include (1) limited knowledge 

and understanding of special education 

responsibilities and requirements on the 

part of some charter operators and charter 

authorizers, (2) limited availability of special 

education funds that are distributed in 

complex ways, and (3) potential tension 

between the charter school movement’s 

underlying principles related to autonomy 

and flexibility and special education 

requirements. This tension manifests itself 

in a number of ways: for example, tension 

stemming from some charter schools’ 

implementation of strict academic and 

behavioral expectations that clash with 

the rights of students with disabilities with 

respect to discipline under IDEA, as well 

as tension between the parental choice 

focus of the charter movement and the 

individualized education program (IEP) teambased decision-making process of IDEA.

School Choice Series: Charter Schools—Implications for Students with Disabilities 13
■ Some charter schools have adopted 

effective practices to address the diverse 

learning needs of their students. These 

practices pertain to a variety of areas, 

including vision and leadership (e.g., setting 

a positive tone for inclusion), staffing (e.g., 

instituting co-teaching between general 

education and special education teachers 

as well as providing frequent feedback 

to teachers), and innovative educational 

practices (e.g., those that can benefit all 

students, such as Universal Design for 

Learning [UDL] and restorative justice 

approaches to school discipline).

Special Types of Charter Schools

■ Disability-specific charter schools, designed 

to serve students with disabilities (e.g., 

autism or emotional disturbance), can 

be appealing to parents of students with 

disabilities for a variety of reasons, including 

a low teacher-student ratio, a learning 

environment that includes peers who 

share a similar learning profile, focused 

and intensive instructional support, and 

frustration with lack of support in more 

traditional educational settings in TPS. 

A major concern, however, is that these 

schools run counter to the presumption in 

favor of education in the general education 

classroom.

■ Virtual charter schools, which provide 

instruction online through the Internet, 

can be appealing for students with 

disabilities because they allow for flexible 

timing and scheduling of learning, 

presentation of materials in multiple 

formats, and increased opportunities for 

individualization and personalized learning. 

At the same time, there are concerns 

that the curricular materials and websites 

of virtual charter schools are not always 

fully accessible. In addition, students 

who struggle with executive functioning 

may find the self-paced nature of online 

learning challenging, and parents often 

find themselves taking on an active role 

that involves a large time commitment. 

Moreover, virtual charter schools may 

struggle to provide the range of services 

necessary to educate students with 

disabilities, including related services (e.g., 

speech/language therapy or occupational 

therapy) and positive behavioral 

interventions necessary to receive an 

appropriate education. Finally, questions 

have also been raised regarding the extent 

to which virtual charter schools are being 

monitored and held accountable for the 

performance of their students.

Outcomes and Accountability

■ On average, there are limited known 

outcomes—“similar, not better” results 

based on test outcomes—for students 

with disabilities who are enrolled in charter 

schools compared to their TPS peers.

■ There has been a lack of consistent 

standards of accountability (e.g., 

performance contracts, meaningful criteria/

standards for renewal or revocation 

if schools perform below a minimum 

threshold) and careful oversight by charter 

authorizers as well as state and federal 

government agencies.

■ Authorizers that oversee from 1 to 100 

charter schools vary substantially in how 

rigorously and effectively they carry out their 

14 National Council on Disability
multiple roles and responsibilities outlined in 

state charter school law.

■ Even though many authorizers provide 

minimal oversight of charter schools, charter 

growth has, in many instances, been 

allowed without restriction or accountability.

■ Research is limited with respect to how well 

charter authorizers are carrying out their 

monitoring and oversight responsibilities for 

ensuring the delivery of special education 

programming and services by charter 

operators and holding them accountable for 

the education of students with disabilities 

in these schools consistent with the 

requirements of state special education and 

charter school laws and IDEA.

Implications for Students with 

Disabilities Who Remain in TPS

■ TPS struggle, often unsuccessfully, to adjust 

fixed costs (e.g., buildings and administration) 

while attempting to extend their already 

depleted resources to meet the needs 

of students, many of whom have more 

significant needs. As a result, TPS students 

with disabilities may experience increased 

class sizes, limited access to resources and 

specialists, and even school closure.

■ Further complicating the charter/TPS funding 

dichotomy is a charter school’s decision over 

whether to backfill spots for students who 

disenroll by reporting deadlines, typically 

October 1.

■ To help alleviate the negative fiscal 

impact on TPS, some states have set a 

cap on the growth of charter schools. The 

Massachusetts Supreme Judicial Court 

recently recognized that the legislative cap 

on the number of charter schools and the 

amount of funds that could be transferred 

from TPS is an effort to allocate funds 

among all the Commonwealth’s students.

■ Data suggests that some charters 

proportionately enroll more white students 

with disabilities and fewer black students 

with disabilities than TPS, raising serious 

fiscal equity concerns. Additional research 

is needed to examine these issues more 

closely.

Summary of Recommendations

This report also includes a series of 

recommendations for policymakers and 

stakeholders at the local, state, and federal 

levels, regarding improvements in policies 

and practices that can enhance educational 

opportunities for students with disabilities. In 

particular, NCD recommends the following:

Local Level

■ Charter Authorizers: Require that 

applications for the creation of new or 

converted charter schools articulate with a 

degree of specificity their plans regarding 

the education of students with disabilities, 

including with respect to enrollment, 

provision of special education services, 

evidence of a sufficient budget, and 

involvement with communities served; be 

proactive in ongoing monitoring of schools 

concerning the education of students with 

disabilities; and be willing to hold schools 

accountable for persistent violations and 

to take difficult action steps, including 

revocation, nonrenewal, and closure, as 

necessary, to address significant failures in 

the area of special education.

School Choice Series: Charter Schools—Implications for Students with Disabilities 15
■ Charter Operators: View the education of 

students with disabilities as an opportunity 

for the school to enhance its instructional 

approaches by making adaptations and 

changes that can benefit all students; revise 

policies and practices in areas such as 

enrollment, leadership and vision, staffing, 

and innovative and model practices.

State Level

■ State Education Agencies: Increase 

monitoring of compliance under IDEA by 

charter schools; analyze charter school 

data more closely to identify schools in 

need of intervention; provide training and 

informational materials to parents about 

their rights with respect to charter schools; 

exercise leadership with regard to school 

improvement by supporting charter–TPS 

collaboration, including joint professional 

development; and exercise leadership in 

creating a rigorous authorizer accountability 

plan consistent with ESSA.

■ State Legislatures: Explore amending 

the state charter school statute to address 

issues such as raising the level of selectivity 

of charter school applicants; raising 

eligibility requirements for authorizers 

to ensure they possess the necessary 

knowledge and capacity to serve in this 

role; requiring as a condition of receipt of 

a charter that the applicant demonstrate a 

plan for meeting approaching proportionate 

enrollment from the community of 

students being served; holding authorizers 

accountable and requiring them to 

review underperforming charter schools 

within their portfolios and take steps for 

intervention, revocation, and closure, as 

necessary; helping to ensure fiscal balance 

between TPS and charter expansion by 

establishing a cap on the amount of funding 

that can be taken from TPS as a result of 

students transferring to charter schools; 

requiring charter schools to maintain levels 

of reported enrollment and backfill when 

seats become available during the school 

year through a lottery; easing the fiscal 

impact on TPS students by providing a 

transitional per-pupil reimbursement to TPS 

after a student transfers to a charter school; 

and mitigating increased racial isolation 

by encouraging interdistrict charters 

that will be located across geographic 

borders in economically and racially mixed 

neighborhoods to draw from urban and 

suburban students.

Federal Level

■ Congress and U.S. Department of 

Education: Create incentives for authorizers 

to locate charter schools as originally 

conceptualized as laboratories for innovation 

and reform, strategically (including outside 

of urban districts and straddling districts) to 

minimize isolation based on race, disabling 

condition, and socioeconomic background; 

increase funding priority in the U.S. 

Department of Education’s Charter School 

Program (CSP) for schools that are inclusive 

of all students and promote diversity across 

a variety of categories, including disability 

status; and amend ESEA that currently limits 

use of federal start-up funds only to charters 

that use a blind lottery to include schools 

that use a variety of methods (e.g., random 

zip code) to create purposefully diverse 

student bodies.

16 National Council on Disability
List of Acronyms

ABA applied behavior analysis

ACLU American Civil Liberties Union

ADA Americans with Disabilities Act

ADHD attention-deficit/hyperactivity disorder

AEI American Enterprise Institute

CCD Common Core of Data

CER Center for Education Reform

CMO charter management organization

CMS content management system

COPAA Council of Parent Attorneys and Advocates

CRDC Civil Rights Data Collection

CREDO Center for Research on Education Outcomes

CRPE Center on Reinventing Public Education

CSP Charter Schools Program

DC PCSB District of Columbia Public Charter School Board

DCPS District of Columbia Public Schools

DI differentiated instruction

DPS Denver Public Schools

DPSD Durham Public School District

DSST Denver School of Science and Technology

EL English learner

EMO education management organization

ESEA Elementary and Secondary Education Act

ESSA Every Student Succeeds Act

FAPE free appropriate public education

FAQ frequently asked questions

FERPA Family Educational Rights and Privacy Act

GAO United States Government Accountability Office

IB International Baccalaureate

IDEA Individuals with Disabilities Education Act

IEP individualized education program

IES Institute of Education Sciences

KIPP Knowledge is Power Program

LEA local education agency

LMS learning management system

School Choice Series: Charter Schools—Implications for Students with Disabilities 17
LRE least restrictive environment

NACSA National Association of Charter School Authorizers

NAPCS National Alliance for Public Charter Schools

NCES National Center for Education Statistics

NCLB No Child Left Behind Act

NCSECS National Center for Special Education in Charter Schools

NEA National Education Association

OCR U.S. Department of Education’s Office for Civil Rights

OSERS U.S. Department of Education’s Office of Special Education and Rehabilitative Services

RTT Race to the Top initiative

SASS U.S. Department of Education’s Schools and Staffing Survey

SEA state education agency

Section 504 Section 504 of the Rehabilitation Act of 1973

SPED special education

SUNY State University of New York

TFS U.S. Department of Education’s Teacher Follow-Up Survey

Title I Title I of the Elementary and Secondary Education Act

Title II Title II of the Americans with Disabilities Act

Title VI Title VI of the Civil Rights Act of 1964

TPS traditional public school(s)

UCLA University of California, Los Angeles

UDL Universal Design for Learning

VCR Virtual Control Record

18 National Council on Disability
This report recommends that policymakers 

and interested stakeholders build on 

the practices used by charter schools 

that have been successful in meeting 

the unique learning needs of students 

with disabilities, while concomitantly 

addressing areas of concern that have 

been highlighted in the research and have 

persisted over many years. Moreover, the 

report advises stakeholders to keep in 

mind and address the needs of students 

with disabilities who do not attend charter 

schools and instead remain in traditional 

public schools.

School Choice Series: Charter Schools—Implications for Students with Disabilities 19
20 National Council on Disability
Charter schools are publicly funded schools 

that are privately managed and operate 

under a contract (i.e., a “charter”) that is 

awarded for a specified period by an authorizing 

entity established under state law. A school’s 

charter delineates the particulars regarding how 

the school will function and be governed. It 

typically provides charter school administrators 

greater autonomy from 

constraining state and 

local requirements 

applicable to traditional 

public schools (TPS) in 

areas such as governance 

and oversight; budgetary 

decision making; teacher 

qualifications, hiring, 

layoffs, and tenure; 

textbook and curriculum selection; and provision 

of transportation. Consistent with the terms of 

the charter, in exchange for greater flexibility, 

the charter holder commits the school to a 

heightened level of accountability, usually tied to 

improved academic performance outcomes.

Since 1991, when Minnesota enacted the first 

charter school law, 44 states (plus the District of 

Columbia and Puerto Rico) have enacted statutes 

authorizing the creation of publicly funded charter 

schools.1 While these authorization statutes 

vary considerably across states, many contain 

common elements.2 For example, the statutes 

often require a charter contract to include a 

purpose statement, descriptions of expected 

student outcomes, and admission policies and 

procedures. Some also require a description of 

monitoring and evaluation processes.3 In addition, 

the statutes usually delineate the type(s) of 

charter schools that are allowed, specify the 

kinds of entities that 

are authorized to award 

charters (i.e., charter 

authorizers), and contain 

language limiting the 

term of the charter 

(typically three to five 

years).4 Some state 

charter school statutes 

also include provisions 

concerning nondiscrimination in recruitment, 

admission, and enrollment processes. To promote 

accountability, over half of the state authorizing 

statutes (26) require authorizers to ensure that 

charter schools submit annual reports regarding 

their performance in areas such as enrollment 

and attrition, governance, finances, innovative 

practices, and student performance.5 All but one 

state statutes (Maryland) specify the conditions 

under which a charter may be terminated or 

revoked, including, for example, inadequate 

student performance.6 Yet, despite states having 

Introduction

[I]n exchange for greater flexibility, 

the charter holder commits the 

school to a heightened level of 

accountability, usually tied to 

improved academic performance 

outcomes

School Choice Series: Charter Schools—Implications for Students with Disabilities 21
enacted such accountability provisions, in 

practice, authorizers rarely close charter schools 

because of poor student performance.7 According 

to data collected by the National Alliance for 

Public Charter Schools (NAPCS), in 2016–2017, 

only 211 out of nearly 7,000 charter schools 

closed “for a variety of reasons, including low 

enrollment, financial 

concerns, and/or low 

academic performance.”8

For more than 25 

years, the U.S. Congress, 

through the Elementary 

and Secondary Education 

Act (ESEA),9 reauthorized 

as the Every Student 

Succeeds Act (ESSA) 

of 2015, has channeled 

funding to states to encourage the creation of 

new charters and to promote innovation and 

reform through research, pilot programs, and 

competitive grants. The expansion in the number 

of charter schools, which focused on linking 

accountability to improved student achievement, 

paralleled the ESEA’s 

evolution toward resultsdriven accountability 

based primarily on 

state assessments. 

These developments 

culminated in passage of 

the No Child Left Behind Act (NCLB) of 2001 and, 

subsequently, the Race to the Top (RTT) initiative 

in 2009.10 The RTT conditioned receipt of one of 

the highly competitive RTT grants for innovation 

and education reform upon the state increasing its 

number of charter schools and lifting any stateimposed cap that might exist on the total number 

of charter schools.11

Since the beginning of the charter school 

movement, charter schools have drawn bipartisan 

support and experienced rapid growth,12

especially in urban districts with concentrated 

poverty and poorly performing TPS. The charter 

schools were initially envisioned as “laboratories 

of innovation” that could inspire replication by 

other public schools.13

According to the 

market-based approach 

to education, parental 

choice would help make 

charter schools and TPS 

more accountable to 

parents by increasing 

competition between 

schools and creating 

incentives for developing 

and implementing innovations necessary to 

attract and retain students.14 With some evidence 

that high-quality charter schools can produce 

innovative and successful instructional models, 

the percentage of students enrolled in charter 

schools increased from 2 to 5 percent between 

2004 and 2014 (0.9 

million to 2.7 million).15

Today, this figure 

has risen to 3 million 

students enrolled in 7,000 

charter schools.16

In 2013–2014, 

students with disabilities comprised nearly 

11 percent of the total population of students 

enrolled in charter schools.17 In order to educate 

students with disabilities, charter schools—as 

other public schools—must comply with certain 

legal requirements under federal and state 

laws. These requirements include provisions 

pertaining to a high-quality education with 

[T]he percentage of students 

enrolled in charter schools increased 

from 2 to 5 percent between 2004 

and 2014 (0.9 million to 2.7 millio

Today, this figure has risen to 

3 million students enrolled in 

7,000 charter schools

In 2013 to 2014, students with 

disabilities made up nearly 

11 percent of the population of 

students enrolled in charter schools

22 National Council on Disability
respect to all students under Title I of the ESEA 

as well as obligations specifically relating to 

students with disabilities under the Individuals 

with Disabilities Education Act (IDEA) and state 

special education law. Moreover, charter schools 

must satisfy the requirements embedded in the 

civil rights statutes, including Title VI of the Civil 

Rights Act of 1964 (race, color, national origin), 

Section 504 of the Rehabilitation Act of 1973 

(disability), and the Americans with Disabilities 

Act (ADA).18 The extent to which a charter school 

itself is responsible for ensuring compliance 

with specific legal obligations pertaining to 

students with disabilities 

depends on the school’s 

legal status under state 

law and the school’s 

charter. Some charter 

schools operate as their 

own school district—or 

local education agency 

(LEA)—while others 

function as a public 

school within an existing 

LEA (see Chapter 4). 

In any case, all charter 

schools, as is true of all public schools, are 

subject to the requirements of IDEA.

Research has shown that some charter 

schools have struggled to meet their obligations 

with respect to the education of students with 

disabilities. For example, charter schools tend 

to enroll lower percentages of students with 

disabilities than TPS.19 An additional area of 

concern is that charter schools may selectively 

enroll students with mild disabilities, who are less 

likely to require intensive (and possibly costlier) 

instruction and support services.20 For charter 

schools, in particular those that operate as their 

own LEA, there may be disincentives to enroll 

students who have more significant disabilities. 

These charter schools do not have access to 

resources that typical LEAs can draw upon 

through economies of scale.21 Consequently, 

they may lack the capacity to provide a free 

appropriate public education (FAPE), through a 

continuum of alternative placements, to students 

with the full range of disabilities.

Despite these challenges, charter schools 

have continued to hold promise for parents of 

students with disabilities, in particular those 

who may be dissatisfied with their children’s 

prior TPS experience. 

With a smaller class size 

and strong emphasis 

on high expectations 

and college attainment, 

some charter 

schools may offer an 

attractive alternative 

to the watered-down 

curriculum that students 

with disabilities may 

have been receiving in 

TPS. Similarly, some 

charter schools offer a mission-driven focus 

and/or distinct curricula (e.g., Montessori 

or Expeditionary Learning). The fact that 

many charter schools emphasize inclusive 

educational practices may also be appealing 

to parents whose children have been placed 

in a segregated setting in a TPS. Additionally, 

many charter schools prioritize personalized 

learning and differentiation, concepts 

that are complementary to the notion of 

individualization under IDEA.22 Some charter 

schools have also begun to utilize innovative 

approaches to education such as Universal 

[C]harter schools tend to enroll 

lower percentages of students with 

disabilities than TPS. An additional

area of concern is that charter 

schools may selectively enroll 

students with mild disabilities, who 

are less likely to require intensive 

(and possibly costlier) instruction 

and support services

School Choice Series: Charter Schools—Implications for Students with Disabilities 23
Design for Learning (UDL) and restorative 

justice (see Chapter 4).23

At the same time, although one of the 

arguments in favor of the expansion of charter 

schools has been that these schools foster 

competition that can result in improvements 

to all schools,24 research has shown that the 

unregulated expansion of charter schools 

may lead to greater inequities for those 

students with disabilities who remain in TPS.25

In particular, because charter schools tend 

to enroll larger numbers of students with 

milder disabilities,26 TPS continue to serve 

a disproportionate number of students with 

more significant and costly needs. As a result, 

TPS districts bear the impact of higher levels 

of spending associated with educating these 

students while being unable to reduce fixed 

operating costs.27

This report provides an in-depth overview 

of the current landscape of the education of 

students with disabilities in charter schools. 

The report underscores the widespread 

variability and heterogeneity that exists across 

the charter school sector. While some charter 

schools experience serious challenges with 

respect to the provision of special education 

programming and services to their students 

with disabilities, others have developed 

innovative educational approaches that can 

serve as models for all schools. This report 

recommends that policymakers and interested 

stakeholders build on the practices used by 

charter schools that have been successful 

in meeting the unique learning needs of 

students with disabilities, while concomitantly 

addressing areas of concern that have been 

highlighted in the research and have persisted 

over many years. Moreover, the report advises 

stakeholders to keep in mind and address 

the needs of students with disabilities who 

do not attend charter schools and instead 

remain in TPS. These students may experience 

cuts in their programming as TPS struggle to 

reconcile a decline in enrollment and revenue 

without a reduction in fixed operating costs. 

The seemingly competing interests of charter 

schools and TPS are not mutually exclusive. 

Rather, this report proposes a strategy focusing 

on students with disabilities in charter schools 

as well as those in TPS as the most effective 

means by which to move the dialogue forward 

and to improve educational opportunities for all

students with disabilities.

Chapter 1 of this report provides background 

information on charter schools, including an 

examination of state authorizing statutes, 

charter school funding, expansion of charter 

schools, and the concentration of charter 

schools in large urban cities. Chapter 2 presents 

an overview of federal legislation pertaining to 

students with disabilities and charter schools—

namely, the ESEA, IDEA, Section 504, and 

ADA. Chapter 3 discusses issues concerning 

enrollment and the access of students with 

disabilities to charter schools. Chapter 4 

addresses the provision of special education and 

related services in charter schools and includes 

a discussion of model practices as well as a 

presentation of two case studies of students 

with disabilities who have attended charter 

schools. Chapter 5 focuses on two specialized 

types of charter schools with implications for 

students with disabilities: disability-specific 

charter schools and virtual charter schools. 

Chapter 6 discusses issues pertaining to student 

outcomes and the accountability of charter 

schools for the education of students with 

24 National Council on Disability
disabilities. Chapter 7 examines the potential 

implications of charter schools for students 

with disabilities who remain in TPS. Finally, 

Chapter 8 offers specific recommendations 

for the implementation of improved policies 

and practices that can enhance educational 

opportunities for students with disabilities.

Research Methods

To examine the challenges and best practices 

associated with the education of students with 

disabilities in charter schools, this study utilized a 

mixed-methods approach that included analysis 

of existing policies and secondary literature, 

review of quantitative data, and examination of 

qualitative data.

Policies and Secondary Literature

For the review of policies and secondary 

literature, we examined relevant statutes, 

regulations, and administrative guidance at the 

federal and state levels regarding the education 

of students with disabilities in charter schools. 

At the federal level, these materials included 

statutory and regulatory language of the ESEA, 

IDEA, Section 504, and the ADA as well as 

guidance and “Dear Colleague Letters” from 

the U.S. Department of Education’s Office of 

Special Education and Rehabilitative Services 

(OSERS) and the Office for Civil Rights (OCR). 

State-level analysis focused primarily on 

review of state charter school laws. We also 

examined case law and administrative due 

process hearings that pertain to students with 

disabilities and charter schools. In addition, we 

reviewed in detail experimental studies and 

articles published in peer-reviewed journals, 

book chapters, government documents, 

reports of various organizations, postings on 

the Internet, and articles appearing in the 

popular media.

Quantitative Data

We also examined descriptive data pertaining 

to students with disabilities and charter schools 

from the Common Core of Data (CCD) of 

the National Center for Education Statistics 

(NCES), which collects data on an annual basis 

from all public schools; the U.S. Civil Rights 

Data Collection (CRDC) of OCR at the U.S. 

Department of Education, which collects data 

every other year from all public schools on a 

variety of topics—for example, enrollment, 

educational placement, and discipline—and can 

be disaggregated by disability and race/ethnicity; 

and the websites of individual state education 

agencies (SEAs), which often include report 

cards of data on individual schools (including 

charter schools) and districts. In addition, we 

reviewed relevant data that has been cited in 

the secondary literature.

Qualitative Data

To gather the perspectives of stakeholders, we 

conducted six focus groups in different regions 

across the country—namely, Arizona (two focus 

groups), California (one focus group), the District 

of Columbia (one focus group), and Florida (two 

focus groups). Stakeholders participating in the 

focus groups consisted of parents of students 

with disabilities as well as parent advocates who 

had experience with charter schools. Participants 

were recruited through the member network of 

the Council of Parent Attorneys and Advocates 

(COPAA), as well as through local, state, and 

national partners.

We also conducted 18 interviews with 

a variety of stakeholders, including state 

School Choice Series: Charter Schools—Implications for Students with Disabilities 25
department of education officials, charter school 

teachers and administrators, representatives of 

disability organizations, representatives of charter 

school organizations, parents of students with 

disabilities, and parent advocates. Finally, we 

conducted two case studies, focusing on the 

contrasting experiences of two students with 

disabilities who have attended charter schools. 

The case studies consisted of in-depth interviews 

with the students’ parents as well as review of 

available documents and data on the specific 

schools. The findings from the case studies are 

presented at the end of Chapter 4.

The focus groups and interviews were 

all guided by the use of semistructured 

protocols consisting of open-ended questions. 

In each instance, data was audio recorded 

and transcribed. A team of three researchers 

subsequently analyzed and coded the transcripts. 

Comments from participating stakeholders are 

included throughout the report to highlight their 

personal perspectives and experiences.

Limitations

The sample of participants for the focus groups 

and interviews was purposefully selected 

based on stakeholder location and position/

role. The two students for the case studies 

were purposefully selected to illustrate 

their contrasting experiences. Given the 

small sample size and purposeful selection 

of students, the results of the qualitative 

component of the study provide insight by 

highlighting stakeholder first-hand knowledge 

of the issues discussed; they cannot be 

generalized to the entire population of students 

with disabilities or charter schools.

26 National Council on Disability
Charter School State Statutes

With the addition of Kentucky in 2017, 44 states 

(plus the District of Columbia and Puerto Rico) 

have passed charter school laws that authorize 

the creation of publicly funded, privately 

governed charter schools. 

The six states that do not 

authorize charter schools 

are Montana, Nebraska, 

North Dakota, South 

Dakota, Vermont, and 

West Virginia.28 Stateauthorizing statutes differ 

significantly, but typically 

they identify:

■ A charter-authorizing entity or entities 

responsible for overseeing the application 

process, determining which applicants will 

be awarded charters, and monitoring and 

oversight of performance and consistency 

with the terms of the charter.

■ Types of entities eligible to apply for a 

charter.

■ Terms or conditions of the charter.

■ Length of the charter (generally three to five 

years).

■ Process for renewal and criteria for 

revocation or nonrenewal.

■ Sources of financial support for charter 

schools, including relationship to TPS 

districts and how funds will be distributed.

■ The requirement that charter schools must 

abide by specific federal laws, including 

those that pertain to 

students with disabilities.

Many state-authorizing 

statutes also specify 

which state rules and 

regulations will govern 

the charter schools or, 

alternatively, the nature 

of exemptions that 

are given to charter 

Chapter 1: Background and Overview 

of Charter Schools

States That Do Not Authorize 

Charter Schools (2018)

■ Montana

■ Nebraska

■ North Dakota

■ South Dakota

■ Vermont

■ West Virginia

With the addition of Kentucky in 

2017, 44 states (plus the District of 

Columbia and Puerto Rico) have 

passed charter school laws that 

authorize the creation of publicly 

funded, privately governed charter 

schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 27
schools, such as whether teachers must be 

certified or whether schools must follow a 

standard curriculum or provide transportation for 

students. The charter school movement has been 

motivated in large part by a desire for greater 

autonomy and freedom from existing rules that 

are perceived as constraining with respect to 

teachers and pedagogy.29 State laws vary greatly, 

but all allow waiver of some state and/or local 

rules related to schools, with many of these 

waivers granted automatically.30

Types of Charter Schools

Many state-authorizing statutes also specify 

the various types of charter schools that may 

be authorized, including 

whether charter schools 

may operate only as 

new schools or may 

convert from an existing 

TPS. Charter schools 

can be independent 

standalone schools that 

typically are at a single 

site or they may operate as schools that are 

part of a network of charter schools, typically 

managed by a nonprofit charter management 

organization (CMO). Alternatively, as permitted by 

some states, charter schools may operate under 

contract with a for-profit education management 

organization (EMO) that provides whole school 

services (e.g., special education, business 

operations, personnel management).31 Only 

about 15 percent of charter schools in the nation 

are managed by EMOs, and most are located in 

just a few states. There are about twice as many 

charters operated by CMOs, and a declining 59 

percent are identified as independent charters. 

Twenty-one states explicitly allow for the 

Closer examination of the individual 

state-authorizing statutes reveals 

that their respective latitudes and 

constraints have a direct impact on 

the type, expansion, and growth of 

charter schools in the state

creation of virtual charter schools; some bar 

them altogether, while other states limit their 

enrollment.32 Some states (e.g., Michigan) place 

a statewide cap on the number (15) of virtual 

schools that may be chartered at any single 

time but do not place a cap on the number of 

virtual charter schools that may be authorized. 

Moreover, 23 state statutes impose a statewide 

cap on the number of charter schools.33

State charter laws further define how charter 

schools operate in each state. While some states 

authorize charter schools to be their own LEA, 

other states require them to be part of an LEA. 

Moreover, still other states provide for charter 

schools to operate as their own LEA under 

certain circumstances 

or allow them to choose 

their own legal status. 

Whether a charter school 

operates as its own 

LEA has far-reaching 

implications. It has the 

effect of holding the 

charter school to the 

same obligations and responsibilities as all other 

TPS districts. For those charter schools that 

are part of an LEA, however, the TPS district 

remains responsible for ensuring the delivery 

of specialized instruction and related services 

necessary to preserve the rights of the charter 

enrollees with disabilities to a free appropriate 

public education (FAPE) consistent with IDEA, 

Section 504, and ADA (see Chapter 4).

Closer examination of the individual stateauthorizing statutes reveals that their respective 

latitudes and constraints have a direct impact 

on the type, expansion, and growth of charter 

schools in the state. For example, some state 

charter school statutes require that authorizers 

28 National Council on Disability
give preference or consideration to applications 

designed to increase the educational opportunities 

of at-risk pupils,34 target members of special 

population groups,35 locate charter schools in 

districts in which overall student performance on 

the state assessment system is in the lowest 

10 percent statewide,36 or propose a school 

oriented to high-risk students and the reentry of 

dropouts.37 Some state statutes focus on serving 

students from distressed areas or urban districts 

with underperforming TPS. Policies such as these 

are designed to encourage the development of 

schools focused on serving students who have 

not succeeded in TPS. They may also, however, 

because of their inflexibility, have the unintended 

effect of making it more difficult to create 

purposefully integrated charter schools.

State charter school laws vary in the extent 

to which they refer to students with disabilities. 

As noted earlier, some laws explicitly state that 

charter schools must abide by specific federal and 

state laws, including those pertaining to students 

with disabilities. The New York law also requires 

charter school authorizers (i.e., Board of Regents 

or Board of Trustees of the State University of 

New York) to develop enrollment and retention 

targets for students with disabilities, English 

Learners (ELs), and students eligible for free 

and reduced lunch that “are comparable to the 

enrollment figures of such categories of students 

attending the public schools within the school 

district.”38 A charter school must demonstrate 

that it will meet or exceed these targets in its 

initial application,39 application for renewal,40 and 

School Choice Series: Charter Schools—Implications for Students with Disabilities 29
annual report.41 One of the grounds for charter 

termination in New York is a school’s repeated 

failure to meet or exceed such targets.42

Because of the variability among state 

statutes, several organizations and individuals43

have developed frameworks for evaluating or 

grading state charter school laws. These rankings 

include annual reviews of state charter school 

laws conducted by the Center for Education 

Reform (CER)44 and NAPCS, which developed 

an updated model in 2016.45 Against this model, 

NAPCS annually ranks the public charter school 

laws by using a score based on 21 essential 

metrics, including flexibility, accountability, and 

equity.46 Under the NAPCS’s rating system, 

states with greater flexibility (i.e., no cap, 

no required local district authorizer, multiple 

alternative authorizers, 

and higher numbers of 

charters) receive high 

rank scores compared 

to states with a local 

district authorizer, few authorizers, and a cap on 

the number of charter schools.47 None of these 

grading systems explicitly consider the needs of 

students with disabilities; nor do they address 

providing specialized instruction and supportive 

services as necessary to receive FAPE under 

IDEA by the charter school. Similarly, the grading 

systems do not address the right of students 

to be free from discrimination and to receive 

comparable aids, benefits, or services to those 

provided to their peers without disabilities 

under Section 504 and ADA (see Chapter 2). The 

National Center for Special Education in Charter 

Schools (NCSECS) has, however, published 

a model policy guide, which represents a 

proactive initiative to help states with their varied 

chartering systems to identify issues and mitigate 

potential harm to students with disabilities who 

may be affected by policies and practices with 

unintended consequences.48

Authorizing Entities

Under state law, authorizing entities are 

delegated authority to act as gatekeepers to 

determine which charter schools should be 

allowed to open. Each state has its own process 

for authorization of charters.49 Sixteen states 

grant this authority to a single entity, while 

the rest permit multiple authorizers to fill that 

role. California, for example, has 327 certified 

authorizers, specifically the California Department 

of Education Charter Schools Division, plus 326 

LEAs.50 Wisconsin has over 100 authorizers, 

which include two institutions of higher education 

(two branches of the 

University of Wisconsin), 

one noneducational 

government entity 

(Milwaukee Common 

Council), plus approximately 100 LEAs.51

In 21 states, the state education agency 

(SEA), for example, the Connecticut Department 

of Education, serves as the state-authorizing 

body. All authorizers are responsible for 

monitoring the charter schools that they 

authorize, in addition to overseeing the charter 

application process. When the authorizer is an 

SEA, these agencies also have independent legal 

responsibilities for ensuring fairness, equity, 

and quality of education programs for all eligible 

children and youth in the state under applicable 

state and federal laws, including ESSA and 

IDEA. The SEA is responsible under IDEA for the 

monitoring and oversight of special education 

to ensure that each educational program in the 

state meets the educational standards of the 

Each state has its own process for 

authorization of charters

30 National Council on Disability
state.52 In addition, the SEA is responsible for 

providing special education and related services 

directly to children with disabilities if the LEA is 

unable or unwilling to provide FAPE or unable to 

be consolidated with another LEA to establish 

and maintain a program to provide FAPE.53 In its 

dual role as authorizer and SEA, the SEA’s duties 

to monitor and provide oversight of the state’s 

charter school application must incorporate these 

concerns related to capacity to serve effectively 

students with disabilities.

LEAs comprise the majority of all authorizers. 

In 2014, of the 1,050 authorizers overseeing 

6,716 charter schools, 950 were LEAs.54 The 

majority of LEAs charged by state law with 

authorizing power oversee a limited number of 

charter schools.55 Some states delegate authority 

to an independent 

charter board; others 

rely on institutions 

of higher education, 

which comprise about 

4.5 percent of all 

authorizers; and still 

others authorize the 

mayor’s office (e.g., 

Indianapolis, Indiana), city 

council, or a nonprofit organization. When charter 

school applicants are unsuccessful in obtaining 

a charter, most states provide some form of an 

appeals process.

In addition to choosing among charter 

applicants, the responsibilities of authorizing 

bodies may, depending on the state, include 

overseeing charter school performance and 

ensuring compliance with the goals and terms 

of a charter and with various federal and state 

laws. The way in which the authorizer carries 

out its responsibilities with respect to such 

monitoring and oversight may vary depending 

on whether the authorizer is an entity other 

than the SEA or LEA. For example, under 

the confidentiality provisions of the Family 

Educational Rights and Privacy Act (FERPA) 

and IDEA, authorizing entities that are not 

the SEA or LEA would likely not have access 

to students’ educational records, including 

individualized education programs (IEPs).56

Authorizing entities may also be responsible 

for ensuring the financial viability of the charter 

school; implementing a corrective action plan 

and, in some instances, ensuring that charter 

school boards are independent from charter 

schools’ for-profit management; and ensuring 

that the local community has representation 

on the board of directors of the charter 

school. Approximately 

50 percent of 

authorizers oversee a 

single school, while 

others oversee from 2 

to 99 schools, and at 

least eight authorizers 

are responsible for more 

than 100 schools.57

Despite the important 

gatekeeping role and range of responsibilities 

delegated to authorizers, 23 state charterauthorizing statutes do not include quality 

standards to help guide the school authorizing 

process.58 Moreover, 18 states do not require 

transparency; the authorizer is not required to 

report on the performance of the schools under 

its umbrella.59 Only 13 states have provisions 

for imposing sanctions on authorizers that fail 

to meet professional standards or that oversee 

(or fail to oversee) charter schools persistently 

unable to attain standards.60 This is a matter of 

Approximately 50 percent of 

authorizers oversee a single 

school, while others oversee from 

2 to 99 schools, and at least eight 

authorizers are responsible for more 

than 100 schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 31
import to students with disabilities, which, as 

a subgroup, is too often identified as unable 

to attain the performance standards set for all. 

According to a 2015 report by CER, 20 percent 

of all charter closures result from the school’s 

failure to meet student 

performance standards, 

and about a quarter of all 

closures are the result 

of mismanagement.61

Of the 272 charter 

schools that closed in 

2015–2016, 53 percent 

were independent 

charter schools, 34 

percent were managed 

by a CMO, and 13 

percent were managed 

by an EMO.62

While there appears 

to be widespread 

consensus that highquality charter authorizers lead to high-quality 

charter schools,63 an understudied piece of the 

reform process is the authorizers’ decisionmaking process for differentiating which, 

among charter school applicants, are allowed 

into the market.64 One 

report by the National 

Association of Charter 

School Authorizers 

(NACSA) described 

how the large number 

of authorizers in some 

states had encouraged 

“authorizer shopping” 

by charter applicants 

hoping for less critical 

scrutiny of their 

application.65 A recent 

study by NACSA relies 

on case studies in an 

attempt to differentiate 

practices by quality 

authorizers and to look 

at student outcomes in relationship to practices 

of authorizers of high-performing portfolios 

of schools.66

Funding of Charter Schools and 

Students with Disabilities

Charter schools, in a manner similar to TPS, are 

funded through a combination of federal, state, 

and local funds.

67 While these complex and often 

confusing finance schemes vary from state to 

state—and sometimes even within states—the 

state systems share common elements in how 

they fund charter schools based on the number 

and characteristics of students that charters 

enroll. The following section explores those 

commonalities and notable differences, as they 

23 state charter-authorizing statutes 

do not include quality standards to 

help guide the school authorizing 

process.... 18 states do 

require ... the authorizer .

report on the performance of the 

schools under its umbrella. Only

13 states have provisions for 

imposing sanctions on authorizers 

that fail to meet professional 

standards or that oversee (or fail to 

oversee) charter schools persistently 

unable to attain standards

Charter School Closures

■ 20% of all charter closures result from 

the school’s failure to meet student 

performance standards.

■ Approximately 25% of all closures are the 

result of mismanagement.

■ Of the 272 charter schools that closed in 

2015–2016:

● 53% were independent charter schools.

● 34% were managed by a CMO.

● 13% were managed by an EMO.

32 National Council on Disability
relate to foundation funding and funding for 

special education.

Foundation Funding

States typically provide charter schools with 

foundation funding, a baseline level of funding 

at a per-pupil rate derived in a variety of ways.68

Charters in some states receive the same perpupil rate as the state provides TPS. Other states 

provide charters with per-pupil funding allocations 

calculated from the 

statewide or district 

average for per-pupil base 

funding. Not all charters, 

however, are able to 

access local funds.69 A 

few states determine 

per-pupil base funding from the revenue of the 

charter authorizer. Other variables may also factor 

into the amounts calculated.70

The National Conference of State Legislatures 

identifies different types 

of state foundation 

funding formulas for 

charter schools based 

on one of the following 

three categories: 

(1) per-pupil revenue of 

the student’s resident 

school district, (2) per-pupil revenue of the 

authorizer, or (3) statewide per-pupil allocation.71

Eight states (Massachusetts, Delaware, 

New Hampshire, New York, North Carolina, 

Ohio, Pennsylvania, and Rhode Island) fund 

their charter schools based on the per-pupil 

revenue of the districts in which the student 

enrollees reside.72 These funds follow the 

student to the charter school and can vary 

significantly from pupil to pupil because the 

amount is based on state and local property 

taxes and is dependent on whether the 

student lives in a high- or low-property tax 

area.73 The advantage to the student is that 

he or she has flexibility and can carry the 

same amount of public funds wherever he 

or she chooses to enroll. The trade-off in 

using this approach is that in states with 

open enrollment, the state policy creates an 

incentive for charter schools to encourage 

enrollment of students 

from high-revenue 

districts.74

The most common 

funding formula, which 

is used by 29 states, 

is derived from perpupil revenue of the authorizer75—typically, the 

local school district. This formula is similar to the 

per-pupil revenue also of the district. As funding 

is based on the district’s per-pupil revenue, 

this approach also 

creates an incentive for 

charter schools to seek 

authorization by a highrevenue district.76

The third formula—

one that is used by the 

District of Columbia 

and five states—is based on statewide per-pupil 

expenditure. Under this approach, charter schools 

receive the same funding regardless of where 

they are located within the state or wherever 

the student resides.77 The trade-off in using this 

statewide per-pupil approach is that it decreases 

incentives for charter schools to serve students 

in high-need urban districts and may result 

in insufficient funds to educate economically 

disadvantaged students.78

Charter schools, in a manner 

similar to TPS, are funded through 

a combination of federal, state, and 

local funds

The most common funding formula, 

which is used by 29 states, is 

derived from per-pupil revenue of 

the authorizer—typically, the local 

school district

School Choice Series: Charter Schools—Implications for Students with Disabilities 33
The nature of charter school foundation 

funding differs among states not only with 

respect to the type of funding formula used but 

also the source of distribution.79 Charter schools 

receive funding from their local school districts 

in only 17 states and from both the local district 

and the state in 16 states. In six states, charter 

schools receive those funds directly from the 

state; and in one state, Michigan, the authorizing 

statute identifies the authorizing agency as the 

source for funding charter schools.80

Funding for Special Education

The manner in which special education dollars 

are accessed by charter schools depends 

primarily on whether the 

charter school functions 

as an independent LEA 

or as part of an LEA. 

If, on the one hand, 

the charter operates 

as its own LEA, then 

federal and state dollars 

allocated for students 

with disabilities who are enrolled in the charter 

school flow directly from the SEA to the charter 

school. On the other hand, if the charter school 

operates as part of or within a traditional LEA, 

the manner in which special education funds 

flow to the charter school varies by state and 

may further be determined based on a contract 

or other arrangement between the charter 

school and the LEA of which it is a part.81

Although the LEA retains responsibility for 

overseeing the delivery of special education 

services to students with disabilities enrolled in 

the charter school, there are multiple ways to 

deliver these services. As a result, the special 

education funds may be retained by the LEA or 

may be provided directly or as reimbursement 

to the charter school for providing the special 

education services.82

With respect to state-level special education 

funding, most states use some type of funding 

formula. These formulas vary by state. Many 

states have adopted a weighted funding formula 

that increases the per-student with a disability 

allocation based on severity of disability, type 

of placement, or student need. Typically, these 

weighted formulas are based on a single 

factor such as diagnosis or multiple factors 

such as diagnosis and placement or services 

provided, with increased funding based on the 

corresponding level or tier assigned. Other 

states—for example, 

Massachusetts and 

New Jersey—use a 

census-based formula 

to set a fixed average 

per-pupil dollar amount 

of funding based on 

the state average rate 

of disabilities. Still 

other states rely on (1) a hybrid formula that 

combines the two approaches; (2) a percentage 

reimbursement of actual expenditures; or 

(3) allocation of funding based on resource 

levels, for example, number of teachers, 

paraprofessionals, student/staff ratios, and 

specialists, based on number of students and/or 

type of disability.83

Many states also allocate categorical funds 

based on certain characteristics of students 

enrolled in LEAs and individual schools (e.g., 

economically disadvantaged, children receiving 

special education, ELs, First Language Not 

English, Economically Disadvantaged/Free 

Lunch), elementary, middle, or high school. 

The manner in which special 

education dollars are accessed by 

charter schools depends primarily 

on whether the charter school 

functions as an independent LEA 

or as part of an LEA

34 National Council on Disability
Most states treat charter schools the same as 

TPS, with targeted dollars based on the student’s 

classification following the student, while other 

states (e.g., California) provide funding to charter 

schools for some but not all the categories 

funded for TPS.84

Students with disabilities who have more 

significant needs can 

be expected to require 

more intensive services 

than their peers and 

at much greater costs. 

To help LEAs with 

extraordinary costs pay 

for the most expensive 

special education 

services, some states 

set up a risk pool or 

high-cost reserve that 

LEAs may apply for when required to provide 

special education services that meet statedetermined criteria for “high need.”85 If a state 

chooses to establish a risk pool, it may use up 

to 10 percent of the 

funds it reserved for 

state-level activities 

under IDEA.86 Funds 

distributed from the risk 

pool must only pay for 

“direct special education and related services” 

for high-need children with disabilities.87 State 

legislatures may also choose to appropriate 

state funds to supplement or substitute for 

the federal funds. The demand for “high-risk/

high-need” funds typically exceeds the state 

appropriation, which often changes with the 

economy and is not guaranteed. Charter schools 

that operate as LEAs may access these funds 

in a manner similar to TPS districts. Charter 

schools that operate as part of a district typically 

work with their LEA to secure these dollars if 

they serve students with needs that meet state 

requirements.

Expansion of Charter School CMOs

According to the CCD of NCES, between 

2000–2001 and 2015–

201688 the number of 

public charter schools 

nationwide increased 

from 2,000 to 6,900.

89

During this time, the 

percentage of public 

schools identified as 

charter schools increased 

from 2 to 7 percent, 

while the percentage 

of those identified as 

TPS decreased from 98 to 93 percent.90 The 

percentages of public charter schools serving 

300 to 499, 500 to 999, and 1,000 or more 

students each also increased during these 

years.91

Although the rate of 

charter school expansion 

slowed to about 2 

percent annually by 

2016,92 the percentage 

of students enrolling in charter schools across 

the country continued to increase, though also 

at a reduced rate.93 While freestanding LEA 

charters now serve a declining proportion of 

charter school students, that enrollment has 

noticeably shifted to CMOs and EMOs that 

manage multiple schools and networks of 

schools.94 From 2010 to 2014, the percentage of 

solo freestanding charter schools declined from 

83 to 61 percent, and the percentage of charter 

[B]etween 2000–2001 and 2015–2016 

the number of public charter schools 

nationwide increased from 2,000 to 

6,900

To help LEAs ... pay for the mo

expensive special education 

services, some states set up a risk 

pool or high-cost reserve that LEAs 

may apply for when required to 

provide special education services 

that meet state-determined criteria 

for “high need.

School Choice Series: Charter Schools—Implications for Students with Disabilities 35
schools that are part of a CMO or EMO network 

grew from 12 and 4 percent, respectively, to 24 

and 15 percent, respectively,

95 with the EMOs’ 

student share (20 percent of total charter school 

enrollment) notably greater than its school 

share.96

In a study of 

CMO replicability, 

researchers described 

this CMO growth as 

an “explosion”97 and 

suggested that it might 

be responsive to a few 

educational policy trends. 

First, individual charters 

did not experience 

the large-scale impact 

initially anticipated by 

charter proponents. Second, the research on 

student academic achievement in individual 

charter schools was mixed,98 and freestanding 

schools had not proven 

to be the models of 

innovation in instructional 

design and laboratories 

of reform promised 

in the state charter 

laws.99 As Christopher 

Lubienski subsequently 

observed, the most 

significant evidence of innovation may have 

been the creation of the charter school itself.100

In contrast, a study of the Knowledge Is Power 

Program (KIPP), CMO was of sufficient scale 

to reveal academic gains at a number of KIPP 

schools—with gains sufficient to begin to 

close the achievement gap based on race and 

income.101

In an effort to replicate “what works,” Farrell, 

Wohlstetter, and Smith sought to use data 

collected from a national study of 25 CMOs 

engaging in scale-up to identify factors restricting 

or facilitating expansion. Among other indicia 

restricting growth and replication, the researchers 

identified the inability 

of charter schools 

to provide weighted 

advantages for different 

applicants (i.e., they 

could not selectively 

target members of 

a desired population 

group(s) by according 

them more weight); 

limited access to grant 

monies being allocated 

to charter “start-ups” but not conversion schools; 

averse state charter laws, such as those with 

caps limiting the number of charters and low 

per-pupil funding based 

on state formula; limited 

access to suitable 

physical facilities; issues 

of autonomy between 

the CMO governing 

board that oversees the 

needs of the network 

versus the individual 

boards responsible for school-level decisions; 

and size, role, and responsibilities of the CMO’s 

central management office. Many of the charter 

school networks that were examined represent 

sophisticated organizations responsible for 

managing more schools than the average-sized 

school district. For example, Success Academy 

in New York City has more than 40 schools. 

Many of the charter school networks 

that were examined represent 

sophisticated organizations 

responsible for managing more 

schools than the average-sized 

school district

From 2010 to 2014, the percentage 

of solo freestanding charter schools 

declined from 83 to 61 percent, 

and the percentage of charter 

schools that are part of a CMO or 

EMO network grew from 12 and 

4 percent, respectively, to 24 and 

15 percent, respectively

36 National Council on Disability
KIPP, the nation’s largest charter school network, 

has more than 150 schools in 21 states 

throughout the country.

The authors reported that a substantial 

infusion of philanthropic funding, estimated 

at more than a half billion dollars,102 facilitated 

replication and contributed to the rapid growth 

and expansion of CMOs in the study.103

While acknowledging trade-offs, such as the 

requirement in NCLB for employing “highly 

qualified teachers” that some CMOs found 

burdensome and impeding their autonomy, 

Farrell and colleagues identified the generally 

positive role of federal legislation in aiding in 

the expansion of CMOs. For example, the 

researchers identified other provisions of NCLB 

that aided in the growth of CMOs as those that 

required TPS to align the curriculum with the 

state’s established standards; gave students in 

underperforming schools an option to transfer 

to higher performing schools; and provided new, 

targeted funds for charter school development 

and expansion. Similarly, Farrell and colleagues 

found that state law and policies made a 

difference in facilitating CMO growth (e.g., those 

relating to availability of facilities or facilities 

funding, allowing for multiple authorizers, and 

providing a right to appeal an application denied 

by a local school district).

Despite the increased number of CMOs, 

researchers determined that the growth of 

students who received special education in a 

CMO was only slightly stronger than TPS or 

non-CMO charter students. Research is still 

limited on the performance of students with 

disabilities who receive special education while 

enrolled in CMO charters.104 These findings are 

consistent with a separate analysis by the Center 

for Research on Education Outcomes (CREDO) 

(2013) to determine if the effects of attending a 

CMO-affiliated school were different for students 

with disabilities. After first experiencing a decline 

in academic performance, students within the 

categorical populations who remained in a CMO 

for four years demonstrated growth. The analysis 

showed that “while on average attending a CMO 

affiliated charter is beneficial for SPED [special 

education] students, the effect is small relative to 

the SPED/non-SPED gap.”105

Other researchers have raised concerns that 

in comparison to TPS, CMOs and EMOs spend a 

greater percentage on administrative costs than 

on instructional staff.106 In addition, researchers 

have expressed concerns about poor monitoring 

and oversight by some CMO and EMO chains 

and about for-profits lacking incentives to meet 

the needs of students with more significant 

disabilities or ELs, including those who need 

special education.107 Other researchers expressed 

concern that with the substantial growth of 

CMOs, in particular, their private boards risk 

becoming further removed from the school 

communities they serve.108

Concentration of Charter Schools 

in Large Urban Cities

Because charter schools target areas of high 

density and underperforming TPS, charter 

schools represent a higher percentage of urban 

schools than TPS (56 percent versus 25 percent, 

respectively), and a smaller percentage of public 

schools located in rural (11 percent versus 29 

percent, respectively) or suburban (26 percent 

versus 32 percent, respectively) areas.109 The 

disparity is not surprising given that the impetus 

for creation and replication of charter schools 

School Choice Series: Charter Schools—Implications for Students with Disabilities 37
was driven by concerns about the quality of 

underfunded TPS based on state assessments of 

disproportionately low-income urban students.

Charter saturation can be measured by the 

number of students and proportion of public 

school enrollment. By 2016–2017, four large 

urban school districts enrolled more than 60,000 

charter school students: 

Los Angeles, New York 

City, Philadelphia, and 

Miami-Dade. More 

than 163,000 students 

attended charter schools 

in Los Angeles—the 

highest number for any 

district in the country. 

Between 2015–2016 and 

2016–2017, the charter 

school enrollment of 

Los Angeles increased 

by more than 7,000 students—a growth rate of 

nearly 5 percent. According to data collected by 

NAPCS, in the 2016–2017 school year, 19 school 

districts had at least 30 

percent of their public 

school students attending 

charter schools. The 

district with the largest 

percentage of students 

enrolled in charter 

schools was New Orleans (with 93 percent).110

The top 10 districts with the largest numbers of 

charter school students served 22 percent of all 

charter school students nationwide.111

Other research indicates that charters enroll 

proportionately fewer special needs students 

than TPS, which raises concerns about the 

accessibility of these schools to all students.112

The extent to which urban charters are serving 

students with highest need (students with 

disabilities who receive special education, ELs, 

and low-income students) has been relatively 

underexamined. The CRDC provides limited 

insights. However, because state data provides 

composites of all students identified as having a 

disability under IDEA, the data masks whether 

charter schools enroll 

predominantly students 

with milder needs 

who typically receive 

specialized instruction in 

inclusive classrooms.

As suggested by 

a study of Detroit, 

further research and 

analysis is necessary 

to examine whether 

and to what extent 

charter operators seek 

to locate schools “to target students with 

less risky socioeconomic and demographic 

backgrounds.”113 The correlation between the 

effects of sustained 

exposure to poverty and 

children with disabilities 

is well established. 

Another study of 

charter school locations 

across New York State 

found that where charter schools were sited 

was influenced by specific financial factors: 

(1) Schools in more densely populated areas 

with high operating expenses per pupil received 

higher charter payments, (2) higher achieving 

children linked to a demographic of adults with 

higher levels of education and higher incomes, 

and (3) there were fewer high-need students 

with disabilities in charter schools than in nearby 

The top 10 districts with the largest 

numbers of charter school students 

served 22 percent of all charter 

school students nationwide

[C]harter schools represent a higher 

percentage of urban schools than 

TPS (56 percent versus 25 percent, 

respectively), and a smaller 

percentage of public schools located 

in rural (11 percent versus 29 

percent, respectively) or suburban 

(26 percent versus 32 percent, 

respectively) areas

38 National Council on Disability
traditional public schools.114 Confirming families 

and advocates’ descriptions, researchers 

Bifulco, Ladd, and Ross (2009) found that 

charter schools in Durham, North Carolina, 

were used by educated white parents to leave 

the TPS, which enrolled proportionately higher 

percentages of children from less educated 

black families.115

Additional research by Frankenberg and 

associates (2010) similarly found that instead 

of serving as tools for innovation through 

integration, charter schools are, to the contrary, 

educating students more stratified by race, 

socioeconomic status, and disability.116 Gary 

Orfield of the Civil Rights Project at the University 

of California, Los Angeles (UCLA), described 

the charter movement as having “flourished in 

a period of retreat on civil rights.”117 He urged 

charter school policymakers and leaders to revive 

and embrace the vision of historically excluded 

groups of students being brought into the 

mainstream as a defining characteristic of charter 

schools: “Federal policy should make this a 

condition for charter assistance and support help 

for all charters to become what the best ones 

already are.”118

School Choice Series: Charter Schools—Implications for Students with Disabilities 39
40 National Council on Disability
Chapter 2: Federal Legal Requirements Pertaining 

to Students with Disabilities in Charter Schools

I

n terms of federal obligations, charter 

schools, as publicly funded schools, are 

indistinguishable from traditional public 

schools. These obligations include, for the most 

part, requirements under Title I-Part A and Title 

IV-Part C of ESEA, as amended by ESSA; IDEA; 

and the civil rights statutes, Section 504 and 

the ADA.

ESEA as Amended by ESSA

Title I-Part A of ESEA, amended and replaced 

by ESSA, focuses on improving academic 

achievement for disadvantaged students. Title I 

allocates for distribution 

to schools and districts 

about $16.5 billion 

based on the number of 

students meeting federal 

poverty standards.119

Use of these funds is 

prescribed by law and regulations, subject to 

supplement, not supplant, requirements and state 

and local maintenance of effort requirements. 

Much of the allocation to the states for Title I 

funds is formulaic, but many charter schools, as 

TPS, receive these funds to improve educational 

achievement.

Title I-Part A mandates that all public school 

students shall be provided with a rigorous 

curriculum aligned to state-adopted standards for 

college and career readiness. It also mandates 

that the academic achievement standards 

include the same knowledge, skills, and levels 

of achievement expected of all public school 

students in the state, with the sole exception 

of those students who are identified with the 

most significant cognitive disabilities.120 These 

academic standards apply to the vast majority 

of students with disabilities in charter schools. 

Title I also requires each state to establish an 

accountability system that includes ambitious 

state-designed long-term goals, with regular 

measurements of interim progress toward 

meeting such goals 

for all students and 

separately for students 

with IEPs and each 

subgroup of students in 

the state for improved 

academic achievement, 

as measured by proficiency on the annual 

assessments and high school graduation rates.121

Federal dollars under Title I-Part A provide 

leverage for improving charter schools because 

SEAs have significantly greater flexibility under 

the amended ESSA than the prior iteration 

of ESEA under NCLB. With this flexibility and 

heightened level of autonomy for the states 

and, hence, for LEAs and charter schools, come 

expectations for improved educational outcomes 

In terms of federal obligations, 

charter schools, as publicly funded 

schools, are indistinguishable from 

traditional public schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 41
for all publicly funded students, including 

students with disabilities being educated in 

charter schools. In accepting funds under ESEA, 

the SEA provided assurances that the public 

chartering agency, or authorizer, of any charter 

school that receives funds under the state 

program adequately monitors each charter school 

under the authority of such agency in recruiting, 

enrolling, retaining, and meeting the needs of 

all students, including children with disabilities 

and ELs.122

The state also assures that it will promote 

quality authorization and work to improve the 

authorized public chartering agency’s ability to 

monitor charter schools 

authorized by the agency 

by (1) assessing annual 

performance data of the 

schools, including, as 

appropriate, graduation 

rates, student academic 

growth, and rates of 

student attrition; 

(2) reviewing the schools’ 

independent, annual 

audits of financial statements and ensuring 

that any such audits are publicly reported; and 

(3) holding charter schools accountable to the 

academic, financial, and operational quality 

controls agreed to between the charter school 

and the authorized public chartering agency 

involved, such as through renewal, nonrenewal, 

or revocation of the school’s charter. In addition, 

the SEA must assure that each charter school 

receiving Title I funds from the SEA will make 

its annual state report card publicly available, 

including on the website of the school, to help 

parents make informed decisions about the 

education options available to their children. 

This information should be transparent; it is of 

interest to all parents and especially to parents 

of students with disabilities because it includes 

information on the educational program; student 

support services; parent contract requirements, 

if any; financial obligations or fees; and annual 

performance and enrollment data for each 

subgroup of students.123

Title IV-Part C

Competitive federal grants under Part C of 

Title IV, the Charter Schools Program (CSP), are 

also available for SEAs, or charter developers, 

if the SEA declines to seek funds for new 

development and 

implementation of public 

charter schools. CSP 

also provides grants for 

designing, improving, 

and expanding charter 

schools on a systemic 

level. If the charter 

school grantee is not part 

of an LEA, authorizers 

bear the responsibility to 

ensure that the grantee provides a high-quality 

public education consistent with Title I and, 

as TPS, provides an annual report concerning 

student performance and growth.124 Significantly, 

the Secretary of Education has authority to 

waive statutory and regulatory provisions 

when doing so will encourage support for 

the program.125 For the last 25 years, the U.S. 

Department of Education has used this authority 

to earmark funds needed to support existing 

charter schools and to create new charter 

schools in areas seriously affected by natural 

disaster, including, for example, New Orleans, 

Florida, and Puerto Rico.

Federal dollars under [IDEA] 

Title I-Part A provide leverage for 

improving charter schools because 

SEAs have significantly greater 

flexibility under the amended ESSA 

than the prior iteration of ESEA 

under NCLB

42 National Council on Disability
Although the Secretary of Education sought 

a significantly higher level of funds to support 

school choice in FY18 (fiscal year 2018), the 

U.S. Department of Education awarded $253 

million in discretionary funds for expansion of 

charter schools in September 2017. These funds 

were distributed to nine state agencies ($145 

million) and 17 nonprofit CMOs ($52.4 million) for 

replication and expansion 

of charter schools, 

and $52.25 million 

was distributed to six 

nonprofit organizations 

and two state agencies 

as grants to permit 

eligible entities to enhance the credit of charter 

schools so that the charter schools can access 

private-sector and other nonfederal capital in 

order to acquire, construct, and renovate facilities 

at a reasonable cost. 

The Administration’s 

proposed budget for 

FY19 once again included 

significant increases 

for school choice. 

Although lawmakers 

boosted charter school 

funding, the increase 

up to $400 million126

was substantially short 

of the request for 

$500 million.127

As enacted, ESSA includes new avenues for 

states to explore school choice options, including 

specifically for students with IEPs, but Education 

Week, which has reviewed the state plans, 

reports that few states are taking advantage of 

them. As ESEA was reauthorized and amended 

by ESSA, the law includes a provision authorizing 

up to 50 districts to participate in a pilot program 

designed to facilitate operation of a school choice 

program. It lets them use a weighted-studentfunding formula that is tied to individual students 

whose education costs are greater because 

they are ELs, have a disability and need special 

education, or live in poverty, and to combine 

federal, state, and local funds into a single stream 

that could follow them 

to charter or virtual 

schools. However, the 

districts that choose 

to participate in the 

pilot are not required 

to use the weighted 

funds to support school choice, and according to 

Education Week, few are.

A number of states are continuing to rely 

on the strategy from the previous mandatory 

provision under NCLB to 

allow students enrolled 

in struggling schools (i.e., 

those that fall within the 

lowest 5 percent in the 

state based on state 

assessments combined 

with a low graduation 

rate) to transfer to better 

performing schools, with 

priority given to lowachieving economically 

disadvantaged students. According to Education 

Week, at least three states, Louisiana, New 

Mexico, and New York are requiring that students 

attending schools that consistently underperform 

from two to four years be provided the option 

to transfer.128 A dozen states—Arizona, Florida, 

Georgia, Indiana, Louisiana, Minnesota, New 

Mexico, Nevada, Rhode Island, Tennessee, 

[T]he U.S. Department o

Education awarded $253 million in 

discretionary funds for expansion of 

charter schools in September 2017

As enacted, ESSA includes new 

avenues for states to explore 

school choice options, including 

specifically for students with IEPs, 

but Education Week, which has 

reviewed the state plans, reports 

that few states are taking advantage 

of them

School Choice Series: Charter Schools—Implications for Students with Disabilities 43
Texas, and Utah—identify restarting a perennially 

low-performing school as a charter school as a 

permissible potential intervention. Some of these 

states provide it as one option of many, while 

others use it as a last resort.129 Meanwhile, Texas 

has identified opening new charter schools as a 

school improvement strategy.130

IDEA

IDEA mandates that all eligible students with 

disabilities in need of special education and 

related services receive FAPE in the least 

restrictive environment (LRE). Each such student 

is entitled to receive such “specially designed 

instruction . . . [t]o address the unique needs 

of the child that result 

from the child’s disability; 

and . . . [t]o ensure 

access of the child to the 

general curriculum, so 

that the child can meet 

the educational standards 

within the jurisdiction of the public agency that 

apply to all children.”131 IDEA also has several 

provisions pertaining to IEPs that require that 

the child be involved and make progress in the 

general education curriculum—that is, the same 

curriculum as that provided to students without 

disabilities.132

IDEA, with an annual allocation of about 

$13 billion, is the second-largest source of 

federal dollars in education for states. IDEA 

funds flow by formula to SEAs, which must 

provide assurances that charter schools provide 

equitable access to eligible children and youth 

with disabilities and their families; directly 

receive IDEA funds and/or appropriate support 

services, as required by IDEA and by the Charter 

School Expansion Act; and ensure that students 

with disabilities in charter schools have access 

to FAPE to the maximum extent appropriate, 

together with students without disabilities. 

Charter school, as used in IDEA, has the meaning 

of “charter school” in ESEA.133 Consistent with 

this definition, IDEA regulations identify three 

options available to charter schools seeking IDEA 

funds: (1) Charter schools may be public schools 

of an existing LEA;134 (2) charter schools may be 

autonomous LEAs;135 or (3) charter schools may 

be nonprofit entities that are neither LEAs nor 

schools of an LEA.136

For charter schools that are part of an LEA, 

IDEA requires the LEA to submit a plan that 

provides an assurance to the SEA that the LEA 

will (1) serve children 

with disabilities attending 

those charter schools 

in the same manner as 

the LEA serves children 

with disabilities in its 

other schools, “including 

providing supplementary and related services 

on site at the charter school to the same 

extent that the LEA has a policy or practice of 

providing such services on the site to its other 

public schools” and (2) provide IDEA funds to 

those charter schools in the same manner as 

it provides IDEA funds to its other schools, 

“including proportional distribution based on 

relative enrollment of children with disabilities” 

and “at the same time that the LEA distributes 

other federal funds to its other public schools, 

consistent with the State’s charter school law.”137

An LEA is not required to provide IDEA funds 

to a new or expanding charter school that is a 

public school within the LEA if the LEA does 

not provide IDEA funds to other public schools 

within the LEA.

IDEA, with an annual allocation 

of about $13 billion, is the 

second-largest source of federal 

dollars in education for states

44 National Council on Disability
For a charter school that is an LEA to be 

eligible to receive direct IDEA funding from its 

SEA, it must, among other requirements, have 

in effect policies, procedures, and programs 

that are consistent with the state’s policies and 

procedures (e.g., related to child find, conducting 

individual evaluations, placement of children in 

LRE and availability of a continuum of alternative 

placements, development and implementation of 

IEPs, and provision of transportation as a related 

service).138 Moreover, while IDEA specifies that 

SEAs may require an existing LEA to join with 

another LEA if it is determined that the LEA “will 

not be able to establish and maintain programs 

of sufficient size and scope to effectively meet 

the needs of children 

with disabilities,” an 

SEA may not require a 

charter school LEA to 

combine with another 

LEA unless it is “explicitly 

permitted to do so under 

the State’s charter school 

law.”139

The U.S. Department of Education’s OSERS 

has explained that if the school does not currently 

offer the necessary special education or related 

services to provide FAPE to a particular student, 

the charter school has several options: It could 

develop a new program of services on its own 

in order to provide the services directly; it 

could, consistent with the state charter school 

law, contract with a public or private provider, 

including another LEA, to provide the special 

education and related services; or it could arrange 

for some other way to provide the services.140

Alternatively, the charter school operating as an 

LEA could place the child in a private school at 

public expense in order to ensure the provision 

of FAPE.141 An additional option would be for the 

charter school/LEA to “seek to use a state’s LEA 

high cost fund described in 34 C.F.R. § 300.704(c) 

to help defray the cost of educating a particular 

high need child or high need children with 

disabilities, if the State has exercised its option 

to reserve 10 percent of the funds that the State 

reserves for other State-level activities for such 

a fund.” The school may not, however, refuse to 

provide the necessary services to the student.142

For a charter school that is not an LEA that 

receives funding under 34 C.F.R. 300.705 or a 

school that is part of an LEA receiving funding 

under 34 C.F.R. 300.705, the SEA is responsible 

for ensuring that the rights of all students are 

met, though that does 

not preclude the SEA 

from assigning initial 

responsibility for such 

oversight to another 

entity.143 The statute and 

regulations are clear, 

however, that “the 

SEA must maintain the 

ultimate responsibility for ensuring compliance 

with this part.”144

Consistent with U.S. Department of Education 

policy, for-profit charter schools cannot receive 

IDEA funds; only schools that are nonprofit 

entities are eligible to receive IDEA funding,145

and this includes charter schools.

146 This policy 

does not preclude an independent nonprofit 

charter school from contracting for educational 

services, including special education instruction 

and supportive services and/or operational 

services from a for-profit or nonprofit CMO. 

Moreover, it is to be noted that in 2006, the 

Ninth Circuit held that for-profit charters in 

Arizona were ineligible for special education 

Consistent with U.S. Department o

Education policy, for-profit charter 

schools cannot receive IDEA funds; 

only schools that are nonprofit entities 

are eligible to receive IDEA funding, 

and this includes charter schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 45
funding under IDEA and ESEA because the 

two laws specify that the funding must go to 

nonprofit schools.147 One commentator has 

explained that this decision could have additional 

implications because the definition of a “for-profit 

charter school” is subject to interpretation and 

complicated by the common practice of nonprofit 

owners contracting with for-profit management 

organizations.148 No other circuit courts have 

addressed the question. However, as described 

earlier and perhaps in response to the legal 

developments, there are relatively few “for-profit” 

charter schools; many states prohibit them. 

Instead, “for-profit” entities typically operate as 

EMOs contracting, for a fee, the provision of 

whole school services (e.g., chartering, hiring 

personnel, budget 

management, special 

education, support 

services) with the private 

boards of independent 

charter schools, CMOs, 

or the private boards 

of charters within the 

portfolio of the CMO.

As TPS, charter schools may only use IDEA 

Part B funds to pay the excess costs of providing 

special education and related services to children 

with disabilities; and to supplement, and not 

supplant, state, local, and other federal funds. 

In addition, except as provided in 34 CFR §§ 

300.204 and 300.205, funds awarded to LEAs 

(including charters acting as LEAs) under Part 

B of IDEA may not be used to reduce the level 

of expenditures for the education of children 

with disabilities made by the LEA from local, or 

state and local, funds below the level of those 

expenditures from the same source for the 

preceding fiscal year.149 Moreover, children with 

disabilities attending charter schools and their 

parents retain all rights under IDEA. Because 

these are publicly funded schools and the SEA 

(as all states) has accepted funds under this 

grant-in-aid statute based on assurances that all 

eligible children and youth with disabilities in the 

state shall be provided FAPE, even if the charter 

school receives no IDEA Part B funds, children 

with disabilities enrolled in the charter school 

retain their right to FAPE consistent with IDEA.

Charter schools, as public schools, must 

similarly meet these mandates. Moreover, when 

charter schools serve as their own LEA, as is 

often the case, they assume the full, independent 

fiscal and logistical burden for providing 

FAPE in the LRE. This legal responsibility is 

noteworthy given the 

enormity and likely 

impossibility of the task 

for most freestanding, 

independent charter 

schools acting as an 

LEA and IDEA’s so-called 

charter school exception. 

While IDEA expressly encourages an SEA to 

“require [an LEA] to establish its eligibility jointly 

with another [LEA] if the [SEA] determines that 

the [LEA] . . . will not be able to establish and 

maintain programs of sufficient size and scope 

to effectively meet the needs of children with 

disabilities,”150 the “charter school exception” 

excludes charter schools from this provision, 

saying that an SEA cannot require charter schools 

to combine with other LEAs unless “explicitly 

permitted to do so under the State’s charter 

school law.”151 The SEA’s duty and ultimate 

responsibility, however, remain unchanged as 

applied to students with disabilities enrolled in 

charter schools within the state. Regardless of 

[E]ven if the charter school receives 

no IDEA Part B funds, children with 

disabilities enrolled in the charter 

school retain their right to FAPE 

consistent with IDEA

46 National Council on Disability
the legal status of the charter school (LEA or nonLEA), the SEA maintains ultimate responsibility 

for overseeing the educational programs 

administered to students with disabilities within 

the state, including programs for students with 

disabilities in charter schools.152 The SEA is 

responsible for ensuring that the requirements 

of IDEA are being met.153 Moreover, if a charter 

school operating as an LEA is unable or unwilling 

to be consolidated with 

another LEA to establish 

and maintain a program 

to provide FAPE, the 

SEA is responsible for 

providing or having 

provided direct services 

to the affected children.154

Parents of students 

with disabilities who 

are attending charter schools have the same 

rights under the procedural safeguards section 

of IDEA—including the right to request a due 

process hearing for 

violation of FAPE—as 

other parents.

155 In 

addition, parents whose 

children attend charter 

schools can utilize 

the state complaint 

procedures, which states are required to 

establish under IDEA, for potential violations.156

Section 504 and the ADA

Section 504 states that “no otherwise qualified 

individual with a disability in the United States . . . 

shall, solely by reason of his or her disability, be 

excluded from the participation in, be denied 

the benefits of, or be subjected to discrimination 

under any program or activity receiving Federal 

financial assistance.”157 Title II of the ADA 

extends this antidiscrimination mandate to 

“all activities of State and local governments 

regardless of whether these entities receive 

Federal financial aid.”158 Public schools are 

considered state entities; therefore, charter 

schools cannot discriminate against students 

with disabilities, including by type of disability. 

The nondiscrimination provision encompasses 

all school policies and 

practices. Because 

Section 504 and Title II 

are civil rights statutes, 

their reach is broader 

than that of IDEA.

Students with 

disabilities who qualify 

under Section 504 

and Title II are those 

[who (1) have a physical or intellectual disability 

that substantially limits one or more major life 

activities, (2) have a record of such a disability], 

or (3) are regarded as 

having such a disability.159

All students who are 

served under IDEA are 

automatically protected 

under Section 504 and 

Title II.160 At the same 

time, because the definition of disability under 

Section 504 and Title II is broader than that 

under IDEA, some students with disabilities may 

be protected under these disability civil rights 

statutes but may not qualify under IDEA. Section 

504 also requires school districts to provide 

qualified students with FAPE.161 FAPE under 

Section 504 is defined differently than FAPE 

under IDEA as the provision of regular or special 

education and related aids and services designed 

Parents of students with disabilities 

who are attending charter schools 

have the same rights under the 

procedural safeguards section of 

IDEA—including the right to request 

a due process hearing for violation 

of FAPE—as other parents

Because Section 504 and Title II 

[of the ADA] are civil rights statutes, 

their reach is broader than that 

of IDEA

School Choice Series: Charter Schools—Implications for Students with Disabilities 47
to meet the individual educational needs of 

students with disabilities as adequately as the 

needs of students without disabilities.162

Under the broad prohibition against 

discrimination, Section 504 and Title II prohibit 

schools from engaging 

in discriminatory 

actions that deny 

qualified students with 

disabilities comparable 

aids, benefits, and 

services.163 For 

aids, benefits, and 

services to be “equally 

effective,” they must 

provide individuals 

with disabilities with an equal opportunity to 

obtain the same result, gain the same benefit, 

or reach the same level of achievement as 

students without disabilities.164 Section 504 

and Title II also prohibit school districts from 

using discriminatory “criteria or methods of 

administration.”165 The term criteria refers to 

“written or formal policies,” while the term 

methods of administration refers to “actual 

practices or procedures.” These requirements 

apply to all aspects of the operation and 

functioning of charter 

schools.166

Parents whose 

children qualify under 

Section 504 and attend 

charter schools also have 

rights with respect to the 

procedural safeguards 

section of Section 504.167

In addition, any individual 

may file a complaint of 

discrimination under Section 504 or the ADA 

with the U.S. Department of Education’s OCR.168

Guidance issued in 2016 by OCR and OSERS 

discussed in detail the rights of students with 

disabilities with respect to charter schools under 

federal civil rights laws and IDEA.169

Under the broad prohibition against 

discrimination, Section 504 and 

Title II prohibit schools from 

engaging in discriminatory actions 

that deny qualified students with 

disabilities comparable aids, 

benefits, and services

48 National Council on Disability
As noted, under Section 504 and Title II of 

the ADA, children with disabilities must 

be given an equal opportunity to access 

charter schools and may not be excluded on 

the basis of their disability.170 Moreover, charter 

schools are precluded from utilizing criteria or 

methods of administration (i.e., policies and 

practices) that have the effect of discriminating 

against children with disabilities in areas of 

access, including recruitment, enrollment, and 

retention.171 This chapter 

examines various issues 

pertaining to access of 

students with disabilities 

to charter schools. The 

chapter begins with 

a focus on the overall 

enrollment of students 

with disabilities in charter 

schools, followed by the 

enrollment of students with more significant 

disabilities. Next, the chapter reviews some 

of the factors underlying the special education 

enrollment gap between charter schools and 

TPS. The chapter then presents challenges 

experienced by parents as part of the charter 

school enrollment process and ends with a 

discussion of the reasons why parents of 

students with disabilities choose to enroll their 

children in charter schools.

Overall Enrollment of Students 

with Disabilities in Charter Schools

From the early years of the charter school 

movement, research on data at the national 

level has shown that charter schools tend to 

enroll lower percentages of students with 

disabilities than TPS.

172 In 2012, the U.S. 

Government Accountability Office (GAO), using 

a custom data file from the U.S. Department 

of Education’s EdFacts/CCD data system, 

reported that the 

enrollment of students 

with disabilities in 

charter schools for 

the 2009–2010 school 

year was 8.2 percent, 

while that of students 

with disabilities in TPS 

was 11.2 percent.173

In a subsequent study 

utilizing enrollment data from the CRDC of 

the U.S. Department of Education’s OCR, the 

NCSECS found that for the 2011–2012 school 

year, students receiving special education and 

related services comprised 10.42 percent of the 

total enrollment in charter schools, compared 

to 12.55 percent of the total enrollment in 

TPS.174 More recently, NCSECS examined the 

CRDC data for the 2013–2014 school year 

Chapter 3: Access to Charter Schools: 

Recruitment, Enrollment, and Retention 

of Students with Disabilities

[U]nder Section 504 and Title II of 

the ADA, children with disabilities 

must be given an equal opportunity 

to access charter schools and may 

not be excluded on the basis of their 

disability

School Choice Series: Charter Schools—Implications for Students with Disabilities 49
and found that 10.62 percent of students 

in charter schools were receiving special 

education and related services, compared to 

12.46 percent in TPS. NCSECS further found 

that the decrease in difference between the 

enrollments of students with disabilities in 

charter schools versus TPS was statistically 

significant. NCSECS concluded, therefore, that 

while charter schools continue to enroll smaller 

percentages of students with disabilities than 

TPS, the enrollment gap at the national level 

has decreased over time.175

Further examination of special education 

enrollment data for 

charter schools and 

TPS reveals some 

variability across 

states and districts. 

In its analysis of the 

2013–2014 CRDC data, 

NCSECS found that 

while most states had 

a smaller proportion 

of special education 

enrollment in charter 

schools than in TPS, a handful had a larger 

proportion in charter schools than in TPS. These 

latter states (Iowa, Maine, New Hampshire, 

and Virginia), however, all contained a 

small number of charter schools with a 

disproportionate number of students with 

disabilities in these schools. Moreover, in four 

states (Delaware, Missouri, New Jersey, and 

Wyoming), the special education enrollment 

in TPS was at least 5 percent more than in 

charter schools. NCSECS further found that, 

within states, charter schools showed greater 

variance in special education enrollment than 

in TPS.176

Enrollment of Students with More 

Significant Disabilities in Charter 

Schools

In an early study examining data at the national 

level, Fiore and colleagues (2000) found that, 

with the exception of schools focused on 

serving students with specific disabilities, 

charter schools tended to enroll larger numbers 

of students with mild disabilities—such as 

learning disabilities, behavior disabilities, or mild 

intellectual disabilities—and smaller numbers of 

students with low-incidence or more significant 

disabilities.177 Subsequent studies examining 

charter school enrollment 

data for disability 

categories by states or 

districts similarly found 

lower percentages of 

students with more 

significant disabilities 

(e.g., students with 

intellectual disabilities) 

in charter schools as 

compared to TPS.178

As part of the recent 

review of the 2013–2014 CRDC data, NCSECS 

found that, as compared to TPS, charter schools 

enrolled lower percentages of students with 

developmental disabilities (0.92 percent versus 

2.07 percent) and lower percentages of students 

with intellectual disabilities (3.64 percent versus 

5.89 percent). NCSECS further found that 

charter schools enrolled higher percentages 

than TPS of students with specific learning 

disabilities (49.49 percent versus 45.98 percent), 

autism (7.20 percent versus 6.53 percent), and 

emotional disabilities (5.06 percent versus 

4.10 percent).179 It is possible that the high 

... [S]tudies examining chart

school enrollment data for disability 

categories by states or districts 

similarly found lower percentages 

of students with more significant 

disabilities (e.g., students wit

intellectual disabilities) in charter 

schools as compared to TPS

50 National Council on Disability
numbers of students with emotional disabilities 

and autism may be related to the fact that 

these two categories were the most commonly 

identified among specialized charter schools 

serving students with disabilities (14 percent and 

10.95 percent, respectively) (see Chapter 5), and 

specialized charter schools were included in the 

original sample. Further research is warranted to 

understand these enrollment numbers.

Research has also shown that charter schools 

typically educate higher percentages of students 

in more inclusive general education classrooms.

According to the CRDC data analyzed by 

NCSECS, for the 2013–2014 school year, a 

larger percentage of 

students with disabilities 

in charter schools than 

in TPS spent 80 percent 

or more of the day in 

the regular education 

class (84.27 percent 

versus 68.09 percent, 

respectively). In addition, a smaller percentage 

of students with disabilities in charter schools 

than in TPS spent 39 percent or less of the day 

in the regular education class (5.08 percent 

versus 11.78 percent, respectively).180 This 

finding may indicate that charter schools tend 

to prioritize inclusive practices and are able to 

educate students with disabilities effectively in 

inclusive settings. Another possibility is that the 

higher percentages of placement in the general 

education class may reflect the tendency by 

charter schools to serve larger numbers of 

students with mild disabilities and smaller 

numbers of students with significant disabilities 

who may require smaller, more resource 

intensive educational settings. A third possibility 

is that some charter schools may be utilizing 

a one-size-fits all placement model, rather 

than considering the full range of placement 

options, perhaps due to limited resources (see 

Chapter 4).

In the present study, a number of stakeholders 

also commented on the fact that charter schools 

tend to enroll smaller numbers of students with 

more significant disabilities and that charter 

schools tend to prioritize the general education 

classroom. For example, one special education 

administrator for a charter school that serves 

middle school students noted, “I would say 

the more severe disabilities have always been 

about one to two students per year on average 

because a lot of those 

students are already in 

specialized programs, 

that . . . it’s not the 

best thing for them 

to leave because they 

need consistency.”181

Similarly, a charter 

school general education teacher noted that 

while she had one student with autism in her 

class last year, this year the four students with 

IEPs in her class all have learning or behavioral 

disabilities (i.e., difficulty with self-regulation).182

Other participants commented on the fact 

that, even though their charter school had only 

a few students with disabilities that are more 

significant, the school’s small size and focus 

on individualization facilitated the creation of a 

positive learning environment for these students. 

For example, the student who was the focus of 

the first case study for this report was the only 

student with an intellectual disability at his charter 

school. His mother, however, was impressed that 

his teachers were able to build on and expand the 

differentiated instruction (DI) they were already 

Research has also shown that 

charter schools typically educate 

higher percentages of students in 

more inclusive general education 

classrooms [than in TPS]

School Choice Series: Charter Schools—Implications for Students with Disabilities 51
using with their other students to enable him to 

be educated in the general education classroom 

and to participate in a meaningful way in the 

general education curriculum (see Chapter 4).

Factors Underlying the Special 

Education Enrollment Gap Between 

Charter Schools and Traditional 

Public Schools

Research studies have begun to unpack the 

various factors underlying the special education 

enrollment gap between charter schools and 

TPS. For example, in studies examining charter 

schools in New York City (2013) and Denver (2014, 

2015), Winters found that a significant factor 

contributing to the special education enrollment 

gap was that students with disabilities were less 

likely to apply to charter schools than students 

without disabilities.183 Winters acknowledged that 

his research did not examine why students with 

disabilities do not apply to charter schools in the 

same proportions as students without disabilities, 

but he offered several possible explanations. 

For example, he suggested that students with 

disabilities may already be enrolled in specialized 

preschool programs connected to district 

elementary schools,184 parents of students with 

disabilities may prefer the services offered in TPS, 

or “charter schools [may] discourage students 

with disabilities from applying or at least . . . not 

encourage them to apply in the same way that 

they encourage students without disabilities.”185

Winters also noted that preliminary interviews 

with parents seemed to suggest that families 

might not understand that charter schools are 

required to provide special education services 

and that students with disabilities have the 

same right to attend these schools as all other 

students.186 Stakeholders participating in the 

present study made similar comments. For 

example, one parent advocate noted that an 

important “barrier is that [with] traditional public 

schools everyone knows I have the right to 

attend. They can’t turn me away . . . If they don’t 

52 National Council on Disability
provide services, if they don’t do things right, 

I have rights. All those things are true about 

charter schools but I’m not sure all families 

know it.”187

The notion that charter schools are true 

avenues of choice assumes that all parents 

have an equal opportunity to select every option 

available. In reality, however, parents’ choice of 

a school for their child is influenced by factors 

such as the parents’ prior experiences, language 

skills, socioeconomic status, and social capital 

(i.e., access to social networks, connections, 

and information)188 as well as by intentional and 

unintentional actions on the part of some charter 

schools to discourage 

enrollment. In a recent 

report analyzing the 

enrollment practices of 

charter schools in Arizona 

with respect to students 

with disabilities, the 

American Civil Liberties 

Union (ACLU) of Arizona 

(2018) identified several 

areas of concern. The 

report found, for example, that some charter 

schools tried to convince parents during the 

enrollment process that the school would not 

be a good fit for their child. The report also found 

that nearly 50 percent of the schools asked about 

disability or special education status during the 

enrollment process, with only a small number 

clarifying that the question was for the purpose 

of continuing services. Additionally, at least six 

schools placed a cap on enrollment numbers 

for students with disabilities, and some asked 

for students’ discipline records as part of the 

enrollment process without clarifying that such 

information would not impact eligibility for 

enrollment. Moreover, only 26 percent of the 

charter schools offered enrollment documents 

in Spanish, even though Spanish is the secondmost common language spoken in Arizona.189

A second factor that has been found to 

contribute to the special education enrollment 

gap between charter schools and TPS is that 

charter schools are more likely to declassify 

students as needing special education services.

In his studies of charter schools in New York 

City and Denver referred to earlier, Winters 

found that the special education enrollment gap 

increased over time as students progressed from 

kindergarten through subsequent elementary 

grades and that this 

increase was due in 

large part to the fact that 

charter schools were 

less likely than district 

schools to classify 

students as needing 

special education 

services and were 

more likely to declassify 

students.190 Other studies 

have reported similar findings. For example, in 

a recent report conducted for the Institute of 

Education Sciences (IES), Wolf and LasserreCortez (2018) examined the special education 

enrollment gap in Louisiana and found that 

the likelihood of a student being declassified 

from requiring special education services was 

statistically higher in charter schools than in 

TPS, although declassification in both types 

of schools tended to be rare.191 Moreover, in 

a study of charter schools in Boston, Setren 

(2016) found that elementary and middle school 

students receiving special education services in 

charter schools were 19.0 and 16.1 percentage 

A second factor that has been 

found to contribute to the special 

education enrollment gap between 

charter schools and TPS is that 

charter schools are more likely to 

declassify students as needing 

special education services

School Choice Series: Charter Schools—Implications for Students with Disabilities 53
points, respectively, more likely than students 

in TPS to be declassified from requiring special 

education services. At the middle school 

level, even students educated in substantially 

separate classrooms were 14.0 percentage 

points less likely to retain their special education 

classification.192

Declassification can be appropriate for a 

student who no longer requires specialized 

instruction or for whom the classification 

designation had been inappropriate (e.g., if the 

classification had been based on the student 

not having been taught to read). It is important, 

however, that declassification decisions be 

made with thoughtful 

consideration. Once 

students have exited 

special education, they 

are no longer entitled 

to receive specialized 

instruction and supports 

to help facilitate their 

participation and progress 

in the general education 

curriculum. Students and 

their families also lose procedural protections 

in a variety of areas, including with respect to 

discipline. All decisions regarding declassification 

or removal from special education status must 

therefore be made with careful review by the 

IEP team and with the full and informed consent 

of the parent, with information provided in other 

languages, as necessary.

A third issue that has been raised since the 

early years of the charter school movement as 

possibly contributing to the special education 

enrollment gap between charter schools and TPS 

pertains to the extent to which students with 

disabilities may be directly or indirectly advised 

not to apply or to leave the school (i.e., are 

being “counseled out”).193 In the present study, 

a number of stakeholders commented on the 

occurrence of the practice of counseling out. For 

example, one parent advocate noted that charter 

admissions personnel might counsel out students 

by trying to convince parents that the school is 

not an appropriate fit, making statements such 

as “We’re not sure we can meet your needs. You 

might want to look for a different school. Have 

you gotten into other schools off the lottery?”194

Another advocate commented: “Sometimes it’s 

very blatant and [charter schools] actually use 

those words, ‘this isn’t the right school for your 

kid, you know, maybe 

you would be happier 

somewhere else.’”195

A state department 

of education official 

described the process 

of counseling out as 

follows:

[I]n our state . . . we 

do stress that any new 

school that is approved must certify that 

they will accept any, that they will not deny 

students based on things such as if they 

have an IEP. . . . We tell [the charter schools] 

. . . they can’t counsel out those students, 

but unfortunately we know it happens. 

Even if they don’t use the exact words, they 

make it such that . . . [the school is] not as 

attractive to all students.196

While qualitative and anecdotal evidence 

have highlighted the existence of the practice 

of counseling out, a recent study examining this 

issue in two cities using quantitative methods did 

not find an association between this practice and 

Once students have exited special 

education, they are no longer 

entitled to receive specialized 

instruction and supports to help 

facilitate their participation and 

progress in the general education 

curriculum

54 National Council on Disability
the special education enrollment gap between 

charter schools and TPS. As part of his research 

on charter schools in New York City and Denver, 

Winters reported that although students with 

disabilities in both charter schools and TPS were 

more likely to exit their school than students 

without disabilities, students with disabilities in 

TPS were more likely to change schools than 

students with disabilities in charter schools. 

He concluded, therefore, that counseling out 

was not a factor associated with the special 

education enrollment gap.197 As noted earlier, 

however, Winters acknowledged that one of the 

reasons why students with disabilities may not 

be enrolling in charter 

schools in the same 

proportions as students 

without disabilities in 

the entry grades is 

that the school may be 

quietly discouraging 

these students from 

applying. Thus, while he 

discounts the practice 

of counseling out once 

students are enrolled in the school, he points out 

that this practice may be used when students are 

applying to enter the school.

A related factor that has been raised as a 

possible means by which to “push out” students 

with disabilities from charter schools and thereby 

contribute to the special education enrollment 

gap is the extent to which these students are 

being counseled out because of discipline or 

behavior-related incidents. As with other forms 

of counseling out, there is qualitative, anecdotal 

evidence suggesting that some students with 

disabilities may be leaving charter schools for this 

reason. For example, a number of stakeholders 

participating in the present study noted that 

some charter schools quietly advise parents 

that the school is not an appropriate fit for their 

child because of the child’s behavior. In addition, 

several individuals, including the parent of the 

student who was the focus of the second case 

study for this report (see the end of Chapter 4), 

commented on the fact that parents may be 

called to the school to pick up their child for 

behavior-related incidents over and over again 

until the situation wears down the parents, who 

ultimately withdraw their child from the school. 

As one advocate explained, “What happens 

is [the parent] get[s] the call [again and again]. 

Come, come. Please, 

please come pick up 

your child.”198

At the same time, 

the quantitative data 

that is available with 

respect to charter school 

discipline is less clear. 

In 2016, the Center for 

Civil Rights Remedies 

at UCLA’s Civil Rights 

Project published a report in which it examined 

the use of suspensions by charter schools as part 

of the 2011–2012 CRDC. This report found that 

the suspension rate in charter schools was 7.8 

percent, compared to 6.7 percent in noncharter 

schools.199 In its subsequent analysis of the 2013–

2014 CRDC, the NCSECS similarly found a higher 

overall rate of suspension for all students at 

charter schools as compared to TPS (6.61 percent 

versus 5.64 percent, respectively).200 In contrast, 

in another study from the American Enterprise 

Institute (AEI), in which 2011–2012 CRDC data 

was merged with that from CCD to compare 

charter schools with the five nearest neighboring 

[A] number of stakeholders 

participating in the present study 

noted that some charter schools 

quietly advise parents that the 

school is not an appropriate fit for 

their child because of the child’s 

behavior

School Choice Series: Charter Schools—Implications for Students with Disabilities 55
TPS (as opposed to all TPS), it was found 

that “[m]any more charter schools had lower 

suspension rates (29 percent) compared to their 

neighboring TPSs than had higher suspension 

rates (17 percent).”201 Moreover, as noted above, 

the small numbers of studies that have begun 

to examine the question of counseling out in 

the context of student exit patterns from charter 

schools (e.g., Winters) have found no quantitative 

evidence to support the occurrence of this 

practice.

The practice of counseling out may also be 

difficult to prove from a legal standpoint. In a 

recent special education administrative due 

process hearing in Washington, DC (2017), 

a parent alleged that the charter school had 

denied her child FAPE by illegally expelling him 

or by misleading the parent into unenrolling her 

child for behavioral issues. The hearing officer 

concluded that, although the fact that the school 

was not sorry to see the child unenrolled was 

“unsettling,” there was not a preponderance 

of evidence to show that the parent had been 

misled into unenrolling the student.202

In summary, research has found that one 

of the factors contributing to the lower rates 

of enrollment of students with disabilities in 

charter schools than in TPS is that students with 

disabilities are less likely to apply to charter 

schools than students without disabilities. The 

reasons for the differing rates of application 

are likely multifaceted, notably: Students 

with disabilities may already be enrolled in 

specialized programs in the public schools, 

parents may prefer the programs in TPS for 

various reasons, parents may lack information 

about charter schools or their rights in relation 

to charter schools, or charter schools may be 

utilizing practices that discourage or counsel 

out parents of students with disabilities from 

applying. Additional research is needed in this 

area to understand more fully the reasons why 

students with disabilities may not be applying 

to charter schools at the same rate as students 

without disabilities. A second factor contributing 

to the lower rates of enrollment of students 

with disabilities in charter schools than in TPS is 

that charter schools are more likely to declassify 

and less likely to classify students as needing 

special education services. A third issue that 

has been raised qualitatively and anecdotally but 

has not been shown to be a significant factor 

from a quantitative standpoint is that students 

with disabilities who are already enrolled may be 

counseled out and quietly advised to withdraw 

from the school, including in the context of 

discipline or behavior-related issues.

Charter School Enrollment Policies 

with Implications for Students with 

Disabilities

As noted earlier, one of the factors contributing 

to the special education enrollment gap between 

charter schools and TPS is that parents of 

students with disabilities are less likely to “opt in” 

and apply to charter schools as “schools of 

choice” than parents of students without 

disabilities. The present section examines several 

charter school enrollment policies that may 

influence that decision and have an adverse 

effect on the number of students with disabilities 

who are enrolled in these schools: open 

enrollment, unified enrollment, and weighted 

lotteries. These policies are not mutually 

exclusive; a district may utilize more than one at 

the same time.

Open enrollment, adopted in some form by 

46 states and the District of Columbia, is a form 

56 National Council on Disability
of school choice that provides students, within 

certain parameters, the opportunity to select 

and transfer between schools of their choice.203

Open enrollment stands in contrast to residencybased enrollment, which restricts students 

by limiting their enrollment options to schools 

within their respective districts of residence.204

Open enrollment policies may be mandatory 

or voluntary, interdistrict or intradistrict.205

Proponents of this practice praise it as increasing 

access to improved education for everyone, 

including by infusing the concept of competition 

into public education. Opponents, including those 

who do not necessarily participate in “school 

choice” programs, 

criticize open enrollment 

for the same reason. 

Their major concern is 

that as open enrollment 

policies introduce 

competition into public 

education, selection bias 

will follow, ultimately 

rendering any “choice” 

illusory. One fear is that 

“the most engaged parents of every background 

would be drawn off to the ‘best’ schools, leaving 

the remainder of educational systems without 

the social capital to make improvements.”206

Those who argue against the policy raise 

additional equity concerns that adoption of 

open enrollment leaves already disadvantaged 

students behind.207 For example, 28 states and 

the District of Columbia currently have weighted 

open enrollment policies, which allow schools and 

districts to prioritize transfers for students who 

belong to certain groups, including “[s]tudents 

living in the district or school residence zone, 

[p]reviously enrolled students, [s]iblings of 

currently enrolled students, [and] [c]hildren of 

district or school staff.”208 This prioritization of 

students and families already involved in a 

school in demand may further limit enrollment of 

prospective students with disabilities, a group that 

is currently underenrolled.209

Further complicating the process, several 

extraneous factors may work to render the 

“choice” illusory. Most states with open 

enrollment policies require parents to provide 

transportation, which may be a barrier for out-ofdistrict families.210 To the extent transportation 

is a limitation, open enrollment benefits only 

those parents with the time and ability or 

financial means to 

provide necessary 

transportation. These 

practical realities 

dictate that lowerincome families and 

families of students 

with disabilities whose 

IEPs do not provide for 

transportation211 will, 

without transportation, 

remain restricted to their districts of residence 

regardless of the “choice” open enrollment 

provides. Additionally, research shows that 

equity demands, at a minimum, that families 

are provided in advance clear, cogently prepared 

information in a parent’s native language. This 

information should describe in lay language 

both the process to be navigated and the 

nature of different school programs, including, 

for example, availability of a continuum of 

alternative placements for students with 

disabilities. As discussed previously, the lack of 

this pertinent information in a readily available 

and comprehendible format inhibits a family’s 

Open enrollment, adopted in some 

form by 46 states and the District of 

Columbia, is a form of school choice 

that provides students, within 

certain parameters, the opportunity 

to select and transfer between 

schools of their choice

School Choice Series: Charter Schools—Implications for Students with Disabilities 57
ability to participate in a meaningful way in 

programs of choice.

Some larger school districts have implemented 

another enrollment practice called unified 

enrollment,

212 which sometimes overlaps 

with open enrollment. Unified enrollment, or 

universal enrollment, merges the enrollment 

processes for traditional public schools and 

charter schools within some school sectors or the 

entire district.213 As a single common enrollment 

system, it is designed to simplify the application 

process for parents seeking to enroll their children 

in the city’s public schools. Parents typically 

submit a single application form on which they 

identify their top choices among TPS, charter 

schools, or a mix of both. 

A computer algorithm 

then generates studentschool matches based 

on family preferences 

and available seats. At 

least four major urban 

school districts—Denver, 

the District of Columbia, 

Newark, and New Orleans—have adopted 

unified enrollment. Some are limited to a single 

sector, whereas others partially or fully merge 

the enrollment processes for TPS and charter 

schools.214

According to the Center on Reinventing Public 

Education (CRPE), a fully unified enrollment 

system must demonstrate four characteristics.215

First, all TPS and charter schools in the system 

must operate on a “common timeline for 

procedures,” such as “submitting applications, 

announcing acceptances, and registering for 

school.”216 Second, much like member colleges 

and universities accepting the Common 

Application, schools in a unified enrollment 

system must share “common application 

materials.”217 Third, schools must use 

“[c]entralized mechanisms to match students to 

schools.”218 Finally, families must have access to 

“[c]omprehensive information systems . . . that 

explain the enrollment process, list participating 

schools and what they offer and, sometimes, 

how they perform.”219

Proponents of the unified or universal 

enrollment model claim that it simplifies the 

school enrollment process, makes it more 

accessible for parents of students with 

disabilities, and helps level the playing field 

for lower-income families.220 A study by CRPE 

found that the unified enrollment in Denver may 

have “reduce[d] the 

chance for students,” 

primarily those from 

better-connected, higherincome families, “to gain 

a school spot through 

family influence.”221 In 

New Orleans, after the 

Southern Poverty Law 

Center brought a class action suit in 2010 on 

behalf of students with disabilities, who were 

alleged to be shut out of the charter schools as 

compared to the district-run schools in violation 

of Section 504, the city’s adoption of the unified 

model, known as “OneApp,” was designed 

as a means to stop schools from denying 

admittance to students with disabilities. As 

described in Education Week, “It’s much harder 

for individual schools to game the system when 

computer-generated algorithms make school 

assignments.”222

The tool, however, is only as good as the 

availability of participating schools that are 

“open enrollment, economically diverse and 

Unified enrollment, or universal 

enrollment, merges the enrollment 

processes for traditional public 

schools and charter schools within 

some school sectors or the entire 

district

58 National Council on Disability
academically excellent.” In New Orleans, for 

instance, many of these high-performing schools 

do not participate in unified enrollment through 

OneApp but retain their “selective admissions 

process.”223 If high-performing, economically 

diverse schools choose not to participate in 

unified enrollment, a tiered educational system 

emerges. Students with the highest needs, 

especially those with disabilities, face equity 

barriers typically accompanying selective 

admissions schemes and are relegated to the 

lower performing schools that participate in the 

unified enrollment system.

In Boston, for similar reasons, families have 

registered their opposition to the city’s proposed 

unified enrollment 

scheme.224 The problem 

may be that the 

proposal, as designed, 

does not meet all the 

CPRE requirements for a 

unified system. First, the 

scheme, as proposed, does not actually provide 

a common procedure because charter schools 

have the option of whether to join the system, 

and doing so would subject the schools to new 

geographic restrictions.225 Therefore, while some 

charters may join, others may choose not to 

participate in order to continue to draw students 

from across the city. Opponents contend 

that labeling the resulting patchwork system 

“unified” may further confuse families.226

Additionally, the proposed Boston scheme does 

not meet the fourth CPRE requirement that a 

unified system provide parents with adequate 

comprehensive information about the various 

schools.227 For example, a parent advocate 

asked how parents of a student with a disability 

would know which school would best be able to 

address his child’s learning needs. He explained, 

“Parents who have the time and resources to 

tour multiple schools to find out the facts for 

themselves have a great advantage over the 

majority of the parents who just can’t do that.”228

A related concern raised by families of 

children with disabilities in cities that may use 

a unified enrollment model, is how, as part of 

their review of schools, they should decide 

whether to disclose the fact that their child 

has a disability. Under Section 504, parents of 

prospective students with disabilities cannot, in 

general, be asked to disclose information about 

their child’s disability prior to enrollment.229

An exception would be if the school “is using 

that information 

solely to enhance the 

chances for a student 

with a disability to be 

admitted or enrolled 

for required remedial 

action or permissible 

voluntary action, or where a school is chartered 

to serve the educational needs of students 

with a specific disability and the school asks 

prospective students if they have that specific 

disability.”230 In the present study, a parent 

advocate acknowledged that the “common 

application” no longer makes such a direct 

inquiry about a child’s disability status. She 

further explained, however, that parents 

who visit the schools to which their child has 

been “accepted” but is not yet “enrolled” 

are, contrary to the requirements of Section 

504, routinely questioned about whether the 

child has an IEP and the level and types of 

services required.231 While school personnel 

may sometimes ask such questions in order 

to plan better for the coming year, parents in 

If high-performing, economically 

diverse schools choose not to 

participate in unified enrollment, a 

tiered educational system emerges

School Choice Series: Charter Schools—Implications for Students with Disabilities 59
the present study indicated that they feel that 

such questions can adversely affect their child’s 

enrollment at the school.

A third enrollment policy relies on use 

of weighted lotteries as a potential tool and 

promising solution to the special education 

enrollment gap. To date, however, weighted 

lotteries have been underutilized in helping 

to improve the enrollment of students with 

disabilities. Charter schools must “admit 

students on the basis of a lottery . . . if more 

students apply for admission than [the school] 

can accommodate.”232 A weighted lottery is 

one “that give[s] additional weight to individual 

students who are identified as part of a specified 

set of students, but [does] not reserve or set 

aside seats for individual 

students or sets of 

students.”233 In 2014, the 

Obama administration 

issued nonregulatory 

guidance that identified 

three circumstances in 

which a charter school 

could use a weighted lottery.234 Most notably, the 

guidance stated that, “consistent with . . . ESEA, 

a charter school may weight its lottery to give 

slightly better chances for admission to all or a 

subset of educationally disadvantaged students 

if State law permits the use of weighted lotteries 

in favor of such students.”235 In 2015, ESEA, as 

amended by ESSA, codified relevant provisions 

from the 2014 nonregulatory guidance into 

law.236 That guidance suggested that weighted 

lotteries could be used to increase charter school 

enrollment of students with disabilities who 

are educationally disadvantaged.237 However, 

because many state laws are not clear, “only a 

handful of schools use weighted lotteries” to 

give disadvantaged students a better chance 

of getting into the school.238 Where charter 

schools use weighted lotteries in other ways, or 

have multiple criteria, they should be careful to 

study how weighting the lottery affects student 

access, especially as that access pertains to the 

most vulnerable student populations.

More recent enrollment-related guidance 

from the U.S. Department of Education, 

however, could complicate and undermine the 

effectiveness of weighted lotteries. In 2017, 

the U.S. Department of Education’s Office 

of Innovation and Improvement issued new 

informational guidance related to charter school 

lottery admissions practices, together with a 

letter to CSP Project Directors.239 The letter 

states, in pertinent part, 

that states may now, 

as codified by ESSA, 

“permit charter schools 

receiving CSP funds to 

enroll students in the 

immediate prior grade 

level of an ‘affiliated 

charter school’ automatically without requiring 

the charter schools to admit such students 

through a lottery.”240 Assuming that students 

with disabilities are currently underenrolled 

in the affiliated charter schools, an automatic 

feeder school policy may limit use of a 

lottery and “unintentionally” serve to skew 

a charter school’s enrollment demographics, 

further undermining the purpose of any open 

enrollment policies in effect. It is noteworthy, 

however, that “for any additional student 

openings or student openings created through 

regular attrition in student enrollment in the 

affiliated charter school and the enrolling 

school,” the school must admit students using a 

[W]eighted lotteries have been 

underutilized in helping to improve 

the enrollment of students with 

disabilities

60 National Council on Disability
lottery.241 This latter provision seems to suggest 

that, with respect to another enrollment policy, 

namely, backfilling, the charter school has an 

obligation to backfill the seat(s) lost by attrition, 

and to fill any such seat(s) through use of a 

lottery.

In summary, several aspects of the 

enrollment process for seeking access to 

a charter school may create challenges for 

parents of students with disabilities. The 

process itself can be confusing; their child may 

or may not fall within an area of preference; 

and there may be unequal or inadequate 

information available about the schools, 

particularly information about the extent, if 

any, of the continuum of alternatives provided, 

making it more difficult 

for parents to choose 

the best school to meet 

their child’s needs. 

Nevertheless, regardless 

of admissions scheme, 

parents should feel 

confident about their 

right not to disclose that their child has a 

disability prior to being enrolled in the charter 

school of choice.

Reasons Why Parents of Students 

with Disabilities Choose Charter 

Schools

Despite the various challenges pertaining to the 

enrollment of students with disabilities in charter 

schools, the fact remains that large numbers of 

parents of students with disabilities continue 

to select charter schools as their schools of 

choice for their children. Research has identified 

various reasons why these parents prefer 

charter schools for their children. In an early 

study, Lange and Lehr (2000) administered a 

survey to over 600 parents of students with and 

without disabilities and found that respondent 

parents of students with disabilities indicated 

reasons such as the special needs of their child 

as well as parental perceptions regarding the 

charter school’s small class size; its curriculum, 

philosophy, or discipline rules; and the special 

education services it provides.242

In a subsequent study in which seven parents 

of students with disabilities were interviewed 

about their reasons for choosing charter schools, 

Finn, Caldwell, and Raub (2006) reported 

that a major consideration was the failure 

of their child’s public school to address their 

child’s needs. In particular, parents expressed 

frustration that the public 

school had not offered 

to evaluate their child 

for special education 

services, even after 

the parent had raised 

concerns and that when 

evaluations did take 

place, the school had been reluctant to find 

their child eligible. Parents also commented 

on the adversarial nature of their relationship 

with the public school because of the school’s 

unwillingness to evaluate their child for eligibility 

for special education services.243 An additional 

reason cited in the literature as to why parents 

may seek to enroll their child in a charter school 

is to avoid having their child identified for special 

education services and/or to help their child shed 

the stigma of special education.244

More recently, Waitoller and Super (2017) 

found that African American and Latino parents 

of students with disabilities in Chicago tended 

to select charter schools for their children in 

[L]arge numbers of parents of 

students with disabilities continue 

to select charter schools as their 

schools of choice for their children

School Choice Series: Charter Schools—Implications for Students with Disabilities 61
the context of the “politics of desperation”—

that is, “amid the historical disinvestment and 

destabilization of African American and Latino 

neighborhoods and neighborhood schools, 

coupled with the district’s history of ableist 

practices, parents are enticed by the newness 

and promises of charter 

schools.” The authors 

further found that the 

way parents invoked the 

politics of desperation 

varied depending on 

the area of the city 

in which they lived. 

For example, parents 

living in extreme areas 

of poverty identified 

safety concerns with 

respect to the public 

school and neighborhood as well as negative 

experiences with the special education services 

provided in the public school. These negative 

experiences included 

lack of support to 

address emotional and 

behavioral challenges as 

primary considerations 

for choosing charter 

schools. In contrast, 

African American 

and Latino parents 

of students with 

disabilities living in 

middle-class areas of 

the city noted the placement of their children 

in segregated educational environments in 

the public schools as a key consideration 

leading to their decision to enroll their child 

in a charter school. The authors of the study 

concluded by stating that any examination 

of the reasons African American and Latino 

parents of students with disabilities choose 

charter schools should necessarily “focus on 

how the restructuring of the urban space and 

the intersecting ideological work of whiteness, 

smartness, and 

goodness have created 

normative school spaces 

that push parents 

to engage with the 

politics of desperation 

rather than with school 

choice.”245

In the present study, 

many stakeholders 

emphasized that 

parental dissatisfaction 

and frustration with 

their child’s prior experience in the public 

schools was a major reason why they had 

chosen a charter school for their child. For 

example, one parent 

taking part in a focus 

group noted that her 

primary motivation 

for choosing a charter 

school had been that 

the family had run “into 

wall after wall [with 

the] public school.” 

She explained that 

in the years leading 

up to the time at 

which her 12-year-old daughter had entered a 

charter school, her daughter had experienced 

“elementary and middle school with no help, 

and we got pushed against the wall every 

chance the teachers could. Ignored the signs 

African American and Latino 

parents of students with disabilities 

living in middle-class areas of the 

city noted the placement of their 

children in segregated educational 

environments in the public schools 

as a key consideration leading to 

their decision to enroll their child in 

a charter school

In the present study, many 

stakeholders emphasized that 

parental dissatisfaction and 

frustration with their child’s prior 

experience in the public schools 

was a major reason why they 

had chosen a charter school for 

their child

62 National Council on Disability
of dyslexia . . . and bypassed all of my pleading 

and crying.” Moreover, she commented:

[The school administrators] were so 

unhelpful and I felt backed into a corner and 

I had no idea what else to do. But in the 

meantime, my poor kid is in the between, 

because she’s smart enough that she can 

go beyond their tests and be able to get 

above the scores that they need to say that 

she has a problem. But she’s not smart 

enough, because of her dyslexia, to be 

able to actually understand the information 

she’s looking at . . . And at that point, I was, 

like, I’m done. So I signed up for every 

charter that I could think of . . . And I just 

started . . . putting out 

applications.

This parent believed that 

a charter school was 

her only viable option 

because it was “a free 

public [school]” that felt 

as though it were a “free private school.”246

Another parent similarly noted that she 

decided to send her son to a charter school 

because she was not happy with his educational 

placement in the public schools:

When I was using the public school system, 

my son was being placed in classrooms 

where people had significantly difficult 

behaviors, and they weren’t challenging 

him academically, and yet they were telling 

me that was the right fit. And it just was 

not good enough. My son was—he was 

learning worse behaviors and he was being 

bullied in the classroom. And I wasn’t 

allowed to even make any decision on the 

situation. This was just what you get. Take it 

and don’t say anything.247

Other parents indicated that they were 

attracted to certain positive features of the charter 

school such as the small size or services that 

would be available to their child. For example, 

one parent noted “I received a diagnosis with 

him right before kindergarten, and I just felt 

like he would get lost in a large classroom 

environment.”248 Another parent, who had two 

children with disabilities—one who had a health 

condition and the other who was autistic—

pointed to certain features of her children’s charter 

school that would not be available in a public 

school:

[The charter has] a 

class size of nine kids. 

Helps to keep kids 

healthier. There was 

[also] more one-on-one 

focus. My para is able 

to actually be able to 

find out what’s going on in the class, keep 

my child on task. And . . . we have [more] 

parent control where our kids go.249

A third parent noted that her son with a 

disability had been “very attracted to the really 

highly personalized academic program where 

he could go as quickly as he wanted and there 

was a clear structure for the academic learning 

pathways.”250

Moreover, a number of stakeholders from 

large urban cities echoed some of the issues 

raised by Waitoller and Super with respect to 

“the politics of desperation.” For example, one 

parent advocate noted that some parents of 

students with disabilities “in urban areas . . . are 

Other parents indicated that they 

were attracted to certain positive 

features of the charter school such 

as the small size or services that 

would be available to their child

School Choice Series: Charter Schools—Implications for Students with Disabilities 63
worried about safety and are . . . in buildings that 

are over 100 years old without windows or locks 

or whatever.” These parents may “have a child 

that has needs that can be met in [the charter] 

school [that doesn’t] have safety issues. The 

facilities are new and bright and welcoming.”251

Another parent advocate explained:

One very important thing that we see from 

parents is just this desire to have better 

options. In [our large urban district], the 

vast majority of students in charter schools, 

well over 90 percent, are black and Latino. 

And the vast majority of those students 

are also kids from low-income families. It 

is well over 80 percent. And parents often 

times see charters as . . . their only way 

out of failing districts and so they choose 

these schools even if their children have 

disabilities . . . because it is, if not the best, 

[the] only viable option that they have.

This individual went on to explain, “often times 

charters make promises, assertions that their 

children’s disabilities can be met at those 

schools.” While sometimes these assertions are 

“100 percent true and the student has a rich 

and fulfilling academic career and their services 

are met,” other times “it is very much [not the 

case].”252

Summary of Chapter 3

This chapter has explored various issues 

associated with the enrollment of students 

with disabilities in charter schools. It has been 

shown that charter schools in general tend 

to enroll lower percentages of students with 

disabilities than TPS, although this gap appears 

to be narrowing. In addition, charter schools tend 

to enroll particularly low levels of students with 

more significant disabilities, including intellectual 

and developmental disabilities. Charter schools 

also tend to provide instruction to higher 

percentages of students with disabilities in 

general education classrooms than TPS.

With respect to factors that may be 

contributing to the gap in enrollment between 

charter schools and TPS, it has been shown 

that parents of students with disabilities are 

less likely to apply to charter schools than are 

parents of students without disabilities. There 

are a number of possible reasons for this low 

rate of application, including that students 

with disabilities may already be enrolled in or 

connected to specialized programs within TPS; 

parents may prefer programs in TPS; parents 

may lack information about charter schools 

or their rights in relation to these schools; or 

charter schools may be engaging in practices 

that, intentionally or unintentionally, serve to 

discourage parents of students with disabilities 

from applying to the school. Moreover, it has 

been shown that charter schools are more 

likely to declassify and less likely to classify 

students as needing special education services 

than are TPS. Finally, there are qualitative and 

anecdotal reports of charter schools counseling 

out students with disabilities who are already 

enrolled at these schools, including for discipline 

or behavior-related issues. The small numbers 

of studies that have examined this issue from a 

quantitative perspective, however, have not found 

evidence to support its occurrence.

This chapter has further shown that various 

charter school enrollment policies and processes 

may have an adverse effect on the ability of 

parents of students with disabilities to apply to or 

enroll their children in these schools. In particular, 

some parents find the charter school enrollment 

64 National Council on Disability
process confusing; their child may or may not fall 

within an area of preference; and there may be 

unequal or inadequate information available about 

the schools, particularly 

information about the 

continuum of alternatives 

provided, making it more 

difficult for parents to 

choose the best school to 

meet their child’s needs. 

Nevertheless, regardless 

of admissions scheme, 

parents should feel 

confident in their right not to disclose that their 

child has a disability prior to being enrolled in the 

charter school of choice.

Despite notable challenges, parents of 

students with disabilities continue to choose to 

enroll their children in charter schools in large 

numbers. This chapter has shown that the 

primary motivations for parents of students with 

disabilities to choose 

charter schools tend to 

be dissatisfaction with 

their child’s experience 

in TPS and attraction 

to certain elements 

of the charter school 

model, such as smaller 

class sizes and more 

individualization. 

Moreover, low-income parents of color living 

in large urban areas may choose to enroll their 

child with a disability in a charter school based on 

what some researchers have referred to as the 

“politics of desperation.”

[L]ow-income parents of color living 

in large urban areas may choose 

to enroll their child with a disability 

in a charter school based on what 

some researchers have referred to 

as the “politics of desperation.

School Choice Series: Charter Schools—Implications for Students with Disabilities 65
66 National Council on Disability
Chapter 4: Provision of Special Education and Related 

Services in Charter Schools

T

his chapter presents several issues 

pertaining to the provision of special 

education and related services in 

charter schools. The discussion reflects the 

widespread variability that characterizes the 

charter school sector. While some charter 

schools are effective in meeting the needs 

of their students with 

disabilities, others 

struggle to carry out 

their legal obligations 

and to provide 

adequate programming. 

The chapter begins 

by examining the 

implications of the 

legal status of charter 

schools with respect 

to the provision of special education and 

related services. Next, several challenges are 

identified that may make it more difficult for 

some charter schools to deliver appropriate 

educational services to their students with 

disabilities. The chapter then highlights 

model practices that are emerging within the 

charter sector and concludes with an in-depth 

examination of two contrasting examples of 

families whose children with disabilities have 

attended charter schools.

Relationship of the Charter School’s 

Legal Status to the Provision of 

Services

As noted earlier, a charter school may operate 

as its own LEA under the state’s charter school 

law, it may be considered a public school of an 

existing LEA, or it may be neither its own LEA 

nor part of another 

LEA. In its analysis 

of the CRDC data for 

2013–2014, NCSECS 

found that approximately 

54 percent of charter 

schools operate as their 

own LEA, while 46 

percent are considered 

part of an existing LEA.253

Regardless of the charter 

school’s legal status, students with disabilities 

attending charter schools and their parents are 

entitled to the same legal rights under IDEA that 

they would have if they were attending other 

public schools.254 The extent to which a charter 

school itself, however, is responsible for ensuring 

compliance with specific legal obligations 

pertaining to students with disabilities, depends 

on the school’s legal status under state law and 

the school’s charter.

Regardless of the charter school’s 

legal status, students with 

disabilities attending charter schools 

and their parents are entitled to 

the same legal rights under IDEA 

that they would have if they were 

attending other public schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 67
Examination of state charter school statutes 

reveals that they differ in their identification of 

the legal status of charter schools regarding the 

education of students with disabilities. Some 

states explicitly specify that charter schools serve 

as an independent LEA. For example, Minnesota 

law states that each “charter school must comply 

with sections [of state law] and rules relating 

to the education of pupils with a disability as 

though it were a district [emphasis added].”255

Other state charter school laws indicate that 

charter schools are considered public schools 

that are part of another LEA. South Carolina, for 

example, states that the 

charter school’s sponsor 

(i.e., authorizer) “is the 

charter school’s Local 

Education Agency (LEA) 

and a charter school 

is a school within that 

LEA [emphasis added].” 

Moreover, the sponsor 

“retains responsibility 

for special education 

and shall ensure that 

students enrolled in its 

charter schools are served in a manner consistent 

with LEA obligations under applicable federal, 

state, and local law.”256 Still other state statutes 

provide that charter schools operate as their 

own LEA only under certain circumstances, 

or that the charter school authorizer or school 

itself determines the school’s legal status.257 For 

example, Massachusetts and California permit 

charter applicants to select whether the school 

will function as a standalone LEA or as part of 

an LEA.258 New Hampshire offers a hybrid model 

allowing the charter to operate as a freestanding 

independent LEA, except for purposes of 

providing special education, in which case it is 

considered part of the child’s resident LEA.259

When a charter school operates as an 

independent LEA, the school is responsible for 

complying with the full array of legal obligations 

incumbent on all LEAs under IDEA, including 

the requirements concerning the availability of a 

continuum of alternative placements.260 The U.S. 

Department of Education’s OSERS has explained 

that if the child’s placement team determines that 

the child requires a setting outside of a general 

education classroom, and the charter school LEA 

does not currently have this setting, the charter 

school LEA must provide 

the services directly or 

may contract with another 

LEA (consistent with the 

state charter school law), 

including another charter 

school LEA, to provide the 

placement free of cost 

to the parents.261 Some 

states involve the LEA in 

which the child resides 

if the child requires a 

setting that the charter 

school LEA does not currently have available. For 

example, Massachusetts regulations specify that 

if a charter school LEA determines that a child 

requires an out-of-district placement, the LEA 

must notify the child’s district of residence and 

invite its representatives to a placement meeting. 

At this meeting, the team first considers whether 

the child’s district of residence has an in-district 

program that could provide the services needed. 

If an in-district program is not available, the 

district of residence resumes programmatic 

and fiscal responsibility for the out-of-district 

placement.262

When a charter school operates as 

an independent LEA, the school 

is responsible for complying with 

the full array of legal obligations 

incumbent on all LEAs under 

IDEA, including the requirements 

concerning the availability of 

a continuum of alternative 

placements

68 National Council on Disability
Some judicial and administrative proceedings 

involving a charter school that serves as its own 

LEA have found the school to be in violation of 

its responsibilities under IDEA. For example, in 

a federal district court case in Pennsylvania, the 

court determined that a charter school operating 

as an LEA had violated the “stay put” provision 

of IDEA by unilaterally disenrolling a student 

for absenteeism, while the parent had been 

challenging the student’s educational program. 

The court stated that the school’s “attempt to 

evade its obligations under the IDEA by passing 

the buck—in this case, a special-needs student’s 

education—to the District is troubling.”263 The 

court further noted:

Under Pennsylvania’s statutory scheme, 

charter schools are independent LEAs and 

“assume the duty to ensure that a FAPE is 

available to a ‘child with a disability’ . . . .” 

Under this scheme, [the charter school] 

bears full responsibility for providing 

special education services to students with 

disabilities.264

Similarly, in response to an administrative complaint 

filed by a parent under the state complaint 

procedures of IDEA, the Delaware Department of 

Education found that a charter school had violated 

its obligations with respect to child find. Because 

charter schools serve as independent LEAs in 

Delaware, the Department of Education found the 

school to be in violation of IDEA.265

On the other hand, when a charter school is 

considered to be a public school of an existing 

LEA, it is the LEA, rather than the charter school, 

that is responsible for ensuring the provision of 

FAPE to students with disabilities in the charter 

school (unless state law assigns this responsibility 

to another entity).266 In jurisdictions in which 

charter schools are considered part of an existing 

LEA, the LEA may be found to be in violation 

of its responsibilities. For example, in a federal 

district court case in the District of Columbia, 

the court found that, because the District of 

Columbia Public Schools (DCPS) served as the 

LEA for the charter school, DCPS was in violation 

of its obligations with respect to child find under 

IDEA when it failed to conduct an evaluation of a 

student upon referral by the school.267

Regardless of whether the charter school 

serves as an independent LEA or is part of 

another LEA, the SEA remains ultimately 

responsible.268 Moreover, IDEA regulations specify 

that if a charter school is neither an independent 

LEA nor part of another LEA, the SEA is 

responsible for ensuring that all the requirements 

of IDEA are met.269 Thus, notwithstanding 

state charter school laws and the possible 

assignment by the SEA of initial responsibility 

for implementing the requirements of IDEA to 

another entity—when a charter school is neither 

a standalone LEA nor part of an LEA—the SEA 

remains ultimately responsible for ensuring that 

the requirements of IDEA are met by each publicly 

funded educational program in the state.270

Challenges That May Make It 

Difficult for Charter Schools to 

Provide Services to Students 

with Disabilities

Research has highlighted several challenge 

areas that may make it more difficult for 

charter schools, especially those that serve as 

independent LEAs, to provide special education 

and related services to their students with 

disabilities. These challenges include limited 

knowledge and understanding of special 

School Choice Series: Charter Schools—Implications for Students with Disabilities 69
education responsibilities, limited availability of 

special education funds that are distributed in 

complex ways, and potential tension between 

the charter school mission and special education 

requirements.

Limited Knowledge and Understanding 

of Special Education Responsibilities

From the early years of the charter school 

movement, research has found that charter 

school operators do not always possess the 

requisite knowledge and skills to provide 

appropriate special education and related 

services to their students with disabilities.271

Moreover, research has 

pointed to the fact that 

state charter school 

statutes are often vague 

and contain minimal 

information regarding 

specific roles and 

responsibilities for the 

education of students 

with disabilities.272

Although knowledge 

and expertise have certainly improved over time, 

charter school operators may still feel challenged 

in carrying out their obligations, in particular 

those working as standalone schools that operate 

as independent LEAs.

A number of stakeholders in the present 

study commented on the fact that general 

education administrators at charter schools are 

not always familiar with specific requirements 

concerning the education of students with 

disabilities. One parent participating in a focus 

group explained that at her son’s charter school, 

the general education administrators do not 

“have any background in education.” While these 

administrators hired someone to be in charge of 

the special education department, “they don’t 

know what she’s doing, they don’t know what the 

law is, [and] they probably don’t even know what 

IDEA stands for.”273 A parent advocate similarly 

noted that while “many charters . . . are really 

on the ball and really want to do what is right for 

children with disabilities,” others “have no idea 

of what their obligations are . . . with regard for 

special education . . . have no idea how they 

got kids who are there, what they’re supposed 

to be doing.”274 Another parent advocate 

commented that in some charter schools, she 

has seen a “lack of training of the teachers, lack 

of support, and . . . [lack 

of] the capacity and 

the skills to be able to 

handle students with 

differentiated learning 

and disabilities.”275

Charter school 

authorizers are in a 

unique position to help 

charter school personnel 

improve their capacity 

to serve students with disabilities. While some 

authorizers may not possess enough knowledge 

of special education or view special education 

as part of their responsibility and, as a result, not 

provide a great deal of direction and guidance 

in this area,276 others have begun to take on a 

more proactive role. A recent report by NACSA 

highlights two positive examples of charter 

authorizers that have helped charter school 

personnel fulfill their obligations to their students 

with disabilities. Specifically, charter school 

authorizers from the District of Columbia and 

Denver relied on third parties to facilitate dialogue 

and collaboration with TPS representatives to 

A number of stakeholders in the 

present study commented on the fact 

that general education administrators 

at charter schools are not always 

familiar with specific requirements 

concerning the education of students 

with disabilities

70 National Council on Disability
develop cooperative agreements designed to 

limit disciplinary push-outs (District of Columbia) 

and ensure equitable access to charters for 

students with severe disabilities, who require 

more resources and supports (Denver). To 

encourage change in systemic practices, the 

District of Columbia Public Charter School Board 

(DC PCSB), the city’s only authorizer, openly 

shared data comparing the charter schools’ 

rates of disciplinary exclusion for students with 

behavioral challenges to those of the TPS district. 

DC PCSB also provided training and consultation 

in best practices for keeping students in school 

and mitigating exclusion. In addition, DC PCSB, 

together with a nonprofit 

partner, encouraged 

the TPS district and 

DC charter schools to 

develop a common 

enrollment system to 

replace the decentralized 

system that required 

separate applications for 

each school. In Denver, 

the Denver Public 

Schools (DPS), which oversees the district’s 

TPS and authorizes the city’s charters, likewise 

sought to support its charter schools in building 

their capacity to serve students with disabilities. 

To incentivize charter schools to provide options 

that are more equitable for students with more 

significant disabilities, DPS authorized funding for 

this purpose and provided access to TPS facilities 

to help enable charter schools to accommodate 

students with more extensive needs.277

An additional issue associated with institutional 

knowledge pertains to the fact that charter schools 

often experience difficulty in retaining qualified 

teaching personnel, including special education 

teachers. While all public schools struggle with 

teacher attrition, charter schools experience 

particular challenges in this area.278 According to 

data from the U.S. Department of Education’s 

Schools and Staffing Survey (SASS) and Teacher 

Follow-Up Survey (TFS), the teacher attrition rate 

for charter schools in 2012–2013 was 18.5 percent 

compared to 15.6 percent for TPS teachers.279

While specific attrition rates vary across states, 

districts, and charter networks, charter schools 

typically experience higher levels of teacher 

attrition than TPS. For example, the University 

of Florida’s College of Education reported that in 

2013 teacher attrition rates in Florida for charter 

school teachers and TPS 

teachers were 11.08 

percent and 3.89 percent, 

respectively.280 A 2012 

report from the New 

York City Charter School 

Center found a teacher 

turnover rate in New York 

City of 26 to 33 percent 

among charter school 

teachers, compared to 13 

to 16 percent among district school teachers.281

Annual reports for the KIPP charter schools 

similarly revealed that for the 2012–2013 school 

year, nearly one-third of KIPP teachers did not 

return to school the following year.282

An additional issue associated with 

institutional knowledge pertains to 

the fact that charter schools often 

experience difficulty in retaining 

qualified teaching personnel, 

including special education 

teachers

Charter Schools’ Teacher Attrition

The teacher attrition rate for charter schools 

in 2012–2013 was 18.5% compared to 15.6% 

for TPS teachers.

School Choice Series: Charter Schools—Implications for Students with Disabilities 71
The reasons that charter school teachers, 

including special education teachers, may be 

changing schools or leaving the profession are 

multifaceted. Some reasons likely pertain to 

contextual factors; for example, charter schools 

tend to hire younger, less experienced teachers 

and to serve educationally and economically 

disadvantaged students. Other reasons may 

pertain more to working conditions; for example, 

charter schools tend to offer lower paying 

jobs, with longer working hours and fewer 

benefits.283 Several stakeholders participating 

in the present study discussed some of the 

challenges associated with teacher attrition 

at charter schools. For example, one of the 

charter school teachers 

interviewed noted that 

while her school had 

a number of teachers 

who had been working 

at the school for many 

years, the school still had 

difficulty retaining some 

of the younger, less 

experienced teachers.284

The high teacher turnover rate among charter 

schools has led some schools to initiate new 

teacher incentive programs such as offering 

onsite childcare and instituting retirement 

benefits.285 Research has also highlighted the 

effectiveness of strategies such as implementing 

charter school retention committees.286 Moreover, 

the teachers in some charter schools have begun 

to seek efforts to unionize.287 In 2016–2017, there 

were 781 charter schools across the country that 

engaged in collective bargaining with teachers’ 

unions, the majority of which were affiliated with 

the National Education Association (NEA).

288

While some charter school proponents claim that 

unionization will limit much of the autonomy and 

flexibility that characterize charter schools, others 

argue that unionization can help reduce the high 

teacher turnover rate.289

To address the shortage of qualified teachers, 

the State University of New York (SUNY), 

authorizer of 167 charters, including 147 in New 

York City, recently approved new regulations 

that will enable the charter schools it oversees 

to apply to train and certify their own teachers. 

According to the new regulations, prospective 

teachers will be required to undertake the 

equivalent of one month of classroom 

instruction and practice teaching for less than 

40 hours before becoming certified. They will 

not be required, as are 

teachers on a traditional 

certification path in New 

York, to take the series 

of exams to earn an 

initial certification, next 

earn a master’s degree, 

and then teach for 

three years to become 

fully certified.290 Proponents of this policy shift 

believe that the new authority will allow charter 

schools the kind of autonomy and flexibility they 

need to hire a range of diverse staff.291 The effort 

has been championed by large charter school 

networks such as Success Academy, which 

has its own teacher-training program. Critics, 

however, argue that this approach will result in 

uneven standards and could hurt charter school 

students.292

Despite the challenges associated with the 

recruitment and retention of qualified special 

education teachers, some participants in this 

study discussed what they perceive to be 

the benefits of working at a charter school as 

In 2016–2017, there were 781 charter 

schools across the country that 

engaged in collective bargaining 

with teachers’ unions, the majority 

of which were affiliated with the 

National Education Association (NEA)

72 National Council on Disability
compared to TPS. For example, one charter 

school special education administrator, who had 

previously taught in a TPS, commented:

I would say that the student population 

[at TPS and charter schools] is relatively 

similar as far as demographics . . . the 

biggest differences for me, it was just 

accountability. Like for two [or] three 

years I taught the same class [at a TPS] 

and not once did an administrator or 

program specialist or anyone really walk 

in my room. Maybe once, maybe twice 

in three years. . . . At charter schools . . . 

accountability in my experience is a lot 

higher. You get coached. You’re required 

to create professional development plans. 

You’re required to create goals, take data 

on them, see how you’re progressing . . . 

at a [TPS] unless you were self-motivated 

consistently, you could slide by with doing 

the bare minimum.

This individual added:

At a [charter] school I feel like it’s a choice to 

work here. . . . I think you know what you’re 

getting into working at a [charter] school. 

You know you have a lot of responsibilities 

and opportunities to grow as a teacher. You 

get reviewed a lot. You get a lot of feedback. 

But you know one of the main things and as 

part of one of our goals . . . is to make sure 

that all our students—with disabilities or 

not—with different learning styles, get what 

they need.293

In summary, one of the challenges that may 

be impacting the ability of charter schools to 

provide effective special education services 

is a lack of knowledge and understanding of 

responsibilities and requirements on the part of 

charter operators. In particular, charter school 

general education administrators (e.g., principals) 

may lack awareness of special education 

requirements or best practices. While charter 

authorizers are in a position to help build the 

capacity of the operators whose schools they 

oversee, the authorizers themselves do not 

always possess sufficient knowledge and do 

not always view special education as part of 

their responsibility. Those authorizers who have 

begun to take on a more proactive role and 

provide technical assistance have been able to 

support their charter operators more in this area. 

An additional factor pertaining to institutional 

knowledge concerns the fact that charter schools 

often struggle to retain qualified teachers, 

including special education teachers. While 

teacher attrition is an area of concern, some 

teachers and administrators who work at charter 

schools report on the benefits they perceive to 

be associated with teaching at these schools 

as compared to TPS—for example, increased 

accountability for and greater feedback on their 

teaching and greater use of teacher coaching 

strategies.

Limited Availability of Special Education 

Funds Distributed in Complex Ways

An additional challenge that has the potential to 

make the provision of special education services 

in charter schools more difficult pertains to 

special education funding. As described earlier, 

the distribution of special education funds is a 

complicated process that involves federal, state, 

and sometimes local funding mechanisms.294

Further obfuscating the matter is the fact that 

approaches to funding vary across states and 

School Choice Series: Charter Schools—Implications for Students with Disabilities 73
districts. As noted, different states use varying 

funding formulas for special education, and 

districts often use general funding streams such 

as local property taxes to fund special education 

programming.

The way a charter school receives special 

education funds also differs, depending on the 

school’s legal status under the state’s charter 

school law. Charter schools that are part of an 

existing LEA are typically able to have access 

to additional services through the district (e.g., 

transportation or related services) but may 

not have much autonomy over how funds are 

spent.295 Conversely, charter schools operating 

as their own LEAs typically receive federal and 

state special education 

funding directly and 

for the most part are 

able to decide on their 

own how to spend the 

money they receive. 

These schools, however, 

are obligated to ensure 

that students with 

disabilities have available to them the range of 

services and supports that are required under 

IDEA, including a continuum of placement 

options. Whereas TPS can draw on existing 

infrastructure, resources, and personnel (i.e., 

take advantage of economies of scale), charter 

schools operating as their own LEAs are often 

establishing new programs.296

The limited availability of resources is 

sometimes given as one reason why charter 

schools tend to have high percentages of students 

with disabilities who are educated in the general 

education classroom. As part of its 2012 report 

on charter schools, the GAO found that among 

13 charter schools visited, almost all the schools 

educated students with disabilities in the regular 

classroom for most of the day, with the addition 

of “pull-out” or “push-in” services as needed. 

Moreover, approximately one-half of the charter 

schools identified as a major barrier the lack of 

availability of resources to serve students with 

more significant disabilities, including with respect 

to the provision of self-contained classrooms. 

One charter school official interviewed by the 

GAO stated that “when a student’s IEP includes 

a service that the school does not offer, such as 

a self-contained classroom, the IEP committee 

has modified the IEP to accommodate facility 

limitations while still meeting the needs of the 

child.” This individual went on to explain that in 

such a situation, the 

school may offer “more 

intensive services in 

the general classroom 

staffed by a general 

education teacher, a 

special education teacher 

and a teaching assistant, 

for students whose IEP 

specifies those services.”297

Stakeholders participating in the present study 

expressed similar views. For example, a parent 

advocate taking part in a focus group described 

the situation in which a charter school is part of a 

broader LEA, as follows:

The charter schools’ belonging to the 

traditional school LEA actually was 

helpful because the traditional LEA had 

the most money. So they had all the 

speech therapists and the occupational 

therapists . . . and psychologists who could 

come in and do the evaluations where the 

charter schools didn’t really have those 

Whereas TPS can draw on existing 

infrastructure, resources, and 

personnel (i.e., take advantage o

economies of scale), charter schools 

operating as their own LEAs are 

often establishing new programs

74 National Council on Disability
people. But when the charter school would 

screw up and not follow the IEP or not 

provide the services needed . . . you had 

to sue the public school district. And their 

lawyers would say, well, if you were in 

our schools, we could serve you so we 

haven’t done anything wrong. And then we 

have this charter school and public school 

pointing their fingers at each other and the 

parent and the student just get screwed in 

the middle.298

Another parent advocate similarly commented 

on his experience in a state in which charter 

schools are part of the LEA. He noted that “doing 

things like scheduling IEP meetings and trying to 

get the district to actually pay for services that a 

student might need, can sometimes be a bit of a 

challenge. Sometimes the district pushes back; 

sometimes the district is just not responsive. 

But actually getting the district to work with the 

charter [can be] a challenge.”299

An expert from a charter school organization 

described the situation as follows: “If a child with 

a more severe disability . . . walks through the 

door, charter schools . . . if they are dependent 

on their [district] for special ed, calls the [district] 

and says, ‘Hey, I just got this child that has a 

special day class . . . on their IEP, what do you 

want to do with them?’” This individual went on 

to explain,” The local [district] says, in most cases, 

‘I’m not going to send a teacher over for one 

student, the FAPE offer for that child will be back 

in the traditional school . . . where I already have 

a program set up.’” As a result, this individual 

noted that the student would wind up back in a 

TPS because “the child [would] not [be] permitted 

to stay in the charter school, or if they [do], we’ve 

seen cases where . . . the district will say, ‘You 

have to sign your rights away because our FAPE 

offer to you is back at a traditional school.’”300

Stakeholders also commented on some of 

the funding challenges facing charter schools 

operating as their own LEA. For example, one of 

the state department of education officials who 

was interviewed for the study explained that 

“funding is the number one issue” and stated:

If you have a student that needs a lot of 

additional resources, those resources can 

become very cost prohibitive. And very 

difficult for charter schools to be able to 

meet. Especially if you look at a smaller 

charter school and you have a student with 

severe disabilities, the needs of that student 

are going to be extremely expensive for 

that school to be able to offer, and they 

don’t have the scale that a district would 

have in being able to spread the costs 

among multiple schools or to have different 

opportunities for that student.301

One of the charter school special education 

administrators who was interviewed 

commented that a charter school operating as 

its own LEA that is part of a broader charter 

network can experience benefits with respect 

to resource availability: “I think us being a 

network—a small network, but a network—has 

been really helpful in terms of pooling resources, 

and I collaborate with a ton of other . . . charters 

[in the area].” This individual further explained 

that dealing with therapeutic placements for 

students with mental health needs was her 

school’s biggest challenge. She noted that, 

despite having a good number of school 

counselors and special education teachers, the 

school did not currently have the resources to 

School Choice Series: Charter Schools—Implications for Students with Disabilities 75
support more intensive therapeutic services or a 

separate therapeutic classroom.302

In summary, the availability of resources is 

another area that may make it more difficult 

for charter schools to provide educational 

programming to their students with disabilities. 

While on the one hand charter schools that are 

part of an existing LEA may be able to access 

services that are available through the district, 

these charter schools may experience challenges 

associated with scheduling and coordinating 

with the district. On the other hand, because 

charter schools that operate as their own LEA 

are typically not able to take advantage of 

economies of scale, they may find it difficult 

to provide the range of services and supports 

that are required under IDEA, including the 

continuum of alternative placement options. The 

limited availability of resources is sometimes 

given as one reason why charter schools tend 

to have high percentages of students with 

disabilities who are educated in the general 

education classroom.

Potential Tension Between Charter 

School Focus and Special Education 

Requirements

Further contributing to difficulties associated 

with the provision of special education services 

in charter schools is the tension that charter 

school operators sometimes feel exists between 

the emphasis on flexibility and freedom 

to innovate underlying the charter school 

movement and the prescriptive nature of IDEA’s 

legal mandates. In some instances, complying 

with the statute’s specific legal requirements 

may lead charter schools to carry out practices 

that appear to run counter to their mission. 

For example, a school that follows a specific 

approach calling for a large degree of selfdirected learning (e.g., Montessori or Waldorf) 

may have to make significant changes in order 

to address the needs of a student who requires 

a learning environment that is based on more 

formalized direct instruction.303 In other words, 

while charter schools are grounded in the notion 

that parents choose a school that is the best fit 

for their child (i.e., the child fits in with the focus 

of the school), IDEA requires schools to address 

the individualized learning needs of each eligible 

child with a disability (i.e., the school fits the 

needs of the child).

One area in which this tension may play 

out is in the context of the strict academic 

and behavioral requirements of some charter 

schools, which have come to be associated 

with the “no excuses” model. The term no 

excuses is generally used to describe a group 

of urban charter schools, serving large numbers 

of students from low-income backgrounds 

and students of color, including students with 

disabilities. These schools focus on increasing 

student achievement through a highly 

structured and rigorous approach to behavior 

and academics. Some of the key elements 

of this model include a longer school day and 

year, college-going expectations, data-driven 

instruction, tutoring, extensive teacher feedback, 

and a strict code of discipline.304 While particular 

charter schools may adopt any combination or 

range of these strategies and practices, there 

are a number of charter networks that are often 

associated with this approach—for example, 

KIPP, Achievement First, Noble, Success 

Academy, and Uncommon Schools. There is 

no official list of “no excuses” charter schools, 

however, and some schools have rejected the 

label, emphasizing instead their focus on “high 

76 National Council on Disability
expectations.”305 Research has shown that 

attending a “no excuses” charter school has 

positive effects on math and reading scores 

for all students306 as well as for students with 

disabilities.

307

Several issues have been raised with respect 

to the “no excuses” model in the context 

of students with disabilities. First, there is a 

question regarding the number of students with 

disabilities enrolled in 

these schools. Research 

has shown, for example, 

that KIPP schools, similar 

to other charter schools, 

tend to enroll smaller 

percentages of students 

with disabilities than 

TPS.308 KIPP schools also experience high levels 

of student attrition. According to one study, 

between the sixth and eighth grade, enrollment 

at KIPP schools decreased by 30 percent.309

Moreover, the group 

of students who enter 

KIPP in the sixth grade 

or later tends to include 

fewer students receiving 

special education 

services and more 

students with higher 

baseline assessment 

scores.310 The phenomenon of high rates of 

student attrition in general coupled with the 

limited replacement of students with disabilities 

among KIPP students in grades six through eight 

may be an indication of the tension between 

the charter school mission and special education 

requirements in the “no excuses” model. 

Additionally, some have questioned whether “no 

excuses” practices, which teach students to be 

submissive and defer to authority, perhaps at the 

expense of higher-level thinking skills, may result 

in the perpetuation of harmful stereotypes and 

stigma.311

The strict codes of conduct that are 

characteristic of the “no excuses” model may 

be particularly at odds with the extensive 

requirements pertaining to students with 

disabilities and discipline under IDEA.312 A 2015 

New York Times article 

reported that the 

principal at the Success 

Academy Charter School 

in Brooklyn, one of the 

networks associated 

with the “no excuses” 

model, had developed 

a list, entitled “Got to Go,” of 16 students, 9 

of whom subsequently withdrew from the 

school. Some of the students on this list had 

experienced frequent suspensions, with their 

parents repeatedly being 

called to the school 

to pick up their child 

or meet with school 

officials. Several of the 

students had either been 

previously diagnosed 

as having a disability 

(e.g., attention-deficit/

hyperactivity disorder [ADHD] or behavioral 

disability) or were in the process of being 

evaluated to receive special education services. 

At least one parent was told by her son’s 

special education committee that his disability 

necessitated placement in a separate special 

education class that was not offered for his 

grade at the school. A spokesperson for the 

Success Academy Network commented that 

Research has shown that attending 

a “no excuses” charter school has 

positive effects on math and reading 

scores for all students as well as for 

students with disabilities

The strict codes of conduct that are 

characteristic of the “no excuses” 

model may be particularly at odds 

with the extensive requirements 

pertaining to students with 

disabilities and discipline under IDEA

School Choice Series: Charter Schools—Implications for Students with Disabilities 77
the list had been a mistake and that the principal 

had been reprimanded upon the network’s 

learning of its existence.313 While the “Got to 

Go” list may have been an aberration, questions 

remain regarding the extent to which certain 

“no excuses” discipline practices may have 

the inadvertent effect of punishing students for 

behavior related to their disabilities.

In the present study, several stakeholders 

expressed concern with the discipline policies 

and practices that are characteristic of a 

“no excuses” approach. For example, one 

parent advocate participating in a focus group 

commented that

the biggest, biggest, biggest barrier has 

been college and career ready charter 

schools with very specific academic 

requirements that students with disabilities 

have a hard time keeping up with and 

disciplinary policies. Because a lot of our 

charter schools, the reason that families 

pick them is because they’re these really 

structured point-based systems where 

you earn things. And . . . they’re very, very 

punitive point-based systems. And I would 

have kids with ADHD who a month into the 

school year had lost enough points they 

got expelled from school. And they totally 

weren’t accommodating their policy for the 

student’s disability.314

Another advocate noted that some students 

with disabilities find it difficult to cope with 

“the structure and rigidity” of the “no excuses” 

model, including the longer school day; that is, 

some “kids can’t cope that they . . . go into the 

classroom all day every day 7:30 to 4:30, like an 

eight-hour job.”315 An additional advocate noted 

that the strict codes of discipline tend to be “an 

issue for students with disabilities who may 

have disabilities that impact their ability to selfregulate, that impact their ability to interact well 

with others, that impact their ability to effectively 

pay attention and focus.” This advocate provided 

the following example:

If a student . . . has ADHD and the charter 

school has an existing policy that students 

who do not do things like track the teacher 

where they are following along with the 

teacher and, you know, their eyes are kept 

on the teacher the whole lesson, if that 

student has a disability that might prohibit 

them from being able to effectively be able 

to track the teacher, they are possibly going 

to be given demerits, given detentions, 

maybe even suspended for behavior that 

really is in many respects a manifestation of 

their disability.316

At the same time, some charter schools 

have begun to move away from a strict “no 

excuses” approach to discipline and adopt, 

instead, alternative and less punitive models. 

For example, a charter school special education 

administrator discussed the importance of 

addressing the potential behavioral challenges 

of students with disabilities in a proactive 

rather than reactive manner (i.e., “to plan just 

in case something happens and get in front of 

it right away”). Rather than waiting six months 

for the student’s annual IEP meeting, this 

administrator noted that it was beneficial to 

convene the IEP team as soon as possible in 

order to write appropriate present levels and 

annual goals for social emotional needs into 

the student’s IEP and to make sure that any 

78 National Council on Disability
necessary accommodations and supports were 

in place. According to this administrator, “I think 

identifying those things in advance as we see 

them happening instead of just kind of waiting 

and reacting is helpful.”317

Moreover, several participants in the present 

study highlighted efforts on the part of certain 

charter schools to embrace the principles of 

restorative justice. Restorative justice practices, 

which focus on relationship building and 

reconciliation, strive to repair the harm that has 

resulted from an alleged incident by engaging 

all those involved in the formulation of an 

appropriate resolution. Examples of restorative 

justice practices include peer mediation, 

community conferences, and restorative peace 

circles.318 One special education teacher in the 

present study noted that the charter school had 

been struggling with “a lot of the things that 

a lot of the schools around us were struggling 

with,” including a disproportionate number of 

suspensions of African American boys. This 

school decided that it would “specifically and 

intentionally address these [issues] in a more 

radical way” by making the shift toward more 

restorative justice practices. As a result, students 

at the school have been able to talk through 

incidents as they arise, “suspension numbers are 

at an all-time low [and] disproportionality has . . . 

pretty much gone away.”319

Another charter school special education 

administrator whose school has made the 

decision to adopt more restorative justice 

practices commented on the positive effect on 

students:

Students know what happens [now]—

the word consequences [sic] doesn’t 

necessarily mean the same thing as it did 

before. It means you need to actually reflect 

on your behavior and really talk about how 

it affects your community, meaning [the] 

class, teachers, staff . . . I’ve seen it be 

extremely powerful.320

Examination of the KIPP website similarly 

reveals op-eds and blog posts highlighting the 

shift that particular KIPP schools have made 

toward more restorative practices. For example, 

in an op-ed describing the experience at KIPP 

Summit Academy near Oakland, California, the 

principal described the school’s prior approach to 

discipline as follows:

At KIPP Summit Academy, punishment 

and suspension had resulted in obedient 

behavior. But those measures left a 

sizable proportion of students feeling that 

adults were adversaries, not partners, and 

separated them from the learning process. 

Rather than teaching lessons about how 

to do better, I saw us putting some of our 

most needy students on a path to alienation 

from school.

In contrast to the school’s prior approach to 

discipline, the principal described an incident 

in which the school attempted to implement 

restorative justice in response to a student who 

had left graffiti with gang slogans on the school 

walls. Rather than suspending or expelling this 

student, the principal called the student in for a 

series of conferences, along with the student’s 

parents, focusing on the following four questions: 

“What happened? What were you thinking at the 

time? Who was affected by your actions? And 

what do you need to do to make it right?” After 

reflecting on his anger and state of mind during 

School Choice Series: Charter Schools—Implications for Students with Disabilities 79
the incident, the student was able to apologize 

and come up with a mutually agreed upon 

resolution: to work with the facilities manager for 

two weeks to clean up the school. This student 

ultimately went on to become a senior at the 

high school on his way to college.321

The National Charter School Resource 

Center has similarly published a resource that 

highlights efforts by several charter schools 

and networks to modify their approaches to 

school climate and discipline. These schools 

and networks include Health Sciences High 

and Middle College (San Diego), KIPP Bay 

Area Schools (San Francisco Bay Area), New 

Orleans College Prep 

Network (New Orleans), 

and Rowe Elementary 

School (Chicago). 

The report discusses 

a number of lessons 

that can be learned 

from the experiences 

of these schools, 

including the importance 

of integrating the 

school’s positive 

approach to discipline with its core values and 

mission; securing buy-in from and training 

for teachers and staff; understanding that 

restorative practices do not run counter to, 

but in fact, support high academic standards; 

collecting and analyzing data with respect to 

school discipline; adapting specific behavioral 

interventions to address students’ unique 

needs; involving students and families in the 

process; and collaborating with communitybased organizations on issues such as social 

emotional learning.322 These are practices that 

all schools can try to follow.

In addition to discipline policies, another 

challenge area that has emerged in the context of 

charter schools pertains to the potential tension 

between the right of parents to choose the 

charter school they would like their child to attend 

and the decision-making process of the IEP team 

under IDEA. It is important to point out that IEP 

teams do not make decisions in a vacuum, with 

minimal input from the parent. Rather, parents 

are integral members of the IEP team and must 

be provided “meaningful participation in the IEP 

process” [emphasis added].323 The procedural 

safeguards provisions of IDEA are designed to 

enable both parents and schools to contribute 

to decisions about the 

education of students 

with disabilities and 

to preclude unilateral 

decisions about 

appropriate programming 

for a particular child. 

Consequently, the LEA 

may not predetermine 

the child’s educational 

program without 

providing the opportunity 

for meaningful input from the parent. In other 

words, district personnel must come to the 

IEP meeting and have an open mind in order to 

be “receptive and responsive” to the parents’ 

position.324

At the same time, OSERS has stated that, 

while parental preference may be one factor in 

determining an appropriate placement, it “cannot 

override the decision of the child’s [IEP] team” 

[emphasis added].325 Moreover, parents do not 

have the right to veto a particular placement326 or 

“summarily determine a particular placement.”327

While parents are entitled to participate in any 

[A]nother challenge area that has 

emerged in the context of charter 

schools pertains to the potential 

tension between the right of parents 

to choose the charter school they 

would like their child to attend and 

the decision-making process of the 

IEP team under IDEA

80 National Council on Disability
decision pertaining to the educational placement 

of their child, they do not have a right under IDEA 

to select a particular school or location.328 Thus, 

it appears that for a student in need of special 

education, a parent’s choice of placement must 

be honored only to the extent that it complies 

with the decision of the 

student’s IEP team to 

provide FAPE in the LRE 

to the maximum extent 

appropriate. What results 

is essentially a system 

of school choice for 

parents of students with 

disabilities that differs 

from the system of 

school choice for other parents.

Several stakeholders in the present study noted 

that parents seeking to enroll their child in a charter 

school might feel that the IEP team is blocking 

them. For example, one parent participating in a 

focus group commented 

that although her child’s 

school district, in which 

charter schools were 

considered part of that 

district, utilized an open 

enrollment policy, the 

district required the IEP 

team to determine that 

the charter school was an 

appropriate placement for 

the child:

In our district. . . . [y]ou can choose where 

you want to go to school. However, . . . 

it’s [now] mandatory in our charter school 

contract that your child [with a disability] 

has to go through an IEP meeting and 

the school and the district both have to 

believe that’s the best placement for the 

child. . . . And so our enrollment process is 

anyone can come, but if you have an IEP, 

it’s mandatory you have a meeting. So even 

though you’ve been accepted by the charter 

school, the district 

can pull you at their 

discretion.329

Another individual 

commented: “There is 

definitely a disconnect 

between the IEP process 

and the [charter school] 

enrollment process 

so you may have gone to an IEP meeting and 

you may have agreed upon certain types of 

placement—resource, inclusion, separate. But 

not every school has each offering.”330 As a result, 

the parents might not be able to enroll their child 

in their school of choice.

In summary, an 

inherent tension exists 

between the underlying 

foundation of the charter 

school movement, which 

is predicated on flexibility 

and freedom to innovate, 

and the prescriptive 

legal requirements of 

IDEA. While charter 

schools are grounded in 

the notion that parents 

choose a school that is the best fit for their 

child (i.e., the child fits in with the focus of the 

school), IDEA requires schools to address the 

individualized learning needs of each eligible child 

with a disability (i.e., the school fits the needs of 

While parents are entitled to 

participate in any decision 

pertaining to the educational 

placement of their child, they do not 

have a right under IDEA to select a 

particular school or location

While charter schools are grounded 

in the notion that parents choose 

a school that is the best fit for their 

child (i.e., the child fits in with th

focus of the school), IDEA requires 

schools to address the individualized 

learning needs of each eligible child 

with a disability (i.e., the school fit

the needs of the child)

School Choice Series: Charter Schools—Implications for Students with Disabilities 81
the child). One area in which this tension plays 

out is in the context of the strict academic and 

behavioral requirements of some charter schools, 

which have come to be associated with the “no 

excuses” model. There is a question regarding 

the extent to which “no excuses” discipline 

practices may have the inadvertent effect of 

punishing students for behavior related to their 

disabilities. Some charter schools, however, have 

begun to move away from a strict “no excuses” 

model and have adopted instead alternative and 

less punitive approaches to behavior such as 

restorative justice practices. Moreover, there is 

additional tension between the right of parents 

to choose the charter school they would like their 

child to attend and the decision-making process 

of the IEP team under 

IDEA. Here, again, what 

has essentially resulted 

is a system of school 

choice for parents of 

students with disabilities 

that differs from the 

system of school choice 

for other parents.

Model Practices for Educating 

Students with Disabilities in 

Charter Schools

Charter schools vary in the extent to which they 

provide quality educational programming and 

services for their students with disabilities. While 

some schools experience significant challenges 

in this area, others offer innovative approaches 

to the education of all students, including 

those with disabilities. With respect to the 

latter, NCSECS has recently developed a series 

of profiles of charter schools that have been 

identified as “Centers of Excellence”—that is, 

schools that have “leverage[d] their autonomy 

particularly well to benefit students with 

disabilities.”331 According to NCSECS, these 

charter schools, which are located in different 

regions of the country, have implemented 

educational practices that have the potential 

to serve as a model, not only for use by other 

charter schools, but by TPS as well.

For example, NCSECS has identified Cole 

High School in Denver as a charter school 

“Center of Excellence.” Serving 343 students 

in grades 9 through 11, Cole is a member of 

the Denver School of Science and Technology 

(DSST) charter network and operates as a school 

within DPS. Since 2009, the DSST network 

has had a 100 percent acceptance rate to 

four-year colleges. The 

school also has a large 

population of students 

with disabilities. In 

2016, 11.0 percent of 

its population received 

special education 

services, compared to 

10.7 percent in DPS. Also in 2016, 57 percent 

of the graduating class had been the first in 

their families to go on to college. Although the 

DSST network has a predetermined curriculum 

that is rigid, Cole administrators have been able 

to institute some flexibility in order to address 

students’ diverse learning needs in a more 

effective manner. Operating under the notion 

that curricular and instructional adaptations that 

support students with disabilities can benefit 

a much larger group of students as well, the 

school has added a new “Fundamental Math” 

course that utilizes the principles of UDL 

and offers real-world examples.332 UDL is an 

educational framework grounded in the learning 

Since 2009, the DSST network has 

had a 100 percent acceptance rate to 

four-year colleges. The school also

has a large population of students 

with disabilities

82 National Council on Disability
sciences, which focuses on providing multiple 

ways to present information to students, to 

allow students to express what they have 

learned, and to foster student engagement. 

Moreover, the school uses a flexible coteaching model that offers a range of support 

levels for the general education teacher.333

Like other schools in the DSST network, 

Cole also implements a coaching model for 

teachers, using a video coaching platform that 

allows coaches to embed their own notes and 

observations within the video.334

In addition, NCSECS has identified Paramount 

School of Excellence in Indianapolis as a charter 

school “Center of Excellence.” Serving 700 

students in grades K–8, this independent charter 

school operates as its own LEA and has a special 

education enrollment rate that is comparable 

to that of the Indianapolis School District (18.5 

percent versus 18 percent, respectively). 

According to NCSECS, Paramount’s high 

expectations for students are encompassed in 

a series of policy and instructional guidelines, 

referred to as the school’s “Frameworks.” These 

Frameworks articulate clear goals for all students 

and help ensure that students with disabilities 

are not provided a watered-down curriculum 

or taught to standards that are below grade 

level. The classrooms are structured in a flexible 

manner, and all students, regardless of whether 

they have an IEP, engage in similar classwork 

and can ask for additional help. With respect to 

staffing, the school utilizes a combination of a coteaching and purposeful resource room support 

model. There are also ongoing communications 

and collaboration between special education and 

general education personnel as well as between 

administrators and teachers. Moreover, the 

teachers review student performance data on a 

regular basis to inform subsequent instruction 

and create data visualizations to share with their 

students.335

In a yearlong study of 10 high-performing 

charter schools in California, the California Charter 

Schools Association (2016) identified key aspects 

of quality special education programs in relation 

to (1) school values, philosophy, and culture; 

(2) particular school practices; and (3) policy 

context and structural elements. The specific 

educational strategies discussed under each of 

these broad categories align with many of the 

practices described earlier. For example, in the 

area of school values, philosophy, and culture, 

the schools included in the study demonstrated 

a commitment toward promoting inclusion, 

developing individualized supports that address 

students’ unique learning needs, and fostering 

a positive learning environment (e.g., utilizing 

positive and restorative approaches to discipline). 

With respect to certain practices used by the 

various schools, the report highlighted the 

incorporation of multitiered systems of support, 

collaborative and team-based models, UDL, use 

of data to inform decision making, and family 

and community partnerships (e.g., instituting 

family trainings or home visits). Regarding policy 

and structural elements, the report noted that 

9 of the 10 schools operated as independent 

LEAs with greater autonomy over decision 

making, recruitment, and staffing. An additional 

area of strength pertained to the fact that these 

charter schools were committed to reviewing 

and adapting their educational practices and 

processes, as appropriate, on an ongoing 

basis. While the schools involved in the study 

had quality special education programs, they 

also experienced several challenges, including 

those pertaining to special education funding, 

School Choice Series: Charter Schools—Implications for Students with Disabilities 83
recruitment and retention of qualified personnel, 

and lack of available economies of scale.336

Stakeholders participating in the present study 

also identified components of successful charter 

school programs. For example, one general 

education teacher who was in her second year 

of teaching at a charter school indicated that she 

valued the school’s use of a co-teaching model, in 

which a special education teacher was assigned 

to each homeroom and traveled with the group 

to all subject matter classes (e.g., math, English). 

According to this teacher, the co-teaching model 

provided consistency and assistance to students 

and teachers. Moreover, the teacher appreciated 

that her school promoted the use of restorative 

practices, including peace circles, to address 

behavior issues. The inclusion of frequent 

professional development sessions also served 

to make this teacher feel more supported in her 

role.337

Parents participating in the study expressed 

similar views. For example, one parent, who 

was very pleased with her son’s charter school 

experience, noted that even though her son had 

begun at the school with significant delays, he 

had received enough support to read “at grade 

level and access 90 percent of what everyone 

else accesses.” This parent further appreciated 

that her son was able to be educated in an 

inclusive environment “with typical peers” and 

that the school utilized a “restorative justice 

program.” With respect to the use of restorative 

justice practices, this parent elaborated, “If there 

are issues with behavior or discipline, there is 

not an emphasis on punishment—this results in 

less issues with behavior.”338 Moreover, another 

parent noted that she was pleased with the 

school culture at her son’s charter school and 

the school’s focus on social skills development 

and community building.339 A third commented 

that she appreciated the “very welcoming” and 

“smaller school environment” that her son’s 

charter school provided. As a result, her son was 

“given safe environments to take risks, and he 

flourished there.”340

Case Studies of Two Students with 

Disabilities Who Have Attended 

Charter Schools

The present section provides an in-depth 

examination of the charter school experiences 

of two students with disabilities and their 

families. Student A has had a positive experience 

attending a charter school, while Student B 

has had a negative experience. Together, these 

contrasting descriptions reflect the variability that 

characterizes the provision of special education 

and related services to students with disabilities 

in charter schools.

Student A, an 11-year-old boy with Down 

syndrome, is currently in the fifth grade at a 

charter school that serves students in grades 

K–5. This charter school, which has a smaller 

percentage of students with disabilities than 

neighboring school districts, is located in a 

southwestern state and is a member of a 

charter network. Student A’s mother decided 

to enroll him in the charter school after some 

prior negative school experiences. He had 

initially attended a private school for preschool, 

kindergarten, and first grade; however, it 

became clear that the private school was 

not well equipped to serve his needs in a 

general education classroom. As Student A 

was preparing to leave the private school, his 

mother approached the charter school that his 

sister was attending in order to ask if the school 

would be willing to enroll him. The charter school 

84 National Council on Disability
responded that he would have to repeat the first 

grade. Because his mother did not want him held 

back in the first grade, she placed him in a TPS 

instead.

At the TPS, Student A’s mother worked hard 

to help the administrators and teachers embrace 

a more inclusive program that would enable 

her son to participate in the general education 

curriculum in all subject areas. She noted that 

other students with intellectual disabilities in 

the same TPS were educated in a separate 

special education classroom and had a separate 

entrance to the school building. The district 

agreed to place Student A in a third grade general 

education class. The teacher for this class was 

effective in including Student A in classroom 

activities, and he interacted socially with many 

of the students. Student A’s experience in this 

class was very positive. His fourth-grade class at 

the TPS, however, did not work out as well. His 

mother explained that the fourth-grade teachers 

and support staff were less willing to facilitate 

Student A’s participation in general education 

subjects and were resistant to her suggestions. 

As a result, she decided it was time for her son 

to leave the TPS. She went back to her daughter’s 

charter school, and this time the school agreed 

to enroll him in a general education class for the 

fifth grade. According to the mother, the charter 

school had reached a certain level of recognition 

for its academic excellence, and it was, therefore, 

willing to take on a new challenge. Student A 

became the first student at the charter school to 

have an intellectual disability.

Student A’s experience at the charter school 

has been extremely positive, and his mother 

feels that he has thrived in the fifth grade general 

education classroom. She explained that at 

the charter school, the teachers were already 

using DI all the time to help students reach high 

levels of academic mastery. According to his 

mother, the teachers were “constantly helping 

[students] learn in different ways” and were 

therefore willing to try out new strategies that 

she suggested, including UDL. Although the 

teachers and staff did not have much knowledge 

about disabilities, the school tried to incorporate 

additional professional development to help build 

their capacity. Moreover, the school’s principal 

helped to set a positive tone for inclusion and 

acceptance. The teachers were able to include 

Student A in all grade-level subjects, including 

pre-algebra and chemistry. According to the 

mother, his science teacher “believed in him 

so much” that “it’s amazing to see what he is 

learning . . . he’s learning about the periodic 

table.” Consistent with the UDL principle of 

multiple means of student expression, teachers 

allow Student A to demonstrate what he has 

learned by drawing a picture or filling in some of 

the blanks. They have also revised their overall 

teaching practices to address his needs more 

effectively—for example, making a teacher 

presentation more interactive or incorporating 

more project-based learning to support 

engagement. In this way, Student A has helped 

the teachers to implement strategies that can 

benefit other students as well. His mother noted 

that the teachers have told her “Thank you for 

sharing [your son] with us. He’s made us better 

teacher[s].”341

Although Student A has been enjoying and 

benefiting from his experience at the charter 

school, some areas have proven to be somewhat 

more challenging. The mother explained, for 

example, that while all fifth-grade students 

learn Latin, she did not know whether her son 

would be able to learn a foreign language. She 

School Choice Series: Charter Schools—Implications for Students with Disabilities 85
contacted the state Department of Education 

but was unable to obtain an answer. Ultimately, 

the IEP team decided that he would receive his 

speech therapy focused on pragmatics during 

this time. Moreover, while the charter school has 

been able to incorporate Student A’s assistive 

technology device for communication into all 

of his classes, technology was not something 

that the school had used as a learning tool 

before. The teachers are therefore still trying to 

ascertain how best to support him in his use of 

the device.

Student A has developed more confidence 

and independence at the charter school. Although 

he has a paraprofessional aide who stays with 

him during the day, the aide does not hover 

over him all the time, as had been done in the 

TPS. Rather, the aide provides support during 

the times that he needs it and then allows him 

to interact independently in class. He has a 

resource room teacher who does a “push-in” 

model for English and math, but he is on his own 

for the rest of the subjects. He has also been 

able to make friends and interact socially with 

other students. Moreover, Student A is learning 

how to advocate for himself and has gone to 

Washington, DC, to advocate for inclusion on 

Capitol Hill. As the family is preparing for his 

move to middle school next year, his mother 

acknowledged her own anxiety concerning 

upcoming changes. She explained, “He will have 

a new team of teachers and a new environment 

altogether . . . so we’ve got to figure out how 

that works . . . and how best he can participate in 

the classroom.”342 Although his mother does not 

know where Student A will be in 10 years (she 

hopes, college), she feels that the solid education 

that he has been receiving at the charter school 

will help him carve out his future.

Student B, described by his mother as “a 

high-functioning autistic child,” was admitted to 

a charter school for kindergarten at the age of 

five through a lottery admissions process. This 

independent charter school, which is not part of 

a network, serves students in grades K–12 on 

four campuses. The school is located in a state 

in the Northeast and has a similar percentage 

of students with disabilities as neighboring 

districts. Student B’s mother explained that 

the family had been attracted to the school’s 

rigorous curriculum, in particular the International 

Baccalaureate (IB) academic program because 

her son was very strong academically. Upon 

learning that he had been selected to attend the 

charter school, his mother wanted to make sure 

that she had an opportunity to meet with the 

charter school’s special education director. At this 

meeting, during the spring prior to the beginning 

of her son’s kindergarten year, the mother was 

“doing her due diligence” and brought her son’s 

IEP to the meeting. She tried to learn more about 

“what kind of supports would be in place for 

him . . . if the IEP would be followed . . . kind of 

general questions, but also making sure that it 

was the right placement for [him].” She noted 

that the special education director had assured 

her that the school had been successful in 

serving autistic students in the past. The mother 

further explained that when she told the special 

education director that her son had been in a 

substantially separate classroom at his preschool, 

with opportunities for partial inclusion during the 

school day, the special education director told her 

to “make sure that, on the IEP, by the time he 

comes over, he will be full time inclusion.” When 

the mother replied that she could not promise 

that her son’s placement would be changed in his 

IEP in time for the start of the school year, the 

86 National Council on Disability
special education director said, “Okay . . . we’ll 

make it work. Bring him in. He’ll be fine.” The 

mother noted that she left the meeting feeling 

“positive and optimistic.”343

Student B started kindergarten at the charter 

school in August. From the beginning, his mother 

noticed that there were problems. When she 

tried to contact the special education director on 

the second day of school to see how her son was 

doing, she was told that the principal wanted to 

meet with her at the end of the week because 

her son had not been complying with the school’s 

behavior management system. According to 

this system, students receive cards of different 

colors to reflect the extent to which they are 

disregarding school rules. For example, after one 

warning, students receive a yellow card; after 

several infractions, students receive a red card, 

along with the loss of certain privileges such as 

recess. His mother explained that Student B had 

his own individual behavior management plan 

and that he would not respond well to this type 

of system. Student B’s IEP did not include any 

academic goals but rather focused on behavior, 

self-regulation, executive functioning, and 

language. The school, however, did not seem to 

implement the student’s IEP at all. No behavior 

support was provided in the classroom. The 

student also did not receive the speech services 

called for in his IEP. The only service that the 

school provided was occupational therapy (OT), 

which was not even included in the student’s IEP.

As time progressed, the mother explained that 

she continued to receive phone calls from the 

school:

I would get phone calls from the school 

every other day telling me, you know, “your 

son pushed someone or your son played 

roughly or your son colored on someone 

else’s paper,” and he would just get 

reprimand after reprimand after reprimand. 

So, he started not wanting to go to school. 

He was sitting out at recess a lot. He was 

being called in the principal’s office a lot 

for really, really silly things that could have 

been used as teaching moments, and 

needed redirection from . . . an adult in the 

classroom.

Moreover, his mother noted that she felt 

awkward at the pick-up line every day because 

her son “would be the loud rowdy one . . . or, if 

he would come out and he had received a red 

card or yellow card, he would be crying already, 

worried about . . . ‘I had a yellow card and so . . . 

I’m a bad child.’” When his mother asked an 

advocate to observe the classroom, she reported 

that “it was not the setting that [she] would 

want any [five-year-old] child, let alone . . . on the 

spectrum or not, to be [in] . . . it was very military 

style kind of teaching; very [strict] discipline, 

which [Student B] does not respond well to.”344

The family ultimately decided to withdraw 

Student B from the charter school after nine 

weeks because his anxiety had reached such 

a high level that he was not eating or sleeping 

well. His mother subsequently filed a complaint 

with the state Department of Education under 

the state complaint procedures of IDEA, and the 

charter school was found to be in noncompliance. 

She explained that she felt as though her son 

had been “robbed from a really good education 

because the curriculum [at the charter] was 

on par. He was top of . . . the class with what 

they were learning, and they were learning . . . 

first grade level things . . . he could have done 

so well if he [had been] given the tools to be 

School Choice Series: Charter Schools—Implications for Students with Disabilities 87
successful.”345 The school struggled, however, 

with the social emotional component. Student 

B is currently back in a general education 

inclusion class in a TPS and is doing very well. 

He is receiving the support services that were 

included in his original IEP. He also has a shared 

paraprofessional who works with him for part 

of the day. His mother further explained that 

the fact that the school uses restorative justice 

practices has helped him to mend relationships. 

Now, when he disagrees with a friend, they are 

able to problem-solve together. Overall, Student 

B is a much happier, less anxious child since 

leaving the charter school.

As the above 

two case studies 

demonstrate, charter 

schools vary significantly 

in the manner in which 

they address the 

academic and behavioral 

needs of their students with disabilities. While 

the two students had very different experiences 

at their respective charter schools, a number 

of themes emerge across the two cases that 

underscore previously identified findings in this 

report. These themes pertain to the following 

areas: enrollment process, leadership and vision, 

and innovative school practices.

First, the cases highlight some of the 

challenges that parents of students with 

disabilities experience as part of the charter 

school enrollment process. For example, it 

appears that, prior to enrollment, Student B’s 

mother did not have much information about 

the school’s experience educating children 

with similar needs as her son. She relied on 

what the school’s special education director 

told her. The experience of Student B’s mother 

also reflects the struggle many parents of 

students with disabilities face with respect to 

the best time to disclose that their child has a 

disability. She indicated that she had done her 

“due diligence.” Student A’s mother, in contrast, 

had personal knowledge about the school 

because her daughter was already enrolled. 

It is noteworthy, however, that even though 

Student A had an overall, positive experience 

with the charter school, the school could be 

viewed as having initially engaged in a subtle 

form of counseling out by conveying to the 

mother, as she approached the school on 

several occasions about enrolling her son, that 

the school was not an 

appropriate fit for him.

A second theme 

relates to the leadership 

and vision at the two 

schools. Most notably, 

the principal at Student A’s 

charter school seemed to set a tone for inclusion 

and acceptance, while the principal at Student 

B’s school appeared to be less concerned with 

special education matters and more interested in 

school discipline. Student A’s charter school also 

seems to have been more amenable to providing 

professional development to the teachers to help 

build their capacity to address Student A’s needs. 

Moreover, Student A’s school appears to have 

been more willing to work with his parents in a 

collaborative partnership. Student B’s school, in 

contrast, created a more adversarial relationship 

with the parent, who ultimately ended up filing a 

complaint with the state Department of Education.

Finally, a third theme concerns the extent to 

which the two schools were willing to engage 

in innovative school practices to address the 

individualized needs of their students. In particular, 

[C]harter schools vary significantly 

in the manner in which they address 

the academic and behavioral needs 

of their students with disabilities

88 National Council on Disability
the teachers at Student A’s charter school 

seemed more open to adapting their instructional 

approach, which was already somewhat flexible. 

Through an increased understanding of practices 

such as UDL, the teachers were able to build on 

the instruction they were already providing to 

other students to make adaptations that would 

benefit Student A. As a result, he helped them to 

become “better teachers” for all their students. 

In contrast, Student B’s charter school did not 

address the student’s social emotional needs. 

The teachers at the school did not deviate from 

their strict discipline practices, and Student B may 

have been punished for behavior related to his 

disability. The school was 

also unable to provide 

the basic services that 

were required under 

Student B’s IEP. Because 

his mother was worn 

down to such an extent 

by frequently having to 

come into the school 

to pick up her son and 

by the emotional toll 

that the experience took on him, she ultimately 

withdrew him from the charter school. Once 

Student B was re-enrolled in a TPS, he received 

the services that he needed and was in a school 

that embraced a restorative justice approach to 

behavior. Consequently, he had a more successful 

experience in the TPS.

Summary of Chapter 4

This chapter discussed various issues pertaining 

to the provision of special education and related 

services in charter schools. First, it was pointed 

out that the extent to which a charter school 

is responsible for delivering special education 

services to its students with disabilities depends 

on whether the school is operating as its own 

LEA or whether it is a public school that is part of 

another LEA. In addition, several challenges were 

identified that may make it more difficult for some 

charter schools to deliver appropriate educational 

services to their students with disabilities. These 

include the fact that charter operators, and 

sometimes charter authorizers, do not possess 

sufficient knowledge of special education 

responsibilities and requirements and that charter 

schools experience a shortage of qualified teaching 

personnel, including qualified special education 

teachers. A second challenge pertains to the 

fact that charter schools 

sometimes struggle 

with the availability of 

resources—namely, 

schools that operate as 

their own LEA may not 

be able to take advantage 

of economies of scale, 

while those that function 

as part of an existing LEA 

may find it difficult to 

coordinate with the district. Furthermore, some 

charter school operators experience tension 

between their school’s mission, including strict 

expectations for academics and behavior, and the 

extensive legal requirements of IDEA, particularly 

in respect to discipline. Additional tension exists 

between the emphasis of the charter school 

movement on parental choice and the emphasis 

of IDEA on the IEP team-based decision-making 

process. Chapter 4 further highlighted model 

practices that are emerging in some charter 

schools and discussed the contrasting experiences 

of two students with disabilities who have 

attended charter schools.

[S]ome charter school operators 

experience tension between their 

school’s mission, including strict 

expectations for academics and 

behavior, and the extensive legal 

requirements of IDEA, particularly 

in respect to discipline

School Choice Series: Charter Schools—Implications for Students with Disabilities 89
90 National Council on Disability
T

he current discourse regarding the 

participation of students with disabilities 

in charter schools tends to make broad 

generalizations about these schools as a whole. 

The reality, however, is that the charter school 

sector comprises a heterogeneous group of 

schools. The present section focuses on two 

types of charter schools that warrant closer 

examination in relation 

to the education of 

students with disabilities: 

specialized charter 

schools for children with 

disabilities (also known 

as disability-specific 

charter schools) and 

virtual charter schools.

Disability-Specific 

Charter Schools

While charter schools, on 

average, tend to enroll 

lower percentages of students with disabilities 

than do TPS, a subset of charter schools has 

emerged that is specifically designed to serve 

children with disabilities. These disability-specific 

charter schools may focus on a particular disability 

category (e.g., autism, emotional disturbance, 

deaf-blindness) or on students with disabilities 

more generally. In a national study conducted in 

2008, Mead found that, at the time, there were 

71 charter schools across the country specifically 

designed to serve students with disabilities. 

These schools were located in 13 states plus 

the District of Columbia and represented 

approximately 2 percent of charter schools 

overall. Forty of the schools that were identified 

focused on serving a particular disability category, 

with one-half of these 

focusing on autism.346

As part of its analysis 

of the CRDC for 2013–

2014, NCSECS found 

that there were 137 

specialized disability 

charter schools across 

the country. These were 

“charter schools with 

25 percent or more 

enrollment by students 

with disabilities that 

self-identify as ‘special 

education schools’ in CRDC reporting and/or 

schools that report that 50 percent or more of 

their students qualify for special education under 

IDEA and Section 504.”347 Among the 137 schools, 

62 percent focused on serving two or more 

disability categories. Among those schools 

serving a particular disability category, emotional 

disabilities and autism were the most common 

Chapter 5: Special Types of Charter Schools

... NCSECS found that there we

137 specialized disability charter 

schools across the country 

62 percent focused on serving 

two or more disability categories

Among those schools serving 

a particular disability category, 

emotional disabilities and 

autism were the most common 

categories 

School Choice Series: Charter Schools—Implications for Students with Disabilities 91
categories (14 percent and 10.95 percent, 

respectively). While the specialized charter schools 

were found to be located in 24 states plus the 

District of Columbia, more than half the schools 

were in Florida (34 schools), Ohio (32 schools), 

and Texas (18 schools). The populations served by 

the schools in these three states varied. In Florida, 

the largest number focused on serving students 

with disabilities in general (18 schools), followed 

by seven focusing on autism and another six 

focusing on developmental delay. In Ohio, 27 of 

the 32 schools were part of the Summit Academy 

network, which identifies autism and specific 

learning disabilities as 

priority areas.348 It is 

also noteworthy that the 

charter school statute in 

Ohio explicitly authorizes 

the creation of schools 

focused on serving 

autistic students.349

Finally, in Texas, 10 of the 

18 specialized charter 

schools focused on 

serving students with 

emotional disturbance.350

Disability-specific charter schools can be 

appealing to parents of students with disabilities 

for a variety of reasons. Although research in this 

area is limited, Mead’s 2008 study found that, 

according to administrators of specialized charter 

schools, parents were drawn to the supportive 

culture and low teacher-student ratio of these 

schools as well as “the fact that their children 

would have peers who could relate to their 

learning struggles and provide support.”351 Mead’s 

study also reported that some parents appeared 

to be attracted to the segregated nature of the 

school, while others chose not to enroll their child 

because of the school’s segregation. Their child’s 

prior performance on statewide assessments 

was identified as an additional reason why some 

parents selected these specialized schools.352

As noted, many disability-specific charter 

schools focus on serving autistic students. 

These schools, sometimes referred to as 

“autism-centric schools,” present educational 

opportunities for autistic children beyond what 

is typically available in TPS. In addition to a low 

teacher-student ratio and a learning environment 

that includes peers who share similar learning 

profiles, these schools often provide more 

focused and intensive 

instruction by qualified 

staff that is based on 

the principles of applied 

behavior analysis 

(ABA).353 As a result, 

these schools often fill 

up quickly and have long 

waiting lists.354

Stories of parents 

who have selected 

a disability-specific 

charter school have been 

highlighted in the media. For example, an article 

appearing in Education Week in 2014 described 

how a parent of an autistic child started the 

Arizona Autism Charter School because she could 

not find a school that could “help [her son] with 

his communication, ease his anxieties, help him 

move forward and make academic progress.” 

This parent noted that her new school had “an 

expertise in autism rarely found in other schools 

unless they’re private.” She pointed out that 

the school filled up almost immediately when 

it opened and that some families had moved to 

Arizona specifically to enroll their child. Moreover, 

[A]ccording to administrators of 

specialized charter schools, parents 

were drawn to the supportive 

culture and low teacher-student 

ratio of these schools as well as 

“the fact that their children would 

have peers who could relate to 

their learning struggles and provide 

support.

92 National Council on Disability
she added: “It’s a huge battle [for parents] to 

get some of those supports in place, so it’s 

understandable that people would opt for a 

school that already has all of that built in.”355

While charter schools focusing specifically 

on students with disabilities offer a valuable 

opportunity for some students, these schools 

run counter to the legal presumption in favor of 

education in the general education classroom.356

Under IDEA, all students with disabilities must be 

educated, to the maximum extent appropriate, 

together with students 

without disabilities, 

and students are to be 

removed from the regular 

educational environment 

“only when the nature or 

severity of the disability 

of a child is such that 

education in regular 

classes with the use 

of supplementary aids 

and services cannot be 

achieved satisfactorily.”357

It is therefore important 

that IEP teams make 

careful determinations 

on a case-by-case basis 

of each student’s LRE with respect to disabilityspecific charter schools. While a charter school 

focused on serving students with disabilities 

might be an appropriate placement for some 

students, it is not automatically appropriate for all 

students with the same disability. Individualized 

placement determinations must be made 

based on the student’s unique educational 

needs and circumstances as set forth in his or 

her IEP and not on “the configuration of the 

delivery system, the availability of educational 

or related services, availability of space, or 

administrative convenience.”358 Such placement 

decisions must ensure that the student is able 

to continue to be involved and make progress 

in the general education curriculum, consistent 

with his or her IEP, and must not be based on 

the student’s specific category of disability359 or 

needed modifications in the general education 

curriculum.360

The extent to which a disability-specific charter 

school is responsible for ensuring that the LRE 

requirements under IDEA 

are being met depends 

on whether the school 

is functioning as its own 

LEA or is part of another 

LEA, as determined 

under state law. When 

disability-specific charter 

schools serve as their 

own LEA, they must 

provide for the availability 

of a continuum of 

alternative educational 

placement options. 

When such schools 

are part of another 

LEA, however, the LEA 

bears this responsibility. Moreover, the charter 

school LEA, or the LEA that includes the charter 

school, must comply with the intrastate transfer 

requirements of IDEA. When a child with a 

disability transfers to a new school district within 

the same state and the child previously “had 

an IEP that was in effect,” the new LEA must 

provide FAPE, “including services comparable 

to those described in the previously held IEP, 

in consultation with the parents until such time 

as the [LEA] adopts the previously held IEP or 

Under IDEA, all students with 

disabilities must be educated, to 

the maximum extent appropriate, 

together with students without 

disabilities, and students are to 

be removed from the regular 

educational environment “only when 

the nature or severity of the disability 

of a child is such that education 

in regular classes with the use of 

supplementary aids and services 

cannot be achieved satisfactorily.

School Choice Series: Charter Schools—Implications for Students with Disabilities 93
develops, adopts, and implements a new IEP 

that is consistent with Federal and State law.”361

OSERS has interpreted “comparable services [to] 

mean services that are ‘similar’ or ‘equivalent’ 

to those that were described in the child’s 

transfer IEP from the previous public agency, 

as determined by the child’s newly-designated 

IEP Team in the new public agency.”362 Although 

the statute and regulations are silent as to the 

timeframe within which the new LEA must adopt 

the previous IEP or develop and implement a 

new IEP, OSERS has stated that these actions 

must take place “within a reasonable period 

of time to avoid any undue interruption in the 

provision of required 

special education and 

related services.”363

Thus, when a student 

newly enrolls in a 

specialized disability 

charter school, the 

school must continue 

to provide the student 

with comparable 

services, including any 

supplementary aids and services, until a new 

IEP is developed. The IEP must also specify the 

extent, if any, to which the child will not be able 

to participate in nonacademic and extracurricular 

activities with children without disabilities, even 

for a portion of the school day. Many specialized 

charter schools offer different opportunities for 

their students with disabilities to interact with 

students without disabilities. Mead found that 

some such schools

located their facilities in or near larger 

typical schools and shared playground and/

or lunch room spaces . . . [while other 

schools] arranged for extra-curricular clubs 

and sports opportunities with typically 

developing children and still others talked 

about community outings as a means for 

students to practice communication and 

other skills with persons who do not have 

disabilities.364

Because specialized charter schools, depending 

on their student population, will likely fall along 

the more restrictive end of the continuum 

of alternative placement options, IEP teams 

must carefully review on an ongoing basis the 

appropriateness of such a placement for each 

child. In particular, 

the IEP team must 

ensure that the child 

could not receive an 

appropriate education 

in a less restrictive 

setting and that the 

student’s educational 

placement will change 

if the specialized charter 

school setting no longer 

remains necessary.365 It is also important for 

SEAs, as part of their monitoring and oversight 

responsibilities under IDEA, to ensure that 

placement determinations regarding specialized 

charter schools are being made appropriately.

Parents who choose to send their child 

to a disability-specific charter school should 

understand that their child will not interact as 

much with students without disabilities, but they 

may decide that the benefits of the specialized 

program outweigh the risks.366 Ari Ne’eman, 

head of the Autistic Self Advocacy Network, 

described the situation as follows: “If we have 

an environment in which autistic people are 

[W]hen a student newly enrolls 

in a specialized disability charter 

school, the school must continue 

to provide the student with 

comparable services, including any 

supplementary aids and services, 

until a new IEP is developed

94 National Council on Disability
over there, in that other classroom, in that other 

environment, it really sends a very clear message 

that we are not a part of your society.” At the 

same time, however, he also noted: “I would 

never ask families to make a political statement 

with their children’s future. . . . I spent time 

in public schools where I was bullied and not 

challenged and underestimated. I know we have 

a really serious problem.”367

Virtual Charter Schools

Another type of charter school that is important 

to consider in the context of students with 

disabilities is the online or virtual charter school.

In contrast to a traditional 

brick-and-mortar school, 

a virtual charter school 

(sometimes referred to 

as a cyber charter school ) 

does not have a physical 

site that students 

attend. Rather, a virtual charter school provides 

instruction through the Internet, with the teacher 

and student separated by time and/or distance.368

Online instruction can occur synchronously (i.e., 

in real time) or asynchronously (i.e., with students 

and teachers interacting at different times).369

Virtual charter schools have become increasingly 

more prevalent over the past two decades. 

While it was estimated that in 2003 there were 

approximately 60 virtual charter schools, serving 

16,000 students,370 a recent report by the 

National Education Policy Center (2018) found 

that for the 2016–2017 school year there were 

203 such schools, enrolling 223,634 students, 

with an average school enrollment of 1,096.371

In another large-scale examination of virtual 

charter schools, Mathematica Policy Research 

(Gill et al., 2015) found that, in contrast to the 

underenrollment of students with disabilities in 

charter schools overall, students with disabilities 

tend to be represented in virtual charter schools 

at approximately the same rate as in public 

schools as a whole.372

At least 20 states currently contain language 

in their charter school statutes regarding virtual 

charter schools.373 Illinois law, for example, 

defines “virtual schooling” as “a cyber school 

where students engage in online curriculum 

and instruction via the Internet and electronic 

communication with their teachers at remote 

locations and with students participating at 

different times.”374 Some state charter school 

statutes also include 

additional requirements 

that virtual charter schools 

must meet beyond what 

is required of charter 

schools in general.375

For example, Idaho law 

requires that, in order to be approved, a petition 

for a new virtual charter school must specify:

(i) The learning management system by 

which courses will be delivered;

(ii) The role of the online teacher, including 

the consistent availability of the teacher 

to provide guidance around course 

material, methods of individualized 

learning in the online course and the 

means by which student work will be 

assessed;

(iii) A plan for the provision of professional 

development specific to the public 

virtual school environment;

(iv) The means by which public virtual 

school students will receive appropriate 

At least 20 states currently contain 

language in their charter school 

statutes regarding virtual charter 

schools

School Choice Series: Charter Schools—Implications for Students with Disabilities 95
teacher-to-student interaction, including 

timely and frequent feedback about 

student progress;

(v) The means by which the public virtual 

school will verify student attendance 

and award course credit. Attendance 

at public virtual schools shall focus 

primarily on coursework and activities 

that are correlated to the Idaho state 

thoroughness standards;

(vi) A plan for the provision of technical 

support relevant to the delivery of 

online courses;

(vii) The means by which the public virtual 

school will provide 

opportunity for 

student-to-student 

interaction; and

(viii) A plan for 

ensuring equal 

access for 

all students, 

including the 

provision of 

necessary hardware, software and 

internet connectivity required for 

participation in online coursework.376

There are a number of reasons why parents 

of students with disabilities may choose to enroll 

their child in a virtual charter school. As with 

other charter schools, parents who select virtual 

charter schools are often seeking an alternative 

to their child’s prior negative experience in 

a TPS.377 In addition, virtual charter schools 

present several potential benefits that may be 

particularly appealing to parents of children with 

disabilities.378 In contrast to traditional brickand-mortar schools, virtual charter schools offer 

greater flexibility with respect to instructional 

timing and scheduling (i.e., learning can occur 

“anytime, anyplace”),379 as well as the pace at 

which students are able to progress through 

the curriculum.380 The use of online learning 

environments also facilitates the presentation of 

instructional materials in multiple formats that 

can serve a variety of learners—for example, 

the combination of online text to support 

visual learning and lecture recordings or webconferencing to support auditory learning.381

Moreover, because teachers and students in 

virtual charter schools have the ability to access 

online student performance data on a more 

regular basis,382 there is 

greater opportunity to 

customize instruction 

to address students’ 

unique learning needs 

and to foster increased 

individualization and 

personalized learning. 

Parents are also able 

to play a more active 

role in their child’s education at a virtual charter 

school, at times serving as their child’s “learning 

coach.” Finally, virtual charter schools can be a 

viable option for students who are challenged in 

their physical ability to attend school,383 including 

those who are at home for medical or disciplinary 

reasons, those who are incarcerated in juvenile 

justice facilities,384 or those who have been 

bullied at their prior public school.

385

While virtual charter schools offer various 

potential benefits, these schools also present 

a number of challenges for the education of 

students with disabilities. First, many of these 

schools struggle with issues of accessibility. 

In contrast to traditional brickand-mortar schools, virtual charter 

schools offer greater flexibility with 

respect to instructional timing and 

scheduling ... as well as the pace 

which students are able to progress 

through the curriculum

96 National Council on Disability
Research from the OSERS-funded Center on 

Online Learning and Students with Disabilities 

found that the content management systems 

(CMS) and learning management systems (LMS) 

that are currently used for online learning in 

elementary and secondary education programs, 

including virtual charter schools, often present 

content that is not fully accessible to some 

students with disabilities.386 Many virtual charter 

schools use prepackaged curricula,387 which are 

difficult to modify or retrofit after the fact.388

Challenges with respect to accessibility can 

have implications under Section 504 and Title II 

of the ADA. Joint guidance issued in 2010 by the 

U.S. Department of Justice’s Civil Rights Division 

and the U.S. Department 

of Education’s OCR 

stated the following:

Requiring use of an 

emerging technology 

in a classroom 

environment when 

the technology is 

inaccessible . . . 

is discrimination 

prohibited by the 

Americans with 

Disabilities Act of 1990 (ADA) and Section 

504 of the Rehabilitation Act of 1973 

(Section 504) unless those individuals 

are provided accommodations or 

modifications that permit them to receive 

all the educational benefits provided by 

the technology in an equally effective and 

equally integrated manner.389

In a subsequent frequently asked questions (FAQ) 

document, OCR provided “a functional definition 

of accessibility,” according to which students 

with disabilities must be given the opportunity 

to “acquire the same information, engage in the 

same interactions, enjoy the same services as 

[students without disabilities] with substantially 

equivalent ease of use.”390 OCR has utilized 

this definition of accessibility while conducting 

compliance reviews of the websites and learning 

environments of virtual charter schools. For 

example, in 2014, OCR entered into a resolution 

agreement with the South Carolina Public Charter 

School District, which served as the LEA for 

seven online charter schools, regarding various 

problems associated with the schools’ websites 

and online learning environments such as images 

that lacked alternative 

text attributes, videos 

that lacked synchronized 

captioning, and PDFs 

that were not accessible. 

As part of the resolution 

agreement, the district 

agreed to take several 

actions to ensure greater 

accessibility.391

Questions have 

also been raised 

regarding the specific 

roles and responsibilities of parents, students, 

and teachers in virtual charter schools. Virtual 

charter schools have extensive expectations of 

parents.392 Because online instruction requires 

self-direction and consistent participation on the 

part of students as well as the ability to navigate 

between various assignments and media, 

parents often find themselves, particularly in 

the elementary and early middle school years,393

taking on a more active role that involves greater 

time and emotional commitment.394 Specifically, 

[V]irtual charter schools can be a 

viable option for students who are 

challenged in their physical ability 

to attend school, including those 

who are at home for medical or 

disciplinary reasons, those who 

are incarcerated in juvenile justice 

facilities, or those who have been 

bullied at their prior public school

School Choice Series: Charter Schools—Implications for Students with Disabilities 97
parents find themselves engaging in tasks such 

as ensuring that their child is logging in on a 

regular basis, helping their child to stay organized 

and manage his or her time, monitoring and 

motivating their child to participate, and carrying 

out various curricular or instructional tasks, 

including making specific adaptions.395 While 

some parents appreciate the opportunity to have 

greater control over their child’s education,396

others have reported feeling overwhelmed by 

it.397 Moreover, not all parents have the ability 

to commit the amount of time and effort that is 

necessary. With respect to the role of students, 

because many students with disabilities 

struggle in the area of 

executive functioning 

and metacognition, they 

may experience particular 

difficulty in persisting 

and completing the 

demands of online 

learning and may, as a 

result, require more support from their parents in 

order to be successful.398 Regarding the roles and 

responsibilities of teachers, many are required 

to engage in tasks beyond instruction—namely, 

managing online environments and, at times, 

troubleshooting technological problems.399 Virtual 

charter schools are often understaffed in the area 

of special education,400 and administrators and 

teachers frequently lack experience in this area.401

A related concern pertains to the extent 

to which virtual charter schools can provide 

appropriate special education and related 

services. As is true for all charter schools, 

virtual charter schools may operate as their 

own LEA or part of another LEA as determined 

under state law.402 In the case of the former, 

the virtual charter school is responsible for 

ensuring the provision of FAPE consistent with 

the requirements of IDEA, unless assigned to 

another entity by the state. Because learning in 

a virtual charter school takes place online rather 

than in a physical classroom, compliance with 

IDEA mandates can be challenging. One example 

is the difficulty associated with providing related 

services such as OT and speech/language therapy 

to students who span such a wide geographic 

area.403 Moreover, virtual charter schools that 

serve as their own LEA may struggle to comply 

with the intrastate and interstate transfer 

requirements of IDEA—namely, to provide 

services comparable to those described in the 

IEP that was previously 

in effect, in consultation 

with the parents, until 

the LEA either (1) adopts 

the previously held IEP 

or develops, adopts, 

and implements a new 

IEP (in the case of an 

intrastate transfer) or (2) conducts an evaluation, 

if determined necessary by the new LEA, and 

develops, adopts, and implements a new IEP 

(in the case of an interstate transfer).404

In an administrative due process hearing 

from Pennsylvania in 2016, an independent 

hearing officer found that the Commonwealth 

Connections Academy Charter School had 

engaged in numerous substantive and procedural 

violations under IDEA associated with the 

intrastate transfer requirements. Although the 

virtual charter school, in its role as an LEA, had 

chosen to adopt the student’s previously held 

IEP from the student’s prior district, the virtual 

charter school failed to implement the live math 

instruction component that was required. In 

addition, the school/LEA failed to provide the 

Because learning in a virtual charter 

school takes place online rather 

than in a physical classroom, 

compliance with IDEA mandates 

can be challenging

98 National Council on Disability
counseling services under the previous IEP or to 

train the parent, the child’s “learning coach,” in 

how to implement the child’s positive behavior 

support plan. The hearing officer found that “the 

evidence here is overwhelming that the Student 

requires structure and consistency, including 

continual prompting, checks for attention and 

behavioral support that while included in the 

transfer IEP were not implemented.” The hearing 

officer further concluded that the administrators’ 

and educators’ “lack of clarity . . . [and] basic 

working knowledge of how to analyze the 

transfer IEP . . . [and] implement and provide 

comparable services contributed to a series 

of . . . serious substantive 

and procedural 

violations.” Moreover, the 

virtual charter school had 

waited nearly six months, 

an “unreasonable” 

amount of time, after the 

student had transferred 

to issue permission 

for an evaluation. 

Additionally, while 

the school used video 

conferencing for IEP meetings, the education 

staff had not always attended these meetings 

or had left the conferencing prematurely. The 

hearing officer ultimately concluded that, rather 

than being driven by the student’s individualized 

learning needs, his educational program was 

determined based on the availability of online 

software programs.405

Finally, there are questions and concerns 

regarding the effectiveness, accountability, and 

funding of virtual charter schools.406 A 2015 

study by CREDO found that attending a fulltime online charter school results in “lessened 

academic growth for the average student” (effect 

size of –0.10 in reading and –0.25 in math).407

A subsequent 2017 CREDO study similarly found 

negative results associated with participation 

in online charter schools.408 The extent to which 

virtual charter schools are being monitored and 

held accountable for the performance of their 

students, however, is an area of concern.409

Questions have also been raised regarding the 

large number of virtual charter schools that are run 

by for-profit EMOs.410 Moreover, there are possible 

issues associated with the funding structure of 

virtual charter schools—namely, unlike traditional 

brick-and-mortar schools, virtual charter schools 

tend to have greater 

start-up costs associated 

with the purchase of 

such items as software 

and online management 

systems but do not 

have some of the same 

ongoing operational 

costs such as those 

associated with physical 

plant maintenance, 

transportation, and 

food services.411 Similarly, there is inconsistency 

across states regarding factors contributing to 

the funding proportions that these schools should 

receive—for example, how to calculate average 

daily attendance in a virtual school setting.412 Given 

the large number of students with disabilities 

enrolled in virtual charter schools, these issues 

warrant further examination.

Summary of Chapter 5

This chapter has focused on two types of charter 

schools: specialized charter schools that are 

designed to serve students with disabilities and 

[T]here are questions and concerns 

regarding the effectiveness, 

accountability, and funding of 

virtual charter schools. A 2015 study

by CREDO found that attending 

a full-time online charter school 

results in “lessened academic 

growth for the average student.

School Choice Series: Charter Schools—Implications for Students with Disabilities 99
virtual charter schools. With respect to specialized 

charter schools, it was shown that, while some 

schools focus on multiple disability categories, 

others (approximately 38 percent) focus on a 

particular disability category. Among the latter 

group, emotional disabilities and autism were the 

most common categories. Specialized charter 

schools can be appealing to parents of students 

with disabilities because they have a smaller 

teacher-student ratio, allow students to interact 

with peers who can relate to their learning 

challenges, and provide more intensive and 

focused instruction for specific disabilities. It was 

further shown, however, that a major concern 

with these schools is that they run counter to 

the presumption in favor of education in the 

general education classroom. Determinations 

must be made on a case-by-case basis regarding 

a student’s lawful placement in a charter school 

consistent with LRE. If a student with a disability 

wishes to enroll in a disability-specific charter 

school, the IEP team must comply with the 

intrastate transfer requirements of IDEA, must 

consider opportunities for the student to interact 

with students without disabilities, and must 

monitor the placement decision on an ongoing 

basis to determine whether it is no longer 

necessary.

The chapter then addressed the experience 

of students with disabilities in virtual charter 

schools. These schools differ from traditional 

brick-and-mortar schools and provide instruction 

online through the Internet. Students with 

disabilities enroll in virtual charter schools in 

similar proportions to TPS. Virtual charter schools 

can be an appealing alternative to TPS for 

students with disabilities because virtual charter 

schools allow for flexible timing and scheduling 

of learning, presentation of materials in multiple 

formats, and increased opportunities for 

individualization and personalized learning. At the 

same time, there are potential areas of concern 

with respect to virtual charter schools and 

students with disabilities. There are questions 

regarding the extent to which their curricular 

materials and websites are fully accessible. In 

addition, students who struggle with executive 

functioning may find it difficult to complete the 

self-paced nature of online learning. Similarly, 

parents are often expected to play an active and 

time-consuming role in their child’s education. 

Moreover, virtual charter schools may struggle 

to provide the range of services necessary to 

educate students with disabilities, including 

related services. Finally, questions have also been 

raised regarding effectiveness, accountability, 

and funding with respect to virtual charter 

schools. Because large numbers of students with 

disabilities enroll in virtual charter schools, these 

issues need to be explored further.

100 National Council on Disability
As polarizing as the debate over charter 

schools has become, it is clear that charter 

schools are not a monolithic group. Some 

charter schools are well managed, maintaining 

a focus on effectively educating all enrolled 

students and demonstrating academic growth 

and improved educational outcomes, while also 

remaining well-connected to their neighborhoods 

and communities. Others, however, are operated 

by distant corporations that are unconnected to 

the community of learners they serve and lack 

any meaningful state or 

federal oversight. The 

present chapter reviews 

research focusing on the 

outcomes of students 

with disabilities in 

charter schools and then 

discusses the monitoring 

and oversight of charter schools with respect to 

the education of students with disabilities.

Outcomes of Students with 

Disabilities in Charter Schools

Research examining the effectiveness of charter 

schools for all students, as well as for students 

with disabilities, has shown varying results. 

Access to national longitudinal data on student 

test scores provides researchers a key tool for 

examining academic growth over time and has 

led to the publication of numerous studies. 

Despite the volume of research that has been 

generated, however, there is currently no 

agreement among researchers regarding the 

effect of charter schools on student achievement. 

This lack of consensus is due in part to 

questionable research designs, discrepancies 

in methodologies, failure to consider conflicting 

research, and concerns about generalizability. 

As described by current research, “the average 

charter school performs about the same as 

nearby traditional public 

schools in boosting 

student achievement.”413

It is even more 

challenging to determine 

the effect of charter 

school attendance 

on the performance 

of students with disabilities. In part, this is a 

result of their limited enrollment by grade and, 

because test performance data is collected, 

disaggregated by subgroup, and reported only 

if not inconsistent with the n size that protects 

student confidentiality. CREDO conducted three 

large-scale, multistate studies of charter schools 

in 2009, 2013, and 2015. These studies are often 

cited as evidence that students enrolled in charter 

schools demonstrate increased academic growth 

over time and that they outperform their TPS 

Chapter 6: Accountability for Students 

with Disabilities in Charter Schools

As described by current research, 

“the average charter school 

performs about the same as 

nearby traditional public schools in 

boosting student achievement.

School Choice Series: Charter Schools—Implications for Students with Disabilities 101
peers. Each study relied on a nonexperimental 

method that through a Virtual Control Record 

(VCR) matched each charter student to a “similar” 

TPS student based on observable characteristics. 

It is likely, however, that this methodology would 

introduce bias with respect to students with 

disabilities, particularly students with high-level 

needs. One of the characteristics used for 

matching is a baseline test score that the authors 

included. As a result, the studies might compare 

the achievement of charter and TPS students 

with similar levels of prior achievement.414 The 

authors of the 2013 CREDO study acknowledged 

that they grouped all students with disabilities 

together regardless of disability-related needs:

It is difficult to compare the outcomes of 

Special Education students, regardless 

of where they enroll. In the ideal, we 

would compare outcomes for each . . . IEP 

designation. That approach is infeasible due 

to the large number of categories and the 

relatively small number of students in each; 

matching with the VCR approach would 

result in only a handful of matches. Faced 

with this challenge, we aggregate across all 

categories of special education.415

Because the authors combined all students with 

disabilities, the result is unclear.

Numerous other studies of charter school 

effectiveness have relied on a lottery-based 

methodology, which allows researchers to study 

oversubscribed charter schools and follow a 

randomized admission design in which they 

compare achievement growth of students who 

were lottery “winners” to the lottery “losers” 

who stay enrolled at TPS. A number of these 

lottery-based studies have revealed some 

positive effects in academic achievement gains 

for the lottery “winners.”416 Additional research 

is needed, however, to consider alternative 

methodologies, given the difficulty in applying 

this methodology to students with disabilities 

with highly individualized learning needs, and 

given that any effects of this lottery-based 

methodology can be generalized only to the 

population of students who actually enter the 

lottery.417

Researchers who used experimental and 

quasi-experimental methods in their studies, 

including the CREDO studies, have shown 

positive, neutral, and negative effects.418 A 

number of lottery-based studies have revealed 

some positive effects in academic achievement 

gains for the lottery “winners.”419 Compared 

to studies of a single charter school (e.g., the 

Harlem Children’s Zone),420 studies that followed 

a broader sample of schools with lottery-based 

randomized designs revealed more mixed effects 

on student achievement.421 Moreover, in 2010, 

Gleason and colleagues (2010) undertook a major 

study of 36 charter schools in 15 states that 

resulted in a finding of no significant effects on 

either mathematics or reading.422

Taken together, the findings of these studies 

show that on average students in charter schools 

perform in a manner that is similar to, but not 

better than, TPS. In a meta-analysis by Betts 

and Tang (2014) of the lottery-based studies and 

subset of more rigorous quasi-experimental 

analyses, the researchers found that charter 

schools produce higher achievement gains 

in mathematics than do TPS, but found no 

discernible difference in reading achievement 

between the charter schools and TPS.423 In a 

recent review of research examining charter 

school impacts, Cohodes (2018) concluded that, 

102 National Council on Disability
although on average charter schools perform 

approximately the same as TPS, a group of urban 

charter schools serving low-income students 

of color, many of which follow a “no excuses” 

model, have shown large, statistically significant 

impacts on test scores.424 For example, in a 

report examining charter schools in Boston, 

Setren (2016) found that students with disabilities 

attending these schools achieved large, positive 

effects on math and English test scores.425

Additional discussion is warranted to clarify 

reporting of “effect” sizes that are frequently 

described to indicate without context that 

students with disabilities 

experience “strong” or 

“large” academic gains 

in charter schools,426

or significant gains for 

charter school students 

in reading, equivalent 

to six additional days of 

learning as compared 

to TPS.427 Moreover, it 

is important to point 

out that all of these 

studies have focused 

on academic achievement typically measured 

only by test performance. More research 

is needed to consider evidence of benefits 

apart from academic achievement based on 

test scores such as educational attainment, 

postgraduation employment and education rates, 

civic involvement, social skills development, and 

school climate effects on individual behavior.

Charter School Monitoring, 

Oversight, and Accountability

As charter schools have expanded over time, 

concern about a lack of accountability and 

rigorous oversight by charter authorizers as well 

as by all levels of government—local, state, and 

federal—has been a recurring theme. Moreover, 

in light of the various challenge areas discussed 

in earlier chapters of this text, questions have 

been raised regarding the nature and efficacy 

of specific monitoring and oversight activities 

pertaining to the provision of special education 

services in charter schools. The present section 

examines the extent to which entities responsible 

for monitoring and oversight hold charter schools 

accountable for the education of students with 

disabilities in these schools.

Chapter 1 described 

the varied types of 

charter authorizers 

established under state 

law as well as the critical 

role that authorizers 

can play with respect to 

monitoring and oversight. 

For example, authorizers 

are responsible initially 

for screening and 

managing the process 

for determining which 

applicants are awarded a charter. In addition, 

authorizers are responsible for overseeing 

financial and organizational matters as well as 

for monitoring whether charter schools attain 

academic performance standards and are in 

compliance with federal and state regulations 

and civil rights laws. Moreover, authorizers 

are responsible for holding charter schools 

accountable for meeting the terms and missions 

of their charters by making determinations 

regarding charter renewals and revocations as 

well as school closures. Authorizers oversee 

from 1 to more than 1,000 charter schools 

More research is needed to consider 

evidence of benefits apart from 

academic achievement based on 

test scores such as educational 

attainment, postgraduation 

employment and education rates, 

civic involvement, social skills 

development, and school climate 

effects on individual behavior

School Choice Series: Charter Schools—Implications for Students with Disabilities 103
and vary in their managerial leadership, skills, 

responsibility, and willingness to close down 

poor-performing or noncomplying charter schools. 

In 2015, CER reported that, of the approximately 

6,700 charter schools that had opened across 

the nation since 1992, approximately 1,035, or 15 

percent, had closed. Most closures (42 percent) 

were attributed to financial setbacks related to 

low enrollment or inadequate funding, while 24 

percent were related to mismanagement, and 

fewer than 20 percent resulted from students not 

meeting expected performance standards.428

In 2016, the Education Trust-Midwest 

published a report that discussed the varying 

patterns of oversight and accountability on the 

part of charter school authorizers. For example, 

the report described 

Michigan’s system of 40 

authorizers—among the 

highest in the nation—

including the state’s 

three largest authorizers, 

two state universities, 

and a community 

college. These three authorizers had granted 

charters to schools educating approximately 

85,000 students—more than half of the state’s 

145,000 charter school students—without any 

coherent criteria or system for accountability.429

The report also highlighted the especially poor 

achievement and graduation rates of ELs and 

students with disabilities in these schools. The 

report contrasted Michigan’s support for charter 

growth without restriction or accountability 

with the deliberate evolution of charter growth 

and oversight in Massachusetts. With the 

state Board of Education serving as its sole 

authorizer, Massachusetts was commended for 

its leadership and cautious, responsible oversight 

of the authorizing process. In addition, the state’s 

authorizing statute was amended in 2010 to allow 

the Board of Education to grant a limited number 

of additional charters only to applicants which 

could demonstrate that they were a “proven 

provider,” with a record of success serving 

students who are eligible for free or reduced 

lunch, require special education services, or have 

limited English proficiency.430

Limited research exists regarding the extent 

to which charter authorizers are carrying out 

their monitoring and oversight responsibilities in 

special education. In 2015, as part of its annual 

survey of charter school authorizers across the 

country, NACSA included a series of questions 

specifically asking about authorizer practices with 

respect to the oversight 

and accountability 

of charter schools in 

serving students with 

disabilities.431 The 

questions focused on 

various phases of the 

oversight process, 

including the initial application phase, ongoing 

monitoring phase, and renewal/revocation 

phase. The reported responses reflect a range 

of perspectives across charter authorizers. In 

presenting the results, NACSA also included the 

reactions of four individuals identified as experts 

on the intersection of charter schools and special 

education.432

Responses to survey questions about 

authorizer practices related to the charter 

application phase reveal that authorizers could 

be doing more in this area. For example, in 

response to the question of whether authorizers 

require charter applications to have marketing/

outreach plans for students with disabilities, 

Limited research exists regarding 

the extent to which charter 

authorizers are carrying out 

their monitoring and oversight 

responsibilities in special education

104 National Council on Disability
only 25.7 percent answered “yes,” and only 36.8 

percent indicated that they required applications 

to include specific student outcomes for this 

population.433 Azure Angelov, Senior Director 

at Goodwill Education Initiatives, one of four 

reviewing experts, expressed serious concern 

about these results. She noted that “authorizers 

[are required to] collect written assurances 

that schools will follow federal and state laws 

specific to students with IEPs (including federal 

law that specifies academic improvement for 

most students with IEPs).” She was, therefore, 

surprised that “authorizers don’t use more tools 

to understand applicant plans for recruiting 

students with IEPs or ensure applicants have a 

high bar for outcomes.” She further observed:

By requiring schools to provide 

comprehensive descriptions of special 

education services in their applications, 

authorizers lay the ground work for a 

school to be more informed and aware of 

the realities if offering high-quality special 

education programs and series that align 

with their mission and vision. A proactive, 

hearty application process is the best 

asset for ensuring all students in an 

authorizer’s portfolio [receive a high-quality 

education].434

With respect to the ongoing monitoring of 

charter school performance in special education, 

including the provision of technical assistance, 

on the one hand, 80.6 percent of the authorizers 

responded that they do not require information 

about special education enrollment rates, and 

63.9 percent indicated that they do not require 

special education student outcomes data. On the 

other hand, almost 85 percent indicated that they 

collect or receive special education enrollment 

data, 76.4 percent do the same for special 

education student outcome data, and 79.2 

percent monitor the percentage of students with 

disabilities enrolled in each school. Moreover, 

69.4 percent reported that they provide some 

form of direct technical assistance for special 

education.435

An issue of transparency also seems to be 

highlighted, as only 55.6 percent of responding 

authorizers indicated that they report the 

percentage of students with disabilities enrolled 

in authorized schools; only 28.5 percent report 

enrollment data disaggregated by race/ethnicity 

or identified disability; and 46.5 percent report 

student outcomes for students with disabilities.436

Although some of these responses may be 

influenced by a concern based on disclosure of 

personally identifiable information because of the 

low cumulative enrollment number of students 

with disabilities or based on type of disability, the 

report contained no such caveat. At the same 

time, assuming the lack of transparency is not 

related to n size considerations, the failure to 

collect and report this information as part of the 

accountability system is unfortunate.

In response to questions about proportional 

enrollment, 76.4 percent of respondent 

authorizers agreed or strongly agreed with the 

principle of proportionality: Charter schools 

should enroll students with disabilities at 

rates similar to the local community in which 

the charter school is located.437 Lauren Rhim, 

Executive Director and co-founder of NCSECS, 

another reviewing expert, noted the following 

regarding proportionality: “While imperfect—for 

instance, many districts over identify students 

with disabilities—proportionality is a readily 

available proxy for equity.”438 At the same time, 

School Choice Series: Charter Schools—Implications for Students with Disabilities 105
the authorizers were split on the degree to which 

they ought to be enforcing special education 

enrollment proportionality, with almost half of 

them (49.3 percent) agreeing or strongly agreeing 

that they have an enforcement role in this 

context. About 56 percent of the respondents 

disagreed or strongly disagreed that enforcing 

enrollment proportionality was a violation of 

charter school autonomy. Somewhat fewer—45.8 

percent of authorizer respondents—felt that 

charter schools should not have full autonomy 

in recruitment and enrollment of students with 

disabilities.439

Finally, authorizers were also asked about 

a number of practices for addressing special 

education challenges that they had used during 

the last two years, that were currently in place, 

or that were practices the authorizer would 

consider using in the future. Respondents 

reported the following with respect to particular 

practices—namely, about 30 percent responded 

affirmatively with respect to staffing plans, school 

special education policies, and school enrollment 

practices; 39.6 percent indicated yes to changing 

a school’s remediation or action plan; and 13.2 

percent reported yes to revoking or not renewing 

a charter for persistent special education 

violations.440

Several experts reviewing the NACSA survey 

data commented on the fact that only 13 percent 

of authorizers reported that they would be willing 

to close charter schools for persistent special 

education violations. For example, Robin Lake, 

Director of the Center on Reinventing Public 

Education at the University of Washington, 

stated:

So it seems that authorizers are generally 

unwilling to close a school that is failing 

to comply with federal or state law, but 

they are also unwilling to require the 

school to make changes to its special 

education program, presumably because 

the authorizers see this as infringement on 

charter autonomy.441

Similarly, Lauren Rhim noted:

If many authorizers are not tracking these 

data or willing to meaningfully hold charter 

schools accountable (i.e., threaten to revoke 

or nonrenewal) for persistent violations 

related to special education, what in 

practice is the real consequence for schools 

failing students with disabilities?

She also asked whether states and authorizers 

“are implicitly or explicitly deciding they do 

not need to hold charter schools accountable 

for equitable access and quality programs for 

students with disabilities.”442

With respect to monitoring and oversight at 

the state level in its role as the SEA, in accepting 

funds under the ESEA, the SEA agrees to ensure 

that the public chartering agency, or authorizer, 

of any charter school that receives funds under 

the state program adequately monitors each 

charter school under the authority of such agency 

in recruiting, enrolling, retaining, and meeting 

the needs of all students, including children with 

disabilities and ELs.443 States vary, however, 

in the extent to which they hold authorizers 

accountable for evaluating the performance of 

the schools within the authorizer’s portfolio and 

for deciding the consequences, including in 

some cases, revoking the charter, and closing the 

school. In 2015, a report from two organizations, 

Integrity in Education and the Center for Popular 

Democracy, presented evidence of inadequate 

106 National Council on Disability
oversight of the charter school industry. The 

authors studied 15 states and determined 

that $136 million was lost to fraud and abuse. 

The report found fraud and mismanagement 

on the part of charter operators with respect 

to the following six areas: using public funds 

illegally, using tax dollars to illegally support 

noneducational businesses, mismanaging the 

school in a manner that put children’s health or 

safety in potential danger, illegally taking public 

dollars for services they did not provide, inflating 

their enrollment numbers to boost revenues, 

and carrying out general mismanagement of 

public funding. The report faulted “the rapid 

expansion of the charter sector in recent years 

[as] a particularly 

important factor in 

the fraud epidemic.” It 

concluded that “local 

and state entities 

charged with oversight 

of charter schools 

are quickly becoming 

overwhelmed.”444

Finally, with respect to oversight and 

accountability at the federal level, an audit by 

the U.S. Department of Education’s Inspector 

General’s Office found that the U.S. Department 

of Education failed to exercise adequate oversight 

of the federal CSP through which it provides 

multimillion-dollar grants to SEAs and CMOs for 

the creation and expansion of charters. The audit 

found that “charter school relationships with 

CMOs posed a significant risk to Department 

program objectives.” Of the 33 charter schools 

reviewed, 22 presented numerous examples 

of internal control weaknesses related to the 

schools’ relationships with their CMOs. From the 

examples of internal control weaknesses, the 

Inspector General identified three “significant 

risks to Department program objectives”: 

financial risk, lack of accountability over federal 

funds, and performance risk.445

One of the extreme examples of the lack 

of federal and state oversight pertains to the 

experience of charter schools in Ohio. According 

to an article published by Progressive, in 2015, 

following a rapid expansion of charter schools, 

Ohio applied for and was given a $71 million 

grant—the largest grant awarded by the 

federal CSP program that year. After serious 

improprieties and misrepresentations by the 

state school choice director and author of the 

CSP application were discovered, the Department 

of Education placed a 

hold on the grant. A year 

later, however, despite 

characterizing the grant 

as “high risk” and 

requiring certain steps 

by the state to ensure 

compliance with federal 

law, the Department 

released the $71 million to Ohio.446

The federal ESSA is now primed to assist and 

prod states that do not have plans for ensuring 

authorizer accountability, including monitoring 

performance, reporting, and revoking charters, as 

warranted. As a condition of SEAs obtaining CSP 

grants for start-up and implementation of charter 

schools, the state must describe how it will 

provide oversight with respect to authorizing—for 

example, “by establishing authorizing standards 

that may include approving, monitoring, and 

re-approving or revoking the authority of an 

authorized public chartering agency based on the 

performance of the charter schools authorized” 

(emphasis added).

Of the 33 charter schools reviewed 

[by the ED Inspector General], 22 

presented numerous examples of 

internal control weaknesses related 

to the schools’ relationships with 

their CMOs

School Choice Series: Charter Schools—Implications for Students with Disabilities 107
Summary of Chapter 6

This chapter has described the limited known 

outcomes—“similar, not better” results based 

on test outcomes—for students with disabilities 

who are enrolled in charter schools on average 

compared to their TPS peers. It examined 

some of the challenges and difficulties faced 

by researchers attempting to isolate those 

outcomes, and the different methodologies 

relied upon in their multiple studies, including 

the VCR match used by CREDO, lottery-based 

methodology comparing “winners” and “losers,” 

lottery-based randomized 

designs, and large-scale 

and single-focused 

studies. It identified 

the need to clarify 

“effect” size, because 

without context or clarity 

concerning sample size, 

the way it is being used 

in the research can be 

misleading.

This chapter also focused on the lack 

of accountability and oversight by charter 

authorizers as well as all levels of local, state, 

and federal government. Despite authorizers 

having state statutorily granted duties and 

responsibilities, there is too little evidence 

that charter authorizers are fulfilling their 

oversight responsibilities to hold charter 

schools accountable for ensuring open and 

fair enrollment of students with disabilities, 

providing specialized instruction and related 

services through a continuum of alternate 

placements, or helping to ensure improved 

academic performance outcomes of students 

with disabilities through effective intervention, 

renewal, or revocation of the charter. Reports by 

CER and Education Trust-Midwest include bleak 

examples of charter authorizers’ limited sense of 

responsibility to the schools within their portfolio. 

Much of this information is confirmed by the 

self-reported responses to the 2018 NACSA 

survey of authorizers about their perceived roles 

and responsibilities 

for overseeing charter 

schools in their delivery 

of special education, 

as well as what the 

authorizer is willing 

to do in response to 

persistent failure—for 

example, whether to 

require the applicant to 

submit an outreach and recruitment plan that 

might help increase enrollment of students with 

disabilities; whether to establish performance 

outcomes expected for students with disabilities; 

and whether to require collection and public 

reporting of data regarding enrollment, academic 

performance, suspension, and attendance 

disaggregated by disability. The chapter 

concluded with two disturbing accounts involving 

federal and state oversight or lack thereof, which 

resulted in a report by the Inspector General.

Despite authorizers having state 

statutorily granted duties and 

responsibilities, there is too little 

evidence that charter authorizers 

are fulfilling their oversight 

responsibilities to hold charter 

schools accountable 

108 National Council on Disability
Chapter 7: Potential Implications of Charter 

Schools for Students with Disabilities in Traditional 

Public Schools

Chapter 7 briefly describes how the 

growth and expansion of charter schools 

can have a negative effect on the 

education of students with disabilities who 

remain in TPS—in particular, those with more 

significant disabilities and greater educational 

needs. This chapter first discusses the fact 

that, because TPS have to address the loss of 

revenue resulting from the decline in student 

enrollment but not necessarily their more fixed 

operating costs, their 

students, in particular 

those with more 

significant disabilities, 

may experience a 

range of undesirable 

outcomes, including 

increased class 

sizes and student-toteacher ratios, limited 

access to resource specialists, and possible 

school closures. Moreover, because the 

majority of charter schools are geographically 

located in urban, less affluent areas, they 

disproportionately educate students of color. At 

the school level, individual charters tend to be 

more racially homogeneous, reflecting higher 

rates of segregation by race, ethnicity, and 

income than neighboring TPS.

Potential Fiscal Impact on Students 

with Disabilities in TPS

As described in Chapter 1, support for public 

education in most states relies on a combination 

of federal and state categorical funds, state 

per-pupil formula-based foundation funding, and, 

to a lesser extent, local funds based, in part, on 

property taxes. When special education funds, 

especially those that are census based, are 

directed away from TPS and channeled to charter 

schools, TPS school 

districts can experience 

a negative fiscal impact. 

More specifically, as 

charter schools expand, 

TPS experience a decline 

in their enrollment 

and revenue but not 

necessarily their 

more fixed operating costs.447 The size of this 

fiscal impact varies, depending on a variety of 

factors, including “the share of students lost 

to charters, the flexibility that districts have to 

adjust various components of their education 

budgets, as well as the types of students who 

enroll in charter schools.”448 Although TPS districts 

may experience some savings as they educate 

fewer students, these districts must still find 

ways to meet their fixed operating costs. To 

When special education funds, 

especially those that are census 

based, are directed away from TPS 

and channeled to charter schools, 

TPS school districts can experience 

a negative fiscal impact

School Choice Series: Charter Schools—Implications for Students with Disabilities 109
address potential financial shortages, districts 

might engage in a number of practices, such as 

reducing staff and resources or closing schools.449

The result is a decline in programs and services 

to students who remain in TPS. Of particular 

concern are students with more significant 

disabilities who are already underrepresented 

in charter schools compared to their sending 

districts.450 The needs of 

these students are not 

typically as easily met in 

full inclusion classrooms 

and are generally 

associated with higher 

staffing costs. Studies 

have found that “charter 

schools serve fewer 

students with costly 

special needs, leaving 

proportionately more 

of these children in district schools. Perhaps 

most important, the assumption that revenue 

reductions and enrollment shifts cause districts 

no measurable harm . . . ignores the structure 

of operating costs and 

dynamics of cost and 

expenditure reduction.”451

Likely adopted 

out of concern for 

overidentification of 

students with disabilities, 

a fixed census-based figure (e.g., 11.12 percent 

without adjustment) creates two potential 

problems with respect to charter schools. First, 

charter schools have no financial incentive to 

enroll special education students, especially 

those students with more significant needs 

who may require greater resources because 

charters receive a flat percentage of funding (as 

determined by the census data) regardless of the 

characteristics of the students enrolled. In this 

instance, charter schools receive funds for special 

education costs of students who are not enrolled. 

Second, the funding that flows to a charter school 

that is not serving its census-based allocation of 

students with disabilities drains the local district 

of funds intended for the additional education 

costs of students with disabilities, who remain in 

the local district.

Further complicating 

the charter/TPS funding 

dichotomy is a charter 

school’s decision as 

to whether to backfill 

spots for students who 

disenroll for various 

reasons after state 

and federal funding 

reporting deadlines, 

typically October 1. 

A charter school that does not backfill an empty 

seat after October 1 will be “unjustly enriched,” 

having received federal and state allocations in 

excess of its actual current student enrollment. 

In this situation, a 

school district is “doubly 

burdened” with providing 

educational services to 

a returning student for 

whom the district has not 

received a proportionate 

allocation of funds. The compounded loss of 

funding ultimately borne by the district can 

have a particularly harsh effect on students with 

disabilities who may be disenrolled from charter 

schools and then return to or remain in TPS with 

educational needs that are potentially costlier.

In order to help alleviate the negative fiscal 

impact on TPS, 23 states have set a cap on the 

growth of charter schools.452 Statutorily imposed 

[T]he funding that flows to a charter 

school that is not serving its censusbased allocation of students with 

disabilities drains the local district 

of funds intended for the additional 

education costs of students with 

disabilities, who remain in the local 

district

In order to help alleviate the 

negative fiscal impact on TPS, 

23 states have set a cap on the 

growth of charter schools

110 National Council on Disability
caps have been the subject of serious debate; 

in Massachusetts, for example, voters in 2015 

overwhelmingly rejected a ballot initiative to 

lift the cap.453 Proponents of lifting the cap 

argued that it would enable larger numbers of 

disadvantaged students to attend charter schools 

with strong records of academic performance.454

Moreover, proponents argued that charter 

schools do not create a negative financial 

impact on TPS; they pointed to a provision of 

Massachusetts law that authorizes the legislature 

to appropriate transition funding to reimburse 

districts for an amount up to the per-pupil funding 

that the district would have received had the 

student not left to go to a charter school.455

Opponents of lifting the cap on charter schools 

in Massachusetts argued that doing so would 

exacerbate existing educational disparities in 

large urban districts, where budget shortfalls 

were already causing cuts to services for certain 

groups of students, including students with 

disabilities and ELs. Furthermore, opponents 

argued that, because charter schools fail to 

recruit and retain the full range of students 

with disabilities in a proportionate manner 

to their sending districts, eliminating the cap 

would contract, rather than expand, the number 

of quality educational offerings from which 

these particular students could choose.456 In 

April 2018, the state Supreme Judicial Court 

of Massachusetts rejected a challenge to the 

constitutionality of the state-imposed cap457 that 

was brought on behalf of waitlisted students 

who were unsuccessful in gaining admittance 

to certain charter schools in Boston. The court 

found that the student plaintiffs seeking to lift 

the cap had no individual right to attend a charter 

school and that the cap did not interfere with 

their right to receive an adequate education in the 

Commonwealth’s public schools. In upholding the 

rational basis of the state statute imposing the 

cap, the court explained:

The charter school cap reflects the 

education interests of students in the 

Commonwealth who do not attend 

charter schools. . . . [F]unding for charter 

schools necessarily affects the funding 

for traditional public schools. The cap is 

an effort to allocate education funding 

among all the Commonwealth’s students 

attending these two types of publicly 

funded schools. Because of the statutory 

funding mechanism that mandates payment 

of charter school tuition from resources that 

would otherwise go to traditional public 

schools, the expansion of charter schools 

has detrimental effects on traditional public 

schools and the students who rely on those 

schools and their services.458

The court specifically identified one of two459

other possible legitimate bases for the legislature 

placing limits on charter schools, namely, “a 

limit on charter school growth permits education 

administrators to assess, manage, and develop 

for replication any innovative educational 

practices that develop in charter schools for the 

students enrolled in traditional public schools.”460

One of the few studies examining the 

fiscal impacts of charter schools on TPS was 

undertaken by Bifulco and Reback (2014), who 

reported that in a single academic year the Albany 

school district lost $23.6 to $26.1 million and the 

Buffalo school district lost $57.3 to $76.8 million 

to charter schools. The charter schools in each 

district enrolled smaller percentages of ELs than 

did TPS, and charter schools in Albany enrolled 

significantly fewer students with disabilities. 

Because TPS in the school districts continued to 

School Choice Series: Charter Schools—Implications for Students with Disabilities 111
serve a disproportionate percentage of students 

from these subgroups, the districts bore the 

impact of higher levels of spending associated 

with educating these students in need of more 

intensive language development services and 

special education and related services while they 

were unable to reduce sufficiently fixed operating 

costs.461

Subsequent research by Ladd and Singleton 

(2018) of fiscal externalities (i.e., the additional 

burden that charter schools place on the budgets 

of TPS) focused on a single urban school district 

and five nonurban districts in North Carolina. 

The study found that, as a cap on the number 

of charters allowed was 

lifted, the rapid increase 

in charters imposed 

serious negative fiscal 

impacts on TPS in 

the six North Carolina 

school districts.462

Ladd and Singleton 

collected financial 

data on local school 

district expenditures, 

categorizing them as variable costs that were 

dependent on student enrollment and easier 

to adjust, in comparison to fixed costs such as 

with respect to facilities and administration. 

Similar to Bifulco and Reback, the researchers 

determined that, compared to TPS, the charter 

schools served smaller proportions of students 

with disabilities, in general, as well as smaller 

proportions of students with more serious needs 

associated with more costly services. In part, 

because North Carolina relies on a census-based 

formula (i.e., one that is fixed and makes no 

distinction based on the severity of needs of a 

child with a disability), the adverse fiscal impact is 

exacerbated on the TPS that serve those children 

with more significant needs. Moreover, Ladd and 

Singleton found that, because of fixed costs, the 

districts were unable to reduce their spending in 

line with the loss of students who were spread 

across schools and grades. Based on the excess 

cost per student enrolled in a charter school, 

the researchers calculated a financial burden 

of approximately $3,500 per charter school 

enrollee in Durham, a county district with an 

enrollment of 33,000 students and 15 percent 

of students enrolled in charter schools. They 

reached a similar conclusion with respect to the 

financial burdens for two of the five nonurban 

districts with increasing 

shares of charter school 

enrollments.

Ladd and Singleton 

recommended that the 

state respond with some 

urgency to their findings 

of negative externalities 

to “ease the adverse 

fiscal impact” of charter 

schools on TPS. Based 

on their findings, the authors also suggested that 

the state (in North Carolina, the SEA is the sole 

authorizer of charter schools) consider providing 

short-term financial assistance to local districts 

in transition in order to help compensate for loss 

of revenue, perhaps following the example of 

Massachusetts that, as noted, provides transition 

help through reduced reimbursement over a sixyear period, subject to state appropriation.463 As a 

matter of public policy, the researchers noted that 

even if the growth of charter school enrollments 

ultimately abates, implicit in the existence of two 

sectors is duplication of functions and services 

that adversely affect the TPS district. The authors 

[T]he researchers noted that even 

if the growth of charter school 

enrollments ultimately abates, 

implicit in the existence of two 

sectors is duplication of functions 

and services that adversely affect 

the TPS district

112 National Council on Disability
further note that the variable charter landscape, 

with schools opening and closing for different 

reasons, can create uncertainty in long-term 

planning and efficiencies for the TPS district.

A recent study of three large urban school 

districts in California—Oakland Unified, San Diego 

Unified, and East Side Union—conducted by 

economist Gordon Lafer (2018), examines this 

latter point in more depth. Lafer estimates annual 

“unavoidable” costs to the districts because of 

charter school expansion at about $142 million. 

Because the TPS districts “cannot turn students 

away,” Lafer explains, “they must maintain a large 

enough school system to accommodate both 

long-term population growth and sudden influxes 

of unexpected students—as has happened 

when charter schools suddenly close down.”464

Following Ladd and Singleton’s logic with 

respect to fixed costs that cannot be reduced 

when a student leaves a neighborhood school, 

Lafer states: “In every case [of charter school 

expansion], the revenue that school districts 

have lost is greater than the expenses saved 

by students transferring to charter schools.” 

With California experiencing unparalleled charter 

school expansion of 900 percent in the last 

decade, the report explains that the high cost 

of supporting a separate charter school system 

makes it difficult for the district to fund key goals 

such as smaller class sizes and support services 

for low-income students. According to the 

report, none of the districts were in fiscal crisis 

because of problems “unique to their districts.” 

Yet, each, because of serious shortfalls resulting 

in significant part from unregulated expansion of 

charter schools, was required to make deep cuts 

that have serious implications for their students, 

including those with IEPs and greater educational 

needs. San Diego Unified officials outlined up to 

$53.45 million in cuts in 2018, with the largest 

possible cuts based on a survey sent to parents 

being proposed from health services, preschool 

programs, custodial services, special education, 

mental health services, and professional 

development.465

The report underscores the difficulty of TPS 

educating those “students with the highestneed . . . but without the resources to serve 

them.”466 As described in Chapter 1, the way 

in which states fund special education is 

relevant. In California, special education funding 

is apportioned in equal shares on a per-pupil 

basis according to each school’s average daily 

attendance, “irrespective of the number of 

enrolled students with disabilities.”467 For 

example, in 2015–2016, charter schools enrolled 

28 percent of all Oakland area students, and 

based on the state special education funding 

model, charter schools received 28 percent 

of all special education funding for Oakland 

area students. This was true even though the 

charters enrolled only 19 percent of the total 

number of students with disabilities. Moreover, 

the 19 percent special education population 

was comprised primarily of students with IEPs 

who had less need for specialized instruction 

and related services, including transportation.468

Oakland area charters served only 8 percent of 

autistic students, 6 percent of students with 

intellectual disabilities, and 2 percent of students 

with multiple disabilities.469 Due at least in part 

to a state funding formula that did not anticipate 

the existence of autonomous schools of choice 

that could serve a different proportion of students 

with disabilities, charter schools are being funded 

for more students with disabilities than they 

actually enroll. Consequently, Oakland Unified 

School District had to divert funds from general 

School Choice Series: Charter Schools—Implications for Students with Disabilities 113
education to cover shortfalls in special education 

funding of $51.5 million.470

Similar to Ladd and Singleton, the study 

further found that measured as per-pupil cost, 

the “net impact of each student who transfers 

from a [TPS] to a charter school to be [sic] 

approximately $5000 in San Diego, $5700 in 

Oakland, and $6600 in the East Side district.” The 

report acknowledges that while charter schools 

are not the sole cause of inadequate school 

funding, they “greatly exacerbate this problem.” 

Acknowledging the impact to students in TPS, 

particularly those with significant disabilities 

requiring more intense services, the report 

makes two recommendations. First, each school 

district should produce an annual economic 

impact report assessing 

the cost of expansion 

that must be considered 

in evaluating any new 

charter application. 

Second, the state’s 

charter authorization law 

should be amended to 

balance the value of charter schools against the 

needs of TPS students.471

Increased Segregation and Inequities 

for Students with Disabilities

Rejecting arguments that the expansion of 

charter schools has resulted in increased 

segregation and racially homogeneous schools, 

some contend that competition through charter 

schools leads to less stratification because 

it removes the link between residence and 

educational opportunity. NAPCS and others 

point to national data that indicate in the 

aggregate that charter schools actually serve 

higher percentages of low-income students 

and higher proportions of African American and 

Latino students than do TPS.472 Yet, researchers 

studying data at the school and school 

district levels have found that the difference 

in aggregate data virtually disappears when 

charters are compared to their home districts 

and nearby schools.473

Ladd found that the expansion of charter 

schools has increased inequities between 

charters and TPS because students are 

increasingly isolated by race, language, and 

economic status because of public policy that 

does not encourage diversity and parental choice 

that reflects racial and ethnic preference.474 She 

noted that charter schools located in urban areas 

disproportionately enroll high concentrations 

of students of color 

consistent with states 

that prioritize charter 

school funding for 

“at-risk,” low-income 

students from diverse 

cultures (e.g., Arkansas, 

California, Connecticut, 

Illinois, New York, North Carolina, Rhode Island, 

Tennessee, Virginia, and Wisconsin).475 In her 

research examining urban Durham, North 

Carolina, and five nonurban districts in North 

Carolina, Ladd identified two complementary 

trends: “the closure of charter schools with 

relatively small proportions of white students 

and the opening of charter schools with high 

proportions.” Once populated by schools with 

heavy proportions of students from diverse 

cultures, her research shows that over time, the 

charter school sector in this state shifted and 

now includes “many more schools with relatively 

high percentages of white students.” She found 

that individual charter schools have become 

[C]harter schools actually serve 

higher percentages of low-income 

students and higher proportions 

of African American and Latino 

students than do TPS

114 National Council on Disability
increasingly racially imbalanced, with some 

enrolling primarily students from diverse cultures 

and others serving primarily white students. 

Her findings were consistent with prior research 

(also applicable to TPS) that “in choosing schools, 

parents care not only about the quality of the 

education being offered but also about the mix of 

students in a school.”476

Building on Ladd’s findings, the present 

study did a preliminary analysis of enrollment 

characteristics of students enrolled in the 

Durham Public School District (DPSD) and in 

14 charter schools located in Durham, North 

Carolina, to examine the relationship between 

TPS and charter enrollment through a lens 

of race and disability. The analysis, based on 

the most recently available CRDC student 

enrollment data from the 2015 reporting year, 

found that in the aggregate the 14 charter 

schools in Durham proportionately enrolled 

more white students (18.2 percent of DPSD 

but 40.1 percent of charter enrollment), fewer 

students with disabilities (12.0 percent of 

DPSD but 9.6 percent of charter enrollment), 

and more white students with disabilities (1.8 

percent of DPSD but 4.1 percent of charter 

enrollment) than did DPSD. In a striking racial 

dichotomy, DPSD enrolled black students with 

disabilities at almost twice the rate of charters 

(6.8 percent of DPSD but 3.9 percent of charter 

enrollment). Given the reasons articulated by 

Ladd and Singleton (2018), the fact that black 

students with disabilities are disproportionately 

represented in DPSD raises serious equity 

concerns, including whether DPSD receives 

enough funding to provide these students with 

appropriate education amidst increased charter 

expansion. Additional research is warranted to 

examine these issues more closely.

Summary of Chapter 7

This chapter discussed the potential implications 

of charter school growth and expansion for TPS 

districts that struggle, often unsuccessfully, to 

adjust fixed costs while attempting to extend 

their already depleted resources to meet the 

needs of students, who disproportionately have 

more intensive needs. These districts may be 

further burdened by a charter school’s decision 

not to backfill spots for students who disenroll 

after funding reporting deadlines. To help alleviate 

the negative fiscal impact on TPS, some states 

have set a cap on the growth of charter schools. 

A recent ruling by the Massachusetts Supreme 

Judicial Court, which explained that such a cap 

helps protect the interests of students who 

remain in TPS and do not attend charter schools, 

provided insight into policy considerations about 

school choice and the rights of individuals versus 

the community.

Moreover, this chapter discussed emerging 

research that has begun to examine the fiscal 

impact of charter school growth on TPS. One 

study focusing on two urban school districts 

in New York State concluded that, because 

of charters enrolling disproportionately fewer 

students with disabilities and the loss of funds 

from TPS to charter schools, TPS bore the 

impact of higher levels of spending associated 

with educating these students while being 

unable to reduce sufficiently fixed operating 

costs. A second study, focused on Durham, 

North Carolina, also found evidence that charter 

schools bring with them additional costs to 

TPS budgets. Finally, a third study, examining 

annual costs to TPS of students leaving TPS and 

enrolling in charters in three urban districts in 

California, found that charter school expansion 

School Choice Series: Charter Schools—Implications for Students with Disabilities 115
created “unavoidable” losses for the districts. 

Collectively, these studies make clear that 

additional costs imposed by charters have serious 

implications for large districts that must be of 

sufficient scale to be able to respond to the 

needs of fluctuating student population groups—

in particular, students with disabilities and ELs 

(including those with disabilities)—that have 

more intensive need of specialized instruction 

and support services.

The chapter concluded by presenting evidence 

of another serious cost of charter expansion: 

increased isolation based on race, language, 

economic status, and disability. A study, again 

focused on North Carolina, found that charter 

school enrollees are increasingly isolated by 

race, language, and economic status because of 

public policy that does not encourage diversity 

and parental choice, but rather reflects racial 

and ethnic preference. Our own preliminary 

analysis of enrollment characteristics in Durham, 

North Carolina, revealed that taken together, 

charters in Durham proportionately enroll more 

white students, fewer students with disabilities, 

more white students with disabilities, and fewer 

black students with disabilities than do TPS. 

The fact that black students with disabilities are 

disproportionately represented in TPS raises 

serious fiscal equity concerns. Further research in 

this area is needed.

116 National Council on Disability
T

his text has explored various issues 

pertaining to the education of students with 

disabilities in charter schools. It has been 

shown that, although the charter school debate 

is often presented in polarizing terms, extensive 

variability exists across the charter school sector. 

Some schools are effective in meeting the needs 

of their students with disabilities, adopting best 

practices that can be modeled by other charter 

schools and TPS. This report has highlighted 

some of these practices. Other charter schools, 

however, struggle to provide appropriate 

educational programming and services. There is 

also variability with respect to additional factors. 

For example, state statutes vary significantly, a 

charter school may operate as its own LEA or part 

of an existing LEA, and a charter school may be an 

independent school or a member of a not-for-profit 

or for-profit charter network.

With this contextual backdrop in mind, we 

propose several recommendations to move the 

debate forward in constructive ways. In particular, 

we recognize the value of continuing to highlight 

innovative and effective charter school practices 

that may improve the educational experiences 

of students with disabilities. At the same time, 

we underscore the importance of addressing 

significant areas of concern that have precluded 

students with disabilities from benefiting 

from the opportunities presented by the full 

range of charter schools. Moreover, we advise 

policymakers and key stakeholders to consider the 

needs of students with disabilities who remain 

in TPS. To this end, we recommend increased 

collaboration and the creation of communities 

of practice between charter schools and TPS as 

well as further examination of issues of fiscal 

impact and racial isolation. We feel that this 

overall strategy will be most effective in working 

toward the common goal of improving educational 

opportunities for all students with disabilities.

Recommendations for Charter 

School Authorizers

Charter authorizers, as key policymakers, have 

a critical role to play in improving the education 

provided to students with disabilities in charter 

schools. They are responsible for monitoring the 

extent to which charter operators comply with 

their legal obligations, including providing highquality learning opportunities for all students with 

disabilities whom they serve. Authorizers can be 

more effective by requiring that applications for 

the creation of new or converted charter schools 

articulate with a degree of specificity their plans 

for educating the full spectrum of students with 

disabilities; by being proactive in their ongoing 

monitoring of the schools they oversee; and by 

holding their charter school grantees accountable, 

correcting persistent violations, and taking 

difficult action steps, including revocation, 

nonrenewal, and closure, as necessary.

Chapter 8: Recommendations

School Choice Series: Charter Schools—Implications for Students with Disabilities 117
NCD proposes recommendations for charter school authorizers 

in the following areas:

Application Process for the Creation of New Charter Schools

■ Enrollment: Require applications to include a plan accompanied by an associated budget 

for enrolling approximate proportions of students with disabilities that are similar to 

neighboring school districts—for example, through marketing and outreach strategies, 

development of user-friendly informational materials for parents in multiple languages 

regarding availability of services, and assurances that school personnel will not inquire 

about IEP status prior to making decisions about enrollment and will not counsel out 

students with disabilities.

■ Provision of Services: Require applications to include a detailed plan regarding how 

the charter school will provide appropriate and high-quality services to its students with 

disabilities in the following areas: child find, comprehensive evaluations, IEP development, 

participation in the general education curriculum, continuum of alternative placements, 

discipline, transportation and other related services, procedural safeguards, and family 

engagement.477

■ Innovative or Model Practices: Prioritize applications that propose to implement 

innovative or model practices with respect to the education of students with disabilities 

in the areas of academics, transition planning and services, and behavior, including, for 

example, UDL, high-quality career and technical education, and restorative justice.

■ Evidence of Involvement with Communities Served: Among applicants that are CMOs, 

prioritize those that demonstrate a connection to the school communities, which are part 

of their network but may be geographically distant.

Ongoing Monitoring and Oversight of Charter Schools

■ Review of Data: Engage in active monitoring and oversight of the extent to which charter 

schools are complying with the terms of the charter and ensure that the charter includes 

specific requirements for the collection and ongoing review of enrollment, student 

performance according to multiple measures, attrition, and discipline data with respect 

to students with disabilities, disaggregated by subgroup, as well as more general data 

regarding the provision of special education and related services.

■ Technical Assistance and Support to Charter Operators: Provide technical assistance 

and support to help build the capacity of charter operators to serve students with 

disabilities; collaborate with TPS in areas such as joint opportunities for professional 

(continued)

118 National Council on Disability
development, sharing of resources and data, and mutual learning from one another 

regarding best practice; implement interventions; and take corrective actions to address 

any problems or shortcomings.

■ Public Reporting: To promote transparency and identify schools in need of intervention 

and support, report publicly on nonpersonally identifiable charter school data pertaining 

to enrollment, student performance based on multiple measures, attrition, and discipline, 

disaggregated by subgroup, as well as issues of management and operations, including 

finances.

Charter Renewal Process

■ Review: Conduct careful review of charter renewal materials to evaluate and act upon, 

as necessary, the extent to which charter operators are complying with special education 

requirements and providing high-quality programming and services to their students with 

disabilities. Ensure an avenue for families of students with disabilities to voice issues and 

concerns and to be included in the review process.

■ Response: Be prepared to respond, as necessary, considering a range of possible 

consequences, from intervention and support to nonrenewal, revocation, and school 

closure.

Disability-Specific Charter Schools and Virtual Charter Schools

■ Disability-Specific Charter Schools: Require that charter applications include a plan to 

ensure that IEP placement decisions are made in a careful manner and are not based on 

the student’s disability category alone, enrolled students are given opportunities to interact 

with students without disabilities, and the individualized needs of enrolled students are 

reviewed on an ongoing basis to determine whether a less restrictive placement might be 

more appropriate.

■ Virtual Charter Schools: Require that charter applications include a plan to ensure that 

curricular and instructional materials as well as websites are fully accessible; students who 

may have executive functioning challenges receive necessary supports; parents receive 

information about expectations for parental involvement; and nonpersonally identifiable 

data regarding enrollment, student performance, and issues of management and 

operations, including finances, is publicly and timely reported.

NCD proposes recommendations for charter school authorizers 

in the following areas: continued

School Choice Series: Charter Schools—Implications for Students with Disabilities 119
Recommendations for Charter 

School Operators

Charter operators are on the front lines, providing 

educational services to students with disabilities 

in charter schools. They are in a unique position 

to take advantage of the autonomy they are 

given under state law and the school’s charter to 

implement model practices that can transform 

their schools into “laboratories of innovation,” as 

originally intended. Rather than feeling constrained 

by the requirements concerning the education 

of students with disabilities, charter school 

operators should view these students as creating 

an opportunity for their school to enhance its 

instructional approaches by making adaptations 

and changes that can benefit all students.

NCD proposes recommendations for charter school operators 

in the following areas:

Enrollment Process

■ Implement strategies to enroll approximate proportions of students with disabilities that 

are similar to neighboring school districts—for example, through marketing and outreach 

strategies, development of user-friendly informational materials for parents in multiple 

languages regarding availability of services, and implementation of a clear policy that 

school personnel will not ask about students’ IEP status prior to enrollment and will not 

counsel out students with disabilities.

Vision and Leadership

■ Set a vision and tone for the charter school that is inclusive of diverse learning needs and 

ensure that staff at all levels embrace this vision and understand their obligations with 

respect to supporting all students.

■ Create an environment that is welcoming to parents of students with disabilities and work 

to form collaborative partnerships with parents to improve the education provided to their 

children.

■ Publicly report, including by posting to the charter school website, nonpersonally 

identifiable information related to student enrollment, performance based on multiple 

measures, attrition, and discipline to help families make informed choices.

■ For charter schools that function as their own LEA, seek out opportunities to collaborate 

with other charter schools/LEAs or TPS and explore efforts to share information, pool 

resources, and form communities of practice. Communicate on issues such as best 

practice for the education of students with more significant disabilities who may benefit 

(continued)

120 National Council on Disability
from placement outside the general education classroom. Explore efforts to form additional 

partnerships with other providers in the community through contracts or alternative 

arrangements.478

■ For charter schools that are part of an existing LEA, seek out opportunities to collaborate 

with other TPS that are part of the LEA to share information, pool resources, and form 

communities of practice. Promote and nurture open lines of communication with the LEA 

special education department.

Staffing

■ Seek out and create opportunities for professional development to help fill knowledge gaps 

and build the capacity of administrators and teachers to serve the needs of students with 

disabilities, including those with more significant learning needs.

■ Provide frequent opportunities for collaboration between general education and special 

education staff through, for example, co-teaching and regular meetings.

■ Provide frequent opportunities for teachers to receive feedback on their teaching, support, 

selection of intervention strategies, and coaching to help improve their capacity to serve 

students with disabilities.

■ Consider introducing various strategies such as retention committees to support the 

retention of qualified teachers, including special education teachers.

Innovative and Model Practices

■ Explore ways to move away from strict codes of discipline toward less punitive models 

such as restorative justice; seek out opportunities to learn from other charter schools that 

have already moved in this direction.

■ Implement existing models of best practice and innovative approaches such as UDL to 

help foster a flexible learning environment that is adaptable to the diverse learning needs 

of students.

■ Encourage teachers and IEP teams to explore different curricula models and methods of 

instruction, for example, co-teaching, blended learning, and personalized instruction that 

encourage students with disabilities to engage in learning inside and outside the classroom 

including in partnership with community agencies.

NCD proposes recommendations for charter school operators 

in the following areas: continued

(continued)

School Choice Series: Charter Schools—Implications for Students with Disabilities 121
Recommendations for SEAs

The SEA may serve two roles with respect to 

the education of students with disabilities in 

charter schools: (1) all SEAs are responsible 

for the monitoring and oversight of education 

programs under applicable state and federal laws, 

including IDEA and ESSA and (2) some SEAs also 

serve in the role of charter authorizer, in some 

instances as the sole authorizer. With respect to 

the second role, the recommendations for charter 

authorizers, outlined earlier, would apply to SEAs 

that function in this role. With respect to overall 

monitoring and oversight under IDEA and ESSA, 

all SEAs are responsible for ensuring that each 

LEA in the state meets the requirements of the 

statute.479

Disability-Specific Charter Schools and Virtual Charter Schools

■ For disability-specific charter schools, develop a plan to ensure that IEP placement 

decisions are made by the IEP team and are not based on a student’s disability category 

alone, enrolled students are given opportunities to interact with students without 

disabilities, and the individualized needs of enrolled students are reviewed on an ongoing 

basis to determine whether a less restrictive placement might be more appropriate.

■ For virtual charter schools, develop a plan to ensure that curricular and instructional 

materials as well as websites are fully accessible; students who may have executive 

functioning challenges receive necessary supports; parents receive information about 

expectations for parental involvement; and nonpersonally identifiable data regarding 

enrollment, student performance, and issues of management and operations, including 

finances, is publicly and timely reported.

NCD proposes recommendations for charter school operators 

in the following areas: continued

NCD proposes recommendations for SEAs in the following areas:

Monitoring Under IDEA

■ Monitor compliance under IDEA to ensure that statutory requirements are being met 

in charter schools—for example, ensure that students with disabilities are provided 

opportunities to participate in the general education curriculum; with respect to discipline, 

ensure that manifestation determination reviews and functional behavioral assessments 

are conducted and that students with disabilities continue to receive FAPE during periods 

of disciplinary exclusion. Publicly report findings, to the extent appropriate, on the SEA 

website to make them accessible to all stakeholders.

(continued)

122 National Council on Disability
■ Analyze more closely charter school data pertaining to enrollment (disaggregated 

by disability category), student performance based on multiple measures, attrition, 

and discipline collected under IDEA and the CRDC; use this data to identify charter 

schools in need of targeted assistance or interventions. Publicly report findings, to 

the extent appropriate, on the SEA website to promote accessibility of the data to all 

stakeholders.

■ Provide training and informational materials in multiple languages and multiple modes of 

communication to parents of students with disabilities regarding their rights under state 

and federal special education laws with respect to charter schools; make clear that parents 

and students are entitled to the same rights in charter schools as in TPS.

■ Ensure that existing support structures (e.g., intermediate districts) extend special 

education services to charter schools.

■ Provide professional development, technical assistance, and resources to school and 

district personnel from both the charter and TPS sectors to help them adopt innovative and 

model practices for the education of students with disabilities that have been developed by 

pioneering charter schools and TPS.

■ Exercise leadership on school improvement and equity by supporting charterdistrict collaboration. Provide opportunities for collaboration, including joint 

professional development sessions, between TPS and charter schools, to support 

the formation of communities of practice among teachers and administrators 

across both sectors.

Monitoring Under ESSA

■ Exercise leadership in creating a strong exemplary authorizer accountability plan 

consistent with ESSA that will consider “establishing authorizing standards that 

may include approving, monitoring, and re-approving or revoking the authority of an 

authorized public chartering agency based on the performance of the charter schools 

authorized.”480

■ Incentivize existing authorizers to participate in and embrace a plan that is effective in 

raising the standards for the charter holders. Commit to undertaking a review of the 

state’s capacity to enforce charter accountability (e.g., close schools that are not meeting 

performance goals outlined in their charter).

NCD proposes recommendations for SEAs in the following areas: continued

School Choice Series: Charter Schools—Implications for Students with Disabilities 123
Recommendations for State 

Legislatures

It is generally recognized based on years 

of charter school research that “state laws 

governing charter school operation have 

an important impact on student academic 

growth.”481 The state legislative body is in the 

optimal position to learn from the research and 

evidence of the challenges confronting these 

largely underresourced schools with mixed 

academic performance to help ensure that 

they implement nondiscriminatory, equitable 

admissions; approximate proportionate 

representation of students with the full range 

of disabilities; a breadth of effective specialized 

instruction programs and services to meet 

the needs of students with a full range of 

disabilities through a continuum of alternatives; 

experienced, qualified teachers; strong academic 

performance outcomes based on multiple 

measures; and a fair system of discipline with 

procedural safeguards. The legislature has 

the authority to consider whether legislative 

change is warranted and necessary to eliminate 

inequities in charter school enrollments; to 

mandate a streamlined process for review, 

revocation, and closure of underperforming 

schools by authorizers; and to take steps to 

mitigate fiscal burdens of unregulated charter 

expansion on TPS.

NCD proposes recommendations for state legislatures 

in the following areas:

■ Explore amending the state charter school statute for the purpose of raising the level 

of selectivity among charter school applicants for a new or converted charter school to 

ensure that any recipient is prepared to meet high-level governance and performance 

standards established by the SEA with guidance and direction from other stakeholders, 

including people representative of the community in which the charter school is 

located.

■ Explore amending the state statute to require more explicitly that a charter school shall 

enroll all students who apply if there are available seats, and may not discriminate based 

on race, ethnicity, national origin, religion, gender, sexual preference, gender identity, 

economic disadvantage, disabling condition, or English-language proficiency. Discrimination 

in admission shall be a basis for revocation of the charter.482

(continued)

124 National Council on Disability
■ Consistent with federal civil rights laws, amend the state statute to prohibit charter schools 

from inquiring about a student’s disability status prior to enrollment. The admissions 

process must be blind to disabling status; applicants shall not be pressured to disclose any 

information about a student’s disability, including the provisions of the student’s IEP.483

■ Explore amending the state statute to require as a condition of receipt of a charter that the 

applicant demonstrate a plan for meeting approximate proportionate enrollment from the 

community of students being served.

■ Explore amending the state statute to require steps to be taken by authorizers to review 

underperforming charter schools within their portfolios, take steps for intervention, 

revocation, and closure.

■ Explore amending the state charter statute to hold the authorizer of charter schools 

accountable for the performance of those schools within its portfolio, including failure to 

take timely steps to intervene prior to consideration of renewal, revocation, or closure.

■ Explore amending the state statute to help ensure fiscal balance between TPS and charter 

growth and expansion by establishing a cap on the amount of funding that can be drawn 

from TPS because of students transferring to charter schools.484

■ Explore amending the state statute to require charter schools to maintain levels of reported 

enrollment and to backfill through a lottery when seats become available during the school 

year.

■ Explore amending the state charter statute to provide transitional per-pupil reimbursement 

to TPS during at least the first three years after a student transfers from a TPS to a charter 

school.

■ Explore amending the state charter statute to help mitigate increased racial isolation 

by encouraging the creation of interdistrict charters in economically and racially mixed 

neighborhoods that draw from urban and suburban students.

■ Explore amending the state charter statute to authorize charter schools to use weighted 

lotteries on family income, zip code, parents’ educational status, or the racial makeup of a 

neighborhood, as a means to create a purposefully diverse student body.485

NCD proposes recommendations for state legislatures 

in the following areas: continued

School Choice Series: Charter Schools—Implications for Students with Disabilities 125
NCD proposes recommendations for Congress and the U.S. Department 

of Education in the following areas:

■ Because disability is related to poverty and race, create incentives for authorizers to locate 

charter schools, as originally conceptualized as laboratories for innovation and reform, 

strategically (including outside of urban districts and straddling districts) to minimize 

isolation based on race, disability, and socioeconomic background.

■ Increase funding priority in the U.S. Department of Education’s CSP for schools that are 

inclusive of all students and promote diversity across a variety of categories, including 

disability status.

■ Amend the ESEA to authorize use of federal startup funds currently available only to 

charters that use a blind lottery, to schools that use a variety of methods (e.g., random zip 

code) to be purposeful in the creation of intentionally diverse student bodies.

■ Pilot a project that would have the SEA collect and review data related to student 

enrollment characteristics by disability type for students who were accepted by a charter 

school but did not enroll.

126 National Council on Disability
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Stein, Marc. “Public School Choice and Racial Sorting: An Examination of Charter Schools in Indianapolis.” 

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Strauss, Valerie. “Will the Supreme Court’s Trinity Decision Lead to the Spread of School Voucher Programs?” 

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Taylor, Kate. “At a Success Academy Charter School, Singling Out Pupils Who Have ‘Got to Go.’” New York Times, 

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Thernstrom, Abigail, and Stephen Thernstrom. No Excuses: Closing the Racial Gap in Learning. New York: Simon 

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knowledge-bank/2015/08/18/lessons-from-new-orleans-post-katrina-charter-school-experiment.

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Ujifusa, Andrew. “Trump Seeks to Cut Education Budget by 5 Percent, Expand School Choice Push.” 

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———. Letter for CSP Project Director. Washington, DC: U.S. Department of Education, 2017. https://innovation.

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U.S. Department of Education, Office of Inspector General. Nationwide Assessment of Charter and Education 

Management Organizations: Final Audit Report. Washington, DC: Author, September 2016. https://www2

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U.S. Department of Education, Office of Special Education Programs. Analysis of Changes, 71 Fed. Reg. 46586 (2006).

———. Analysis of Comments, 71 Fed. Reg. 46681.

———. Dear Colleague: Virtual Schools. Washington, DC: U.S. Department of Education, 2016. https://www2.ed

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speced/guid/idea/iep-qa-2010.pdf.

U.S. Department of Education, Office of Special Education and Rehabilitative Services. Frequently Asked Questions 

about the Rights of Students with Disabilities in Public Charter Schools under the Individuals with Disabilities 

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files/policy_speced_guid_idea_memosdcltrs_faq-idea-charter-school.pdf.

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Waitoller, Federico R., Daniel M. Maggin, and Agata Trzaska. “A Longitudinal Comparison of Enrollment Patterns 

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Welner, Kevin G., and Kenneth R. Howe. “Steering Toward Separation: The Policy and Legal Implications of 

‘Counseling’ Special Education Students Away from Choice Schools.” In School Choice and Student Diversity: 

What the Evidence Says. Edited by Janelle Scott. New York: Teachers College Press, 2015.

Whitman, David. Sweating the Small Stuff: Inner-City Schools and the New Paternalism. Washington, DC: Thomas B. 

Fordham Institute, 2008. https://files.eric.ed.gov/fulltext/ED502972.pdf.

Williams, Brooke. “Where ‘No-Excuses’ Pedagogy Fails Low-Income Students.” The Century Foundation, April 19, 

2017. https://tcf.org/content/commentary/no-excuses-pedagogy-fails-low-income-students.

Winters, Marcus A. “Understanding the Gap in Special Education Enrollments between Charter and Traditional 

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Wolf, Patrick J., and Shannon Lasserre-Cortez. Special Education Enrollment and Classification in Louisiana Charter 

Schools and Traditional Schools (REL 2018-288). Washington, DC: U.S. Department of Education, Institute of 

Education Sciences, National Center for Education Evaluation and Regional Assistance, Regional Educational 

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Woodsworth, James L., and Margaret E. Raymond. Charter School Growth and Replication. Vol. 2. 

Stanford, CA: Center for Research on Education Outcomes, 2013. https://credo.stanford.edu/pdfs/

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Woodworth, James L., Margaret E. Raymond, Kurt Chirbas, Maribel Gonzalez, Yohannes Negassi, Will Snow, 

and Christine Van Donge. Online Charter School Study. Stanford, CA: Center for Research on Education 

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Woodworth, James L., Margaret E. Raymond, Chunping Han, Yohannes Negassi, W. Payton Richardson, and Will 

Snow. Charter Management Organizations. Stanford, CA: Center for Research on Education Outcomes, 2017. 

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Zappa, Ric. “First Person: What the Shift to Restorative Justice Looked Like in My KIPP School.” Chalkbeat, 

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Zetino, Griselda. Schools Choosing Students: How Arizona Charter Schools Engage in Illegal and Exclusionary 

Student Enrollment Practices and How It Can Be Fixed. With assistance from Catherine Pisani, Justin 

Harrison, and ACLU of Arizona staff. Phoenix: ACLU Arizona, 2017. https://www.acluaz.org/sites/default/files/

field_documents/schools_choosing_students_web.pdf.

Ziebarth, Todd, and Louann Bierlein Palmer. Measuring up to the Model. 9th ed. Washington, DC: National 

Alliance for Public Charter Schools, January 2018. https://www.publiccharters.org/sites/default/files/

documents/2018-01/2018percent20MEASURINGpercent20UPpercent20TOpercent20THEpercent20MODEL

percent20Final_0.pdf.

Zimmer, Ron, Brian Gill, Kevin Booker, Stephane Lavertu, Tim R. Sass, and John Witte. Charter Schools in Eight 

States: Effects on Achievement, Attainment, Integration, and Competition. Santa Monica, CA: RAND, 2009. 

https://www.rand.org/content/dam/rand/pubs/monographs/2009/RAND_MG869.pdf.

STATUTES, REGULATIONS, AND GUIDANCE (STATE)

Statutes

Cal. Educ. Code § 47641 (West, Westlaw through Ch. 9 of 2018 Reg. Sess.).

Colo. Rev. Stat. Ann. § 22-30.5-109 (West, Westlaw through immediately effective legislation through Ch. 185 of 

the 2nd Reg. Sess. of the 71st General Assembly (2018)).

140 National Council on Disability
Conn. Gen. Stat. Ann. § 10-66bb (West, Westlaw through enactments of Public Acts enrolled and approved by the 

Governor on or before April 27, 2018 and effective on or before April 27, 2018).

Idaho Code Ann. § 33-5205 (West, Westlaw through all immediately effective legislation of the 2nd Reg. Sess. of 

the 64th Legislature).

105 Ill. Comp. Stat. Ann. § 5/27A-5(b-5) (West, Westlaw though P.A. 100-585 of the 2018 Reg. Sess.).

Ind. Code Ann. § 20-24-7-13 (West, Westlaw through all legislation of the 2018 Second Regular Session of the 

120th General Assembly effective through June 30, 2018), amended by 2018 Ind. Legis. Serv. P.L. 191-2018 

(H.E.A. 1420) (West, Westlaw approved March, 21, 2018).

Mass. Gen. Laws ch. 71 § 89 (West, Westlaw through Chapter 63 of the 2018 2nd Annual Sess.).

Mass. Gen. Laws ch. 71, § 89(i) (West, Westlaw through Chapter 63 of the 2018 2nd Annual Sess.).

Mass. Gen. Laws ch. 71, § 89(i)(3) (West, Westlaw through Chapter 63 of the 2018 2nd Annual Sess.).

Minn. Stat. Ann. § 124E.03(3) (West, Westlaw through laws of the 2018 Reg. Sess. effective May 15, 2018).

Minn. Stat. Ann. § 124E.10 (West, Westlaw through laws of the 2018 Reg. Sess. effective May 15, 2018).

Minn. Stat. Ann. § 124E.16 (West, Westlaw through laws of the 2018 Reg. Sess. effective May 15, 2018).

Mo. Ann. Stat. § 160.400 (West, Westlaw through end of the 2017 1st Reg. Sess. and 1st and 2nd Extraordinary 

Sessions of the 99th General Assembly).

N.H. Rev. Stat. Ann. § 194-B:3 (West, Westlaw through Chapter 16 of the 2018 Reg. Sess., not including changes 

and corrections made by the State of New Hampshire, Office of Legislative Services).

N.Y. Educ. Law § 2851 (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2851(4)(e) (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2852(9-a)(b)(i) (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2853(4) (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2854(2) (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2855 (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2855(e) (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

N.Y. Educ. Law § 2857 (McKinney, Westlaw through L.2018, chapters 1 to 47, 50 to 60).

Nev. Rev. Stat. Ann. § 388A.453(9)(a) (West, Westlaw through the end of the 79th Reg. Sess. (2017) of the Nevada 

Legislature).

Ohio Rev. Code Ann. § 3314.061 (West, Westlaw through File 51 of the 132nd General Assembly (2017–2018) and 

2017 State Issue 1).

S.C. Code Ann. § 59-40-40(4) (West, Westlaw through 2018 Act No. 151).

S.C. Code Ann. § 59-40-50(B)(1) (West, Westlaw through 2018 Act No. 151).

Regulations

603 Mass. Code Regs. § 28.10(6) (West, Westlaw through Register No. 1364, dated May 4, 2018).

STATUTES, REGULATIONS, AND GUIDANCE (FEDERAL)

Statutes

20 U.S.C. § 1412(a)(5)(A) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 1412(a)(11) (West, Westlaw through P.L. 115-171).

20 U.S.C. §1413(a)(5) (West, Westlaw through P.L. 115-171).

20 U.S.C. §1413(e)(1) (West, Westlaw through P.L. 115-171).

20 U.S.C. §1413(e)(1)(B) (West, Westlaw through P.L. 115-171).

School Choice Series: Charter Schools—Implications for Students with Disabilities 141
20 U.S.C. § 1413(g) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 1414(d)(2)(C)(i)(2) (West, Westlaw through P.L. 115-171).

20 U.S.C. §§ 6301 et seq. (West, Westlaw through P.L. 115-171).

20 U.S.C § 7101 et seq. (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(c)(3)(A) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(c)(3)(B) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(d)(5) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(f)(1)(xii) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(f)(2)(C) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221b(f)(2)(G) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7211i(1)(H)(ii) (West, Westlaw through P.L. 115-171).

20 U.S.C. § 7221i(2)(H)(i) (West, Westlaw through P.L. 115-171).

29 U.S.C. § 705(20)(B) (West, Westlaw through P.L. 115-171).

29 U.S.C. § 794 (West, Westlaw through P.L. 115-171).

29 U.S.C. § 794(a) (West, Westlaw through P.L. 115-171).

42 U.S.C. § 12102(1) (West, Westlaw through P.L. 115-171).

42 U.S.C. §12132 (West, Westlaw through P.L. 115-171).

42 U.S.C. § 2000d (West, Westlaw through P.L. 115-171).

Regulations

28 C.F.R. § 35.104 (Title II) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

28 C.F.R § 35.130(b)(8) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 76.788(c) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. §§ 99.30-99.39 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

34 C.F.R. § 104.3(j)(1) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.3(l)(2)(iii) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.4(a) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.4(b)(1) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.4(b)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.4(b)(4) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.33(a) (West, Westlaw through Maty 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.33 (b)(1) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 104.36 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 200.31 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.7 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.33 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.39(b)(3) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.115(a) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.116(e) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.146 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

142 National Council on Disability
34 C.F.R. § 300.149 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.149(a)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. §§ 300.151-153 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.200 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.203 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(a) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(b) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(c) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(d) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(d)(1) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.209(d)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.227 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.320(a)(1)(i) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. § 300.323(e) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. §§ 300.507-518 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 24044).

34 C.F.R. §§ 300.610-300.627 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

CASE LAW (STATE, FEDERAL, ADMINISTRATIVE, AND OTHER)

State

Brief for Savina Tapia, et al. as Amici Curiae Supporting Defendants-Appellees, Jane Doe No. 1 and Others v. James 

A. Peyser and Others, No. SJC-12275 (Mass. 2017) 2017 WL 3977897.

Council of Orgs. and Others for Educ. About Parochiaid, Inc. v. Governor, 566 N.W.2d 2-08, 216–217, 222 (Mich. 

1997).

Doe v. Sec’y of Educ., 479 Mass. 375 (2018).

Iberville Parish School Board v. Louisiana State Board of Elementary and Secondary Education [REVERSED ON 

MARCH 13, 2018 – SEE 2018 WL 1319404].

In re Grant of Charter Sch. Application of Englewood on Palisades Charter Sch., 727 A.2d 15 (N.J. App. Div. 

1999), aff’d as modified, 753 A.2d 687 (N.J. 2000).

McCleary, et ux., et al. v. State of Washington, 84362-7, http://www.courts.wa.gov/opinions/pdf/843627.opn.pdf.

Wilson v. State Bd. of Educ., 89 Cal. Rptr. 2d 745, 747, 751 (1999).

League of Women Voters of Washington v. State, 355 P.3d 1131 (Wash. 2015), as amended on denial of 

reconsideration (November 19, 2015).

Federal

Arizona State Bd. v. U.S. Dep’t of Educ., 464 F.3d 1003 (9th Cir. 2006).

Deal v. Hamilton County Bd. of Educ., 392 F.3d (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005), on remand, 2006 

WL 567836 (E.D. Tenn. 2006), aff’d, 258 Fed.Appx. 863 (6th Cir. 2008).

K.L.A. v. Windham Southeast Supervisory Union, 371 Fed.Appx. 151 (2d Cir. 2010, unpublished).

Luo v. Baldwin Union Free School District, 67 IDELR 15 (E.D.N.Y. 2016), aff’d, 117 LRP 3790 (2d Cir. 2017, 

unpublished) (citing F.L. ex rel. F.L. v. N.Y. City Dep’t of Educ., No. 11-CV-5131, 2012 U.S. Dist. LEXIS 149296, 

2012 WL 4891748 (S.D.N.Y. Oct. 16, 2012)).

Ms. S. v. Vashon Island Sch. Dist., 337 F.3d 1115 (9th Cir. 2003), cert. denied, 544 U.S. 928 (2005).

School Choice Series: Charter Schools—Implications for Students with Disabilities 143
R.B. ex rel Parent v. Mastery Charter School, 762 F. Supp. 2d 745 (E.D. Pa. 2010)

R.L. v. Miami-Dade County School Board, 757 F.3d 1173 (11th Cir. 2014).

Trinity Lutheran Church, 137 S.Ct. 2012 (2017)

Administrative

Commonwealth Connections Academy Charter School, 116 LRP 43678 (PA SEA, 2016).

Family Foundations Academy Charter School, 54 IDELR 207 (DE SEA 2010).

Illinois State Bd. of Educ., 20 IDELR 68 (OCR IL 1993).

In re: Student with a Disability, 69 IDELR 688 (DC SEA, 2017).

Letter to Bina, 18 IDELR 582 (OSERS 1991).

Letter to Cohen, 25 IDELR 516 (OSEP 1996).

Letter to Lutjeharms, 16 IDELR 554 (OSERS, 1990).

Letter to Van Wart, 20 IDELR 1217 (OSEP 1993).

Long v. District of Columbia, 56 IDELR 122 (D.D.C. 2011).

Other

16 C.J.S. Constitutional Law § 338.

144 National Council on Disability
Appendix: Ongoing Legal Challenges in the Area 

of Charter Schools

Can Taxpayer Funds Support Privately Managed Charter Schools?

A number of state court cases have challenged the legitimacy of using public, taxpayer funds to 

support privately managed charter schools under state laws and constitutions. For example, in 

2015, the Washington Supreme Court declared the state’s charter school act unconstitutional.486 The 

Washington constitution provides that

the public school system shall include common schools, and such high schools, normal schools, 

and technical schools as may hereafter be established. But the entire revenue derived from the 

common school fund and the state tax for common schools shall be exclusively applied to the 

support of the common schools.487

The state’s charter school act labeled charter schools as “common schools” and funded the charter 

schools through funding sources specific to TPS or common schools.488 The court found that charter 

schools could not be common schools because the state constitution requires that a common school 

be “subject to and under the control of the qualified voters of the school district.”489 Because charter 

schools are not subject to local voter control, the court held that they are not common schools, and 

therefore funding the schools with public funds was unconstitutional.490 Following the decision, the 

state legislature changed the source of funding for charter schools, thus allowing them to remain 

open.491 Another lawsuit is pending that alleges that the charter schools divert public dollars away from 

traditional district schools—schools that the Washington Supreme Court previously determined were 

being inadequately funded.492

In another state challenge by groups and organizations objecting to use of taxpayer funds to support 

charter schools, charter school proponents scored a major victory when the Louisiana Supreme Court 

reversed the lower court’s ruling that the state funding statute was unconstitutional.493 The high court 

upheld the use of lottery proceeds to fund charter schools in this case that asked whether schools 

granted charters by the state board, rather than a local school district or parish, were eligible to receive 

funding allocated by law for local school systems.

A Second Look at the Doctrine of Nondelegation

In 2018, the Washington State Supreme Court will hear yet another challenge to the charter school 

act by the same coalition that brought the first suit.494 The plaintiffs argue that the charter school act 

“violates the state constitution because it allows public funding to go to charter schools run by private 

groups that aren’t accountable to voters.”495

School Choice Series: Charter Schools—Implications for Students with Disabilities 145
The newest Washington State challenge speaks to an area in the charter school movement ripe for 

national litigation: the doctrine of nondelegation, which limits the ability of a legislature to delegate 

its authority to other governmental entities or private parties.496 Courts are more stringent in the 

application of the doctrine when the state has delegated its power to a private party.497 Generally, a 

state legislature must provide standards and safeguards to guide the recipient’s exercise of delegated 

power.498 In considering the sufficiency of standards or safeguards, courts consider, among other 

factors, whether the private party is subject to meaningful review by a state agency and whether the 

private party has a pecuniary or other personal interest that may conflict with the public function.499

Under this framework, the creation of for-profit charter schools may violate the nondelegation doctrine, 

particularly where charter school enabling acts set low standards for charter schools, enable the 

certification of authorizers beyond from the state educational agency, and/or otherwise provide limited 

state control over the charter schools.

A number of lawsuits challenged charter school laws in the late 1990s and early 2000s as improper 

delegation, or related grounds, and the charter school laws were all upheld as constitutional.500 The 

courts reasoned that the states maintained sufficient control over the charter schools.501 However, 

the charter school movement has grown significantly since these early lawsuits, and new facts may 

strengthen the nondelegation argument. For example, the number of authorizers has increased 

dramatically,502 as have the number of charter schools and the number of children attending those 

schools.503 As the numbers grow, the states may exercise less control. In 1999, the Michigan Supreme 

Court was the first state supreme court in the country to uphold a charter school law, partially on the 

grounds that the authorizers were public institutions and therefore the state exercised control through 

the application-approval process.504 However, in 2016, a report from the Education Trust-Midwest found 

that “no one, including the governor and state superintendent, has the authority to revoke a chronically 

low-performing authorizer’s ability to open and expand public schools in Michigan.”505 The report 

continues, “Michigan lacks a clear regulatory framework or law that outlines performance standards 

for authorizers and the consequences for not meeting them.”506 In fact, Michigan public universities, 

which the report describes as “the most powerful authorizers in the state,” claim that they are 

“constitutionally autonomous from state oversight and accountability” under the state constitution.507

These new facts, viewed in light of the nondelegation doctrine, may call charter school acts into 

question nationwide, where states like Michigan are less able to exercise sufficient control over charter 

schools and the entities authorizing them.

Erosion of Separation of Church and State

The recent U.S. Supreme Court decision508 invalidating a state rule barring a religious school from 

participating in a public program has perhaps opened the door to charter school expansion and new 

turf. As is the case for TPS, charter schools cannot advocate or promote a specific religion or religious 

ideology. Nor can their admissions policies discriminate based on religion. However, faith-based 

organizations that are separately governed by a nonprofit organization are permitted to open charter 

schools and to receive public funding provided they maintain a secular educational purpose. Given the 

146 National Council on Disability
very low accountability bar set by many states and the minimal oversight of charter schools by many 

state authorizers, it would not be surprising to find that church-to-charter conversions were already in 

place. During the past few years, charter schools in Texas, Arizona, Arkansas, and Minnesota have been 

at the center of serious lawsuits based on violations of the Establishment Clause and their failure to 

maintain the constitutionally mandated separation between church and state.

In Trinity Lutheran Church of Columbia, Inc. v. Comer,

509 the Supreme Court ruled that a state 

could not deny a church a grant that allows public and private schools, and other nonprofit entities, 

to purchase recycled playground surfaces based on the church’s religious status.510 School choice 

advocates and critics have examined the case from the perspective of school vouchers,511 but less 

attention has been given to analyzing the implications concerning charter schools. A 2017 Atlantic

article asked the question, “Will Churches Ever Be Allowed to Run Charter Schools?”512 Applying 

Trinity Church to charter schools would mark “a significant change,” the article posited in the 10 states 

and Washington, DC, that explicitly bar charters run by a religious entity.513 It is unclear whether the 

case could have any effect beyond expanding the pool of possible charter owners, operators, and 

authorizers.514 Because all states require that charter schools are secular, even religiously affiliated 

charter schools could not explicitly teach religion.515 There is also a debate over whether Trinity Church

could apply to charter schools at all. A footnote in Trinity Church explicitly limited the holding to the 

facts of that case.516 The article also discusses the belief of some lawyers and legal scholars that 

the Supreme Court would be more concerned about church and state issues in the realm of public 

education.517

The potential effects of religiously affiliated charter schools on students with disabilities have not 

yet been studied. Provision of special education services in nonchartered religious schools is already 

complicated by questions of the establishment clause and the IDEA’s requirement for a FAPE.518,519 It is 

unclear whether the IDEA framework would be simplified or further complicated by making religiously 

affiliated schools “public schools” through the charter laws. Furthermore, where the ADA protects 

students with disabilities, that law’s specific exemption for religiously affiliated schools may result in an 

exemption for religiously affiliated public charter schools.520

School Choice Series: Charter Schools—Implications for Students with Disabilities 147
148 National Council on Disability
Endnotes

1 Education Commission of the States, “Charter Schools: Does the State Have a Charter School Law?” 

50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/mbquestNB2C?rep=CS1701.

2 Todd Ziebarth and Louann Bierlein Palmer, Measuring up to the Model, 9th ed. (Washington, DC: 

National Alliance for Public Charter Schools, January 2018), 8–12, https://www.publiccharters.org/sites/

default/files/documents/2018-01/2018percent20MEASURINGpercent20UPpercent20TOpercent20THE

percent20MODELpercent20Final_0.pdf.

3 See, for example, Minn. Stat. Ann. § 124E.10 (West, Westlaw through laws of the 2018 Regular Session 

effective May 15, 2018); see also N.Y. Educ. Law § 2851 (McKinney, Westlaw through L.2018, chapters 1 to 47, 

50 to 60).

4 Lauren Morando Rhim and Paul O’Neill, Improving Access and Creating Exceptional Opportunities for 

Students with Disabilities in Public Charter Schools (Washington, DC: National Alliance for Public Charter 

Schools, 2013), 9, http://www.publiccharters.org/wp-content/uploads/2014/01/Special-Education-in-CharterSchools_20131021T154812.pdf.

5 See, for example, Minn. Stat. Ann. § 124E.16 (West, Westlaw through laws of the 2018 Regular Session 

effective May 15, 2018).

6 See, for example, N.Y. Educ. Law § 2855 (McKinney, Westlaw through L.2018, L.2018, chapters 1 to 47, 50 to 60).

7 Gary Miron, William Mathis, and Kevin Welner, Review of “Separating Fact and Fiction: What You Need to 

Know about Charter Schools” (Boulder, CO: National Education Policy Center, 2015), 11, http://nepc.colorado.

edu/files/ttr-charterclaims-mmw.pdf.

8 National Alliance for Public Charter Schools. Estimated Charter Public School Enrollment, 2016-2017

(Washington, DC: Author, 2017), 4, http://www.publiccharters.org/sites/default/files/migrated/wp-content/

uploads/2017/01/EER_Report_V5.pdf.

9 20 U.S.C. §§ 7101 et seq. (West, Westlaw through P.L. 115-171).

10 The enactment of the American Recovery and Reinvestment Act of 2009 signaled a clear direction and 

commitment by the U.S. Department of Education to support “school choice” by bringing charter schools 

to scale. Through the American Recovery and Reinvestment Act, approximately $4 billion were used as an 

incentive for states to compete for Race to the Top (RTT) grants to support innovation and education reform. 

See U.S. Department of Education, Office of Innovation and Improvement. Charter Schools Program (CSP) 

Grants for Replication and Expansion of High- Quality Charter Schools. 76 Fed. Reg. 16754-16758 (March 25, 

2011) (soliciting public comment on proposed priorities and selection criteria for solicitation of applications for 

the Charter School Program-Replication and Expansion of High Quality Charter Schools grant competition).

11 For example, the Commonwealth of Massachusetts, one of among 20 other states with legislation that 

capped the number of charter schools, had to lift the cap as a condition of receiving its RTT grant. A number 

of states moved to amend their charter school legislation to raise their existing cap on charter schools in 

advance of the January 19, 2010, deadline for state applications for the first phase of RTT funding. See Erin 

Dillon, “Designing Smart Charter School Caps,” Journal of School Choice 4, no. 1 (March 2010): 75, https://doi

.org/10.1080/15582151003626434.

12 Derrell Bradford, “Strengthening the Roots of the Charter-School Movement,” Education Next 18, 

no. 3 (Summer 2018): 1, http://educationnext.org/strengthening-roots-charter-school-movement-how-momand-pops-help-sector-diversify-grow.

13 Patrick Lester, Laboratories of Innovation: Building and Using Evidence in Charter Schools (Washington, DC: 

IBM Center for The Business of Government, 2018), 5, http://businessofgovernment.org/sites/default/files/

Laboratories percent20of percent20Innovation_0.pdf.

School Choice Series: Charter Schools—Implications for Students with Disabilities 149
14 Susanna Loeb, Jon Valant, and Matt Kasman, “Increasing Choice in the Market for Schools: Recent Reforms 

and Their Effects on Student Achievement,” National Tax Journal 64, no. 1 (2011): 145–47, https://cepa.stanford

.edu/sites/default/files/A06-Loeb.pdf.

15 U.S. Department of Education, National Center for Education Statistics, The Condition of Education 2017

(Washington, DC: U.S. Department of Education, 2017), 92, 93, https://nces.ed.gov/pubs2017/2017144.pdf.

16 Rebecca David and Kevin Hesla, Estimated Public Charter School Enrollment, 2017–2018 (Washington, DC: 

National Alliance for Public Charter Schools, March 2018), 1, https://www.publiccharters.org/sites/default/

files/documents/2018-03/FINALpercent20Estimatedpercent20Publicpercent20Charterpercent20School

percent20Enrollmentpercent252cpercent202017-18_0.pdf.

17 Lauren Morando Rhim and Shaini Kothari, Key Trends in Special Education in Charter Schools: A Secondary 

Analysis of the Civil Rights Data Collection (New York: National Center for Special Education in Charter 

Schools, 2018), 8, https://static1.squarespace.com/static/52feb326e4b069fc72abb0c8/t/5a9556768165f588f48

664fe/1519736443922/280272+NCSECS+Full+Report_WEB+percent281percent29.pdf.

18 Robert A. Garda Jr., “Culture Clash: Special Education in Charter Schools.” North Carolina Law Review 90, no. 

3 (2012): 681, http://www.publiccharters.org/sites/default/files/migrated/wp-content/uploads/2015/04/CultureClash-Special-Education-in-Charter-Schools.pdf; 29 U.S.C. § 794 (West, Westlaw through P.L. 115-171); 42 

U.S.C. §12132 (West, Westlaw through P.L. 115-171); 42 U.S.C. § 2000d (West, Westlaw through P.L. 115-171).

19 Rhim and Kothari, Secondary Analysis of the Civil Rights Data, 8.

20 Mark Weber and Julia Sass Rubin, New Jersey Charter Schools: A Data-Driven View—2018 Update, Part I

(n.p.: Rutgers, March 2018),14–15, https://doi.org/10.7282/T39Z983M. See also Brief for Savina Tapia et al. as 

Amici Curiae Supporting Defendants-Appellees, Jane Doe No. 1 and Others v. James A. Peyser and Others, 

No. SJC-12275 (Mass. 2017), 2017 WL 3977897.

21 Lauren Morando Rhim and Margaret McLaughlin, “Students with Disabilities in Charter Schools: What We 

Now Know,” Focus on Exceptional Children 39, no. 5 (January 2007): 8–10, https://journals.ku.edu/FOEC/

article/view/6826/6180.

22 H.R. 4330, The All Students Achieving through Reform Act of 2009: Testimony before the Committee on 

Education and Labor, House of Representatives 111 Cong. 2 (2010), 18–23 (statement of Thomas Hehir, 

Professor, Harvard Graduate School of Education), https://www.gpo.gov/fdsys/pkg/CHRG-111hhrg54829/pdf/

CHRG-111hhrg54829.pdf.

23 California Charter Schools Association, Meeting the Needs of Every Student Through Inclusion: A Qualitative 

Study of Ten Charter Schools (Sacramento: Author, 2016), 18, 22, http://www.ccsa.org/2016-Special-EducationReport.pdf.

24 Loeb et al., “Increasing Choice in the Market for Schools,” 145–147.

25 Bruce Baker, Exploring the Consequences of Charter School Expansion in U.S. Cities (Washington, DC: 

Economic Policy Institute, 2016), 13, 51, 53–56, https://www.epi.org/files/pdf/109218.pdf.

26 See, for example, Patrick J. Wolf and Shannon Lasserre-Cortez, Special Education Enrollment and 

Classification in Louisiana Charter Schools and Traditional Schools (REL 2018-288) (Washington, DC: U.S. 

Department of Education, Institute of Education Sciences, National Center for Education Evaluation and 

Regional Assistance, Regional Educational Laboratory Southwest, 2018), 8, https://ies.ed.gov/ncee/edlabs/

regions/southwest/pdf/REL_2018288.pdf.

27 See Chapter 7 (discussing Robert Bifulco and Randall Reback, “Fiscal Impacts of Charter Schools: Lessons 

from New York,” Education Finance and Policy 9, no. 1 (2014), https://www.mitpressjournals.org/doi/10.1162/

EDFP_a_00121; Helen F. Ladd and John D. Singleton, The Fiscal Externalities of Charter Schools: Evidence 

from North Carolina, Economic Research Initiatives at Duke (ERID) Working paper No. 261 (Durham, NC: Duke 

University, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3082968; Gordon Lafer, Breaking 

Point: The Cost of Charter Schools for Public School Districts (n.p: In the Public Interest, May 2018), https://

www.inthepublicinterest.org/wp-content/uploads/ITPI_Breaking_Point_May2018FINAL.pdf). See also Baker, 

“Exploring the Consequences of Charter School Expansion,” 9–10. Concerns such as these plus high rates 

150 National Council on Disability
of suspension for African American students have led the NAACP and other groups to call for a moratorium 

on charter school expansion. National Association for the Advancement of Colored People, Resolutions 

Ratified by the National Board of Directors under Article IX, Section 1 of the Constitution of the NAACP

(Cincinnati, OH: NAACP, 2016), 33–35, http://www.naacp.org/wp-content/uploads/2016/03/Resolutions.2016.

pdf. Movement for Black Lives has separately called for a moratorium on all charter schools. The Movement 

for Black Lives, A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice (n.p.: The 

Movement for Black Lives, n.d.), https://policy.m4bl.org/wp-content/uploads/2016/07/Community-Controlof-Schools-Policy-Brief.pdf. The National Education Association similarly seeks to limit expansion of charters 

that are not part of local education agencies, while the American Federation of Teachers seeks a moratorium 

on for-profit charters. See National Education Association, NEA Policy Statement on Charter Schools (n.p.: 

National Education Association, 2017), https://ra.nea.org/nea-policy-statement-charter-schools/; American 

Federation of Teachers, AFT Resolution—Reclaiming the Promise of Public Charter Schools Through 

Rigorous Authorizer Reform (n.p: American Federation of Teachers, 2017), https://www.aft.org/resolution/

reclaiming-promise-public-charter-schools-through-rigorous-authorizer-reform.

28 Education Commission of the States, “Charter Schools: Does the State have a Charter School Law?”

29 The Center for Education Reform, which is an organization that supports the expansion of charters, describes 

“a good charter law” as “one that automatically exempts charter schools from most of the school district’s 

laws and regulations. . . .These waivers allow charter schools to innovate and try new learning strategies that 

traditional public schools cannot.” Center for Education Reform, Just the FAQs—Charter Schools (n.p.: Author, 

2012), https://www.edreform.com/2012/03/just-the-faqs-charter-schools.

30 Education Commission of the States, “Charter Schools: What Rules Are Waived for Charter Schools?” 

50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/mbquestNB2C?rep=CS1713.

31 Helen F. Ladd, Charles T. Cotfelter, and John B. Holbein, “The Growing Segmentation of the Charter School 

Sector in North Carolina,” NBER Working Paper Series 21078 (Cambridge, MA: National Bureau of Economic 

Research, April 2015), 5, http://www.nber.org/papers/w21078.pdf.

32 Education Commission of the States, “Charter Schools: Does State Law Explicitly Allow Virtual 

Charter Schools?” 50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/

mbquestNB2C?rep=CS1724; Education Commission of the States, “Charter Schools: Does the State Set 

Enrollment Limits for Virtual Charter Schools?” 50-State Comparison, last updated January 2018, http://ecs

.force.com/mbdata/mbquestNB2C?rep=CS1726.

33 National Center for Education Statistics, Institute of Education Sciences, Table 4.4. States with Charter 

School Caps, Automatic Exemptions, Required Teacher Certification, and Identification of Special Education 

Responsibilities for Charter Schools, by State: 2016–17 (Washington, DC: National Center for Education 

Statistics, 2017), https://nces.ed.gov/programs/statereform/tab4_4.asp. Several states such as Massachusetts 

also place a cap on the percentage of funds that may be redirected from TPS. Mass. Gen. Laws ch. 71, § 89(i) 

(West, Westlaw through Chapter 63 of the 2018 2nd Annual Session).

34 Colo. Rev. Stat. Ann. § 22-30.5-109 (West, through immediately effective legislation through Ch. 185 of the 

2nd Reg. Sess. of the 71st General Assembly (2018)).

35 Conn. Gen. Stat. Ann. § 10-66bb (West, Westlaw through enactments of Public Acts enrolled and approved by 

the Governor on or before April 27, 2018, and effective on or before April 27, 2018).

36 Mass. Gen. Laws ch. 71 § 89 (West, Westlaw through Chapter 63 of the 2018 2nd Annual Sess.).

37 Mo. Ann. Stat. § 160.400 (West, Westlaw through end of the 2017 1st Reg. Sess. and 1st and 2nd 

Extraordinary Sess. of the 99th General Assembly).

38 N.Y. Educ. Law § 2851(4)(e) (McKinney, Westlaw through L.2018, chapter 1) , N.Y. Educ. Law § 2852(9-a)(b)(i) 

(McKinney, Westlaw through L.2018, chapter 1).

39 N.Y. Educ. Law § 2852(9-a)(b)(i) (McKinney, Westlaw through L.2018, chapter 1).

40 N.Y. Educ. Law § 2851(4)(e) (McKinney, Westlaw through L.2018, chapter 1).

41 N.Y. Educ. Law § 2857 (McKinney, Westlaw through L.2018, chapter 1).

School Choice Series: Charter Schools—Implications for Students with Disabilities 151
42 N.Y. Educ. Law § 2855(e) (McKinney, Westlaw through L.2018, chapter 1). The statute further states that 

admission may not be limited on the basis of disability or “intellectual ability” (N.Y. Educ. Law § 2854(2) 

(McKinney, Westlaw through L.2018, chapter 1)) and that special education services are to be provided in 

accordance with the student’s IEP from the school district of residence (N.Y. Educ. Law § 2853(4) (McKinney, 

Westlaw through L.2018, chapter 1)). The charter school may arrange for the services to be provided by the 

district, the charter school directly, or a contract with an outside provider. If the district provides the services, 

they must be provided in the same manner as other public schools in the district, including the provision of 

supplementary and related services on site [N.Y. Educ. Law § 2853(4) (McKinney, Westlaw through L.2018, 

chapter 1)].

43 Wendy C. Chi and Kevin G. Welner, “Charter Ranking Roulette: An Analysis of Reports That Grade States’ 

Charter School Laws,” American Journal of Education 114 (2008): 282, http://www.greatlakescenter.org/docs/

Research/CharterRankingReport.pdf; Elaine Liu, “Solving the Puzzle of Charter Schools: A New Framework for 

Understanding and Improving Charter School Legislation and Performance,” Columbia Business Law Review

2015, no. 1 (2015): 307–12, https://cblr.columbia.edu/wp-content/uploads/2015/11/4_2015.1_Liu_FinalA.pdf.

44 Alison Consoletti Zgainer and Kara Kerwin, eds., Charter School Laws across the States: 2015 Rankings and 

Scorecard, 16th ed. (Washington, DC: Center for Education Reform, 2015), 7, https://www.edreform.com/

wp-content/uploads/2015/07/CharterLaws2015.pdf.

45 National Alliance for Public Charter Schools, A New Model Law for Supporting the Growth of High-Quality 

Charter Public Schools, 2nd ed. (Washington, DC: Author, October 2016), 8–13, https://www.publiccharters

.org/sites/default/files/migrated/wp-content/uploads/2016/10/2016ModelCharterSchoolLaw.pdf.

46 Ziebarth and Palmer, Measuring up to the Model, 8–12.

47 Ibid.

48 National Center for Special Education in Charter Schools, Leveraging Policy to Increase Access and Quality 

Opportunities for Students with Disabilities in Charter Schools (New York: Author, April 2017), 7–20, https://

static1.squarespace.com/static/52feb326e4b069fc72abb0c8/t/5a78b602419202bce0a99048/1517860363517/

Leveragingpercent2BPolicypercent2Btopercent2BIncreasepercent2BAccesspercent2B4.24.pdf.

49 Education Commission of the States, “Charter Schools: What Organizations May Authorize Charter Schools, 

and Is There a Statewide Authorizing Body?” 50-State Comparison, last updated January 2018, http://ecs

.force.com/mbdata/mbquestNB2C?rep=CS1708.

50 National Association of Charter School Authorizers, “Number of Authorizers in California,” Policy 

Research, accessed June 22, 2018, http://www.qualitycharters.org/policy-research/state-map/california/

california-authorizers/.

51 National Association of Charter School Authorizers, “Number of Authorizers in Wisconsin,” Policy 

Research, accessed June 22, 2018, http://www.qualitycharters.org/policy-research/state-map/wisconsin/

wisconsin-authorizers/.

52 20 U.S.C. § 1412(a)(11) (West, Westlaw through P.L. 115-171); 34 C,F.R. § 300.149 (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 24044).

53 20 U.S.C. § 1413(g) (West, Westlaw through P.L. 115-171); 34 C.F.R. § 300.227 (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 24044).

54 National Association of Charter School Authorizers, State of Charter Authorizing: 2015 State of 

Charter Authorizing Report (Chicago: Author, 2015), 4, http://www.qualitycharters.org/wp-content/

uploads/2017/02/2015-State-of-Charter-Authorizing-FINAL.pdf.

55 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 26.

56 34 C.F.R. §§ 99.30-99.39 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922) (FERPA); 34 C.F.R. 

§§ 300.610-300.627 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922) (IDEA).

57 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 3.

58 Education Commission of the States, “Charter Schools: Has the State Established Standards for Quality 

School Authorizing that Authorizers Must Meet?” 50-State Comparison, last updated January 2018, 

http://ecs.force.com/mbdata/mbquestNB2C?rep=CS1710.

152 National Council on Disability
59 Education Commission of the States, “Charter Schools: Does the State Require the Authorizer to Report on 

the Performance of Its Portfolio of Schools?” 50-State Comparison, last updated January 2018, http://ecs

.force.com/mbdata/mbquestNB2C?rep=CS1711; Stephanie Aragon, Questions to Consider When Creating or 

Modifying Charter School Laws (Denver, CO: Education Commission of the States, 2017), 4, https://files.eric

.ed.gov/fulltext/ED561945.pdf.

60 Education Commission of the States, “Charter Schools: Are there Sanctions in Place for Authorizers?” 

50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/mbquestNB2C?rep=CS1712.

61 National Alliance for Public Charter Schools, A Closer Look at the Charter School Movement (Chicago: 

Author, n.d.), 5, http://www.publiccharters.org/sites/default/files/migrated/wp-content/uploads/2016/02/

New-Closed-2016.pdf.

62 Ibid., 4.

63 National Alliance for Public Charter Schools, A New Model Law for Supporting the Growth of High-Quality 

Charter Schools (Chicago: Author, 2009), 19, http://www.publiccharters.org/sites/default/files/migrated/

wp-content/uploads/2014/01/ModelLaw_P7-wCVR_20110402T222341.pdf.

64 Whitney Bross and Douglas N. Harris, How (and How Well) Do Charter Authorizers Choose Schools? Evidence 

from the Recovery School District in New Orleans (New Orleans, LA: Education Research Alliance for New 

Orleans, 2016), 1, https://educationresearchalliancenola.org/files/publications/Bross-Harris-How-Do-CharterAuthorizers-Choose-Schools.pdf.

65 Lyria Boast, Shonaka Ellison, Bryan C. Hassel, Sean Conlan, and M. Karega Rausch, Authorizer Shopping: 

Lessons from Experience and Ideas for the Future (Chicago: National Association of Charter School 

Authorizers, 2016), 4–7, http://www.qualitycharters.org/wp-content/uploads/2016/03/Authorizer_Shopping_

Lessons_Ideas.pdf.

66 National Association of Charter School Authorizers, “Leadership, Commitment, Judgment: Elements of 

Successful Charter School Authorizing,” Quality Practice Project, n.d., http://www.qualitycharters.org/

research/quality-practice-project/?utm_source=NACSA percent27spercent20Masterpercent20List&utm_

campaign=ef170ff775-EMAIL_CAMPAIGN_2018_02_26&utm_medium=email&utm_term=0_9db2bde88fef170ff775-156300541&ct=tpercent28percent29&goal=0_9db2bde88f-ef170ff775-156300541.

67 Education Commission of the States, “Charter Schools: Who Provides Charter Schools with Their Funding?” 

50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/mbquestNB2C?rep=CS1717.

68 Education Commission of the States, “Who Provides Charter Schools with Their Funding?”

69 Arizona and at least five other states do not permit charter schools to access local funds typically raised by 

property taxes.

70 For example, whether a charter school is a new school or converted from a TPS. Seventeen states provide 

funds for start-up and/or planning grants, and some states limit use of the federal charter public school grants 

for expansion and replication of new charter schools.

71 Yilan Shen and Alexander Berger, Charter School Finance (Washington, DC: National Conference of State 

Legislatures, February 2011), 2–3, http://www.ncsl.org/documents/educ/charterschoolfinance.pdf.

72 Education Commission of the States, “Who Provides Charter Schools with Their Funding?”

73 Shen and Berger, Charter School Finance, 2.

74 Shen and Berger, Charter School Finance, 3.

75 National Center for Special Education in Charter Schools, Focused Report–Funding Formulas (New York: 

Author, Charter School Special Education Finance Project, n.d.), 1–3, https://static1.squarespace.com/static/

52feb326e4b069fc72abb0c8/t/59528f2837c5812d8041024b/1498582834914/Focused+report+Funding+

Formula.pdf.

76 Shen and Berger, Charter School Finance, 3.

77 Ibid.

78 Ibid.

79 Maria Millard and Stephanie Aragon, State Funding for Students with Disabilities (Denver: Education 

Commission of the States, 2015), 4–6, http://www.ecs.org/clearinghouse/01/19/47/11947.pdf.

School Choice Series: Charter Schools—Implications for Students with Disabilities 153
80 Education Commission of the States, “Who Provides Charter Schools with Their Funding?”

81 Lauren Morando Rhim, Paul O’Neill, Amy Ruck, Kathryn Huber, and Sivan Tuchman, Getting Lost While Trying 

to Follow the Money: Special Education Finance in Charter Schools (Washington, DC: National Alliance for 

Public Charter Schools, 2015), 9–10, http://www.publiccharters.org/wp-content/uploads/2015/11/sped_finance_

web.pdf.

82 Rhim et al., Getting Lost While Trying to Follow the Money, 10.

83 Education Commission of the States, “State Funding for Students with Disabilities All Data Points for 

States Using Formula Funding Mechanism,” last updated June 2015, http://ecs.force.com/mbdata/

mbfundallf?rep=SBFAF.

84 Education Commission of the States, “Charter Schools: How Is the Funding for a Charter School 

Determined?” 50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/

mbquestNB2?rep=CS1421. In 2017, Colorado and Florida became the first states to pass legislation 

requiring equitable access to certain local tax revenues for charter schools. In Colorado, only charter 

schools authorized by local districts can access the local revenue funds. In Florida, the local districts 

must share local tax revenue for capital projects with charter schools without regard for whether they 

are nonprofit or for-profit schools. Because disparities in property values historically produced significant 

inequalities in funding local school districts, as evidenced by protracted state litigation throughout the 

nation, states and LEAs have adopted multiple methods for supplementing inadequate base funds drawn 

primarily from property taxes that affect both TPS and charter schools. Parker Baxter, Todd L. Ely, and Paul 

Teske, “A Bigger Slice of the Money Pie,” Education NEXT (Spring 2018): 33–34, http://educationnext.org/

bigger-slice-of-the-money-pie-charters-colorado-florida-win-share-local-tax-dollars/.

85 States using a risk pool must develop and annually review a state plan in which the state determines which 

children with disabilities are high need, sets out the procedures by which LEAs participate in the risk pool, and 

determines how funds are distributed. 20 U.S.C. §1411(e)(3)(C) (West, Westlaw through P.L. 115-171).

86 20 U.S.C. §1411(e)(3) (West, Westlaw through P.L. 115-171).

87 20 U.S.C. §1411(e)(3)(D)(iii) (West, Westlaw through P.L. 115-171).

88 2015–2016 is the most recent year of data available through the CCD.

89 National Center for Education Statistics, Institute of Education Sciences, “Public Charter School Enrollment,” 

last updated March 2018, https://nces.ed.gov/programs/coe/indicator_cgb.asp.

90 National Center for Education Statistics, Institute of Education Sciences, “Characteristics of Traditional Public 

Schools and Public Charter Schools,” last updated April 2018, https://nces.ed.gov/programs/coe/indicator_cla

.asp.

91 National Center for Education Statistics, “Public Charter School Enrollment.”

92 Bradford, “Strengthening the Roots,” 1.

93 Ibid., National Alliance for Public Charter Schools, Estimated Charter Public School Enrollment, 2016–2017

(Washington, DC: Author, 2017), 1, https://www.publiccharters.org/sites/default/files/migrated/wp-content/

uploads/2017/01/EER_Report_V5.pdf [7 percent growth].

94 Sara Mead, Ashley LiBetti Mitchel, and Andrew J. Rotherham, The State of the Charter School Movement

(n.p.: Bellweather Education Partners, September 2015), 13, https://bellwethereducation.org/sites/default/files/

Charterpercent20Researchpercent200908percent20FINAL.pdf.

95 Mead et al., State of the Charter School Movement, 13.

96 Dennis Epple, Richard Romano, and Ron Zimmer, Charter Schools: A Survey of Research on Their 

Characteristics and Effectiveness, NBER Working Paper Series 21256 (Cambridge, MA: National Bureau of 

Economic Research, 2015), 4, http://www.nber.org/papers/w21256.pdf.

97 Caitlin P. Farrell, Priscilla Wohlstetter, and Joanna Smith, “Charter Management Organizations: An Emerging 

Approach to Scaling Up What Works,” Educational Policy 26, no. 4 (July 2012): 2, https://doi.org/10.1177/

0895904811417587.

154 National Council on Disability
98 Center for Research on Education Outcomes, Multiple Choice: Charter School Performance in 16 States

(Stanford, CA: Author, 2009), 1–8, 14–15, https://credo.stanford.edu/reports/MULTIPLE_CHOICE_CREDO.pdf; 

Ron Zimmer, Brian Gill, Kevin Booker, Stephane Lavertu, Tim R. Sass, and John Witte, Charter Schools in Eight 

States: Effects on Achievement, Attainment, Integration, and Competition (Santa Monica, CA: RAND, 2009), 

21–50, 53–60, https://www.rand.org/content/dam/rand/pubs/monographs/2009/RAND_MG869.pdf.

99 Christopher Lubienski, “Innovation in Education Markets: Theory and Evidence on the Impact of Competition 

and Choice in Charter Schools,” American Education Research Journal 40, no. 2 (Summer 2003): 395–443, 

https://www.jstor.org/stable/3699394?seq=1#page_scan_tab_contents.

100 Lubienski, “Impact of Competition,” 427–28.

101 Farrell et al., “Scaling Up What Works,” 2 (citing Christina Clark Tuttle, Bing-ru Teh, Ira Nicols-Barrer, Brian P. 

Gill, and Philip Gleason, Student Characteristics and Achievement in 22 KIPP Middle Schools: Final Report

(Washington, DC: Mathematica Policy Research, 2010), https://files.eric.ed.gov/fulltext/ED511107.pdf).

102 Farrell et al., 2 (citing Education Sector, Growing Pains: Scaling up the Nation’s Best Charter Schools

(Washington, DC: Education Sector, 2009)).

103 Farrell et al., “Scaling Up What Works,” 21, 24.

104 James L. Woodsworth and Margaret E. Raymond, Charter School Growth and Replication, vol. 2. (Stanford, 

CA: Center for Research on Education Outcomes, 2013), 13–14, https://credo.stanford.edu/pdfs/CGAR

percent20Growthpercent20Volumepercent20II.pdf.

105 Ibid., 13, Figure 6.

106 Mark Weber and Bruce Baker, “Do For-Profit Managers Spend Less on Schools and Instruction? A National 

Analysis of Charter School Staffing Expenditures,” Educational Policy 32, no. 6 (February 2017): 855–902, 

http://journals.sagepub.com/doi/abs/10.1177/0895904816681525?journalCode=epxa.

See also David D. Arsen and Yongmei Ni, Is Administration Leaner in Charter Schools? Resource Allocation 

in Charter and Traditional Public Schools? Education Policy Analysis Archives 20 (2012): 1, 13, http://epaa.asu

.edu/ojs/article/view/1016. (“Controlling for factors that could affect resource allocation patterns between 

school types, we find that charter schools on average spend $774 more per pupil per year on administration 

and $1141 less on instruction than traditional public schools”; furthermore, “charter schools managed by 

EMOs spend significantly more on administration than self-managed charters (about $312 per pupil). This 

higher spending occurs in administrative functions traditionally performed at both the district central office 

and school building levels.”)

107 U.S. Department of Education, Office of Inspector General, Nationwide Assessment of Charter and Education 

Management Organizations: Final Audit Report (Washington, DC: Author, September 2016), 16, https://www2

.ed.gov/about/offices/list/oig/auditreports/fy2016/a02m0012.pdf.

108 Miron, Mathis, and Welner, Review of “Separating Fact and Fiction,” 6.

109 Ibid.

110 Rebecca David, Kevin Hesla, and Susan Pendergrass, A Growing Movement: America’s Largest Public Charter 

School Communities, 12th annual ed. (Washington, DC: National Alliance for Public Charter Schools, 2017), 3, 

https://www.publiccharters.org/sites/default/files/documents/2017-10/Enrollment_Share_Report_Web_0.pdf. 

After Hurricane Katrina wiped out the school system in New Orleans, the Louisiana Legislature turned over 

80 percent of the schools in New Orleans to the Recovery School District to become independent charter 

schools. Thomas Toch, “The Big Easy’s Grand Experiment,” U.S. News, August 18, 2015, https://www.usnews

.com/opinion/knowledge-bank/2015/08/18/lessons-from-new-orleans-post-katrina-charter-school-experiment.

111 David et al., A Growing Movement, 4.

112 Epple et al., “Characteristics and Effectiveness,” 6, 13, 17, 58, 60–61.

113 Charisse Gulosino and Christopher Lubienski, “School’s Strategic Responses to Competition in Segregated 

Urban Areas: Patterns in School Locations in Metropolitan Detroit,” Education Policy Analysis Archives 19, 

no. 13 (May 2011): 20, http://dx.doi.org/10.14507/epaa.v19n13.2011.

School Choice Series: Charter Schools—Implications for Students with Disabilities 155
114 Robert Bifulco and Christian Buerger, “The Influence of Finance and Accountability Policies on Location of 

New York State Charter Schools,” Journal of Education Finance 40, no. 3 (2015): 193–221, https://muse.jhu

.edu/.

115 Robert Bifulco, Helen F. Ladd, and Stephen L. Ross, “Public School Choice and Integration: Evidence from 

Durham, North Carolina,” Working Paper 14, National Center for Analysis of Longitudinal Data in Education 

Research, February 2008, 22–25, https://files.eric.ed.gov/fulltext/ED509668.pdf. See also Helen F. Ladd, 

Charles T. Clotfelter, and John B. Holbein, “The Growing Segmentation of the Charter School Sector in North 

Carolina,” NBER Working Paper Series 21078, National Bureau of Economic Research, Cambridge, MA, April 

2015, http://www.nber.org/papers/w21078.pdf.

116 Erica Frankenburg, Genevieve Siegel-Hawley, and Jia Wang, Choice without Equity: Charter School 

Segregation and the Need for Civil Rights Standards (Los Angeles: The Civil Rights Project (UCLA Graduate 

School of Education and Information Studies), 2010), 4–6, 13, https://escholarship.org/uc/item/4r07q8kg.

117 Ibid., 3 (citing Gary Orfield, Forward).

118 Frankenburg et al., 3.

119 Federal funds that derive primarily but not exclusively from ESEA and IDEA, account for about 8 percent 

of the cost of public education in the United States. U.S. Department of Education, “The Federal Role in 

Education,” About ED, accessed June 22, 2018, https://www2.ed.gov/about/overview/fed/role.html.

120 20 U.S.C. §§ 6301 et seq. (West, Westlaw through P.L. 115-171).

121 Regulations pertaining to accountability have been repealed by Executive Order; repealed regulations 

pertaining to state accountability systems under Title I include those that prohibited the state’s accountability 

system from interfering with an authorizer’s ability to enforce charter accountability.

122 20 U.S.C. § 7221b(f)(2)(C) (West, Westlaw through P.L. 115-171).

123 20 U.S.C. § 7221b(f)(2)(G) (West, Westlaw through P.L. 115-171).

124 34 C.F.R. § 200.31 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

125 20 U.S.C. § 7221b(d)(5) (West, Westlaw through P.L. 115-171).

126 Andrew Uiifusa, “Trump Fails in Bid to Slash Education Budget: Final Spending Levels Top Previous Year’s,” 

Education Week Blogs, Education Week, April 10, 2018, https://www.edweek.org/ew/articles/2018/04/11/

trump-fails-in-bid-to-slash-education.html?qs=Trump+budget+charter+schools.

127 Andrew Ujifusa, “Trump Seeks to Cut Education Budget by 5 Percent, Expand School Choice Push,” 

Education Week Blogs, Education Week, updated February 2018, http://blogs.edweek.org/edweek/

campaign-k-12/2018/02/trump_education_budget_2019_5_percent_cut_school_choice_push.html.

128 Alyson Klein, “States Give Short Shrift to School Choice Option in ESSA Plans,” Education Week, April 24, 

2018, https://www.edweek.org/ew/articles/2018/04/25/states-give-short-shrift-to-school-choice.html.

129 Ibid.

130 Michael J. Petrilli, “Betsy Devos Just Unlocked Hundreds of Millions of Dollars a Year for New 

Charter Schools,” Thomas B. Fordham Institute, March 27, 2018, https://edexcellence.net/articles/

betsy-devos-just-unlocked-hundreds-of-millions-of-dollars-a-year-for-new-charter-schools.

131 34 C.F.R. § 300.39(b)(3) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

132 34 C.F.R. § 300.320(a)(1)(i) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

133 34 C.F.R. § 300.7 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922) (citing to 20 U.S.C. § 7221i(2)).

134 34 C.F.R. § 300.209(b) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

135 34 C.F.R. § 300.209(c) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

136 34 C.F.R. § 300.209(d) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

137 20 U.S.C. §1413(a)(5) (West, Westlaw through P.L. 115-171); 34 C.F.R. § 300.200 (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 7922); 34 C.F.R. § 300.209(b) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 

7922).

138 34 C.F.R. § 76.788(c) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922); 34 C.F.R. § 300.201 (West, 

Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

156 National Council on Disability
139 20 U.S.C. §1413(e)(1) (West, Westlaw through P.L. 115-171).

140 U.S. Department of Education, Office of Special Education and Rehabilitative Services, Frequently Asked 

Questions about the Rights of Students with Disabilities in Public Charter Schools under the Individuals with 

Disabilities Education Act (Washington, DC: U.S. Department of Education, December 28, 2016), 17–18, 

https://sites.ed.gov/idea/files/policy_speced_guid_idea_memosdcltrs_faq-idea-charter-school.pdf.

141 34 C.F.R. § 300.146 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

142 U.S. Department of Education, Frequently Asked Questions about the Rights, 8.

143 34 C.F.R. § 300.209(d)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

144 Ibid.

145 34 C.F.R § 300.33 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

146 Arizona State Bd. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1008, 1010 (9th Cir. 2006).

147 Arizona State Bd., 464 F.3d at 1008, 1010; see also 3 Americans with Disab.: Pract. & Compliance Manual 

§ 11:12 (citing Arizona State Bd. for statement that “[f]or-profit charter schools are ineligible for federal funding 

under the IDEA”).

148 Mark D. Evans, “An End to Federal Funding of for-Profit Charter Schools?” University of Colorado Law Review 

79, (2008): 617, 641; see also Matthew D. Bernstein, “Whose Choice Are We Talking About? The Exclusion 

of Students with Disabilities from for-Profit Online Charter Schools,” Richmond Journal of Law and the Public 

Interest 16 (2013): 487, 507 (explaining how in Massachusetts, for-profit companies can create “for-profit 

nonprofits” to apply for IDEA and ESEA money).

149 34 C.F.R. § 300.203 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

150 20 U.S.C. § 1413(e)(1) (West, Westlaw through P.L. 115-171).

151 20 U.S.C. § 1413(e)(1)(B) (West, Westlaw through P.L. 115-171).

152 United States Department of Education, Frequently Asked Questions about the Rights, 24, 27.

153 34 C.F.R. § 300.149(a)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

154 20 U.S.C. § 1413(g) (West, Westlaw through P.L. 115-171); 34 C.F.R. § 300.227 (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 7922).

155 34 C.F.R. §§ 300.507-518 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

156 34 C.F.R. §§ 300.151-153 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922). See also U.S. Department 

of Education, “OCR Complaint Process,” About ED, accessed June 22, 2018, https://www2.ed.gov/about/

offices/list/ocr/complaintprocess.html.

157 29 U.S.C. § 794 (West, Westlaw through P.L. 115-171).

158 42 U.S.C. §12132 (West, Westlaw through P.L. 115-171).

159 29 U.S.C. § 705(20)(B) (West, Westlaw through P.L. 115-171); 34 C.F.R. § 104.3(j)(1) (West, Westlaw through 

May 24, 2018 ); 42 U.S.C. § 12102(1) (West, Westlaw through P.L. 115-171); 28 C.F.R. § 35.104 (West, Westlaw 

through May 24, 2018).

160 34 C.F.R. § 104.3(l)(2)(iii) (West, Westlaw through May 24, 2018).

161 34 C.F.R. § 104.33(a) (West, Westlaw through May 24, 2018).

162 34 C.F.R. § 104.33(b)(1) (West, Westlaw through May 24, 2018).

163 See 34 C.F.R. § 104.4(b)(1) (West, Westlaw through May 24, 2018).

164 34 C.F.R. § 104.4(b)(2) (West, Westlaw through May 24, 2018).

165 34 C.F.R § 104.4(b)(4) (West, Westlaw through May 24, 2018).

166 See Illinois State Bd. of Educ., 20 IDELR 68 (OCR IL 1993).

167 34 C.F.R. § 104.36 (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

168 U.S. Department of Education, “OCR Complaint Process.”

169 U.S. Department of Education, Office for Civil Rights, Frequently Asked Questions about the Rights of 

Students with Disabilities in Public Charter Schools under Section 504 of the Rehabilitation Act of 1973

(Washington, DC: U.S. Department of Education, December 28, 2016), https://www2.ed.gov/about/offices/list/

ocr/docs/dcl-faq-201612-504-charter-school.pdf; U.S. Department of Education, Office of Special Education and 

School Choice Series: Charter Schools—Implications for Students with Disabilities 157
Rehabilitative Services, Frequently Asked Questions about the Rights of Students with Disabilities in Public 

Charter Schools under the Individuals with Disabilities Education Act (Washington, DC: U.S. Department of 

Education, December 28, 2016), https://sites.ed.gov/idea/files/policy_speced_guid_idea_memosdcltrs_faqidea-charter-school.pdf.

170 29 U.S.C. § 794(a) (West, Westlaw through P.L. 115-171); 34 C.F.R. §§ 104.4(a), (b)(2) (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 7922); 42 U.S.C. §12132 (West, Westlaw through P.L. 115-171).

171 34 C.F.R. § 104.4(b)(4) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922); 28 C.F.R § 35.130(b)(8) 

(West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

172 Beryl Nelson, Paul Berman, John Ericson, Nancy Kamprath, Rebecca Perry, Debi Silverman, and Debra 

Solomon, The State of Charter Schools 2000: National Study of Charter Schools Fourth-Year Report

(Washington, DC: U.S. Department of Education, Office of Educational Research and Improvement, 2000), 36, 

https://files.eric.ed.gov/fulltext/ED437724.pdf.

173 U.S. Government Accountability Office, Charter Schools: Additional Federal Attention Needed to Help Protect 

Access for Students with Disabilities, GAO-12-543 (Washington, DC: Author, 2000), 6-7, http://www.gao.gov/

assets/600/591435.pdf. For another examination of CCD data with respect to special education enrollment 

in charter schools at the national level, see Nat Malkus, Differences on Balance: National Comparisons of 

Charter and Traditional Public Schools (Washington, DC: American Enterprise Institute, 2016), 6–7, https://

www.aei.org/wp-content/uploads/2016/08/Differences-on-balance.pdf.

174 Lauren Morando Rhim, Jesse Gumz, and Kelly Henderson, Key Trends in Special Education in Charter Schools: 

A Secondary Analysis of the Civil Rights Data Collection 2011–2012 (New York: National Center for Special 

Education in Charter Schools, 2015), 15, https://static1.squarespace.com/static/52feb326e4b069fc72abb0c8/t/

567b0a3640667a31534e9152/1450904118101/crdc_full.pdf.

175 Rhim and Kothari, Secondary Analysis of the Civil Rights Data, 8–9.

176 Rhim and Kothari, 9–12.

177 Thomas A. Fiore, Lessley M. Harwell, Jose Blackorby, and Kara S. Finnigan, Charter Schools and Students 

with Disabilities: A National Study, Final Report (Washington, DC: U.S. Department of Education, Office of 

Educational Research and Improvement, 2000), 4, 40, https://files.eric.ed.gov/fulltext/ED452657.pdf.

178 See, for example, Anthony M. Garcy, “High Expense: Disability Severity and Charter School Attendance in 

Arizona,” Education Policy Analysis Archives 9, no. 6 (2011): 14–16; H.R. 4330, The All Students Achieving 

through Reform Act of 2009: Testimony before the Committee on Education and Labor, House of 

Representatives 111th Cong. 2 (2010), 18–23 (statement of Thomas Hehir, Professor, Harvard Graduate School 

of Education), https://www.gpo.gov/fdsys/pkg/CHRG-111hhrg54829/pdf/CHRG-111hhrg54829.pdf; Federico 

R. Waitoller, Daniel M. Maggin, and Agata Trzaska, “A Longitudinal Comparison of Enrollment Patterns of 

Students Receiving Special Education in Urban Neighborhood and Charter Schools,” Journal of Disability Policy 

Studies 28, no. 1 (2017): 9; Marcus A. Winters, Why the Gap? Special Education and New York City Charter 

Schools (Seattle, WA: Center on Reinventing Public Education and Manhattan Institute for Policy Research, 

2013), 10, https://www.crpe.org/sites/default/files/CRPE_report_speced_gap-nyc-charters.sept13.pdf.

179 Rhim and Kothari, Secondary Analysis of the Civil Rights Data, 14–15.

180 Ibid., 15–16.

181 Interview with Charter School Special Education Administrator, 2018.

182 Interview with Charter School General Education Teacher, 2018.

183 Winters, Why the Gap? 3; Marcus A. Winters, Understanding the Charter School Special Education Gap: 

Evidence from Denver, Colorado (Seattle, WA: Center on Reinventing Public Education, 2014), 10; Marcus 

A. Winters, “Understanding the Gap in Special Education Enrollments Between Charter and Traditional 

Public Schools: Evidence from Denver, Colorado,” Educational Researcher 44, no. 4 (2015): 230, https://doi

.org/10.3102/0013189x15584772.

184 Winters, Why the Gap? 4.

185 Winters, “Understanding the Gap in Special Education Enrollments,” 230.

158 National Council on Disability
186 Winters, Understanding the Charter School Special Education Gap, 4.

187 Participant, Regional Focus Group, 2017.

188 Kern Alexander, “Asymmetric Information, Parental Choice, Vouchers, Charter Schools and Stiglitz,” Journal of 

Education Finance 38, no. 2 (2012): 173, http://www.jstor.org/stable/23353972; Courtney A. Bell, “All Choices 

Created Equal? The Role of Choice Sets in the Selection of Schools,” Peabody Journal of Education 84, no. 2 

(2009): 205–206; Susan L. DeJarnatt, “School Choice and the (Ir)rational Parent,” Georgetown Journal on 

Poverty Law and Policy 15 (2008): 30–34; Adriana Villavicencio, “‘It’s Our Best Choice Right Now,’ Exploring 

How Charter School Parents Choose,” Education Policy Analysis Archives 21, no. 81 (2012): 2, 10.

189 Griselda Zetino, Schools Choosing Students: How Arizona Charter Schools Engage in Illegal and Exclusionary 

Student Enrollment Practices and How It Should Be Fixed (Phoenix: ACLU of Arizona, 2017), 6, 10, 11, 

https://www.acluaz.org/sites/default/files/field_documents/schools_choosing_students_web.pdf.

190 Winters, Why the Gap? 14–15; Winters, “Understanding the Charter School Special Education Gap,” 2–3.

191 Wolf and Lasserre-Cortez, Special Education Enrollment and Classification in Louisiana Charter Schools and 

Traditional Schools, 12.

192 Elizabeth Setren, Special Education and English Language Learner Students in Boston Charter Schools: 

Impact and Classification (Cambridge, MA: MIT Department of Economics, 2016), 9–10, https://seii.mit.edu/

wp-content/uploads/2016/10/SEII-Discussion-Paper-2016.04-Setren-1.pdf.

193 Kevin G. Welner and Kenneth R. Howe, “Steering Toward Separation: The Policy and Legal Implications of 

‘Counseling’ Special Education Students Away from Choice Schools,” in School Choice and Student Diversity: 

What the Evidence Says, ed. Janelle Scott (New York: Teachers College Press, 2015), 93–107; Elizabeth R. 

Drame, “An Analysis of the Capacity of Charter Schools to Address the Needs of Students with Disabilities 

in Wisconsin,” Remedial and Special Education 32, no. 1 (2011): 60, https://doi.org/10.1177/0741932510361259.

194 Participant, Regional Focus Group, 2017.

195 Participant, Regional Focus Group, 2017.

196 Interview with State Department of Education Official, 2018.

197 Winters, Why the Gap? 15–16; Winters, “Understanding the Charter School Special Education Gap,” 18.

198 Interview with Parent Advocate, 2018.

199 Daniel J. Losen, Michael A. Keith II, Cheri L. Hodson, and Tia E. Martinez, Charter Schools, Civil Rights and 

School Discipline: A Comprehensive Review (Los Angeles: The Civil Rights Project, The Center for Civil 

Rights Remedies, 2016), 6–8, https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civilrights-remedies/school-to-prison-folder/federal-reports/charter-schools-civil-rights-and-school-discipline-acomprehensive-review/losen-et-al-charter-school-discipline-review-2016.pdf. This report also found that charter 

schools had a higher suspension rate for students with disabilities than did noncharter schools (15.5 percent 

versus 13.7 percent, respectively). Losen et al., A Comprehensive Review, 8.

200 Rhim and Kothari, Key Trends in Special Education in Charter Schools, 16.

201 Malkus, Differences on Balance, 12–13.

202 In re: Student with a Disability, 69 IDELR 688 (DC SEA, 2017).

203 Education Commission of the States, Open Enrollment Quick Guide (Denver, CO: Author, 2018), https://www

.ecs.org/wp-content/uploads/Open-Enrollment-Quick-Guide.pdf.

204 Open enrollment can be either intradistrict (selection and transfer within the resident school district), 

interdistrict (selection and transfer outside the resident school district), voluntary (schools and districts 

maintain autonomy to accept and implement open-enrollment policies), or mandatory (schools and districts 

must accept and implement open-enrollment policies), leading to high variability between, and sometimes 

within, state models. For instance, interdistrict open enrollment is mandatory in four cities in Connecticut 

but voluntary throughout the rest of the state. Arkansas has mandatory interdistrict open enrollment, but 

state policy limits the number of school choice transfers a sending school may approve. In Mississippi, 

interdistrict open enrollment is voluntary statewide; students living more than 30 miles from their assigned 

school must be allowed to attend a school in another district. School districts in Texas approve intradistrict 

School Choice Series: Charter Schools—Implications for Students with Disabilities 159
transfer requests on an individual basis and Vermont’s open-enrollment policies apply only to high schools. 

Education Commission of the States, Open Enrollment: Overview and 2016 Legislative Update (Denver, CO: 

Author, updated January 2017), 2, https://www.ecs.org/wp-content/uploads/Open-Enrollment-Overview-and2016-legislative-update.pdf. Of the 46 states and the District of Columbia that implement some form of an 

open-enrollment policy, 35 states have intradistrict policies, 42 states have interdistrict policies, 28 states 

have mandatory policies, and 34 states have voluntary policies. Education Commission of the States, Open 

Enrollment Quick Guide.

205 Intradistrict open enrollment generally presents with fewer issues because funds do not follow the child 

outside the district.

206 Adam M. Herrmann, Nathan Burroughs, and Jonathan A. Plucker, “Open Enrollment in K–12 Public Education,” 

Education Policy Brief 7, no. 3 (2009): 3, http://files.eric.ed.gov/fulltext/ED507075.pdf.

207 See Herrmann et al., “Open Enrollment in K–12 Public Education,” 2–3.

208 Education Commission of the States, Open Enrollment Legislative Update, 2–3 (“For example, Delaware 

requires districts to give priority to returning students, students living in a school’s designated feeder zone 

and siblings of currently enrolled students. After addressing these priorities, districts may further prioritize 

students who designate the school as one of their top three choices, students who live in the district and 

children of school employees. In Louisiana, school districts must give priority to students who transfer out 

of low-performing schools and schools identified as persistently dangerous. Oregon allows districts to make 

open-enrollment transfer decisions and does not mandate which student groups must be given priority. 

However, the state requires school districts to hold a lottery if transfer requests exceed school or district 

capacity and state policy suggests three priority groups. Utah’s open-enrollment policies do not set specific 

enrollment priorities but do specify that districts may give priority to intradistrict transfers.”).

209 While it is too early to assess, it seems likely that the U.S. Department of Education’s guidance withdrawing 

the limited exceptions to use of a blind lottery and allowing students enrolled in feeder schools to enroll in 

the level charter schools without participating in the lottery will further exacerbate the exclusion of certain 

children.

210 Education Commission of the States, Open Enrollment Legislative Update, 3. But see same (“However, a 

number of states specifically allow school districts to enter into agreements with other school districts to 

provide transportation for open-enrollment students. For example, receiving districts in Ohio may provide 

transportation to open-enrollment students to and from stops along a regular bussing route. In cases where 

students transfer out of low-performing schools—in Arkansas, for example—or transfer to address racial 

imbalances—such as in Massachusetts—states may require the sending districts to provide transportation or 

pay transportation costs. A small number of states also require districts to provide transportation to incomeeligible students.”).

211 See Letter to Lutjeharms, 16 IDELR 554 (OSERS, 1990) (in the context of an interdistrict choice program, the 

district which is responsible to provide FAPE is also obligated to provide transportation when it is a related 

service under IDEA and Section 504).

212 See Betheny Gross and Christine Campbell, A Guide to Unifying Enrollment: The What, Why, and How for 

Those Considering It (n.p.: Center on Reinventing Public Education, May 2017), 1, https://www.crpe.org/sites/

default/files/crpe-guide-unifying-enrollment.pdf.

213 See ibid.

214 Ibid.

215 Gross and Campbell, Guide to Unifying Enrollment, 1.

216 Ibid.

217 Ibid.

218 Ibid., 1; see also same (“Recently, cities have been adopting a ‘single best offer’ lottery procedure: students 

list their schools in order of preference and the lottery provides a single match to each student that accounts 

for their preferences and their random lottery number.”).

160 National Council on Disability
219 Ibid., 1.

220 Ibid., 1, 3.

221 Ibid., 4.

222 Arianna Prothero, “When Choice Doesn’t Feel Like a Choice: Parents Struggle to Navigate the 

City’s School-Choice Process,” Education Week, August 19, 2015, https://neworleans.edweek.org/

parents-struggle-with-school-choice-system.

223 Marta Jewson, “How Meaningful Is School Choice in New Orleans?” The Hechinger Report, May 12, 2015, 

http://hechingerreport.org/how-meaningful-is-school-choice-in-new-orleans-the-city-of-charters/.

224 See Parent Imperfect, “What Could Be Wrong with Unified School Enrollment?” The Parent Imperfect

(blog), last updated October 26, 2015, https://parentimperfectct.wordpress.com/2015/10/26/

what-could-be-wrong-with-unified-school-enrollment.

225 Parent Imperfect, “What Could Be Wrong.”

226 Ibid.

227 Ibid.

228 Ibid.

229 U.S. Department of Education, Office for Civil Rights, Frequently Asked Questions about the Rights of 

Students with Disabilities in Public Charter Schools, 13-20, Q. 15A, B, C., Q.16.

230 Ibid., 20. Q 16.

231 Participant, Regional Focus Group, 2017.

232 20 U.S.C. § 7221i(2)(H)(i) (West, Westlaw through P.L. 115-90, P.L. 115-92 to 115-122; Title 26 through 115-122).

233 U.S. Department of Education, Charter Schools Program Nonregulatory Guidance (Washington, DC: Author, 

2014), 18, https://www2.ed.gov/programs/charter/nonregulatory-guidance.html.

234 Ibid., 18.

235 Ibid., 18–19. The guidance stated that charter schools could also choose to employ a weighted lottery (1) if the 

school’s use of a weighted lottery was necessary to comply with the civil rights laws, the equal protection 

clause of the U.S. Constitution, or applicable state law. U.S. Department of Education, Charter Schools 

Program Nonregulatory Guidance, 18.

236 See 20 U.S.C. § 7221b(c)(3)(A) (West, Westlaw through P.L. 115-90, P.L. 115-92 to 115-122; Title 26 through 

115-122). It must be noted that the nonregulatory guidance specifically prohibited charter schools from 

using weighted lotteries “for the purpose of creating schools exclusively to serve a particular subset 

of students.” U.S. Department of Education, Charter Schools Program Nonregulatory Guidance, 19. 

However, the statute as enacted under ESSA added that “nothing in this paragraph shall be construed to 

prohibit schools from specializing in providing specific services for students with a demonstrated need 

for such services, such as students who need specialized instruction in reading, spelling, or writing.” 

20 U.S.C. § 7221b(c)(3)(B) (West, Westlaw through P.L. 115-90, P.L. 115-92 to 115-122; Title 26 through 

115-122).

237 Cf. U.S. Department of Justice and U.S. Department of Education, Guidance on the Voluntary Use of Race to 

Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools (Washington, DC: Author, 

2013), 12, https://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf (now-archived guidance 

suggesting that school districts “could give greater weight to the applications of students based on their 

socioeconomic status, whether they attend underperforming feeder schools, their parents’ level of education, 

or the average income level of the neighborhood from which the student comes, if the use of one or more of 

these additional factors would help to achieve racial diversity or avoid racial inclusion”).

238 Arianna Prothero, “In Charters, Using Weighted Lotteries for Diversity Hits Barriers,” Education Week, March 

8, 2016, https://www.edweek.org/ew/articles/2016/03/09/in-charters-using-weighted-lotteries-for-diversity.html.

239 See U.S. Department of Education, Office of Innovation and Improvement, Letter for CSP Project Director

(Washington, DC: United States Department of Education, 2017), https://innovation.ed.gov/files/2017/12/CSPDCL.pdf.

School Choice Series: Charter Schools—Implications for Students with Disabilities 161
240 U.S. Department of Education, Letter for CSP Project Director, 1. See also 20 U.S.C. § 7211i(1)(H)(ii) (West, 

Westlaw through P.L. 115-90, P.L. 115-92 to 115-122; Title 26 through 115-122). (“In the case of a school that 

has an affiliated charter school (such as a school that is part of the same network of schools), automatically 

enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for 

any additional student openings or student openings created through regular attrition in student enrollment in 

the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in 

clause (i).”).

241 20 U.S.C. § 7221i((2)(H)(ii) (West, Westlaw through P.L. 115-90, P.L. 115-92 to 115-122; Title 26 through 

115-122).

242 Cheryl M. Lange and Camilla A. Lehr, “Charter Schools and Students with Disabilities: Parent Perceptions of 

Reasons for Transfer and Satisfaction with Services,” Remedial and Special Education 21, no. 3 (May 2000): 

145, https://doi.org/10.1177/074193250002100303.

243 Jane Finn, Katherine Caldwell, and Tara Raub, “Why Parents Choose Charter Schools for the Children with 

Disabilities,” Journal of Educational Research and Policy Studies 6, no. 2 (Fall 2006): 97–98, https://files.eric

.ed.gov/fulltext/EJ844654.pdf.

244 Rhim and McLaughlin, “Students with Disabilities and Charter Schools,” 6.

245 Federico R. Waitoller and Gia Super, “School Choice or the Politics of Desperation? Black and Latinx Parents of 

Students with Disabilities Selecting Charter Schools in Chicago,” Education Policy Analysis Archives 25, no. 55 

(2017): 34–37, https://epaa.asu.edu/ojs/article/view/2636.

246 Participant, Regional Focus Group, 2017. Other stakeholders also commented on the fact that parents 

sometimes view a charter school as being “the next best thing” to a private school. Participant, Regional 

Focus Group, 2017 (“I think with some parents, there’s a perception that they’re getting like a private school 

education because, you know, you’ll see kids wearing uniforms and so they perceive it as ‘I’m going to a 

smaller environment and be more like a private school, but I don’t have to pay for a private school’”).

247 Participant, Regional Focus Group, 2017.

248 Participant, Regional Focus Group, 2017.

249 Participant, Regional Focus Group, 2017.

250 Interview with Parent, 2018.

251 Interview with Parent Advocate, 2018.

252 Interview with Parent Advocate, 2018.

253 Rhim and Kothari, Secondary Analysis of Civil Rights Data, 12–13.

254 34 C.F.R. § 300.209(a) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

255 Minn. Stat. Ann. § 124E.03(3) (West, Westlaw through laws of the 2018 Reg. Sess. effective May 15, 2018) 

(emphasis added).

256 S.C. Code Ann. § 59-40-40(4) (West, Westlaw through 2018 Act No. 151). According to the statute, sponsors 

include the South Carolina Public Charter School District Board of Trustees, the local school board of trustees 

in which the charter school is located, or a public or independent institution of higher learning that is 

registered with the South Carolina Department of Education. S.C. Code Ann. § 59-40-40(4) (West, Westlaw 

through 2018 Act No. 151). The statute further specifies that charter schools must “adhere to the same . . . 

disability rights requirements as are applied to public schools operating in the same school district or, in 

the case of the South Carolina Public Charter School District or a public or independent institution of higher 

learning sponsor, the local school district in which the charter school is located.” S.C. Code Ann. § 59-40-50(B)(1) 

(West, Westlaw through 2018 Act No. 151).

257 National Association of Charter School Authorizers, Special Education Toolkit: Guidance for Charter 

School Authorizers. Prepared by the National Center for Special Education in Charter Schools 

(Chicago: National Association of Charter School Authorizers, 2018), 31, App. A, https://static1

.squarespace.com/static/52feb326e4b069fc72abb0c8/t/5a5fcc778165f56df6fb3e8f/1516227782450/

Special+Education+Toolkit+2018.

162 National Council on Disability
258 Mass. Gen. Laws c. 71 § 89 (West, Westlaw through Chapter 63 of the 2018 2nd Annual Sess.); Cal. Educ. 

Code § 47641 (West, Westlaw through Ch. 9 of 2018 Reg. Sess.). In Massachusetts, most charter schools 

operate as their own LEA, whereas in California, most charter schools operate as part of an existing LEA. 

Rhim and Kothari, Key Trends in Special Education in Charter Schools, 12.

259 N.H. Rev. Stat. Ann. § 194-B:3 (West, Westlaw through Chapter 16 of the 2018 Reg. Sess., not including 

changes and corrections made by the State of New Hampshire, Office of Legislative Services).

260 34 C.F.R. § 300.115(a) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

261 Office of Special Education and Rehabilitative Services, Frequently Asked Questions about the Rights of 

Students with Disabilities, 17–18.

262 603 Mass. Code Regs. § 28.10(6) (West, Westlaw through Register No. 1364, dated May 4, 2018).

263 R.B. ex rel Parent v. Mastery Charter Sch., 762 F. Supp. 2d 745, 752-53 (E.D. Pa. 2010), Aff’d., 532 Fed. Appx. 

136 (3rd Cir. 2013), cert. denied, 134 S. Ct. 1280 (2014).

264 R.B. ex rel Parent, 762 F. Supp. 2d. at 761.

265 Family Founds. Acad. Charter Sch., 54 IDELR 207 (DE SEA 2010).

266 34 C.F.R. § 300.209(b) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

267 Long v. D.C., 56 IDELR 122 (D.D.C. 2011).

268 34 C.F.R. § 300.149(a)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

269 34 C.F.R. § 300.209(d)(1) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

270 34 C.F.R. § 300.149(a)(2) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

271 See, for example, Drame, “An Analysis of the Capacity of Charter Schools”; Fiore et al., Charter Schools and 

Students with Disabilities.

272 Lauren Morando Rhim, Special Education Challenges and Opportunities in the Charter Sector, National 

Charter School Research Project Working Paper 2008–12 (Seattle, WA: Center on Reinventing Public 

Education, 2008), 11–12; Rhim and McLaughlin, “Students with Disabilities and Charter Schools,” 6.

273 Participant, Regional Focus Group, 2017.

274 Interview with Parent Advocate, 2018.

275 Participant, Regional Focus Group, 2017.

276 Rhim, Special Education Challenges and Opportunities in the Charter Sector, 12.

277 Daniela Doyle, Juli Kim, and M. Karega Rausch, Beyond the Fringe: Charter Authorizing as Enrollment Grows

(Chicago: National Association of Charter School Authorizers, 2017), 17–18, http://www.qualitycharters.org/

wp-content/uploads/2017/11/Beyond-the-Fringe_HMS-Report.pdf.

278 Jake Jacobs, “What’s Behind New York’s Charter School End Run Around Teacher 

Certification?” The Progressive, March 1, 2018, http://progressive.org/public-school-shakedown/

new-yorks-charter-school-end-run-of-teacher-certification-180301.

279 U.S. Department of Education, Teacher Attrition and Mobility: Results from the 2012–13 Teacher 

Follow-up Survey – First Look (Washington, DC: Author, September 2014), Table 2, https://nces.ed.gov/

pubs2014/2014077.pdf. The gap, however, appears to have narrowed. In 2004–2005, the rate was 24.2 percent 

for charter schools and 11.9 percent for TPS.

280 M. David Miller, Thomas Dana, Nancy Thornqvist, and Wei Xu, Evaluation of Florida’s Charter School Program 

Grant Implementation (n.p.: University of Florida College of Education, 2015), 16, https://education.ufl.edu/

news/files/2015/12/Year-5_CAPES-external-evaluation_-semi-annual-report_10_30_15final.pdf.

281 New York City Charter School Center, The State of the NYC Charter School Sector (New York: New York 

City Charter School Center), 35, http://www.nyccharterschools.org/sites/default/files/resources/state-of-thesector-2012.pdf.

282 Samuel E. Abrams, Education and the Commercial Mindset (Cambridge, MA: Harvard University Press, 2016), 

223–224.

283 Miller et al., Evaluation of Florida’s Charter, 18–19.

284 Interview with Charter School General Education Teacher, 2018.

School Choice Series: Charter Schools—Implications for Students with Disabilities 163
285 Alexandra Neason, “Charter Schools’ Latest Innovation: Keeping Teachers Happy,” Slate, April 27, 2015, http://

www.slate.com/blogs/schooled/2015/04/27/charter_schools_and_churn_and_burn_how_they_re_trying_to_

hold_on_to_teachers.html.

286 Katherine K. Merseth, Inside Urban Charter Schools: Promising Practices and Strategies in Five HighPerforming Schools, with Kristy Cooper, John Roberts, Mara Casey Tieken, Jon Valant, and Chris Wynne 

(Cambridge, MA: Harvard Education Press, 2009): 64, 161.

287 Liana Loews, “More Charter School Teachers see Unions as an Option,” Education Week, June 30, 2017, 

https://www.edweek.org/ew/articles/2017/06/30/at-big-city-charter-schools-more-teachers-see.html.

288 National Alliance for Public Charter Schools, Unionized Charter Schools, 2016–17 (Washington, DC: 

National Alliance for Public Charter Schools, 2012), 1, https://www.publiccharters.org/sites/default/files/

documents/2018-02/Unionizedpercent20Charterpercent20Schoolspercent202016-17_0.pdf.

289 Loews, “Unions as an Option.”

290 Monica Disare, “SUNY Faces Legal Threat against Proposal to Let Charter Schools Certify 

their Teachers,” Chalkbeat, October 10, 2017, https://www.chalkbeat.org/posts/ny/2017/10/10/

suny-faces-legal-threat-against-proposal-to-let-charter-schools-certify-their-teachers.

291 Monica Disare and Patrick Wall, “The Votes Are In: Some New York Charter Schools Can Now Certify their 

Own Teachers,” Chalkbeat, October 11, 2017, https://www.chalkbeat.org/posts/ny/2017/10/11/

the-votes-are-in-some-new-york-charter-schools-can-now-certify-their-own-teachers.

292 Ibid.

293 Interview with Charter School Special Education Administrator, 2018.

294 Rhim et al., Getting Lost While Trying to Follow the Money, 4.

295 Ibid.

296 Rhim and McLaughlin, “Students with Disabilities and Charter Schools,” 8–10.

297 U.S. Government Accountability Office, Charter Schools, 16.

298 Participant, Regional Focus Group, 2017.

299 Interview with Parent Advocate, 2018.

300 Interview with Charter Organization Expert, 2018.

301 Interview with State Department of Education Official, 2018.

302 Interview with Charter School Special Education Administrator, 2018.

303 Garda, “Culture Clash,” 689.

304 Abigail Thernstrom and Stephen Thernstrom, No Excuses: Closing the Racial Gap in Learning (New York: 

Simon and Schuster, 2003), 43–79; David Whitman, Sweating the Small Stuff: Inner-City Schools and the New 

Paternalism (Washington, DC: Thomas B. Fordham Institute, 2008), 259–77, https://files.eric.ed.gov/fulltext/

ED502972.pdf.

305 Albert Cheng, Collin Hitt, Brian Kisida, and Jonathan N. Mills, “‘No Excuses’ Charter Schools: A MetaAnalysis of the Experimental Evidence on Student Achievement,” Journal of School Choice 11, no. 2 

(2017): 211; Elizabeth Green, “Beyond the Viral Video: Inside Educators’ Emotional Debate about 

‘No Excuses’ Discipline,” Chalkbeat, March 8, 2016, https://ny.chalkbeat.org/posts/ny/2016/03/08/

beyond-the-viral-video-inside-educators-emotional-debate-about-no-excuses-discipline.

306 Sarah Cohodes, “Charter Schools and the Achievement Gap,” The Future of Children (2018), 6–7. Cheng et al., 

“‘No Excuses’ Charter Schools: A Meta-Analysis,” 225. These schools also have positive effects on college 

enrollment for all students, although the impact on college persistence is less clear. According to a 2011 

report conducted by the KIPP Network on its alumni college persistence rates, only one-third (33 percent) 

of its alumni had graduated from a four-year college. KIPP Foundation, The Promise of College Completion: 

KIPP’s Early Successes and Challenges (San Francisco: Author, 2011), 8, http://www.kipp.org/wp-content/

uploads/2016/09/CollegeCompletionReport.pdf. As of fall 2016, the college persistence rate among KIPP 

alumni had gone up to 44 percent. KIPP Foundation, “KIPP Announces Findings from Its First-Ever Survey 

164 National Council on Disability
of KIPP Alumni in College,” January 31, 2017, http://www.kipp.org/events-press/kipp-announces-findingsfirst-ever-survey-kipp-alumni-college. At the same time, a recent study found that students attending a “no 

excuses” charter high school in Chicago (part of the Noble Charter Network) were more likely to enroll in 

college and remain there for at least four semesters. Matthew Davis and Blake Heller, “No Excuses” Charter 

Schools and College Enrollment: New Evidence from a High School Network in Chicago (Philadelphia: 

University of Pennsylvania, 2017), 15, http://assets.wharton.upenn.edu/~mattda/DavisHeller2015_REVISED

.pdf.

307 Joshua D. Angrist, Susan M. Dynarski, Thomas J. Kane, Parag A. Pathak, and Christopher R. Walters, 

“Who Benefits from KIPP?” Journal of Policy Analysis and Management 31, no. 4 (Fall 2012): 853–54.

308 See Christina Clark Tuttle, Bing-ru The, Ira Nicols-Barrer, Brian P. Gill, and Philip Gleason, Student 

Characteristics and Achievement in 22 KIPP Middle Schools: Final Report (Washington, DC: Mathematica 

Policy Research, 2010), 12–13, https://files.eric.ed.gov/fulltext/ED511107.pdf.

309 Gary Miron, Jessica L. Urschel, and Nicholas Saxton, What Makes KIPP Work? A Study of Student Characteristics, 

Attrition, and School Finance (New York and Kalamazoo, MI: National Center for the Study of Privatization in 

Education, Teachers College, Columbia University and the Study Group on Educational Management Organizations 

at Western Michigan University, 2011), 10–13, https://www.edweek.org/media/kippstudy.pdf.

310 Ira Nichols-Barrer, Philip Gleason, Brian Gill, and Christina Clark-Tuttle, “Student Selection, Attrition, and 

Replacement in KIPP Middle Schools,” Educational Evaluation and Policy Analysis, 38, no. 1 (2016): 13; 

Philip M. Gleason, “What’s the Secret Ingredient? Searching for Policies and Practices that Make Charter 

Schools Successful,” Working PAPER 47, Washington, DC: Mathematica Policy Research, July 2016, 16–17, 

https://www.mathematica-mpr.com/api/sitecore/MediaLibrary/ActualDownload?fileId=percent7B812

9BE54-6DD7-4088-A4C4-0F8B5B694DE8percent7D&fileName=charterpercent20schoolspercent20wp47

.pdf&fileData=charterpercent20schoolspercent20wp47.pdfpercent20-percent20percent7B8129BE54-6DD7-

4088-A4C4-0F8B5B694DE8percent7D&fileMime=application percent2Fpdf.

311 Brooke Williams, “Where ‘No-Excuses’ Pedagogy Fails Low-Income Students,” The Century Foundation, 

April 19, 2017, https://tcf.org/content/commentary/no-excuses-pedagogy-fails-low-income-students.

312 See, for example, Michael A. Naclerio, “Accountability through Procedure? Rethinking Charter School 

Accountability and Special Education Rights,” Columbia Law Review, 117, no. 5 (June 2017): 1174, 

http://columbialawreview.org/content/accountability-through-procedure-rethinking-charter-schoolaccountability-and-special-education-rights.

313 Kate Taylor, “At a Success Academy Charter School, Singling Out Pupils Who Have ‘Got to Go,’” New York 

Times, October 29, 2015, https://www.nytimes.com/2015/10/30/nyregion/at-a-success-academy-charterschool-singling-out-pupils-who-have-got-to-go.html.

314 Participant, Regional Focus Group, 2017.

315 Interview with Parent Advocate, 2018.

316 Interview with Parent Advocate, 2018.

317 Interview with Parent Advocate, 2018.

318 Brenda E. Morrison and Dorothy Vaandering, “Restorative Justice: Pedagogy, Praxis, and Discipline,” Journal 

of School Violence 11 (2012), 139–42; Allison Ann Payne and Kelly Welch, “The Effect of School Conditions on 

the Use of Restorative Justice in Schools,” Youth Violence and Juvenile Justice 16, no. 2 (2018), 225–27.

319 Interview with Charter School Special Education Teacher, 2018.

320 Interview with Charter School Special Education Administrator, 2018.

321 Ric Zappa, “First Person: What the Shift to Restorative Justice Looked Like in My KIPP School,” Chalkbeat, 

October 21, 2016, https://www.chalkbeat.org/posts/us/2016/10/21/first-person-what-the-shift-to-restorativejustice-looked-like-in-one-kipp-school/#.WAo4wvkrLhk.

322 National Charter School Resource Center, Charter School Discipline: Examples of Policies and School Climate 

Efforts from the Field (Houston, TX: Safal Partners, 2016), 4–26.

School Choice Series: Charter Schools—Implications for Students with Disabilities 165
323 Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005), 

on remand, 2006 WL 567836 (E.D. Tenn. 2006), aff’d, 258 Fed.Appx. 863 (6th Cir. 2008).

324 R.L. v. Miami-Dade County Sch. Bd., 757 F.3d 1173, 1188 (11th Cir. 2014).

325 Letter to Bina, 18 IDELR 582 (OSERS 1991).

326 Ms. S. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1131 (9th Cir. 2003), cert. denied, 544 U.S. 928 (2005).

327 K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. Appx. 151, 154 (2d Cir. 2010, unpublished).

328 Luo v. Baldwin Union Free Sch. Dist., 2016 U.S. Dist. LEXIS 3616, **15-16 (E.D.N.Y. 2016) (citing F.L. ex rel. 

F.L. v. N.Y. City Dep’t of Educ., No. 11-CV-5131, 2012 U.S. Dist. LEXIS 149296, 2012 WL 4891748 (S.D.N.Y. 

2012)) (internal citation omitted).

329 Participant, Regional Focus Group, 2017.

330 Interview with Parent Advocate, 2018.

331 See, for example, National Center for Special Education in Charter Schools, “Shining a Spotlight on Promising 

Practices for Students with Disabilities in the Charter Sector,” Paramount School of Excellence: Center of 

Excellence, February 2018, http://www.ncsecs.org/centers-of-excellence-paramount.

332 National Center for Special Education in Charter Schools, Denver School of Science and Technology: Cole High 

School (New York: Author, 2018), https://static1.squarespace.com/static/52feb326e4b069fc72abb0c8/t/5a579c

cd53450ad1026bebfd/1515691359922/COEpercent3A+Cole+High+School.

333 CAST, Universal Design for Learning Guidelines Version 2.2 (Wakefield, MA: CAST, 2018), http://udlguidelines

.cast.org.

334 National Center for Special Education in Charter Schools, Denver School of Science and Technology.

335 National Center for Special Education in Charter Schools, Paramount School of Excellence (New York: 

Author, 2018), https://static1.squarespace.com/static/52feb326e4b069fc72abb0c8/t/5a57a331e2c483c38b4

0ac61/1515692864261/COE percent3A+Paramount+School+of+Excellence.

336 California Charter Schools Association, Meeting the Needs of Every Student through Inclusion: A Qualitative 

Study of Ten California Charter Schools” (n.p.: California Charter Schools Association, 2016), http://www.ccsa

.org/2016-Special-Education-Report.pdf.

337 Interview with Charter School General Education Teacher, 2018.

338 Interview with Parent, 2018.

339 Participant, Regional Focus Group, 2017.

340 Participant, Regional Focus Group, 2017.

341 Interview with Student A’s Mother, 2018.

342 Interview with Student A’s Mother, 2018.

343 Interview with Student B’s Mother, 2018.

344 Interview with Student B’s Parent, 2018.

345 Interview with Student B’s Mother, 2018.

346 Julie F. Mead, Charter Schools Designed for Children with Disabilities: An Initial Examination of Issues 

Raised and Questions, Primers on Special Education in Charter Schools (Alexandria, VA: National Association 

of State Directors of Special Education, 2008), 8–9, https://www.researchgate.net/file.PostFileLoader

.html?id=562e8e3e6307d96f768b4578&assetKey=AS percent3A288904658866178percent401445891646128.

347 Rhim and Kothari, Secondary Analysis of the Civil Rights Data, 20, n.1.

348 Ibid., 21.

349 Ohio Rev. Code Ann. § 3314.061 (West, Westlaw through File 51 of the 132nd General Assembly 

(2017–2018) and 2017 State Issue 1) (“A governing authority may establish a [charter school] that is limited 

to providing simultaneously special education and related services to a specified number of students 

identified as autistic and regular educational programs to a specified number of students who are not 

disabled.”). Nevada law also specifies that there is nothing to “preclude the formation of a charter school 

that is dedicated to provide educational services exclusively to pupils . . . [w]ith disabilities.” Nev. Rev. 

Stat. Ann. § 388A.453(9)(a) (West, Westlaw through the end of the 79th Regular Session (2017) of the 

Nevada Legislature). It is interesting that the NCSES study, however, did not find there to be any specialized 

disability charter schools in Nevada.

166 National Council on Disability
350 Rhim and Kothari, Secondary Analysis of the Civil Rights Data, 21.

351 Mead, Charter Schools Designed for Children with Disabilities, 18.

352 Ibid.

353 Janet R. Decker, Keshia Seitz, and Bruce Kulwicki, “Autism Charter Schools: Legally Vulnerable or Viable?” 

Indiana Journal of Law and Social Equality 3, no. 1 (Spring 2015): 1, https://www.repository.law.indiana.edu/

ijlse/vol3/iss1/1.

354 Eliza Shapiro, “A Charter School Models How the City Can Educate Autistic Children,” Politico, October 30, 

2017, https://www.politico.com/states/new-york/city-hall/story/2017/10/30/

in-harlem-and-the-bronx-a-charter-school-models-how-the-city-can-educate-autistic-children-115314.

355 Arianna Prothero, “Special Charters Target Students with Disabilities,” Education Week 34, no. 4 

(September 17, 2014): 1.

356 Martha Minow, “Confronting the Seduction of Choice: Law, Education and American Pluralism.” 

Yale Law Journal 120, no. 4 (January 2011): 814, 839–40, https://www.yalelawjournal.org/feature/

confronting-the-seduction-of-choice-law-education-and-american-pluralism.

357 20 U.S.C. § 1412(a)(5)(A) (West, Westlaw through P.L. 115-171). Before moving a student to a more segregated 

placement, the IEP team must consider the full range of supplementary aids and services that could facilitate 

placement in the general education environment. Letter to Cohen, 25 IDELR 516 (OSEP 1996).

358 Letter to Van Wart, 20 IDELR 1217 (OSEP 1993).

359 U.S. Department of Education, Office of Special Education Programs, Analysis of Changes to Final Part B 

Regulations, 71 Fed. Reg. 46586 (2006).

360 34 C.F.R. § 300.116(e) (West, Westlaw through May 24, 2018; 83 Fed. Reg. 7922).

361 20 USC § 1414(d)(2)(C)(i)(2) (West, Westlaw through P.L. 115-171); 34 C.F.R. § 300.323(e) (West, Westlaw 

through May 24, 2018; 83 Fed. Reg. 7922).

362 U.S. Department of Education, Office of Special Education Programs, Analysis of Comments, 71 Fed. Reg. 46681.

363 U.S. Department of Education, Office of Special Education Programs, Questions and Answers on 

Individualized Education Programs (IEPs), Evaluations, and Reevaluations (Revised June 2010). (Washington, 

DC: Author, 2010), 9, https://www2.ed.gov/policy/speced/guid/idea/iep-qa-2010.pdf.

364 Mead, Charter Schools Designed for Children with Disabilities, 15.

365 Ibid., 12–13.

366 Prothero, “Special Charters Target Students with Disabilities,” 9.

367 Deena Prichep, “Do Autistic Kids Fare Better in Integrated or Specialized Schools?” National Public 

Radio, June 2, 2014, https://www.npr.org/2014/06/02/316462407/

do-autistic-kids-fare-better-in-integrated-or-specialized-schools.

368 U.S. Department of Education; Lauren Mirando Rhim and Julie Kowal, Demystifying Special Education in 

Virtual Charter Schools, Special Report, Primers on Special Education in Charter Schools (Alexandria, VA: 

National Association of State Directors of Special Education, 2008), 4, https://charterschoolcenter.ed.gov/

sites/default/files/files/field_publication_attachment/Demystifying percent20Sped percent20inpercent20Virtual

percent20Charterpercent20Schoolspercent202008_0.pdf.

369 Greg Vanourek, An (Updated) Primer on Virtual Charter Schools: Mapping the Electronic Frontier, updated 

and expanded by Evergreen Education Group (Chicago: National Association of Charter School Authorizers, 

2011), 3, https://files.eric.ed.gov/fulltext/ED544289.pdf. Synchronous instruction may be supported through 

means such as telephone calls, screen-sharing/web conferencing, videoconferencing, online chat forums, 

and instant messaging; asynchronous instruction may be supported through means such as email, online 

exercises or textbooks, various websites, recordings of lectures, discussion forums, and social media. 

Brian Gill, Lucas Walsh, Claire Smither Wulsin, Holly Matulewicz, Veronica Severn, Eric Grau, Amanda Lee, 

and Tess Kerwin, Inside Online Charter Schools (Cambridge, MA: Mathematica Policy Research, 2015), 11, 

https://www.mathematica-mpr.com/api/sitecore/MediaLibrary/ActualDownload?fileId=percent7B66DF6691-

3601-49B9-8A07-365F97A55C7Cpercent7D&fileName=inside_online_charter_schools.pdf&fileData=inside_

online_charter_schools.pdfpercent20-percent20percent7B66DF6691-3601-49B9-8A07-365F97A55C7C

percent7D&fileMime=applicationpercent2Fpdf.

School Choice Series: Charter Schools—Implications for Students with Disabilities 167
370 Luis A. Huerta, Maria-Fernanda Gonzalez and Chad d’Entremont, “Cyber and Home School Charter Schools: 

Adopting Policy to New Forms of Public Schooling,” Peabody Journal of Education 81, no. 1 (2006): 104, 

https://doi.org/10.1207/S15327930pje8101_6.

371 Gary Miron, Christopher Shank, and Caryn Davidson, Full-Time Virtual and Blended Charter Schools: 

Enrollment, Student Characteristics, and Performance (Boulder, CO: National Education Policy Center, 

2017), 16, http://nepc.colorado.edu/files/publications/RBpercent20Mironpercent20Virtualpercent20Schools

percent202018.pdf.

372 Gill et al., Inside Online Charter Schools, 5, Figure 11.2.

373 Education Commission of the States, “Charter Schools: Does State Law Explicitly Allow Virtual Charter 

Schools? 50-State Comparison,” 50-State Comparison, last updated January 2018, http://ecs.force.com/

mbdata/mbquestNB2C?rep=CS1724.

374 105 Ill. Comp. Stat. Ann. § 5/27A-5(b-5) (West, Westlaw though P.A. 100-585 of the 2018 Reg. Sess.). See also 

Ind. Code Ann. § 20-24-7-13 (West, Westlaw through all legislation of the 2018 2nd Reg. Sess. of the 120th 

General Assembly effective through June 30, 2018), amended by 2018 Ind. Legis. Serv.P.L. 191-2018 (H.E.A. 

1420) (West, Westlaw approved March, 21, 2018).

375 Education Commission of the States, “Charter Schools: Is There Any Additional Oversight Specific to 

Virtual Charter Schools?” 50-State Comparison, last updated January 2018, http://ecs.force.com/mbdata/

mbquestNB2C?rep=CS1727.

376 Idaho Code Ann. § 33-5205 (West, Westlaw through all immediately effective legislation of the 2nd Reg. Sess. 

of the 64th Legislature).

377 Dennis Beck, Anna Egalite, and Robert Maranto, “Why They Choose and How It Goes: Comparing Special 

Education and General Education Cyber Student Perceptions,” Computers and Education 76 (July 2014): 

74–75, https://doi.org/10.1016/j.compedu.2014.03.011; Sean J. Smith, Kelsey Ortiz, Mary Rice, and Daryl 

Mellard, Parents Perceptions of Special Education Service Delivery when Their Children Move to Fully 

Online Learning (Lawrence, KS: Center on Online Learning and Students with Disabilities, 2017), 6, 

http://www.centerononlinelearning.res.ku.edu/wp-content/uploads/2017/05/ParentReport2_IEP_April2017.pdf.

378 Rachel Currie-Rubin and Sean J. Smith, “Understanding the Roles of Families in Virtual Learning,” Teaching 

Exceptional Children 46, no. 5 (May/June 2014): 117–26, https://doi.org/10.1177/0040059914530101.

379 Bryan C. Hassel and Michelle Godard Terrell, How Can Virtual Schools Be a Vibrant Part of Meeting the Choice 

Provisions of the No Child Left Behind Act? U.S. Department of Education Secretary’s No Child Left Behind 

Leadership Summit. Increasing Options through e-Learning (Washington, DC: Public Impact, 2004), 2, http://

www.doe.virginia.gov/federal_programs/esea/title1/part_a/archive/how_can_virtual_schools.pdf.

380 The Mathematica Policy Research study found that three-quarters of virtual charter schools provided at least 

some classes that used self-paced study. Gill et al., Inside Online Charter Schools, 9.

381 Hassel and Godard Terrell, How Can Virtual Schools Be a Vibrant Part, 5, 10.

382 Most schools indicated that they provided a diagnostic assessment when students entered the school, 

and two-thirds indicated that they assessed students at least weekly. Gill et al., Inside Online Charter 

Schools, 17.

383 Kevin P. Brady, Regina R. Umpstead, and Suzanne E. Eckes, “Unchartered Territory: The Current Legal 

Landscape of Public Cyber Charter Schools,” Brigham Young University Education and Law Journal 2010, 

no. 2 (Fall 2010): 191.

384 Brady et al., “Unchartered Territory,” 191.

385 Beck et al., “Why They Choose and How It Goes,” 76.

386 Center on Online Learning and Students with Disabilities, The Foundation of Online Learning for Students 

with Disabilities (Lawrence, KS: Author, 2012), 3, https://kuscholarworks.ku.edu/bitstream/handle/1808/22563/

Foundation_7_2012.pdf?sequence=1&isAllowed=y. Because it is extremely difficult for online LMSs/CMSs 

and digital media to be retrofitted after the fact, this center has recommended that these digital platforms and 

materials be built with design accessibility standards in mind from the outset.

168 National Council on Disability
387 It is noteworthy that the Mathematica Policy Research study found that three-quarters of virtual charter 

schools use prepackaged curricula. Gill et al., Inside Online Charter Schools, 17.

388 Andrew I. Hashey and Skip Stahl, “Making Online Learning Accessible for Students with Disabilities,” 

TEACHING Exceptional Children 46, no. 5 (May 2014): 74, https://doi.org/10.1177/0040059914528329.

389 U.S. Department of Justice, Civil Rights Division and Department of Education, Office for Civil Rights, Joint 

“Dear Colleague” Letter: Electronic Book Readers (Washington, DC: U.S. Department of Justice, 2010), 1, 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.pdf.

390 U.S. Department of Education, Office for Civil Rights. Frequently Asked Questions about the June 29, 2010 

Dear Colleague Letter (Washington, DC: Author, 2011), https://www2.ed.gov/about/offices/list/ocr/docs/dclebook-faq-201105.pdf.

391 U.S. Department of Education, Office for Civil Rights, South Carolina Public Charter School District. Resolution 

Letter (Compliance Review No. 11-13-5001) (Washington, DC: U.S. Department of Education, 2014): 4–9.

392 Gill et al., Inside Online Charter Schools, 23.

393 Ibid., 22–23.

394 Kelsey Ortiz, Mary Rice, Sean Smith, and Daryl Mellard, Roles and Responsibilities of Parents of Online 

School Students with Disabilities (Lawrence, KS: Center on Online Learning and Students with Disabilities, 

2017), 2, http://www.centerononlinelearning.res.ku.edu/wp-content/uploads/2017/05/ParentReport1_April2017

.pdf.

395 Jared Borup, Mark A. Stevens, and Lisa Hasler Waters, “Parent and Student Perceptions of Parent Engagement 

at a Cyber Charter High School,” Online Learning 19, no. 5 (December 2015): 69–91, https://files.eric.ed.gov/

fulltext/EJ1085792.pdf.

396 Ortiz et al., Roles and Responsibilities, 8.

397 Ibid.

398 Ibid., 14–18.

399 Gill et al., Inside Online Charter Schools, 27–28. Teachers are also sometimes expected to be available after 

5 p.m. Gill et al., Inside Online Charter Schools, 27–28, Figure V.3.

400 Rhim and Kowal, Demystifying Special Education in Virtual Charter Schools, 8.

401 Eve Muller and Eileen Ahearn, Virtual Schools and Students with Disabilities. Project Forum (Alexandria, VA: 

National Association of State Directors of Special Education, 2004): 7, http://nasdse.org/DesktopModules/

DNNspot-Store/ProductFiles/222_0fc44829-b3fd-42bb-ad1e-8f8c38a37d39.pdf.

402 U.S. Department of Education, Office of Special Education Programs, Dear Colleague: Virtual Schools

(Washington, DC: United States Department of Education, 2016), 2, https://www2.ed.gov/policy/speced/guid/

idea/memosdcltrs/dcl--virtual-schools--08-05-2016.pdf.

403 Muller and Ahearn, Virtual Schools and Students with Disabilities, 7.

404 20 USC § 1414(d)(2)(C)(i) (West, Westlaw through P.L. 115-171); 34 C.F.R. §§ 300.323(e), (f) (West, Westlaw 

through May 24, 2018; 83 Fed. Reg. 7922).

405 Commonwealth Connections Acad. Charter Sch., 116 LRP 43678 (PA SEA, 2016).

406 See, for example, National Alliance for Public Charter Schools, National Association of Charter School 

Authorizers, and 50CAN, A Call to Action to Improve the Quality of Full-Time Virtual Charter Public Schools

(Washington, DC: Authors, 2016), http://www.publiccharters.org/wp-content/uploads/2016/06/VirtualsFINAL-06202016-1.pdf?x87663.

407 James L. Woodworth, Margaret E. Raymond, Kurt Chirbas, Maribel Gonzalez, Yohannes Negassi, Will Snow, 

and Christine Van Donge. Online Charter School Study (Stanford, CA: Center for Research on Education 

Outcomes, 2015), 23, http://credo.stanford.edu/pdfs/Online percent20Charter percent20Study percent20Final

.pdf.

408 James L. Woodworth, Margaret E. Raymond, Chunping Han, Yohannes Negassi, W. Payton Richardson, and 

Will Snow, Charter Management Organizations (Stanford, CA: Center for Research on Education Outcomes, 

2017), 75–76, https://credo.stanford.edu/pdfs/CMO percent20FINAL.pdf.

School Choice Series: Charter Schools—Implications for Students with Disabilities 169
409 Brady et al., “Unchartered Territory,” 191.

410 Dian Schaffhauser, “Report: Profit Motive Pervades Online Charter Schools and Blended Programs, The 

Journal, March 20, 2018, https://thejournal.com/articles/2018/03/20/report-profit-motive-pervades-onlinecharter-schools-and-blended-programs.aspx?s=the_nu_270318&mkt_tok=eyJpIjoiTXprMllqSTFNemMzWXp

FMCIsInQiOiIrQk16WisxcWluN3lHNmRvb05uTHVhaHVVSiswTkFvSndlVjMzXC9RSFRBWTNjaDRJNzZHOU

hcL3dyTXlqZitiNVAwdEYyYytLUkJwRUVoOG9QRlhBRjU4TG1jTSs2eG1rTFJQczBQdVI4NnFvWU1kQ2xDNlg1

Q3NySElsS3p0NmpOIn0percent3D.

411 Brady et al., “Unchartered Territory;” Rhim and Kowal, Demystifying Special Education in Virtual Charter Schools, 8.

412 Rhim and Kowal, Demystifying Special Education in Virtual Charter Schools, 8.

413 Gleason, “What’s the Secret Ingredient?” 1.

414 Julian R. Betts and Y. Emily Tang, The Effect of Charter Schools on Student Achievement: A Meta-Analysis 

of the Literature (Seattle, WA: National Charter School Research Project, 2011), https://www.crpe.org/sites/

default/files/pub_NCSRP_BettsTang_Oct11_0.pdf; Gleason, “What’s the Secret Ingredient?”; Julie F. Mead 

and Mark Weber, Review of Special Education and English Language Learner Students in Boston Charter 

Schools (Boulder, CO: National Education Policy Center, 2016), http://greatlakescenter.org/docs/Think_Twice/

TT-Mead-Weber-Boston-Charter.pdf.

415 The CREDO studies also raise methodological concerns by their focus on unrepresentative charter schools that 

showed higher achievement scores than did other charter schools and were using a composite “student” who was 

made up of an average of several students. Betts and Tang, Effect of Charter Schools on Student Achievement, 27–28.

416 Atila Abdulkadiroglu, Joshua D. Angrist, Susan M. Dynarski, Thomas J. Kane, and Parag A. Pathak, 

“Accountability and Flexibility in Public Schools: Evidence from Boston’s Charters and Pilots,” NBER Working 

Paper No. w15549 (Cambridge, MA: National Bureau of Economic Research, 2009); Atila Abdulkadiroglu, 

Joshua D. Angrist, Susan M. Dynarski, Thomas J. Kane, and Parag A. Pathak, “Accountability and Flexibility in 

Public Schools: Evidence from Boston’s Charters and Pilots,” Quarterly Journal of Economics 126, no. 2 (2011): 

669–748. https://doi.org/10.1093/qje/qjr017; Joshua D. Angrist, Parag A. Pathak, and Christopher R. Walters, 

“Explaining Charter School Effectiveness,” NBER Working Paper Series 17332 (Cambridge, MA: National Bureau 

of Economic Research, August 2011), http://www.nber.org/papers/w17332.pdf; Will Dobbie and Roland G. Fryer 

Jr., “Are High Quality Schools Enough to Close the Achievement Gap? Evidence from a Social Experiment in 

Harlem,” NBER Working Paper Series 15473 (Cambridge, MA: National Bureau of Economic Research, 2009), 

http://www.nber.org/papers/w15473.pdf; Caroline M. Hoxby, Sonali Murarka, and Jenny Kang, How New York 

City’s Charter Schools Affect Achievement, 2nd report in series (Cambridge, MA: New York City Charter Schools 

Evaluation Project, September 2009), https://www.aeaweb.org/conference/2010/retrieve.php?pdfid=532.

417 Mead and Weber, English Language Learner Students in Boston, 5; Setren, Special Education and English 

Language Learner Students, 18.

418 Mark Berends, “Sociology and School Choice: What we Know after Two Decades of Charter Schools,” Annual 

Review of Sociology 41 (2015): 159–80, https://doi.org/10.1146/annurev-soc-073014-112340; Julian R. Betts and 

Y. Emily Tang, “A Meta-Analysis of the Literature on the Effect of Charter Schools on Student Achievement,” 

Working Paper (n.p.: Center on Reinventing Public Education, August 2014), https://www.crpe.org/sites/

default/files/CRPE_meta-analysis_charter-schools-effect-student-achievement_workingpaper.pdf; Kevin Booker, 

Tim R. Sass, Brian Gill, and Ron Zimmer, “The Effects of Charter High Schools on Educational Attainment,” 

Journal of Labor Economics 29, no. 2 (April 1, 2011): 377–415, https://doi.org/10.1086/658089; Center for 

Research on Education Outcomes, National Charter School Study 2013 (Stanford, CA: Center for Research 

on Education Outcomes, 2013), http://credo.stanford.edu/documents/NCSSpercent202013percent20Final

percent20Draft.pdf; Devora H. Davis and Margaret E. Raymond, “Choices for Studying Choice: Assessing 

Charter School Effectiveness Using Two Quasi-Experimental Methods,” Economics of Education Review 31, 

no. 2 (April 2012): 225–36, https://doi.org/10.1016/j.econedurev.2011.08.012.

419 Abdulkadiroglu et al., “Accountability and Flexibility in Public Schools” (2009); Abdulkadiroglu et al., 

“Accountability and Flexibility in Public Schools” (2011); Angrist et al., “Explaining Charter School Effectiveness”; 

Dobbie and Fryer, “Are High Quality Schools Enough”; Hoxby et al., New York City’s Charter Schools.

170 National Council on Disability
420 Dobbie and Fryer, “Are High Quality Schools Enough.”

421 Furguson et al., 2012; Philip Gleason, Melissa Clark, Christina Clark Tuttle, and Emily Dwyer, The Evaluation 

of Charter School Impacts Final Report (Washington, DC: U.S. Department of Education, June 2010), https://

files.eric.ed.gov/fulltext/ED510573.pdf.

422 Gleason et al., Evaluation of Charter School Impacts.

423 Betts and Tang, Effect of Charter Schools on Student Achievement.

424 Sarah Cohodes, “Charter Schools and the Achievement Gap,” 6. A subsequent review of the Cohodes report 

found fault with the report’s conclusion that other schools should automatically adopt practices of the “no 

excuses” model without discussion of the use of harsh disciplinary practices characteristic of these schools. 

A. Chris Torres and Joanne W. Golann, NEPC Review: Charter Schools and the Achievement Gap (Boulder, CO: 

National Education Policy Center, 2018), 3, http://nepc.colorado.edu/thinktank/review-no-excuses.

425 Setren, Special Education and English Language Learner Students, 14.

426 Ibid., 17–18; Mead and Weber, English Language Learner Students in Boston, 3–4, 7–8.

427 Center for Research on Education Outcomes, National Charter School Study 2013, 80.

428 Center for Education Reform, “Choice and Charter Schools, Facts: Charter Schools,” accessed June 22, 2018, 

https://www.edreform.com/issues/choice-charter-schools/facts.

429 Education Trust-Midwest, Accountability for All: The Broken Promise of Michigan’s Charter Sector (Royal Oak, 

MI: Education-Trust Midwest, 2016), 4, 12, https://midwest.edtrust.org/accountability-for-all-2016-read-online.

430 Mass. Gen. Laws c. 71, § 89(i)(3) (West, Westlaw through Chapter 175 of the 2017 1st Annual Sess.).

431 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 43–47.

432 Karega Rausch, One Set of Data/Four Unique Perspectives on Authorizing and Special Education (Chicago: 

National Association of Charter School Authorizers, 2016), http://www.qualitycharters.org/2016/04/

one-set-datafour-unique-perspectives-authorizing-special-education/.

433 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 43.

434 Rausch, One Set of Data/Four Unique Perspectives (statement of Azure Angelov).

435 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 43.

436 Ibid., 44.

437 Ibid., 45.

438 Rausch, One Set of Data/Four Unique Perspectives (statement of Lauren Rhim).

439 National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report, 46.

440 Ibid., 44.

441 Rausch, One Set of Data/Four Unique Perspectives (statement of Robin Lake).

442 Ibid. (statement of Lauren Rhim).

443 20 U.S.C. § 7221b(f)(2)(C) (West, Westlaw through P.L. 115-171).

444 The Center for Popular Democracy, The Tip of the Iceberg: Charter School Vulnerabilities to Waste. Fraud and 

Abuse, April 2015.

445 U.S. Department of Education, Office of Inspector General, Nationwide Assessment of Charter and Education 

Management Organizations, 2.

446 Jan Resseger, “Ignoring Charter Disasters in Ohio, DeVos Funds ‘School Choice’ Throughout the Midwest,” 

The Progressive, October 20, 2017, http://progressive.org/public-school-shakedown/ignoring-charter-disastersin-ohio-devos-funds-percentE2 percent80percent9Cschool-choic.

447 Global Credit Research, “Charter Schools Pose Greatest Credit Challenge to School Districts in 

Economically Weak Urban Areas,” Moody’s, October 15, 2013, https://www.moodys.com/research/

Moodys-Charter-schools-pose-greatest-credit-challenge-to-school-districts--PR_284505.

448 Helen F. Ladd and John D. Singleton, The Fiscal Externalities of Charter Schools: Evidence from North 

Carolina, Economic Research Initiatives at Duke (ERID) Working paper No. 261 (Durham, NC: Duke University 

2018), 1, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3082968.

449 For example, Boston paid out $120 million from its school budget to out-of-district charter schools in FY2016 

and over $135 million in FY2017; and was projected to send out $151 million in FY2018.

School Choice Series: Charter Schools—Implications for Students with Disabilities 171
450 See Massachusetts Association of School Committees, Who Is Being Served, 27.

451 Baker, “Exploring the Consequences of Charter School Expansion,” 9–10.

452 National Center for Education Statistics, “Table 4.4 States with Charter School Caps, Automatic Exemptions, 

Required Teacher Certification, and Identification of Special Education Responsibilities for Charter Schools, by 

State: 2016–17,” State Education Reforms (SER), https://nces.ed.gov/programs/statereform/tab4_4.asp.

453 In 2015, Massachusetts voters overwhelmingly rejected a ballot referendum seeking to eliminate the cap on 

the number of charter schools.

454 Max Eden, Lifting the Massachusetts Cap on Charter Schools: Pro and Con, Issue Brief 55 (New York: 

Manhattan Institute, 2016), 4, https://www.manhattan-institute.org/html/massachusetts-charter-school-cap-procon-9278.html.

455 Ken Ardon and Cara Stillings Candal, Assessing Charter School Funding in 2016, White Paper No. 

148 (Boston: Pioneer Institute for Public Policy Research, 2016), 16–17, https://pioneerinstitute.org/

school-choice-and-competition/#toggle-id-2.

456 See also Brief for Savina Tapia et al. as Amici Curiae Supporting Defendants-Appellees, Jane Doe No. 1 and 

Others v. James A. Peyser and Others, No. SJC-12275 (Mass. 2017), 2017 WL 3977897.

457 Doe v. Sec’y of Educ., 479 Mass. 375 (2018).

458 Ibid. at 375, 394 (citing Mass. Gen. Laws c. 71, § 89).

459 Ibid. At 375, 394–95. The court also identified “a policy concern regarding the departure from local democratic 

control over public schools by local school committees because charter schools are instead governed by 

private boards of trustees.” Doe v. Sec’y of Educ., 479 Mass. at 394.

460 Doe v. Sec’y of Educ., 479 Mass. at 394–95.

461 Bifulco and Reback, Lessons from New York, 1, 4, 12, 14–15.

462 Helen F. Ladd and John Singleton, “The Fiscal Externalities of Charter Schools: Evidence from North Carolina,” 

Economic Research Initiatives at Duke (ERID) Working Paper No. 261, April 2018, 19, https://poseidon01.ssrn

.com/delivery.php?ID=884112031001096098084019127023009024001024032007049053005121114102085113

0881140801211240250561151140051241270260971010961021010230390560230400201120010960010020841

18093008028091093010007099125122119020005117070118072004004022031024113126120078119065119&

EXT=pdf.

463 Helen F. Ladd, Charles T. Cotfelter, and John B. Holbein, “The Growing Segmentation of the Charter School 

Sector in North Carolina,” NBER Working Paper Series 21078 (Cambridge, MA: National Bureau of Economic 

Research, April 2015), http://www.nber.org/papers/w21078.pdf (making this point as a recommendation for 

fiscal stability). See Mass. Gen. Laws ch. 71, § 89(i) (West, Westlaw through Chapter 175 of the 2017 1st 

Annual Sess.).

464 Lafer, Breaking Point, 11.

465 Ashley McGlone, “New Year, New Cuts Contemplated at San Diego Unified,” Voice of San Diego, January 16, 

2017, https://www.voiceofsandiego.org/topics/education/new-year-new-cuts-coming-san-diego-unified.

466 Lafer, Breaking Point, 15.

467 Ibid.

468 Ibid., 16. Most students with mild needs, for example, ADHD and dyslexia, do not require transportation as 

a related service. In 2014–2015, Oakland Unified spent an average of $292 per enrolled student on special 

needs transportation compared to charter schools that spent $9 per student.

469 Lafer, Breaking Point, 15, Figure 1.

470 Ibid., 16, footnote omitted.

471 Ibid., 21.

472 National Alliance for Public Charter Schools, Details from the Dashboard: Charter School Race/Ethnicity 

Demographics (Washington, DC: Author, 2012), 1, https://www.publiccharters.org/sites/default/files/migrated/

wp-content/uploads/2014/01/NAPCS-2010-2011-Race_Ethnicity-Details-from-the-Dashboard_20120516T152831

.pdf.

172 National Council on Disability
473 Gary Miron, Jessica Urschel, William J. Mathis, and Elana Tornquist, Schools Without Diversity: Education 

Management Organizations, Charter Schools, and the Demographic Stratification of the American School 

System (Boulder, CO: Education and the Public Interest Center, February 2010), 4–6, http://nepc.colorado

.edu/publication/schools-without-diversity. See also Marc Stein, “Public School Choice and Racial Sorting: 

An Examination of Charter Schools in Indianapolis,” American Journal of Education 121, no. 4 (August 2015): 

597–627, https://doi.org/10.1086/681920.

474 Ladd et al., “The Growing Segmentation of the Charter School Sector in North Carolina” (“Our findings 

imply that the charter schools in North Carolina are increasingly serving the interests of relatively able white 

students in racially imbalanced schools.”).

475 Ibid., 26–27.

476 Ibid., 2.

477 Robert A. Garda Jr., “The Mississippi Charter School Act: Will it Produce Effective and Equitable Charter 

Schools?” Mississippi College Law Review 36 (2018): 265.

478 See, for example, Garda, “The Mississippi Charter School Act,” 29–31.

479 20 U.S.C. 1412(a)(11) (West, Westlaw through P.L. 115-171).; 34 C,F. R. 300.149 (West, Westlaw through 

May 24, 2018; 83 Fed. Reg. 24044).

480 20 U.S.C. § 7221b(f)(1)(xii) (West, Westlaw through P.L. 115-171).

481 Center for Research on Education Outcomes, Multiple Choice: Charter School Performance in 16 States

(2009), 9.

482 Garda, “The Mississippi Charter School Act,” 22.

483 Ibid., 26.

484 See, for example, Mass. Gen. Laws c. 71, § 89(i).

485 Richard D. Kahlenberg and Halley Potter, A Smarter Charter: Finding What Works for Charter Schools and 

Public Education (New York: Teachers College Press, 2014). See also Richard D. Kahlenberg and Halley 

Potter, “Diverse Charter Schools: Can Racial and Socioeconomic Integration Promote Better Outcomes 

for Students?” Poverty and Race, Research and Action Coalition and The Century Foundation, May 2012.

486 League of Women Voters of Washington v. State, 355 P.3d 1131, 1133 (Wash. 2015), as amended on denial of 

reconsideration (November 19, 2015).

487 Ibid. at 1135 (quoting Wash. Const. art. IX, § 2).

488 See ibid. at 1136.

489 Ibid. at 1135 (quoting Sch. Dist. No. 20, Spokane Cty. v. Bryan, 99 P.28, 30 (Wash. 1909)).

490 Ibid. at 1140.

491 Paige Cornwell, “State Supreme Court to Hear Charter-Schools Case Again,” Seattle Times, December 19, 

2017, https://www.seattletimes.com/education-lab/state-supreme-court-to-hear-charter-schools-case-again.

492 McCleary, et ux., et al. v. State of Washington, 84362-7, http://www.courts.wa.gov/opinions/pdf/843627.opn.

pdf. McClearey school funding decision (WA).

493 Iberville Parish School Board v. Louisiana State Board of Elementary and Secondary Education [Reversed on 

March 13, 2018—see 2018 Wl 1319404].

494 Cornwell, “State Supreme Court to Hear Charter.”

495 Ibid.

496 See Gary J. Greco, “Standards or Safeguards: A Survey of the Delegation Doctrine in the States,” 8 Admin. 

L.J. Am. U. 567, 578 (1994) (describing the doctrine at the state level).

497 Delegation by Legislature to Private Persons, Associations, or Corporations—When Permissible, 16 C.J.S. 

Constitutional Law § 338.

498 See Greco, “Standards or Safeguards,” 579–80 (describing three general categories of state applications of 

the doctrine).

499 Delegation by Legislature to Private Persons, Associations, or Corporations—When Permissible, 16 C.J.S. 

Constitutional Law § 338.

School Choice Series: Charter Schools—Implications for Students with Disabilities 173
500 See, for example, In re Grant of Charter Sch. Application of Englewood on Palisades Charter Sch., 727 A.2d 

15, 44 (N.J. App. Div. 1999), aff’d as modified, 753 A.2d 687 (N.J. 2000); Council of Orgs. and Others for Educ. 

About Parochiaid, Inc. v. Governor, 566 N.W.2d 208, 216–217, 222 (Mich. 1997); Wilson v. State Bd. of Educ., 

89 Cal. Rptr. 2d 745, 747, 751 (1999).

501 See In re Grant, 727 A.2d at 44; Council of Orgs., 566 N.W.2d at 216–17.

502 Compare National Association of Charter School Authorizers, The State of Charter School Authorizing

(Chicago: National Association of Charter School Authorizers, 2009), 7, http://www.qualitycharters.org/

wp-content/uploads/2015/08/NACSA_2009-SOCA.pdf (reporting 712 authorizers nationwide in 2007–2008) 

with National Association of Charter School Authorizers, 2015 State of Charter Authorizing Report (Chicago: 

National Association of Charter School Authorizers, 2015), 13, http://www.qualitycharters.org/wp-content/

uploads/2017/02/2015-State-of-Charter-Authorizing-FINAL.pdf (reporting 1050 authorizers nationwide in 

2014–2015).

503 National Alliance for Public Charter Schools. Estimated Charter Public School Enrollment, 2016–2017

(Washington, DC: Author, 2017), 2, https://www.publiccharters.org/sites/default/files/migrated/wp-content/

uploads/2017/01/EER_Report_V5.pdf.

504 See Council of Orgs., supra note 31, 566 N.W.2d at 216.

505 Education Trust-MidWest, The Broken Promise, 7.

506 Ibid.

507 Ibid.

508 Trinity Lutheran Church, 137 S.Ct. at 2012.

509 Ibid.

510 Ibid. at 2017, 2025.

511 See, for example, Valerie Strauss, “Will the Supreme Court’s Trinity Decision Lead to the Spread of School 

Voucher Programs?” Washington Post, June 26, 2017, https://www.washingtonpost.com/news/answer-sheet/

wp/2017/06/26/will-the-supreme-courts-trinity-decision-lead-to-the-spread-of-school-voucher-programs/?

utm_term=.8a679f153607.

512 Matt Barnum, “Will Churches Ever Be Allowed to Run Charter Schools?” The Atlantic, July 19, 2017, https://

www.theatlantic.com/education/archive/2017/07/churches-running-charter-schools/534090.

513 Barnum, “Will Churches.”

514 See ibid. (“The decision could also affect rules on whether religious entities can authorize charter schools; in 

Indiana, a lawsuit was recently filed to stop a Christian college and seminary from overseeing charters.”)

515 Ibid. (“All states with charter laws mandate that they maintain secular rules and a secular curriculum.”). But 

see same (describing private Christian schools in Michigan that converted into charters but “continue to 

emphasize character traits taken from the Bible, including faithfulness, though the schools no longer explicitly 

connect them to biblical passages,” and a Minnesota school overseen by an Islamic humanitarian group that 

was sued by the ACLU for “acting as a publicly funded religious school”).

516 Trinity Lutheran Church, 137 S.Ct. at 2024, n. 3. (“This case involves express discrimination based on religious 

identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of 

discrimination.”) See Barnum, “Will Churches” (discussing the footnote.)

517 Barnum, “Will Churches.”

518 Special Education Solutions, “FAPE Does Not Include Religious and Cultural Instruction,” February 27, 2018, 

http://spedsolutions.com/fape-does-not-include-religious-and-cultural-instruction.

519 See generally Allan Osborne Jr. and Charles J. Russo, Providing Special Education Services to Students in 

Nonpublic Schools under the Individuals with Disabilities Education Act, 321 Ed. Law Rep. 15 (2015) (providing 

an overview of public school boards’ responsibilities under IDEA, in relation to children who attend nonpublic 

schools).

520 See Lynn M. Daggett, “Minor Adjustments” and Other Not-So-Minor Obligations: Section 504, Private 

Religious K-12 Schools, and Students with Disabilities, 52 U. Louisville L. Rev. 301, 307 n. 69–70 (2014) 

(discussing the ADA’s religious exemptions in the context of schools).

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