Your Child’s Rights:
Legal Rights of Children with Disabilities
Who Are Home Schooled or Placed by
Parents in Charter, Cyber Charter,
Parochial and Private Schools
Maura McIner ney, Esq.
Education Law Center
www.elc-pa.org
TODAY’S TRAINING
School- Age Children With Disabilities Educated in Non traditional Settings
 Char ter Schools, Cyber Char ter Schools = Public School
 Home Schooled
 Placed by Parent in Parochial/Private School
Issues Considered:
 Admissions/Enrollment
 Right To Request Initial Evaluation & Content of Eval.
 Right to a Free Appropriate Public Education
 Type of Plan or Services Required to be Provided
 Right to Inclusion
 Protection in School Discipline & Transportation
 Dispute Resolution
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CHARTER & CYBER CHARTER SCHOOLS
A charter school is an independent public school
established and operated under a charter
from a local school board.
22 Pa. Code 1703-A
(Emphasis added)
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PENNSYLVANIA’S CHARTER LAW
Charter schools are created and guided by PA’s Charter
School Law, 24 P.S.§17-1701-A et seq. (1997)
 The legislative intent of the law was to:
 Improve learning
 Innovate teaching methods
 Create professional opportunities and responsibilities
 Provide expanded options for parents in public education
 Increase accountability
 Charter schools cannot:
 Unlawfully discriminate in admissions, hiring or operation
 Be sectarian in any operations
 Provide religious instruction or display religious objects or
symbols on school premises
 Advocate unlawful behavior
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THE NATIONAL LANDSCAPE
42 states and the
District of Columbia
have laws authorizing
charter schools.
Only Alabama,
Kentucky, Montana,
Nebraska, North
Dakota, South
Dakota, Vermont, and
West Virginia have no
charter school law.
Source: http://dashboard.publiccharters.org/dashboard/students/page/age/year/2012
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WHERE ARE THE CHARTER SCHOOLS
IN PENNSYLVANIA?
l 88 charters
l
l
l
l
l
20 charters
10 charters
5-9 charters
1-4 charters
0 charters
Source: Pennsylvania Department of Education Charter School Directory. Map created using http://diymaps.net/pa.htm
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WHO IS ATTENDING
CHARTER SCHOOLS IN PA?
 108,942 students
in Pennsylvania
were enrolled in
charter schools in
October 2012.
Number of Students Enrolled in Brickand-Mortar Charter Schools by County
Allegheny
County: 5,198
York
County:
2,204
Chester County:
4,726
Rest of the
State:
13,409
 Of those students,
approximately
34,000 were in
cyber charter
programs.
Philadelphia
County: 47,288
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STUDENTS WITH DISABILITIES
ENROLLED IN CHARTER SCHOOLS
Pennsylvania Charter and School District Special Education Enrollments (2009)
County
District
Charter
% Special
Education
% Both Special
Education and
SLD/SLI
% Special
Education
% Both Special
Education and
SLD/SLI
Philadelphia
14%
65%
12%
86%
Chester
15%
67%
14%
68%
Beaver
14%
68%
10%
66%
Allegheny
16%
60%
18%
68%
Montgomery
16%
68%
13%
63%
Cumberland
15%
61%
17%
65%
Delaware
18%
70%
25%
91%
Data from: Bruce Baker, Parsing Charter School Disability Enrollments in PA and NJ, School Finance 101. Aug. 23, 2012. http://schoolfinance101.wordpress.com/2012/08/23/parsingcharter-school-disability-enrollments-in-pa-and-nj/
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WHAT IS A CYBER CHARTER SCHOOL?
An independent public school established
and operated under a charter from the PDE
and in which the school uses technology in
order to provide a significant portion of its
curriculum and deliver a significant portion
of instruction to its students online or
through other electronic means. A cyber
charter school must be organized as a
public, nonprofit corporation.
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CYBER CHARTER SCHOOLS
Typically, students enrolled in a cyber
charter school are educated in their homes
with a computer provided by the school.
Any student in Pennsylvania is eligible to
attend a cyber charter school.
The charter is issued by PDE, rather than a
local school board.
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WHO IS ATTENDING
CYBER CHARTER SCHOOLS IN PA?
There are currently 16 cyber charter schools in
Pennsylvania.
In 2012-2013, students from 498 school
districts were enrolled in cyber charter
programs.
34,694 students attended PA cyber charter
schools in 2012-2013
 Just over 5,000 of those cyber charter students were
students with disabilities
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STUDENTS WITH DISABILITIES
AND CHARTER SCHOOLS
Charter schools in Pennsylvania are
educating an equitable share of children with
disabilities overall
But most students with disabilities in charter
schools have either speech/language
impairment (SLI) or a specific learning
disability (SLD) (more “mild” disabilities).
Charters serve a very small number of
students with complex support needs
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LEGAL REQUIREMENTS
FOR PA CHARTER SCHOOLS
Charter schools’ legal mandates require all charter schools to:
 Comply with all federal laws, policies and case law relevant to
public schools
 Comply with the Charter School Law, and other PA laws and
policies specific to charter schools
 Comply with all other state laws and policies applicable to charter
schools
 Set forth in the charter meaningful strategies for parent and
community involvement and accountability
 Provide a minimum of 180 days of instruction per year
 Participate in the PA State Assessment system in the manner in
which the school district where the charter is located is
scheduled to participate
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BARRIERS FOR STUDENTS
WITH DISABILITIES
 Some charter schools may discourage parents of
students with disabilities from applying.
 Some charters may suggest that they are not equipped
to meet the needs of students with disabilities, leading
parents to be concerned the schools are not able to
meet their children’s needs.
 All charter schools are schools of choice; parents may
choose to withdraw their child if their special education
needs are not being met.
 Some charter schools enforce strict discipline codes,
and students with disabilities may be more likely to be
suspended or expelled.
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BARRIERS AND OBSTACLES
FOR STUDENTS WITH DISABILITIES
 Admissions
 Applications and documents
 Criteria
 Concentration and grade levels
 Timelines and deadlines
 Provision of special education supports and
services
 Counseling regarding “availability”
 Costs and expenses
 Least restrictive environment (LRE) mandate
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EMERGING ISSUES REGARDING CYBERS
 Children are sent to cybers when the district fails
to meet or ignores the needs of a student’s
disability
 Quality of education
 Currently, there is no high quality research to prove that
full-time virtual school is an adequate replacement for
traditional face-to-face teaching (Note: Cyber “AYP” rates)
 The students who attend cyber schools for a short period
of time and return to their neighborhood schools are often
further behind other students
 There is currently only anecdotal evidence to
support the idea that cyber charter schools are
appropriate for at-risk students
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EMERGING ISSUES REGARDING CYBERS
Children may be sent to “cyber programs”
within a school district.
This may be offered as an educational
placement or in response to school discipline
issues.
These programs are NOT independently
monitored or reviewed nor is disaggregated
data collected regarding student achievement.
Raises “change in placement” issues
Quality of education – same concerns
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LEGAL PROTECTIONS FOR STUDENTS
WITH DISABILITIES
 Charter schools cannot discriminate against
a student for admission based on intellectual
ability or disability.
 Students with disabilities enrolled in charter
schools are entitled to all of the same rights
as non-disabled peers.
 Students with disabilities retain ALL federal
rights and protections guaranteed by federal
disability laws (e.g., IDEA, 504 and ADA) &
certain rights under Chapter 14.
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FEDERAL LAWS APPLY
Charter schools are subject to all federal education
and civil rights laws, and relevant federal case law,
including:
 Individuals with Disabilities Education Act (IDEA)
 Section 504 of the Rehabilitation Act of 1973 (504)
 Title VI of the Civil Rights Act of 1964 (Title 6)
 Title IX of the Education Amendments of 1972 (Title 9)
 McKinney-Vento Homeless Education Act (McKinneyVento)
 No Child Left Behind
 Family Educational Rights and Privacy Act (FERPA)
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INDIVIDUALS WITH DISABILITIES
EDUCATION ACT (IDEA)
 All students with disabilities enrolled in a
charter school are entitled to all the rights
and protections of the IDEA .
 These include:





Free multidisciplinary evaluations
Eligibility determinations
Individualized program development (IEP)
Inclusion in the “least restrictive environment” (LRE)
Procedural safeguards and due process
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PA REGULATIONS FOR CHARTERS
AND STUDENTS WITH DISABILITIES
 Chapter 14 of state public education regulations,
which details public schools’ legal responsibilities to
students with disabilities, does not apply to charter
schools.
 There is a special set of regulations in Chapter 711
which deals specifically with charter schools and
students with disabilities. (22 Pa. Code §711)
Chapter 711:
 Specifies how Pennsylvania charter schools will comply with
federal disability laws, including the IDEA and Section 504
 Mostly incorporates federal regulations into state regulations
 Also requires that all special education teachers be state
certified, notwithstanding the charter school law, which
requires that only 75% of charter school teachers be state
certified
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504 PROTECTIONS
Charter schools must comply with Section
504.
Charter schools are prohibited from
discriminating against students on the basis
of disability.
Students with disabilities may not be excluded
from participation in some activity OR treated
differently due to disability.
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CHARTER SCHOOL ADMISSIONS
 All resident students in Pennsylvania are eligible to
attend a charter school
 Charters cannot discriminate in admissions policies or
practices on the basis of:
 Intellectual ability
 Athletic ability
 Measures of achievement or aptitude
 Status as a person with a disability
 Proficiency in English
 Any other basis that would be illegal if used by a school district
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ENROLLMENT LAWS
APPLICABLE TO CHARTER SCHOOLS
Pennsylvania law mandates that charter
schools, like school districts, immediately
enroll eligible students upon the presentation
of four documents (four in the door):
1.
2.
3.
4.
Proof of the child’s age
Proof of immunizations required by law
Proof of residency
Statement of parent regarding any current
school exclusion for weapons offense
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ADMISSIONS (CONT.)
The school’s charter must set forth its
admission criteria
Charter schools can limit admission:
To a particular grade level
To an area of concentration (e.g. science or
the arts)
By establishing reasonable criteria to evaluate
prospective students re area of concentration.
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WHEN THERE ARE
MORE APPLICANTS THAN SPACES
 Charter schools can admit with first preference:
 Students who reside in the district where the charter
school is authorized
 Children whose parents who have been actively engaged
in development of the school
 Siblings of enrolled students
 Otherwise, charter schools must admit students selected
at random from a pool of candidates who meet the
charters’ legally established criteria (e.g., lottery)
 Charters can enroll, if space permits, nonresident
students
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FEDERAL LAWS APPLY
Charter schools are subject to all federal education
and civil rights laws, and relevant federal case law,
including:
 Individuals with Disabilities Education Act (IDEA)
 Section 504 of the Rehabilitation Act of 1973 (504)
 Title VI of the Civil Rights Act of 1964 (Title 6)
 Title IX of the Education Amendments of 1972 (Title 9)
 McKinney-Vento Homeless Education Act (McKinneyVento)
 No Child Left Behind
 Family Educational Rights and Privacy Act (FERPA)
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INDIVIDUALS WITH DISABILITIES
EDUCATION ACT (IDEA)
 All students with disabilities enrolled in a
charter school are entitled to all the rights
and protections of the IDEA .
 These include:





Free multidisciplinary evaluations
Eligibility determinations
Individualized program development (IEP)
Inclusion in the “least restrictive environment” (LRE)
Procedural safeguards and due process
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PA REGULATIONS FOR CHARTERS
AND STUDENTS WITH DISABILITIES
 Chapter 14 of state public education regulations,
which details public schools’ legal responsibilities to
students with disabilities, does not apply to charter
schools.
 There is a special set of regulations in Chapter 711
which deals specifically with charter schools and
students with disabilities. (22 Pa. Code §711)
Chapter 711:
 Specifies how Pennsylvania charter schools will comply with
federal disability laws, including the IDEA and Section 504
 Mostly incorporates federal regulations into state regulations
 Also requires that all special education teachers be state
certified, notwithstanding the charter school law, which
requires that only 75% of charter school teachers be state
certified
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CHARTER SCHOOLS:
RIGHT TO AN EVALUATION
 Charters schools are responsible for conducting
evaluations to determine if an enrolled student is eligible
for special education supports and services.
 When a parent requests an evaluation of a student
enrolled in a charter school, the charter school must
conduct the evaluation and give parents a written
Evaluation Report within 60 calendar days (excluding the
summer months) from the date the parent agrees to an
evaluation in writing.
 Charter schools must have a system for screening
children to determine whether they should be referred for
a special education evaluation.
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RIGHTS OF PARENTS
IN EVALUATION PROCESS
 Parent MUST make request in writing. If request is oral,
school district MUST present parent with “Permission to
Evaluate/Evaluation” (PTE) Request form within 10
calendar days of oral request.
 Parent MUST sign Permission to Evaluate/Consent form to
trigger school’s duty to perform initial evaluation.
 Parent has a right to refuse proposed evaluation
 If a parent believes an evaluation by charter school is
deficient, parent may request independent evaluation (IEE)
and challenge school’s decision to deny such a request.
 Right to re-evaluation every three years or, in the case of a
child with an intellectual disability, every two years.
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RIGHT TO PROCEDURAL SAFEGUARDS
Parents of students with disabilities have a
number of procedural safeguards, including:
 Opportunity to meaningfully participate in the
evaluation process & development of their child’s IEP
 Prior written notice (PWN) of any change to their
child’s IEP
 Opportunity to appeal when they don’t agree with the
school district about their child’s IEP
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RIGHT TO A FREE, APPROPRIATE PUBLIC
EDUCATION (FAPE)
If a student is found eligible for special education:
 The IEP team must meet within 30 calendar days
after the evaluation report is completed.
 The IEP team must include the “parent,” at least one regular
education teacher of the child, one special education teacher
of the child, an administrator, and the child (when appropriate)
 Parent may bring other individuals who have knowledge or
special expertise about the child
 The IEP team must review the IEP at least once every
year.
 Parents or the school may request an IEP team
meeting at any time.
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T YPE OF PLAN/SERVICES
 An IEP is a written statement for a child with a
disability, which outlines the child’s special
education program and related services.
 The IEP must be tailored to meet the child’s unique
needs.
 If a service is listed on a child’s IEP, the child must
receive it.
 Child must receive “specially designed instruction”,
modifications, support services, transition plan etc.
 Child must make progress.
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CHARTER SCHOOL:
IMPORTANT DIFFERENCES
 Caseload Requirement: Each student with a disability
must be assigned to a special education teacher’s
caseload. 22 PA Code§14. 105 No such requirement in
charter schools
• Age Range: The maximum age range in specialized
settings shall be 3 years in elementary school (grades K—
6) & 4 years in secondary school (grades 7—12). A
student with a disability may not be placed in a class in
which the chronological age from the youngest to the
oldest student exceeds these limits unless an exception is
determined to be appropriate by the IEP team of that
student and is justified in the IEP. 22 PA Code § 14.146
No such requirement in charter schools
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PROTECTION IN SCHOOL DISCIPLINE
State due process laws for suspension/expulsion of pupils
 Expulsions require a formal hearing
 Suspensions require only an informal hearing
 A charter school may not expel or suspend students
for failure to meet the charter school’s academic
requirements.
 ALL IDEA protections apply – e.g., right to
manifestation determination, etc.
 CANNOT be disciplined due to disability
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RIGHT TO INCLUSION:
LEAST RESTRICTIVE ENVIRONMENT (LRE)
 To the maximum extent appropriate, children
with disabilities should be educated with their
non-disabled peers. Removal from the regular
education classroom should occur only when the
nature or severity of the child’s disability is such
that education in regular education classes (with
the use of supplementary aids and services)
cannot be achieved satisfactorily.
 The IDEA requires that each LEA offer a full
continuum of placements for students.
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RIGHT TO TRANSPORTATION
Students with disabilities are entitled to free
and appropriate transportation when
necessary to attend their special education
program.
 When it is needed, the type and amount of
transportation must be included in the IEP as
a related service.
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RIGHTS IN DISPUTE RESOLUTION
If parents disagree with the IEP or with any
other proposal or refusal of the school district
or charter/cyber charter relating to the child’s
special education program, they can agree to
mediate or request a formal due process
hearing. Parents or anyone else acting on
behalf of a child can also file a complaint with
the Department of Education alleging a
violation of the special education laws such as
not providing the child with all of the services
listed on the IEP.
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CASE STUDY EXAMPLES
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LEGAL CHALLENGES:
P.D. V. PASTOREK (E.D. NEW ORLEANS)
 In 2010, Southern Poverty Law Center filed an
administrative complaint & federal lawsuit on behalf of
thousands of students with disabilities alleging denial of
FAPE and access to the city’s charter schools – where over
70% of schools are charters:
 Children with disabilities WERE significantly
underrepresented in charter schools
 Some charter schools suspend children with disabilities at
rates 100% higher than the state average.
 Only 6.8% of students with disabilities graduated with a
high school diploma & 49% of students w/disabilities failed
to finish school.
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ADVOCACY OPPORTUNITIES
 Advocacy in the Charter School context:
 Public Schools ARE obligated to admit, educate & provide a
FAPE in the least restrictive environment.
 IDEA’s requirements apply with equal force in all cases.
 State programs cannot exclude or deny equal benefit to
students with disabilities.
 Advocacy in the Cyber Charter context:
 Cyber charters cannot refuse to educate children with
disabilities & must monitor and ensure progress.
 Cyber charter schools must provide “specially designed
instruction” & make modifications to the curriculum.
 Cyber charter schools must provide “related services”
 They must comply with all applicable procedural safeguards,
including parent participation in IEP meetings etc.
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RIGHTS OF STUDENTS
WHO ARE HOME
SCHOOLED
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RIGHT TO EVALUATION
 Parent’s request for an initial evaluation and re evaluations should be made in writing to the child’s
resident school district.
 The child’s resident school district must evaluate the
child and explain the results to the parent.
 The evaluations should be conducted according to
the same rules as for children attending public
schools.
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RIGHT TO A FAPE
These students have no right to FAPE.
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T YPE OF PLAN/SERVICES PROVIDED
 A “home education plan” for a child eligible for
special education must address the specific
needs of the child and be approved by a PA
certified special education teacher or a licensed
clinical or certified school psychologist.
 The school district or IU can agree with the
Program Supervisor to provide some services.
There may be a right to some services if the child
is dual enrolled in public school.
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RIGHT TO INCLUSION
 Pennsylvania law allows children who are home
schooled to participate in some extra-curricular
activities offered by their home school district.
 Local school districts may, but are not required
to, offer some academic courses to students who
are home schooled.
 As with all federally–funded programs, students
may not be excluded from participation in
programs offered by the public school district on
the basis of their disability.
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RIGHT TO TRANSPORTATION
Any services agreed upon must take place at
a public school or a licensed private school.
Services will not be provided at home.
Transportation services may be agreed to by
the school district or IU with the Program
Supervisor.
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RIGHT TO DISPUTE RESOLUTION
 Any special education services must be
agreed upon by the supervisor (the home
school instructor) and school district or
intermediate unit.
Since there is no duty to provide FAPE, the
parent cannot use the hearing or complaint
system to challenge a school district’s refusal
to provide services. However parents can use
the hearing process or mediation if it relates
to the school district’s duty to evaluate the
child.
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CASE STUDY EXAMPLES
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RIGHTS OF STUDENTS
PLACED BY PARENTS IN
PAROCHIAL OR NONPROFIT PRIVATE SCHOOL
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RIGHT TO EVALUATION
 Parent’s request for an initial evaluation and
re-evaluations should be made in writing to the
child’s resident school district.
 The IU where the private school is located
must evaluate the child.
 The evaluation must be conducted according
the same rules as for children attending the
public schools.
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RIGHT TO A FAPE
These students have no right to FAPE.
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T YPE OF PLAN/SERVICES PROVIDED
 Children placed by their parents in a private school are
entitled only to “equitable participation services” which
should be listed on an Equitable Participation Services
Plan.”
 Unlike an IEP, the IU does not have to provide all of the
services listed on the EP Services Plan if circumstances
change (e.g., the IU exhausts the state and federal funds
for EP Services).
 A child may be able to get services from local school
district if dual enrolled.
 Non-religious private schools have a duty to provide
“reasonable accommodations” for children with
qualifying disabilities (a/k/a Service Agreement or 504
Plan).
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RIGHT TO INCLUSION
 Federal law (ADA) prohibits discrimination by
private, non-parochial schools.
 Private, non-parochial schools must eliminate
unnecessary eligibility standards that deny
access to individuals with disabilities and
make reasonable modifications in policies
practices and procedures unless such a
change would be an “undue burden” or be a
“fundamental change” to the nature of the
program.
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RIGHT TO TRANSPORTATION
School district must provide students with
transportation to and from a non-profit private
school that is in the district or within 10 miles
of its boundaries.
The IU is responsible for transportation to a
service it has agreed to provide.
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PROTECTION IN SCHOOL DISCIPLINE
Students do not have any special disciplinary
protections.
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RIGHT TO DISPUTE RESOLUTION
Since there is no duty to provide FAPE, parent
cannot use mediation or the hearing system to
challenge a school district’s refusal to provide
services.
However parents can use the hearing process
or mediation if it relates to the IU’s duty to
evaluate the child.
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CASE STUDY EXAMPLES
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RESOURCES:
PA DEP’T OF ED (PDE) BECS
PDE issues Basic Education Circulars (BECs), which
provide guidance on the implementation of law,
regulation and policy; these include:
 The charter school BEC (“meant to serve as a guide for
charter schools, school districts, parents, and students”)
 The cyber charter BEC
 Enrollment Q&A, which includes information on charter
schools
 Other special education BECs include sections on the
responsibilities of charter schools to serve students with
disabilities
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CONTACT INFORMATION
Maura McInerney
Senior Staff Attorney
Education Law Center
mmcinerney@elc-pa.org
215-238-6970 Ext. 316
Education Law Center
1315 Walnut Street Suite 400
Philadelphia, PA 19107
702 Law & Finance Building
429 Four th Ave.
Pittsburgh, PA 15219
www.elc-pa.org
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