OVERVIEW OF FEDERAL AND STATE LAWS ON PROVISION OF SPECIAL EDUCATION SERVICES IN CHARTER SCHOOLS
By Hope Kirsch and Lori Kirsch-Goodwin,
Although charter schools are exempt from many local and state regulations and state and local rules regarding operation and management, they are not exempt from federal and state laws regarding rights, access and discrimination against protected classes and students with disabilities, unless they do not receive federal funds (which will be discussed below). Charter schools that receive Federal financial assistance from the United States Department of Education (the “Department”) must comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964 (which prohibits discrimination re race, color, national origin), Title IX of the Education Amendments of 1972 (which prohibits sex discrimination), Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (which prohibits discrimination on the basis of disability), the Family Education Rights and Privacy Act (“FERPA), and part B of the Individuals with Disabilities Education Act (the “IDEA”). This paper focuses on Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 Code of Federal Regulation Part 104 (collectively herein, “Section 504”), and the IDEA and its implementing regulation at 34 Code of Federal Regulation Part 300.
Note: Charter schools are either “for profit” or “nonprofit.” Only schools that are nonprofit are eligible to receive Federal financial assistance from the U.S. Department of Education. Recipients of Federal financial assistance are subject to the laws and regulations enforced by the U.S. Department of Education and including the Office of Civil Rights. However, for profit charters do not receive Federal financial assistance from the Department funds and are therefore not subject to these laws and regulations, and thus OCR is not responsible for enforcing these laws and regulations at for profit charter schools. Although for profit charter schools can have students on IEPs, since they do not receive Federal funds as a means of serving this population, the Department does not have jurisdiction to enforce laws and regulations at such schools.
Section 504 is enforced by the Office for Civil rights, and the IDEA is administered by the Office of Special Education and Rehabilitative Services (“OSERS”) which provides Federal funds to States which in turn provide the funds to local educational agencies (“LEA”) to assist in the provision of special education and related services to students with disabilities.