The popular film, Waiting for ‘Superman’, in which students who would otherwise attend struggling district schools enter a lottery to enroll in charter schools, illustrates the most widespread vision of the benefits of school choice. This picture of parents choosing the future of their children is a powerful one, and may be one of the reasons that recent Gallup polling has shown that 68% of Americans approve of the work of charter schools (Rotherham, 2010). Creating more and better educational options for children and their parents is a widely held goal on both sides of the political spectrum in the United States and the number of charter schools in the nation has grown significantly since they were first introduced in the early 1990s.

The initial concept behind charter schools was to provide laboratories for new teaching techniques that could in turn provide models for public schools. Later, charters were created as replacements for failing public schools, meant to provide high-quality schooling for at-risk students who would otherwise by default attend sub-par institutions. Indeed, some charter schools have succeeded in improving test scores and graduation rates; however, a common critique is that these schools are achieving these gains by excluding certain categories of students who do not fit their schools’ cultures, in particular special education students¹ (Miron, Urschel, & Saxton, 2011). Many charters thrive by marketing themselves as elite schools with student bodies to match.  Others are merely new schools with inexperienced staff and little knowledge of special education laws.  Charters face a lot of pressure for students to succeed on standardized tests, which determine whether these schools keep their charters.  As the number of charter schools grows in the nation, it is imperative to examine how well students with disabilities are served in charter schools.

This brief will examine claims of discrimination against students with disabilities within the charter school movement, with a focus on the unofficial policy in charter schools of “counseling out” children with disabilities². Substantial litigation and advocacy in the past three decades on behalf of students with disabilities has resulted in legislation that allows for the inclusion of children with disabilities in public schools and general education classrooms (Connor & Ferri, 2007).  The charter school movement threatens to set back some of that progress by discriminating against special education students and thereby encouraging a school system that exhibits a preference for able-bodied students.

Current Federal Support for Charter Schools

Under No Child Left Behind (NCLB), students who attend “failing” Title I public schools (schools that have received a “needs improvement” ranking two years in a row) are allowed to transfer out of their school into another public school of their choice, which could include a public charter school (U.S. Department of Education, 2007).  NCLB opened the gates for transfer into charter schools and the current administration’s policies have continued this trend in support of charters.  Under President Obama, charter schools have received an unprecedented boost in federal support, most recently through the federal funding program, Race to the Top.   A $4 billion competitive grant program, Race to the Top requires states to prove their commitment to improving education by implementing particular policies outlined by the federal government, among them the increasing of the number of charter schools that states authorize.   According to Secretary of Education Arne Duncan, “states that do not have public charter laws or put artificial caps on the growth of charter schools will jeopardize their applications under the Race to the Top Fund”  (U.S. Department of Education, 2009).

Charter Schools and Federal Disability Law

Despite the administration’s endorsement of charter schools, these schools do not receive preferential treatment under federal law, including those laws that address the rights of students with disabilities.  Under federal law, students with disabilities who attend publicly funded schools are entitled to special education services (Heubert, 1997). The federal government provides funding to the states for these services. Within states that accept the funding (as all 50 do), local education agencies (LEAs) are required to comply with the provisions of the Individuals with Disabilities Education Act (IDEA) and provide special education services (Swanson, 2004). Because of existing federal laws, including IDEA, and due to the fact that these schools receive federal funding, charters are required to provide services to students with disabilities, even though many of the state charter school authorization laws do not address the question of special education students directly (Rhim & McLaughlin, 2001).  What has emerged in practice since charter schools were conceived are significant discrepancies between the letter of the law and the special education services that are actually provided by these schools.  The following is a review of existing explanations for these discrepancies.

Serving Special Education Students in Charter Schools

Charter schools are designed to be autonomous organizations that can supposedly use their latitude to better serve the individual needs of their student bodies. While charter schools are regulated by local, state, and federal laws and statutes, they are considered individual entities, much as if each school constituted its own district.  While this means that charters have some freedom in their operations, these schools can also lose their charters if they do not meet set performance standards, often measured by standardized test scores.  This pressure to meet certain standards might help to explain why a review of past and current research indicates that charter schools do not always best serve students with disabilities. The most common concerns regarding the treatment of special education students in charter schools are that charter schools do not accept special education students; that they are not providing the services mandated in the IEPs of these children; that these schools are not equipped with adequate teaching staff or an administration with the requisite understanding to most effectively serve students with disabilities; and finally, that charters advise families of children with disabilities that these students might be better served elsewhere. This last unofficial policy is a process known as “counseling out,” a practice used by charter schools with students who do not meet the standards set by the schools.

Though the number of charter schools in the US has grown considerably since the 1990s, and though these schools have begun to accept a greater percentage of special education students, significant obstacles still exist for children with disabilities and their parents who wish to exercise their choice to attend a charter school. The exclusion of special education students begins from the moment a charter is authorized. A study of charter schools and their reconciliation of federal laws with state autonomy found that many charter schools waited two to three years after their authorization to implement adequate special education services (Ahearn, Lange, Rhim, and McLaughlin, 2001). The authors explained this finding by citing the lack of technical assistance and support given to charter school operators by state education authorities regarding special education. Many charter school operators, it was discovered, did not have adequate knowledge of special education laws or what was expected of them under these laws.

Once charter schools are established and begin accepting students, the most common concern is that these schools are “cream skimming” or denying access to special education students so that these students do not bring down the overall test scores of the establishment, as these test scores are used in part to determine whether charters remain in operation (Lacireno-Paquet, Holyoke, Moser, & Henig, 2002). A result of this practice is that charter schools enroll a smaller percentage of students with disabilities than do average public schools in most states (U.S. Department of Education, 2000; Estes, 2004; Miron, Urschel, & Saxton, 2011; U.S. Government Accountability Office, 2012).  Many charter schools, when they do accept special education students, tend to accept only those with “mild” disabilities (Rhim & McLaughlin, 2001). In a survey of Wisconsin charter school operators, schools were much more likely to report that they had enrolled students with a specific learning disability (88%) than a cognitive disability (62%) or with multiple disabilities (44%) (Drame, 2011).

A lack of qualified staff and administrative personnel is a major reason charters are not prepared to serve special education students. A three-year national study of charter schools found that most charter school operators lack working knowledge of special education laws and service provision.  Moreover, these operators are not provided with much guidance from the state when given their authorization (Rhim & McLaughlin, 2001). A study of Texas charter schools discovered that administrators did not have a clear idea of how to implement the pre-referral intervention services that were the first step in determining if students are in need of special education services (Estes, 2004). In Wisconsin, charter schools were employing teachers who were not certified in special education to work with students with disabilities (19%) or the schools did not have any special education teachers on staff at all (30%) (Drame, 2011).

Special Education Students and the Detrimental Policy of “Counseling Out”

This lack of preparedness and focus on test scores may result in the practice of “counseling out”, when charter school administrators advise the families of students with disabilities that the child would be better served at another school. Counseling out is not a well-researched phenomenon, and schools most often deny the practice. However, Elizabeth R. Drame cites some reasons for the custom in her study of Wisconsin charter schools, as described by school administrators (2011). According to her survey, the most common reasons for counseling out were “a conflict between the child’s need and the charter’s mission and vision,” “unavailability of special education services,” the “presence of behavior problems that interfered with other students’ learning,” and a “lack of qualified staff to address students’ needs” (Drame, 2011). In other words, students are asked to leave charter schools when the schools themselves are not prepared to meet the needs of children with disabilities or are worried about the effect that these children will have on the success of the school.  As previously mentioned, public schools (including charters) are mandated under federal law to serve students with disabilities in a manner that is appropriate for each student’s particular needs.  For this reason, “counseling out” is not a practice available to traditional district schools.  Yet, this practice may be used by charters not only because charter schools are ill-equipped to meet the needs of special education students, but also because these schools fear losing their charters, if their students do not perform as expected on standardized tests.

Incidents of counseling out have been documented in the media. In 1997, the former coordinator of special education of Boston Renaissance Charter School revealed that the school was actively discouraging the enrollment of special education children and avoided providing necessary services by suggesting that children would be better served elsewhere (Corson, Farber & Rothstein, 1998).  Nancy J. Zollers found in interviews with parents of disabled children that counseling out was a well-known phenomenon in charter schools.  For example, parent Mary Young reported that her son (who has a behavioral disability) was asked to leave Abbey Kelley Foster Regional Charter School in Worcester, Massachusetts because, according to an administrator, the school “really couldn’t deal with this kind of kid” (Zollers, 2000).  The New York Times reported in July 2011 that Harlem Success Academy had counseled out a young boy with Attention Deficit Disorder, explaining to his mother that a school with smaller class sizes and shorter school days would be more appropriate for him (Winerip, 2011).  The Wall Street Journal reported the case of six-year-old Makala, who was asked to leave her charter school placement after a psychological evaluation found that she would benefit from smaller classes and specialized attention (Morgan, 2010).  A mother of a child at the Mathematics, Civics, and Sciences Charter School in Philadelphia filed a complaint in 2000 after the principal of the school called her several times, trying to convince her to remove her disabled son from the school.  The principal of the school defended these actions, saying that, “perhaps charter schools are not for everyone” (Shaffer, 2000).

In addition to published research and news reports on the issue of “counseling out”, personal testimony from parents concerning treatment of their children by charters schools is available online in blogs from parents and teachers. A mother of a former KIPP student wrote on the blog NYC Public School Parents, “students who are accepted to KIPP and who have IEP’s do not get the correct services or help to be successful” and that “the principal always invited me to take my child out if I did not like the way she was being treated” (NYC Public School Parents, 2012).  Teachers at the Sojourner Truth Academy in New Orleans put forth, among other complaints, that the school was “counseling out” students who were low performing or otherwise disagreeable to the administration (Deshotels, 2011).  It is unclear how widespread the problem of “counseling out” is among charters, but the available evidence suggests that it exists as an unofficial policy in many schools.  To be sure that students with disabilities are not discriminated against in charters, this unofficial policy must be closely monitored to maintain transparency and accountability.

Policy Recommendations

Since public schools are mandated to serve all students, including those with disabilities, the unofficial policy of “counseling out” could be used in violation of federal law.  However, the causes of this existing practice are complex and will not be simple to rectify.  In order to prevent the “counseling out” of disabled students from charter schools, both the state and federal governments must prepare charter schools to effectively serve these students.  Charter administrators must receive support from governments and charter authorizers so that they not only follow the letter of the law, but also implement best practices in their schools.  The following are several suggestions as to how this might be done.

1. Ensure that charter operators are aware of their special education duties when the school is authorized.  Proving knowledge of special education law and practice should be a part of the application process for opening a charter school. States should inform charter school operators of their duties under the law for special education. The application process for founding a charter school should be revised to assess the applicant’s preparedness to serve students with disabilities. In addition, schools should have to identify and hire qualified staff to meet the needs of children who require special education services.
2. Regulate charters more carefully to be sure that they are servicing a reasonable percentage of special education students and serving them well.  Part of the evaluation process for charters should be an audit of their registration numbers to see if special education students are leaving more frequently than students in general education. Authorizers should watch for signs of “counseling out”, such as a decrease in the special education enrollment rate at a school over time.
3. Offer supports to charters.  Charter school operators should receive training and information about special education compliance and best practices before opening schools, possibly from charter school authorizing bodies or from non-profit organizations. Charter schools require ongoing support, as district schools do, in how to best serve students with disabilities, and this support should be provided by the state.
4. Implement a culture of inclusion in charter schools.  A number of charter schools are outperforming comparative public schools when serving students with disabilities in the inclusion model, where the schools place special education students in general education classrooms. These are schools that include in their model a plan to accommodate the individual needs of all students, regardless of ability (Swanson, 2004), and the research suggests that the charter schools that implement a culture of inclusion are seeing their special education students succeed on state exams. True inclusion involves meeting the needs of students who require special education services within the general education classroom, rather than in separate classrooms or resource rooms.  Inclusion is not merely a policy but a “school-wide belief system in which diversity is viewed as a rich resource for everyone rather than a problem to be overcome” (Valle & Connor, 2011, p. 65).  In other words, it is not enough to merely house all children in the same classroom.  Inclusion is a carefully constructed culture in schools and it is a culture that does not allow for some students to be viewed as outsiders. Thus “counseling out” is not an option for schools that operate with inclusion in mind.
5. Inform parents of students with disabilities of their rights and involve parents in supporting their children’s education in charter schools. Family activism and knowledge of rights will be a crucial element in charter school compliance.  After all, charters depend on families choosing to send their children to charter schools and this should include parents of children with special needs.  If parents of special education students are aware of their rights and the rights of their children in the classroom, then they can advocate for better charters that serve the needs of children with disabilities. Part of implementing a culture of inclusion is community involvement and parental buy-in to the idea that such a school culture is beneficial for their children.  If families of students with disabilities advocate for the rights of their children to attend these schools and can support their call for inclusion with success, perhaps “counseling out” will become a thing of the past.
6. Hold charter schools accountable for serving students with disabilities. In order to put an end to the process of “counseling out”, charter school authorizers must recognize this existence of this practice and take action to prevent it. Charter schools cannot be allowed to continue their exclusion children with disabilities.  If more families come forward to speak out about “counseling out” in the news, perhaps policy makers will take notice of the problem and take steps to correct it.  Communities can also work directly with the administration of their schools to help them create more effective academic environments for children with special needs within charter schools.  In addition, families should make their concerns known to charter authorizing bodies through advocacy and political action so that these bodies begin to hold charters more accountable for their actions towards students with disabilities.

Summary and Conclusions

Charter schools developed out of a larger movement for more autonomous schools and a more market-driven educational system, the idea being that if families choose their children’s placements schools will be more competitive and thus more effective overall. Charters were thus promoted as a way to advance quality education for all students. Charter school advocates claimed that all students would be well-served in a market-based system in which families could use their consumer power to support the best schools. Unfortunately, this has not been a successful model for all students.  Despite the intention of federal laws like IDEA, the needs of children with disabilities are often poorly attended to by charter schools.  Charter schools sometimes “counsel out” special education students because of their lack of knowledge and competence to deal with these students as well as the pressure on these schools to maintain a certain level of performance and an elite school culture.  Parental or familial pressure on the charter authorization authorities will be necessary to change this practice and increase the regulation of charter schools’ treatment of special education students. If charter schools are an inevitable part of the educational landscape going forward, families of children with disabilities will have to advocate for the rights of their children to receive an equitable education at these schools by putting pressure on authorizing bodies to better regulate these schools and by encouraging schools to shape themselves into inclusive communities.

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