Schools Need Rules When It Comes To Students With Disabilities

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The practices of for-profit charter schools in my state of Massachusetts cast doubt on the disability-rights victory of a universal right to free and appropriate education.

The recognition and enforcement of fundamental rights to education for students with disabilities came late in this country's history. In the quarter of a century since, most educators and parents have assumed that the basic purposes of the original 1975 law granting these rights, PL 94-142, were fulfilled long ago. Specifically, they thought that, by law, public schools were prohibited from excluding children with disabilities; were required to make individualized educational plans available to them and provide due process to their parents; and would protect the most vulnerable children and those with the most severe disabilities.

Today, however, the practices of for-profit charter schools in my state of Massachusetts cast doubt on the disability-rights victory of a universal right to free and appropriate education. The practices are reminiscent of the days before the Education for All Handicapped Children Act and serve as a reminder of what schools may do to some families and students in a laissez-faire climate.

Charter schools would like to be schools without rules.

Charter schools would like to be schools without rules. For many of their developers, this is the key advantage—to build a school free of external mandates. Charter school proponents are critical of current public schools and the forces that drive them. They believe that without the traditional constraints of curriculum standards, hiring lists, and state mandates, they will be able to compete with and improve upon the rest of the public education system. As one founder of a charter school put it, when told of his obligations to comply with special education regulations, "I want our school to be judged as vigorously as possible on how well our kids do, perhaps even on creative noncompliance with regulations."

The independent status of charter schools attracts many groups, including parents, grassroots organizations, and public school critics. In Massachusetts, it has also attracted many private management companies.

Being free of hiring mandates is one thing. Being free of special education obligations is quite another. In Massachusetts as elsewhere, charter schools are public schools and, thus, are presumably required to meet their obligations to state and federal special education mandates. Yet in a 1998 study, my colleagues and I found that, in the context of hands-off, market-force agreements with the powers that be, Massachusetts' for-profit charter schools had failed to live up to these obligations (Phi Delta Kappan, December 1998). Our study was provoked by reports that large numbers of students with disabilities were leaving these schools and returning to their local public schools. Over its course, a picture emerged of for-profit special education programs that contrasts with the idyllic images of successful "inclusive models" these companies have presented to the public.

The New York Times reported in November that investors are "hungry" for entry into the $700 billion education market. Experts are expecting the schooling sector to be what some have called "the next health care." This analogy is a frightening one if you happen to be disabled. Just as health-maintenance organizations have refused to pay for expensive health care for some of the neediest Americans, so do some for-profit charter schools refuse to serve expensive students with disabilities, despite the fact that their families may have won an admissions lottery giving them the right to go to school there.

Parents of these children are caught in the same predicament as parents in the early 1970s were, fighting for equal access to the public schools.

Based on in-depth interviews with parents of disabled children, in which they relate their experiences with these newly formed charter schools, it seems apparent that for some children eligible for charter schools, particularly the most vulnerable children, protections under what is now called the Individuals With Disabilities Education Act are not available. Parents of these children are caught in the same predicament as parents in the early 1970s were, fighting for equal access to the public schools.

We found three practices that charter schools use to exclude students with disabilities. First, some students who gain access to the charter school by lottery are overtly and openly barred from admission when their complicated disabilities are discovered by the school. Second, some students who are admitted are returned to their former districts because the charter school declares that it has no suitable program for them. And, third, charter schools engage in a practice known as "counseling out." This is a process whereby parents of students are informed that their children would be better served in public schools and, subsequently, the parents voluntarily withdraw them.

Here are some of the stories we heard:

Blanca Diaz, a grandmother caring for her three grandsons with disabilities, won the lottery at Edison's Seven Hills Charter School in Worcester, Mass. When school officials saw the boys' individualized education plans, they sent a letter informing Ms. Diaz that two of her grandsons could not be served by the school. They failed to inform her that the school was required by law to take the two boys and implement their IEPs. This happened a week before the start of school, and the grandmother had already bought the boys' Seven Hills uniforms. Assuming she had no choice, Ms. Diaz placed her grandsons in the local public school.

Sabis International moved into an existing middle school in Springfield, Mass., in 1995. The building housed two self-contained classrooms of students with moderate disabilities (all of whom were eligible for the charter school) and had just been remodeled to accommodate their physical needs. Sabis told all the students in the school except the students in the self-contained classrooms that they would be welcome in the charter school. The students with disabilities were forced to leave their school.

At the new Abby Kelley Foster Regional Charter School in Worcester, run by Advantage Schools Inc., parents have reported that they were counseled out. Mary Young has two sons, one who is not disabled and one with a behavioral disability. When her nondisabled son won the lottery and was accepted at the Advantage school, she asked if she could enroll her disabled son. According to Ms. Young, school personnel then informed her that "they couldn't discriminate but they really couldn't deal with this kind of kid" and were "afraid that they'd just kick him out later."

Another parent, Kathy Senosk, described her experience in a for-profit charter school this way: "I did not know charter schools could push parents away like us. And the frightening part is, after refusals to help my son—even hanging up on my phone calls for support—the principal took the time to call to tell me how happy she was that my son had a new school. I guess it makes them happy to have one less special education student to belittle."

Federal special education mandates have long been criticized as excessive and overly burdensome to local schools. Many attempts to limit the federal protections for students with disabilities that originated a quarter-century ago have been unsuccessful. Still, some continue to argue that federal regulation of local special education is unnecessary. Now a new, powerful argument for retaining federal special education protections may lie in the charter school movement. Our investigation of Massachusetts' for-profit charter schools illuminated important parallels between the circumstances for disabled children and their families prior to federal protections and what can occur again in an educational environment free from mandates and enforcement. The behavior of these charter school operators, who want to maintain schools without rules, is reminiscent of school practices before passage of the 1975 federal law.

Being free of hirinmg mandates is one thing. Being free of special education obligations is quite another.

That law has been both lauded as landmark civil rights legislation and lambasted as the most prescriptive education act in the nation's history. Yet, despite constant efforts by some to weaken it, the basic principles and detailed prescriptions in the law have remained intact for 25 years.

In 1997, after a comprehensive two-year review, Congress reauthorized the act, maintaining its basic structure and protections, and clarified provisions to secure quality education as well as equal opportunity for children with disabilities. The new federal provisions require schools to assess a child's troubling behavior and develop positive behavioral interventions to address it, and describe how to determine whether the behavior was a manifestation of the child's disability.

While these regulations dealing with the discipline and treatment of children with behavioral difficulties seem technically complex, their central message is clear. As summarized by Sen. Tom Harkin, D-Iowa, in a 1997 debate preceding the defeat of an amendment that would have removed nearly all parent protections: "The parent has a right to insist that the schools develop positive behavior approaches and train teachers and provide them with necessary supports. What they don't have is the right to kick that disabled kid out of the class."

What charter school parents are experiencing today when their children's behavior requires attention and intervention is the identical experience that led parents to sue schools in the early 1970s and eventually secure the protection now integrated into the law. Every one of the children whose families were plaintiffs in the Massachusetts court case PARC vs. Commonwealth, and most of the plaintiffs in the 27 federal court cases which followed and led to the federal legislation, had been called "disruptive" by their schools.

Congress deliberated 25 years ago on the testimony of two years of hearings throughout the country. It concluded that federal special education mandates were necessary because schools without rules discriminate. Now, in an attempt to be the leading edge of innovation and a key means to achieving education reform, charter schools, ironically, may be reinforcing those arguments. Special education students will remain vulnerable in these new school arrangements without the vigorous enforcement of their hard-won rights.

Nancy J. Zollers is an assistant professor of teacher education at Boston College in Chestnut Hill, Mass.

Vol. 19, Issue 25, Page 46

Published in Print: March 1, 2000, as Schools Need Rules When It Comes To Students With Disabilities
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