Jan 14

The Murkiness of Special Education in New York City Charter Schools

by Paul O’Neill

Last month, attorneys with Advocates for Children (AFC) filed a complaint against Success Academy (a non-profit organization that manages 47 charter schools in New York City that all share its name) and certain of the charter schools that it manages, alleging that Success Academy makes too many decisions at the school level that impact the educational placements of students with disabilities. The complaint raises important issues for children with disabilities attending New York charter schools and their families.

An important but technical detail: rather than sue in court, AFC made the complaint to the New York State Education Department, mainly seeking a ruling that Success Academy’s network-wide practice of adjusting student grade placements and instructional settings, without first communicating with parents and obtaining approval from district special education authorities, is unlawful, violates Individualized Education Program (IEP) rules and must stop.

Whatever the merits of its claims, the AFC complaint presents an excellent opportunity to identify and wrestle with some crucial questions impacting students, families and charter schools in New York:


As a school within the district local education agency (LEA), who is in charge of what?

Under federal law, it is the LEA that has primary responsibility for special education.  In places like New York, where state law assigns that role to the school district rather than to individual charter schools, it can be hard to know which decisions a school can and must make, and which ones require action by the district. For example, in New York, charter schools must look to the district for core functions like identifying and evaluating students who may have disabilities; only the district can hold an IEP meeting or a manifestation determination review (MDR) before disciplinary removals.  But in Denver, where charters are schools within the district LEA for purposes of special education, as is the case in New York, the charter schools handle all of those functions themselves. The district simply defers to the charter schools. If the AFC complaint were made in Colorado, schools there could be held more directly culpable for special education placement problems than is the case in New York.


Does a charter school have the right to stand behind its special education decisions?

Parents and educators are both stakeholders in special education decision-making. Ordinarily, when there is a conflict between what educators and parents believe is appropriate for a student, either party calls for a hearing to settle the matter.  But where a charter school is not the LEA, the district is able to call for a hearing and perhaps not the school. It is not clear whether a charter school has the right (called “standing” under the law) to demand such a hearing or to defend itself at a hearing called by parents. In New York City, the district has taken the stance that charters lack this right, further emphasizing that the district (not the school) retains primary authority and responsibility for serving students with disabilities.


Who should be held accountable when a charter school student fails to receive appropriate services or process?

AFC submitted its complaint to New York state, alleging that Success Academy charter schools and the management organization that partners with them should be called to task for what AFC considers to be violations of special education law. The complaint holds the district accountable as well, yet has very little to say about that. But AFC could as easily have brought suit against the state, rather than to it. They could have filed a lawsuit in federal court, claiming violations of the Individuals with Disabilities Education Act (IDEA).  Under that law, the state as the State Education Agency (SEA), and the district as the LEA, are accountable for ensuring that rules are followed and students get what they are entitled to. New York state law and regulations place some obligations on charter schools relating to provision of services, but these are not well-defined and in any event school-level culpability does not take away LEA and SEA responsibility.


What is the role of the charter school authorizer here?

Oversight of special education practices and legal compliance in Success Academy charter schools is made more complicated by this fact: Neither the NYC DOE nor the State Education Department has primary authority over them. Under state charter school law, the obligation and authority falls to the entity that authorized the schools. For all of the Success schools, that entity is the State University of New York (SUNY).  SUNY’s trustees, acting through their Charter Schools Institute, oversee many of the state’s charter schools and must hold them accountable for complying with the terms of their charter contracts and applicable law. If AFC is correct and Success Academy schools are violating the law in the ways they serve students with disabilities, SUNY has the power to step in and demand that this stop. They can put a school on probation for improper practices and even revoke a school’s charter. But what must SUNY do? Because the law makes the state and district directly responsible for special education compliance, it isn’t clear what the authorizer should do to investigate and remedy such problems.


Are there other charter school programs that are engaging in similar practices as those of Success Academy?

AFC’s complaint only focuses on Success Academy schools. It is not clear whether other charter schools in the city follow similar practices. This seems important to know, regardless of whether or not such practices are considered to be improper. If the practices are more widespread, this raises questions about why the complaint focuses exclusively on Success Academy and its schools.


Are some changes to student programs appropriately within a charter school’s control while others are not?

The complaint mainly calls out two kinds of practices, both of which AFC considers to be improper — grade placement changes and instructional setting changes. AFC says that the CSE must be involved with and make decisions about both of those areas. It is not clear that these practices should be treated similarly, though. Changes in instructional settings – such as the decision to move a child from a general classroom with supports to a more restrictive setting, for example, a 12-1 student teacher ratio, seem to be a core part of an IEP placement and very much the purview of the IEP team.  But determinations about the appropriate grade level for a student and adjustments to that level are more traditionally subject to a school’s discretion. Whether or not such changes constitute changes in a student’s placement seems less clear. The AFC complaint interprets the concept of “change in placement” very broadly, and this element is worthy of close scrutiny.


What is the impact of viewing most changes as “changes in placement”?

By broadly defining changes that impact the program or educational success of a student with disabilities as “changes in placement” that must be considered and approved by an IEP team, AFC may be calling into question the ability of  parents to exercise their right to choose a charter school for their kids with disabilities (rather than wait for a CSE to place a child there). That would be a major consequence and a controversial one.


How does pendency apply in a charter school?

Finally, the AFC complaint raises the issue of how pendency applies in a New York charter school. In the special education context, pendency means that a student whose placement is in dispute must remain in that placement until such time as the placement is formally changed by the IEP team or on appeal. AFC argues that Success Academy ignored viable requests for pendency from parents of students who were having their programs unilaterally changed by Success Academy schools and their management organization.  They cite instances of federal authorities supporting those pendency claims when parents of Success Academy students appealed. This too is a murky area in which the law is under-developed; it appears from the complaint that district education officials did not believe they could support the pendency claims made by these parents. In fact, in the early 2000s, when charter schools were new in New York, the NYC DOE issued a memorandum on special education in charter schools that included a statement that students who choose to attend charter schools do not have pendency rights in those schools. That memorandum is long gone, and it is no longer clear what the district’s position is on pendency. Like so many issues, it is complex and deserves close attention.

The main message we take from the AFC complaint is we need more clarity. Confusion about who does what in the special education process leads to bad things for children – to both improper action and improper inaction. In New York City, there are signs of movement on this front; the district is proactively working with the NYC Special Education Collaborative of the NYC Charter Center, as well as leaders from charter schools and The Center for Learner Equity, to explore the issues that impact kids with disabilities in charters. Through its complaint, AFC is pushing for clarity in a different way. We will watch the AFC complaint, follow its progress and continue to advocate for a clearer, more predictable, student and parent-friendly process for serving and supporting students with disabilities in New York charter schools.