Rights of Students with Disabilities in Non-traditional Settings

Children with disabilities are educated in different settings, including charter schools, cyber programs, credit recovery/accelerated schools and Alternative Education for Disruptive Youth programs (AEDY).

Regardless of where they are, all these students have guaranteed legal rights under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. They retain these rights from the moment they seek to enroll in school until age 21 or high school graduation. While in a charter, cyber school, credit recovery or an AEDY program, all students with disabilities must receive a free, appropriate, public education (FAPE) in the least restrictive environment (LRE) with supplemental aids and services. They are entitled to specially designed instruction, curriculum modifications, related services, detailed transition plans, and all the supports and services they need to make “meaningful progress.” They are entitled to be free from discrimination, disability-based bullying, harassment, and discipline, and can’t be deprived of equal educational opportunities.

Unfortunately, regional and national studies, as well as anecdotal experiences shared by parents and youth, indicate that students with disabilities in non-traditional settings often fail to receive services to which they are entitled.

Charter Schools must serve all children regardless of disability. The Pennsylvania Charter School Law was intended to expand public school options for all and prohibits discrimination in admissions or operation against those with disabilities.

However, research discloses that even when charters serve an appropriate number of students with disabilities, they fail to enroll those with more significant disabilities such as autism and serious emotional disturbance. Instead, charters are more likely to serve students with mild disabilities, such as speech impairment, who require lower cost aids and services. As a result, students with more significant disabilities are heavily concentrated in District schools.

This disparity is rooted in part in the state charter law’s funding scheme: unlike district schools, which receive per-pupil special education funding based on the level of disability, charter schools receive the same amount for all students regardless of the nature or severity of the disability. This results in a windfall to charters and creates a perverse incentive for them to reject students with more expensive needs.

Many parents of students with disabilities report that they are actively discouraged from applying to or attending charter schools, even after they secure a slot through a lottery. Some report that charter school staff tell them that the school is unable to meet the needs of their child due to a lack of staff training or of a specialized classroom. Such conduct is illegal. It can be challenged by filing a due process request or submitting a complaint to the Pennsylvania Department of Education Bureau of Special Education, and should be reported to the School District’s Charter Schools Office.

The bottom line is that charters cannot reject a child, inquire into a child’s disability status prior to enrollment, or condition admission on the child’s disability status.

Once the child is enrolled, the charter school must develop an appropriate program based on the current Individualized Education Program (IEP) and provide comparable services until a new IEP is developed and implemented. A child also has a right to remain in his/her current placement during the pendency of a dispute. A charter cannot suspend or expel students for conduct relating to or resulting from a child’s disabilities or due to the school’s failure to follow the child’s IEP. Charters, with few exceptions, cannot change a student’s placement without a “manifestation determination review” and must assess a child’s behavior and develop positive support plans to address it.

Cyber schools must develop and implement individualized programs, differentiate instruction and have qualified special education teachers. Children with disabilities in cyber schools face unique challenges; many struggle with virtual learning, which requires different skills. Students in a virtual programs may need to read information on computer screens or smart phones, watch online videos, write ideas in a discussion thread, and complete exercises and tests online. Students with disabilities in cyber schools should not receive a one-size-fits-all program but are entitled to instruction tailored to how they learn as well as to everything set forth in the IEP. And while parents sometimes play a more active role in day-to-day virtual instruction, they are not responsible for differentiating instruction or ensuring a free, appropriate, public education. Students must be taught by properly trained special education teachers who ensure that their child is making progress.

Alternative schools such as accelerated schools and AEDY programs must provide all services to ensure the meaningful progress of students with disabilities. Placement in such settings (following an IEP Team manifestation determination review and transfer hearing) does not change the child’s right to special education services. If an AEDY program or alternative school cannot provide an appropriate classroom placement and/or the required services, a parent has the right to challenge that placement as depriving the student of a free, appropriate, public, education. In addition, staff must conduct detailed monitoring to ensure that the child is advancing towards IEP goals and making progress in light of the child’s aptitude.

Students with qualifying disabilities under Title II of the American with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 are entitled to accommodations across all public school settings. They must receive equal access to education and cannot be discriminated against based on their disability. The term “qualifying disabilities” is broadly defined to include mental health conditions, alcoholism, etc. A child must be evaluated and receive necessary accommodations in accordance with Section 504 Plans which are sufficiently detailed to support them to access the curriculum.

The rights of students with disabilities cannot be limited by a particular school setting. Rather, a student’s rights must determine whether a particular school placement is most appropriate for the child.

Maura McInerney is the legal director at the Education Law Center.

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