Charter school statutes and special education: policy answers or policy ambiguity?

Charter schools are a growing and evolving component of the public education sector. These schools may be exempt from state or local regulations, but they are part of the public system and subject to federal laws and many regulations. Research has documented policy tensions and basic challenges associated with developing special education programs in charter schools. A key source of these issues is ambiguity in individual state charter laws regarding roles and responsibilities related to special education. This article presents findings from a review of 41 charter statutes. The review reveals variability and lack of specificity among states in the legislative structures they maintain for charter schools and how responsibility for special education is assigned. These findings highlight the importance of federal, state, and district policy leaders developing a nuanced understanding of statutes shaping the parameters of responsibility for special education in the charter sector.

**********

Charter schools are a relatively new but growing and evolving segment of the public education sector. Charter schools are granted varying levels of independence from traditional school districts in return for increased accountability reflected in a renewable charter or contract with an authorizing agent. They join the menu of school choice options that emerged from school reform efforts in the 1980s and 1990s. While many of the other school choice options are driven by district initiatives and remain more closely aligned with the traditional public school system (e.g., open enrollment, magnet schools, and public choice for students at risk for school failure), charter schools operate under the auspices of state charter statutes that afford these schools varying degrees of regulatory relief. The assumption underlying the charter concept is that freedom from existing mandates, coupled with increased accountability driven by charter contracts and parents' ability to choose schools, will foster the creation of successful new schools and drive existing public schools to improve to compete for students (Kolderie, 1990). While the validity of these suppositions remains debatable (Miron & Nelson, 2002; Carnoy, Jacobsen, Mishel, & Rothstein, 2005), the charter sector is growing; as of fall 2005, there were approximately 3,600 charter schools educating upwards of 1 million students (Center for Education Reform, 2005). Furthermore, due to the fact that the No Child Left Behind Act of 2001 (NCLB) identifies conversion to charter status as one of multiple sanctions for schools that repeatedly fail to demonstrate Adequate Yearly Progress (AYP), the charter school sector will mostly likely continue to grow for the foreseeable future. As the charter sector grows, it is critical that policymakers at the federal, state, and district level are aware of the policy implications of state charter school laws. The focus of our research is how these laws address issues related to educating students with disabilities.

Charter schools may be exempt from state or local regulations, but they are fundamentally public and therefore subject to federal laws and regulations, including laws related to educating students with disabilities (Heubert, 1997). Special education, as it is organized in public schools, results from a complex and oft times confusing combination of federal law and regulation, individual state constitutions, state law and regulation, and policy traditions. Research examining the special education policy issues associated with charter school statutes and subsequent practices has documented tensions and misunderstandings emerging at the intersection of charter school and special education goals and objectives (Ahearn, Lange, Rhim, & McLaughlin, 2001; Fiore & Cashman, 1998). An analysis of the limited but growing case law documents that state and district policy leaders are struggling to establish the parameters of charter schools' responsibilities related to special education that are dictated by the Individuals with Disabilities Education Act (IDEA, 1997; O'Neill, Wenning, & Giovannetti, 2002).

While charter schools are frequently referred to as a monolithic entity, they are by definition unique; each school is designed and operated by a unique board that implements its vision of a public school within a policy climate shaped by state charter law and local practice. With the exception of their autonomous governance structures and, on average, small size, these schools are best defined by their heterogeneity--both between and within states--as opposed to their homogeneity (Anderson et al., 2002).

The charter sector that exists today grew from a single law passed in Minnesota in 1991 (Nathan, 1996). By fall of 2005, a total of 40 states plus the District of Columbia (hereafter referred to simply as "states") had adopted charter school laws. While there has been some legislative action related to charter schools in the remaining 10 states (i.e., Alabama, Kentucky, Maine, Montana, Nebraska, North Dakota, South Dakota, Vermont, West Virginia, and Washington), they have not passed charter school laws (Center for Education Reform, 2005).

The charter school sector is primarily a state-driven reform initiative. Individual states pass charter school laws that define the legal status of their charter schools and articulate specific parameters within which charter schools may operate. In turn, entities that have the authority to grant charters (i.e., authorizers or sponsors) and charter school operators interpret and implement individual state charter school laws, thereby translating policies into practices. Entities most commonly permitted to act as authorizers are local education agencies (LEAs), state education agencies (SEAs), institutions of higher education, specially appointed charter boards, and nonprofit organizations. Regardless of who grants a charter, by definition, charter schools are public entities, funded by public tax dollars and they must offer open enrollment policies. To wit, while afforded varying levels of deregulation designed to enable charter schools to operate independent of district structures, these new schools must abide by the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Relative to other education policy issues (e.g., standards-based reform, Title I, magnet schools), state and district policy leaders have limited experience interpreting charter school statutes and developing charter-related policy.