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As part of the U.S.
Department of Education’s (ED’s) and the U.S. Department of Justice’s
(DOJ’s) efforts to support innovation and choice within the public
school system, this publication provides important information on how
public charter schools may be developed and operated consistent with
federal nondiscrimination laws. The purpose of this publication is to
answer civil rights-related questions that charter school developers and
operators have raised.
The civil rights
principles that apply to charter schools are the same principles that
apply to all public schools. This publication contains no new law.
Rather, it is designed to assist charter school developers and operators
by making available a summary of civil rights issues applicable to
public schools.
This publication
provides general information that covers a broad range of federal civil
rights issues. It does not seek to answer every question that may arise.
In many cases, answers will turn on the particular facts of a given
situation. In others, the law regarding the issue is evolving. Finally,
other state or local civil rights requirements or other federal laws may
apply.
U.S. Department of
Education
Office for Civil Rights
May 2000
One of the fastest
growing areas of public school reform is the charter schools movement.
Charter schools are public schools under contract – or charter – between
a public agency and groups of parents, teachers, community leaders, or
others who want to create alternatives and choice within the public
school system. Charter schools create choice for parents and students
within the public school system, while providing a system of
accountability for student achievement. Charter schools also encourage
innovation and provide opportunities for parents to play powerful roles
in shaping and supporting the education of their children. As a result,
charter schools can spur healthy competition to improve public
education.
In exchange for
increased accountability, charter schools are given expanded flexibility
with respect to select statutory and regulatory requirements. Federal
legislation provides support for the creation of charter schools as a
means of promoting choice and innovation within public school systems.
Of course, charter schools, like all public schools and other recipients
of federal financial assistance, must operate consistent with civil
rights laws.
The U.S. Department of
Education (ED), Office for Civil Rights (OCR) enforces a number of civil
rights laws that apply to public schools, including charter schools.
These laws include: Title VI of the Civil Rights Act of 1964 (Title VI),
which prohibits discrimination on the basis of race, color, or national
origin; Title IX of the Education Amendments of 1972 (Title IX), which
prohibits discrimination on the basis of sex in education programs;
Section 504 of the Rehabilitation Act of 1973 (Section 504), which
prohibits discrimination on the basis of disability; and the Age
Discrimination Act of 1975, which prohibits discrimination on the basis
of age. These laws apply to programs and activities that receive federal
financial assistance. OCR is also responsible for enforcing Title II of
the Americans with Disabilities Act of 1990 (Title II), which prohibits
discrimination on the basis of disability by public entities, including
public schools. Title II applies to public entities, regardless of
whether they receive federal financial assistance. OCR receives and
resolves more than 5,000 complaints of discrimination each year and
provides technical assistance on a wide range of issues.
ED and DOJ support the
implementation of charter schools as a valuable way to enhance choice
among public schools and to give more students the opportunity to learn
to challenging standards. This guidance seeks to aid charter school
developers and operators in their efforts to plan, develop, and deliver
their important educational programs in a nondiscriminatory manner.
To avoid distraction
within this guidance, we have often used acronyms and abbreviations to
substitute for the names of agencies and multiword concepts. The meaning
of each is explained within the context. For your convenience, we also
include the following key to the acronyms and abbreviation you will find
in this publication.
CRD – Civil Rights Division, U.S. Department of Justice
DOJ
– U.S. Department of Justice
ED – U.S. Department of Education
FAPE – Free appropriate public education
IDEA – Individuals with Disabilities Education Act
LEA – Local Educational Agency
LEP – National-origin minority, limited-English proficient
OBEMLA – Office of Bilingual Education and Minority Languages
Affairs, U.S. DOE
OCR – Office for Civil Rights, U.S. Department of Education
OSEP – Office of Special Education Programs, U.S. DOE
OSERS – Office of Special Education and Rehabilitative Services,
U.S. Department of Education
SEA – State Educational Agency
Section 504 - Section 504 of the Rehabilitation Act of 1973
Title II – Title II of the Americans with Disabilities Act of
1990
Title VI – Title VI of the Civil Rights Act of 1964
Title IX – Title IX of the Education Amendments of 1972
Responsibilities for Civil Rights
Compliance
Q1.
In general, what are the federal civil
rights obligations that apply to public elementary or secondary schools,
including my charter school?
A1. Public schools, including charter schools, must not
discriminate on the basis of race, color, national origin, sex, or
disability in any of their programs or activities. The primary federal
civil rights laws addressed in this publication include:
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Title VI of the
Civil Rights Act of 1964, which prohibits discrimination on the
basis of race, color, or national origin;
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Title IX of the
Education Amendments of 1972, which prohibits discrimination on the
basis of sex in education programs;
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Section 504 of the
Rehabilitation Act of 1973, which prohibits discrimination on the
basis of disability; and
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Title II of the
Americans with Disabilities Act of 1990, which prohibits
discrimination on the basis of disability.
Other applicable federal civil rights laws
not directly addressed in this publication include:
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Age Discrimination Act of 1975;
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Title IV of the Civil Rights Act of
1964;
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Title VII of the Civil Rights Act of
1964
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Equal Educational Opportunities Act of 1974.
Recruitment and Admissions
Students attend
charter schools by choice, but their admission might be subject to
certain qualifications or selection procedures, including a lottery.
This is one factor that may distinguish the operation of your charter
school from many other public schools. Although your civil rights
obligations are no different from those of other public school
officials, the fact that your students are not simply assigned to attend
your charter school underscores your need to be mindful of the rights of
children and parents in your community when publicizing your school to
attract students and when evaluating their applications for admission.
Q2. Do I have any responsibility regarding the recruitment of
students in order to be in compliance with federal civil rights laws?
A2. Yes. When announcing your charter school or conducting
outreach, you may not discriminate against students of a particular
race, color, or national origin, or against students with disabilities.
If your charter school is co-educational, then you may not discriminate
in recruitment on the basis of sex. If your charter school recruits
students, you should recruit them from all segments of the community
served by the school, including students with disabilities and students
of all races, colors, and national origins. Also, you may target
additional recruitment efforts toward groups that you believe might
otherwise have limited opportunities to participate in your program.
Title IX allows single-sex programs, classes, and schools
under certain conditions. For more information, see Question 8.
Q3.
What steps should I take when providing
outreach information to parents who are limited-English proficient?
A3. You must make sure that parents in your community who are
not proficient in English have the opportunity to understand the
outreach information provided to other parents. This information may
need to be provided in a language other than English. For example, if
outreach materials are made available to parents, you should provide the
content of the materials to parents who do not understand English in a
manner and form they understand. If you conduct public informational
meetings with parents or community groups, you should make sure that
limited-English proficient parents who can be reasonably expected to
attend have a meaningful opportunity to understand what is being
presented.
Q4. What steps should I take when providing outreach
information to parents with disabilities?
A4. You must make sure that a parent with a disability has a
meaningful opportunity to understand the outreach information given
about the charter school as effectively as other parents. Appropriate
auxiliary aids and services must be made available whenever they are
necessary to ensure effective communication with disabled parents. For
example, if outreach materials are made available to parents, you need
to make sure that parents with disabilities have appropriate access to
the content of the materials. If requested, you may need to provide the
materials using alternative formats, such as Braille, large print, or
audio cassette. If you conduct public informational meetings with
parents or community groups, those meetings must be physically
accessible to individuals with disabilities. Qualified interpreters or
another effective means of communication must be provided if requested.
Q5. What is my obligation to make sure that all students –
regardless of race, color, or national origin – are treated in a
nondiscriminatory manner in admissions?
A5. You may not discriminate on the basis of race, color, or
national origin in determining whether an applicant satisfies any
admissions requirements. Students with limited-English proficiency must
have the opportunity to meet any appropriate minimum eligibility
criterion for admission, consistent with the mission of the charter
school. Eligibility criteria must be nondiscriminatory on their face and
must be applied in a nondiscriminatory manner. If such criteria have a
disparate impact on the basis of race, color, or national origin, then
the criteria should be examined to ensure that they are educationally
justified and that no alternative criteria exist that would equally
serve your goals and have a lesser disparate impact. It is important to
understand that disparities alone do not constitute discrimination under
Federal law. For more information and technical assistance, contact the
OCR office that serves your state.
If your charter school
receives funds under the federal Public Charter Schools Program, you
must use a lottery to admit students if the charter school is
oversubscribed.
For schools receiving funds under the federal Public
Charter School Program, see the discussion on establishing minimum
eligibility criteria for admission and other important information in
Public Charter Schools Program: Non-Regulatory Guidance.
Q6.
May my charter school consider race in admissions
decisions?
A6. A charter school may take race into account in making
admissions decisions in limited circumstances. Race may be used only in
a narrowly-tailored way to meet a compelling interest, such as to remedy
discrimination, to promote the educational benefits of diversity, or to
reduce minority-group isolation. The state of the law in this area is
undergoing close examination by the courts. The legal standard that
applies to your state may vary, depending on State law and the federal
circuit in which your state is located.
For more information and technical assistance concerning
the use of race in admissions, contact the OCR Office that serves your
state and see, for example, the
Federal Register notices on the
Magnet Schools Assistance Program application notice.
Q7.
What is my obligation to make sure that student
applicants with disabilities are treated in a nondiscriminatory manner
in admissions?
A7. Under Section 504 and Title II, you may not categorically
deny admission to students on the basis of disability. For example, you
may not deny admission to a student with a disability solely because of
that student’s need for special education or related aids and services.
Students with disabilities must have the opportunity to meet any
appropriate minimum eligibility criterion for admission, consistent with
the mission of the charter school and civil rights requirements.
For more information on civil rights requirements
regarding the educational needs of students with disabilities, see
Questions 23 to 30 concerning
Services to Students with Disabilities
Q8. Does Title IX permit single-sex classes, programs, or
schools?
A8. An exemption in Title IX permits LEAs to establish
single-sex elementary or secondary schools as long as they are not
vocational schools. However, when an LEA establishes a public school for
one sex – unless it is necessary to remedy discrimination – any student
excluded based on sex must have made available comparable courses,
services, and facilities, pursuant to the same policies and criteria of
admissions.
The Title IX
regulation generally prohibits single-sex classes or programs in
co-educational schools. There are some exceptions, including contact
sports, chorus, and portions of classes dealing with human sexuality.
Separate classes may also be provided for pregnant students, but
participation must be voluntary. Title IX also allows for single-sex
classes and programs if they are necessary to remedy discrimination
found by a court or OCR, or as a response to conditions that have
limited participation by sex.
If you are thinking of establishing a single-sex class,
program, or school, we encourage you to contact your LEA and the OCR
office that serves your state for more guidance. ED is reviewing its
Title IX regulation pertaining to single-sex programs and schools.
Selection of Facilities to Provide
Access to Students with Disabilities
For some people with
physical disabilities, an otherwise outstanding program may as well not
exist if it is located in an inaccessible facility. Section 504 and
Title II require that persons with disabilities have access to the
programs and activities offered at public schools. Because charter
schools often open in older buildings that may lack attention to
accessible design or in contemporary or renovated buildings that were
not originally designed for use as public schools, it is important that
you be aware of these requirements.
Q9.
Are there requirements for physical access that apply
when I select the facilities that will house my charter school?
A9. Yes. An LEA (including your charter school if it is its
own LEA) may not deny persons with disabilities, including parents and
students, the benefits of programs and activities offered at its schools
because of inaccessible facilities. The selection of the facility for
your charter school may not result in excluding or limiting enrollment
of people with disabilities from any school program or activity.
The program accessibility requirements of Section 504 and
Title II often involve complex issues. For technical assistance
regarding accessible programs and facilities, please contact the OCR
Office that serves your state.
Q10.
Are there different legal requirements that apply to
charter schools located in existing facilities as compared to newer
facilities?
A10. Yes. For existing facilities, a charter school’s programs
and activities, when viewed in their entirety, must be readily
accessible to individuals with disabilities. Both the Section 504 and
Title II regulations permit considerable flexibility in meeting this
legal standard. For example, structural changes are not required in
existing facilities if nonstructural methods are effective in achieving
program accessibility.
For new construction
and alterations, Section 504 and Title II require that a new or altered
facility (or the part that is new or altered) must be readily accessible
to and usable by individuals with disabilities. The focus here is on
providing physical access to buildings and facilities in addition to
programs and activities. This means you must make sure that a child with
a physical disability has access to every part of the new building or
the parts that are newly-altered.
For example, if your
charter school is in a new building, all parts of the building,
including the third-floor chemistry labs, must be accessible for use by
persons with disabilities. In contrast, if your charter school is in an
existing facility, you might be able to meet the program accessibility
requirement by locating at least one chemistry lab in an accessible
location like the first floor.
Q11. How do I know if a building is considered an existing
facility or new construction?
A11. Any building or alteration by or on behalf of your LEA or
your charter school for which construction began since June 1977, is
considered new. Any construction or alteration that was not done by or
on behalf of your LEA or charter school is likely to be considered an
existing facility, regardless of its age.
Any construction that began before June 4, 1977, is
considered existing. Any construction or alteration by or on behalf of
your LEA or charter school that began after January 26, 1992, is
considered new. Construction that began on or between those two dates is
new under Section 504 and existing under Title II. In these cases, the
more stringent standard for new construction would apply.
Q12.
What should I consider when acquiring the space in which
I operate my program?
A12. In summary, when you purchase, take title to, lease, or
rent a facility, you are encouraged to look for the most accessible
space available. At a minimum, you must make sure that the educational
program, when viewed in its entirety, is readily accessible to and
usable by individuals with disabilities, in accordance with the
requirements for existing facilities. Construction or alteration
initiated by you or for your charter school must also meet standards for
new construction.
Educating Students Who Are
Limited-English Proficient
A growing number of
students in the public school population are national-origin minority
students who are limited-English proficient (LEP). These children
include recent immigrants to the United States, and other children
raised with languages other than English. Generally, these children’s
limited ability to speak, read, write, and understand English well
enough to participate meaningfully is a barrier to their educational
success. Federal civil rights law requires that public schools provide
LEP children appropriate services designed to teach them English and the
general curriculum.
Q13. What civil rights requirements apply if there are LEP
students attending my charter school?
A13. In Lau v. Nichols, the U.S. Supreme Court held
that school districts must take affirmative steps to help LEP students
overcome language barriers so that they can participate meaningfully in
each school district’s programs. Under Title VI, public schools and LEAs
must identify LEP students and provide them educational services so they
can learn English-language skills and acquire the knowledge and skills
in academic content areas that all students are required to know.
Public schools are not
required to adopt any particular model of instruction for LEP students.
However, where a program is necessary to ensure equal educational
opportunity for LEP students, it must be based on a sound educational
theory, adequately supported with qualified staff and adequate resources
so that the program has a reasonable chance for success, and
periodically evaluated and revised, if necessary.
Q14. Are there federal funds available to help me educate LEP
students?
A14. Yes. A wide variety of resources are available to help
you serve your charter school’s LEP students. In addition to receiving
general educational funds and state and local funds appropriated for the
education of LEP students, LEAs may qualify for Federal financial
assistance. For example, like any public school, your charter school
might qualify for funds from Title I, Title VII, or other titles of the
Elementary and Secondary Education Act of 1965, as amended. These grant
funds may be used to supplement the services that the LEA is required to
provide using state and local educational funds. Title I is administered
by ED’s Office of Elementary and Secondary Education (OESE). There are
specific requirements that you must meet in order to receive Title I
funds. Contact your SEA to find out if your charter school is eligible
for these funds. LEAs may apply for Title VII funds from ED’s Office of
Bilingual Education and Minority Languages Affairs (OBEMLA).
Your charter school
might also join with other charter schools or work with LEAs to share
qualified staff and other resources. Keep in mind that the obligation to
educate LEP students is the same regardless of whether special funds or
resources are available.
Title I provides assistance to at-risk children in
high-poverty schools. For further information on Title I, visit
OESE’s World Wide Web site.
Title
VII helps LEAs meet their needs and objectives related to
improving the instruction of LEP students. For further information on
Title VII, visit
OBEMLA’s Web site.
Q15. What must I do to make sure that limited-English
proficient parents of students in my school are provided with
information about school activities?
A15. Like operators of other public schools, you must ensure
that language-minority parents who are not proficient in English receive
the same information provided to other parents, in a manner and form
they understand. This may include information about their children’s
program, progress, and disciplinary problems, as well as information
about the school’s rules, policies, and activities. This information may
have to be provided in a language other than English for parents who are
not proficient in English.
You may find assistance through real-time interpreting
services, such as those provided by telecommunications companies.
Educating Students with Disabilities
Some children arrive
at school with disabilities that affect their participation in the
educational program. Sometimes, these disabilities are known; sometimes
they remain hidden until a parent or teacher raises a concern. The
challenge for all public schools is to identify children with
disabilities, assess their individual needs, and provide appropriate
educational services without undue delay.
Q16. What civil rights requirements apply to my charter school
for the education of students with disabilities?
A16. Under Section 504 and Title II, students with
disabilities enrolled in public schools, including your charter school,
are entitled to a free appropriate public education (FAPE). The Section
504 regulation includes several substantive and procedural
requirements regarding the provision of FAPE. Among these requirements
is that a student with a disability must receive appropriate regular or
special education and related aids and services. The requirement is
designed so that the individual educational needs of the disabled
student are met as adequately as the needs of nondisabled students.
Q17. Are there federal funds available to help me meet my
obligation to educate students with disabilities?
A17.
NHCSR NOTE: In New Hampshire, the charter school funding
formula all state special education adequate aid continues to go to the
charter school student’s sending school district. The sending school
district continues to have responsibility for all special education
decisions including placement.
Yes. Your charter
school might benefit from federal funds available under the Individuals
with Disabilities Education Act (IDEA). The IDEA is a federal law that
provides funds to SEAs, and through them to LEAs, to help schools serve
students with disabilities. There are specific requirements of the IDEA
that you must meet in order to receive these federal funds. Contact your
SEA to find out if these funds are available to you.
Like Section 504 and
Title II, the IDEA has FAPE requirements. In general, if you satisfy the
FAPE requirements under the IDEA, then you will be in compliance with
the FAPE requirements of Section 504 and Title II. The IDEA, which has
distinct requirements that are not discussed in detail in this
publication, is administered by ED’s Office of Special Education and
Rehabilitative Services (OSERS).
For further information on the IDEA and its requirements,
contact OSERS’ Office of Special Education Programs (OSEP) at
202-205-5507; or visit
OSEP’s World Wide Web site.
Q18. Are there additional ways to help me meet my obligations
under Section 504 and Title II?
A18. Yes. In addition to providing federal funds to eligible
entities, the IDEA allows a state the flexibility to designate some
other entity as responsible for ensuring that the requirements of the
IDEA are met for children with disabilities enrolled in public schools.
Where you are meeting your charter school’s Section 504 and Title II
FAPE responsibilities through compliance with IDEA requirements, the
IDEA’s flexibility could help you meet your charter school’s Section 504
and Title II FAPE responsibilities. Generally, if a state designates
another entity as responsible for ensuring that all of the IDEA
requirements are met for eligible disabled children enrolled in a
particular charter school, that designated entity would ensure that FAPE
is provided to each of those students, generally at the charter school
site.
Contact your SEA to learn whether your state makes this
flexibility available to your charter school.
Q19.
Could a child be protected by Section 504 and Title II
but not be eligible to receive services under the IDEA?
A19. Yes. Some students with disabilities are protected by
Section 504 and Title II, but are not eligible to receive services under
the IDEA because they do not need special education. One example would
be a child with juvenile rheumatoid arthritis who requires the periodic
administration of medication during the school day, but who does not
need any special education services. The child may have the right to
FAPE under Section 504 and Title II, even though the child is not
eligible for services under the IDEA.
Under Section 504 and Title II, an individual with a
disability is an individual who either has a physical or mental
impairment that substantially limits one or more major life activities
(such as learning), has a record of such an impairment, or is regarded
as having such an impairment.
Q20.
May I limit the participation of students with
disabilities to certain aspects of my charter school’s program?
A20. No. Consistent with civil rights requirements, students
with disabilities must be provided a range of choices in programs and
activities that is comparable to that offered to students without
disabilities. This includes an opportunity to participate in a range of
nonacademic or extracurricular programs and activities offered at your
charter school.
Q21. Is a student with a disability required to be educated
with students without disabilities?
A21. A student with a disability must be educated with
nondisabled students to the maximum extent appropriate for the disabled
student. The education of students with disabilities must be designed to
meet their individual needs. A student with a disability may be placed
in a setting outside the regular classroom only if the regular
educational environment – including using supplementary aids and
services – cannot satisfactorily meet the student’s educational needs.
The group making placement decisions is responsible for selecting the
setting that satisfies these requirements.
The Section 504 regulation requires that any placement
decision be made by a group of persons, including persons knowledgeable
about the child, the meaning of the evaluation data, and the placement
options.
Q22.
What do I need to do when a student enrolled in my
charter school is believed to have a disability?
A22.
NHCSR NOTE: In New Hampshire, the charter school must
follow provisions of the sending district regarding “child find” and
referral.
When a student is
believed to have a disability, your charter school, like any public
school, must initiate the procedures established by your SEA or by your
LEA (if your charter school is a part of the LEA) to identify and refer
the student for evaluation in a timely manner.
Q23. What other rights and responsibilities are included in
the provision of FAPE regarding student identification, evaluation, and
placement?
A23. Under Section 504 and Title II, students with
disabilities, and their parents or guardians, are entitled to due
process from the LEA concerning student identification, evaluation, and
placement. Simply stated, due process is procedural fairness. In the
context of FAPE, due process includes notice, the opportunity for review
of records, the right to request an impartial hearing with
representation by counsel, and a procedure for review. In general, by
complying with the relevant IDEA procedural-safeguard requirements, an
LEA is complying with these Section 504 and Title II requirements.
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