EdLawConnect Blog

As new charter schools are developed and continue to grow as an educational option for parents and students, more and more people are seeking answers to the question of what obligations charter schools have under the Federal civil rights laws.  In a nutshell, the same Federal civil rights laws, regulations, and guidance that apply to traditional public schools apply to charter schools in all of facets of operation – from admissions and testing, to discipline and building accessibility.

On May 14, 2014, the U.S. Department of Education, Office for Civil Rights (“OCR”) published a “Dear Colleague” Letter (“OCR Letter”) addressing commonly confronted issues in the charter school context.  Among the topics discussed in the letter is the prohibition of discrimination in charter schools’ admissions practices.

Simply put, charter schools may not discriminate in admissions on the basis of race, color, national origin or disability.  This rule finds its authority in a number of Federal civil rights laws that apply to charter schools, namely Title IV of the Civil Rights Act of 1964, prohibiting discrimination based on race, color, or national origin; Title IX of the Education Amendments of 1972, prohibiting discrimination based on sex; and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”) of 1990, prohibiting discrimination based on disability.  As the OCR Letter advises, it is important to keep in mind that this obligation of charter schools – like many other charter school requirements – is separate from those prescribed under the Individuals with Disabilities Act (“IDEA”). 

The OCR Letter points to a few central, relevant issues that may arise in the charter schools’ admissions processes:

• Admissions information in non-English languages:  School-related information, including admissions information, must be as accessible to non-English language-minority parents as they are to English-proficient parents.  This may be accomplished through the provision of free interpreters or translation services.  In addition, charter schools must facilitate communication with disabled parents to ensure that such communication is as effective as those with non-disabled parents.  For example, a school may have Braille materials or a sign language interpreter available to ensure equally effective communication with parents who have hearing, vision, or speech disabilities.

• Eligibility criteria for admission:  Charter schools must adopt admissions eligibility criteria that is nondiscriminatory on its face and must apply these policies in a nondiscriminatory manner.  Charter schools’ admissions criteria must not exclude students on the basis of race, color, or national origin without valid reasoning, or deny admission to students based on disability.

• Desegregation plans:  If a charter school is located within a school district that is subject to a desegregation plan, the charter school must be operated in accordance with that desegregation plan.  Charter schools may also voluntarily exercise efforts to promote diversity.  If a charter school chooses to take active measures to create a diverse student population, it should first consider race-neutral approaches and generalized race-based approaches before adopting procedures that directly rely on the race of individual students.

Charter schools’ best safeguard against allegations of discrimination in their admissions practices is to adopt and implement consistent admissions criteria.  In the case J.C. by W.P. v. Cambrian Sch. Dist., 62 IDELR 194 (N.D. Cal. 2014), the U.S. District Court, Northern District of California, rejected the parent’s claim of a Section 504 or Title II ADA violation that the school denied her son admission based upon his disability.  The school’s second grade class was filled to capacity with resident students and the parent could not show that it was her son’s disability that was the basis for his denial as the school did not admit any nonresident students beyond its class size limits that year.  The school had a valid, nondiscriminatory reason for denying the student admission –maximum enrollment – and his disability was irrelevant in the school’s action.

As a reminder, it is not only Federal law that prohibits discrimination in school admissions.  State law also prohibits public schools, including charter schools, from denying a student admission on the basis of disability.  (See Government Code Section 11135 and Education Code Section 220) In fact, Education Code Sections 47605 and 47605.6 specifically prohibit charter schools from using disability as criteria for purposes of determining enrollment. Taking matters a step further, Education Code Section 47605.6(e)(2)(A) states, “[a] charter school shall admit all pupils who wish to attend the school.” Of course, this last cited provision seems to ignore certain realities, such as independent study charter schools, where, for example, students are expected to have a high degree of “independence” prior to enrollment.  In our opinion, the final chapter has to be written in harmonizing the legitimate state and federal concerns of anti-discrimination on the one hand and the opportunity for public school districts to provide educational learning environments capable of serving California’s students that come with a vast array of learning styles and needs.

The full OCR “Dear Colleague” Letter can be viewed here.