NEW Federal Charter Schools Program Non-Reg. Guidance: Caution Required

The U.S. Department of Education has released new non-regulatory guidance regarding weighted charter school lotteries. In a nutshell, the new guidance is less a significant policy change than an expanded interpretation of existing policy regarding practices that are permissible by charter schools that seek to secure Charter School Program (CSP) grants funds (e.g., schools in their first three years of operation). Charter schools are authorized by state laws but the federal government is able to influence them nationwide through the CSP grants that have been critical to helping charter schools secure resources to develop their programs and open their doors.

In the interest of establishing open enrollment policies in charter schools, prior CSP guidance had established that “weighted lotteries (lotteries that give preference to one set of students over another) are permitted only when they are necessary to comply with title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the equal protection clause of the Constitution, or applicable State law.”

The January 2014 guidance states: “Weighted lotteries (i.e., lotteries that give additional weight to individual students who are identified as part of a specified set of students, but do not reserve or set aside seats for individual students or sets of students) are permitted only in certain circumstances.”

The guidance then notes that charters can administer weighted lotteries to comply with:

1) numerous federal civil rights statutes similar to the prior guidance (e.g., Section 504),

2) ESEA stipulations regarding school choice, and

3) to give “slightly better chances for admission to all or a subset of educationally disadvantaged students if State law permits the use of weighted lotteries in favor of such students. Permission could be evidenced by the fact that weighted lotteries for such students are expressly permitted under the State charter school law, a State regulation, or a written State policy consistent with the State charter school law or regulation, or, in the absence of express authorization, confirmation from the State’s Attorney General, in writing, that State law permits the use of weighted lotteries in favor of such students. Thus, if a State’s charter school law permits charter schools to give additional weight to educationally disadvantaged students (or a subset thereof), a charter school in that State could weight its lottery in favor of such students or participate in a centralized lottery for multiple public schools that is weighted in favor of such students or participate in a centralized lottery for multiple public schools that is weighted in favor of such students and remain eligible for CSP funding.”

The guidance defines “educationally disadvantaged students” as “students in the categories described in section 1115(b)(2) of the ESEA, which include students who are economically disadvantaged, students with disabilities, migrant students, limited English proficient students, neglected or delinquent students, and homeless students.”

Anticipating concerns about creation of specialized schools that segregate students, the guidance explicitly states: “Weighted lotteries may not be used for the purpose of creating schools exclusively to serve a particular subset of students.” And the guidance “strongly encourages charter schools that use weighted lotteries to do so as part of a broader strategy that includes fulfillment of their existing responsibilities related to outreach, recruitment, and retention for all students, including educationally disadvantaged students.”

We created NCSECS to ensure that students with disabilities have equal access to high quality programs in charter schools. Historically, policies that permit public entities to give preferences have not benefited individuals with disabilities. However, given the current concerns—driven by multiple policy as well as operational challenges—that students with disabilities are not accessing charter schools on par with their peers, a weighted lottery explicitly designed to provide under-represented students greater access could prove to be a powerful lever to quantifiably increase access. Of course, this guidance simply allows for weighted lotteries, it does not require weighted lotteries. From our perspective, three critical components need to be in place to make certain the revised guidance has the intended impact:

1)    Charter schools and the organizations that support them (e.g., authorizers, state departments of education, state resource centers/associations, and philanthropic organizations) must double down on the investment in and intentional development of exemplary programs for students with disabilities. Access is critical but is a means to a larger end, namely to foster quality programs that enable students with diverse learning needs to succeed;

2)    Charter schools should develop and actively implement focused recruitment strategies that encourage specific disadvantaged groups to apply, including making certain that they are readily accessible to the targeted population. Examples of strategies to encourage students with disabilities include outreach to special education advocacy and parent support organizations and recruitment materials that explicitly outline services readily available at the charter school; and

3)    States and authorizers need to have a laser sharp focus on potential unintended consequences and loop holes that could permit spurious actors to use the weighted lotteries to discriminate against the very populations identified to benefit from the guidance. For instance, our read of the guidance would not include development of weighted lotteries for students who are academically gifted but who for lack of access to segregated programs, could be characterized as “disadvantaged.”

As NCSECS works to fulfill its mission, tracking the implementation of the new guidance will be a component of our portfolio of work. We are cautiously optimistic that authorizers and charter operators will leverage the policy to further open the doors for students who have long been marginalized in both traditional and chartered public schools.