Top 5 Special Education Issues We’ll Watch in 2019

NCSECS is entering 2019 with a renewed energy to pursue our mission that students with disabilities can fully access and thrive in charter schools designed to enable all students to succeed. Here are our the top 5 special education issues that we will closely monitor throughout the year:

1. Discipline & Student Civil Rights. Betsy DeVos ended 2018 by rescinding the 2014 Discipline Guidance that compelled public school systems to track, evaluate, and address discipline practices that disproportionately affect students of color and students with disabilities.  NCSECS commented that “the guidance was useful in helping schools and districts design programs that curb disproportionate discipline” and called the guidance revocation “a significant step backwards for students with disabilities and students of color...who deserve more.”  

Furthermore, in September of 2018, the Office of Special Education and Rehabilitative Services (OSERS) unveiled the framework for how they plan to "re-think special education." Although the “support” and “partnership” elements of the framework are encouraging, NCSECS remains concerned about potential loosening of federal oversight especially over states with poor track records of serving students disabilities.

2. Blue Wave & ESSA: The 2018 midterm elections resulted in an influx of new democratic representatives on Capitol Hill and in state legislatures. NCSECS anticipates monitoring the impact of the blue wave on state level education policy and practice, especially as it relates to efforts to protect students’ civil rights and increase access to high quality charter schools.

Most notably, states are implementing their Every Student Succeeds Act (ESSA) plans which include how each state will educate students with disabilities. Among the concerns with state ESSA plans is, thirty-three states do not separate out the performance of students with disabilities in their school rating systems which can mask poor performance of students with disabilities under stronger performance in general education. The omission of the special education sub-group in the majority of state’s ESSA plans hurts efforts to create comprehensive systems of improvement that help all students succeed and is a missed opportunity to help districts align efforts between ESSA and IDEA.

3. Results-Driven Accountability. Reflected in the elements of ESSA, results-driven accountability (RDA) is an initiative of the U.S. Department of Education that requires states to improve academic outcomes for exceptional learners while also meeting the procedural aspects of IDEA. OSERS and the Office of Special Education Programs (OSEP) gathered input through December 2018 from stakeholders. NCSECS believes that RDA is not meeting its original mission in part, because OSEP does not provide focused technical assistance (TA) to states who fall short in supporting all of their schools, including charter schools. In addition to ensuring charter schools are included in state plans and are receiving TA, we recommend “redesigning RDA to require States to include robust measures that utilize data related to student progress and performance.”  

Related to RDA, we also anticipate that state and grass-roots efforts to develop more nuanced accountability systems that acknowledge the importance of tracking and valuing the growth of all students relative to high standards, including our most complex learners, will generate interesting proposals that will be worth careful consideration.

4. Federal Legislation. The Keep All Students Safe Act (KASSA) is an opportunity for the federal government to demonstrate its commitment to student civil rights. KASSA prohibits seclusion and seeks to prevent and limit the use of restraint in schools. NCSECS supports this bill, which, if enacted, would considerably strengthen protections in every state and ensure the safety of all students and school personnel. The bill also promotes a shift toward preventing problematic behavior through use of de-escalation techniques, conflict management, and evidence-based positive behavioral interventions and supports.

NCSECS has also supported the Higher Education Act (HEA) Reauthorization, called the Aim Higher Act which was introduced in 2018 by the House Democrats and includes key provisions to improve teacher training and ensure greater access to higher education for students with disabilities. A reauthorization of the HEA provides a crucial opportunity to strengthen teacher preparation programs for traditional and charter schools. Teachers require multi-faceted training programs, such as MTSS and UDL to increase access to inclusive classrooms and support the learning needs of all learners.

5. Embroiled States. The U.S. Department of Justice filed a complaint against the Georgia Network for Educational and Therapeutic Supports (G-NETS) in 2016 alleging that the state discriminates against students with disabilities by segregating them from their peers without disabilities. A scathing expose in October 2018 by The New Yorker highlighted the abuse and lack of educational options for students in G-NETS schools. The case will most likely eventually be appealed to the U.S. Supreme Court. Its outcome will have widespread influence on how we educate students with emotional and behavioral challenges.

In Texas, the Houston Chronicle exposed a 12-year trend of districts across the state proactively decreasing the identification of and and provision of services to students with disabilities. OSEP found Texas in violation of IDEA and now the Texas Education Agency must roll-out a multi-faceted, and multi-million dollar, strategy to address violations. How Texas addresses under-identification and service provision will set important precedent for how federal and state agencies work together to uphold IDEA.

The Murkiness of Special Education in New York City Charter Schools

by Paul O’Neill

Last month, attorneys with Advocates for Children (AFC) filed a complaint against Success Academy (a non-profit organization that manages 47 charter schools in New York City that all share its name) and certain of the charter schools that it manages, alleging that Success Academy makes too many decisions at the school level that impact the educational placements of students with disabilities. The complaint raises important issues for children with disabilities attending New York charter schools and their families.

An important but technical detail: rather than sue in court, AFC made the complaint to the New York State Education Department, mainly seeking a ruling that Success Academy’s network-wide practice of adjusting student grade placements and instructional settings, without first communicating with parents and obtaining approval from district special education authorities, is unlawful, violates Individualized Education Program (IEP) rules and must stop.

Whatever the merits of its claims, the AFC complaint presents an excellent opportunity to identify and wrestle with some crucial questions impacting students, families and charter schools in New York:

As a school within the district local education agency (LEA), who is in charge of what?

Under federal law, it is the LEA that has primary responsibility for special education.  In places like New York, where state law assigns that role to the school district rather than to individual charter schools, it can be hard to know which decisions a school can and must make, and which ones require action by the district. For example, in New York, charter schools must look to the district for core functions like identifying and evaluating students who may have disabilities; only the district can hold an IEP meeting or a manifestation determination review (MDR) before disciplinary removals.  But in Denver, where charters are schools within the district LEA for purposes of special education, as is the case in New York, the charter schools handle all of those functions themselves. The district simply defers to the charter schools. If the AFC complaint were made in Colorado, schools there could be held more directly culpable for special education placement problems than is the case in New York.

Does a charter school have the right to stand behind its special education decisions?

Parents and educators are both stakeholders in special education decision-making. Ordinarily, when there is a conflict between what educators and parents believe is appropriate for a student, either party calls for a hearing to settle the matter.  But where a charter school is not the LEA, the district is able to call for a hearing and perhaps not the school. It is not clear whether a charter school has the right (called “standing” under the law) to demand such a hearing or to defend itself at a hearing called by parents. In New York City, the district has taken the stance that charters lack this right, further emphasizing that the district (not the school) retains primary authority and responsibility for serving students with disabilities.

Who should be held accountable when a charter school student fails to receive appropriate services or process?

AFC submitted its complaint to New York state, alleging that Success Academy charter schools and the management organization that partners with them should be called to task for what AFC considers to be violations of special education law. The complaint holds the district accountable as well, yet has very little to say about that. But AFC could as easily have brought suit against the state, rather than to it. They could have filed a lawsuit in federal court, claiming violations of the Individuals with Disabilities Education Act (IDEA).  Under that law, the state as the State Education Agency (SEA), and the district as the LEA, are accountable for ensuring that rules are followed and students get what they are entitled to. New York state law and regulations place some obligations on charter schools relating to provision of services, but these are not well-defined and in any event school-level culpability does not take away LEA and SEA responsibility.

What is the role of the charter school authorizer here?

Oversight of special education practices and legal compliance in Success Academy charter schools is made more complicated by this fact: Neither the NYC DOE nor the State Education Department has primary authority over them. Under state charter school law, the obligation and authority falls to the entity that authorized the schools. For all of the Success schools, that entity is the State University of New York (SUNY).  SUNY’s trustees, acting through their Charter Schools Institute, oversee many of the state’s charter schools and must hold them accountable for complying with the terms of their charter contracts and applicable law. If AFC is correct and Success Academy schools are violating the law in the ways they serve students with disabilities, SUNY has the power to step in and demand that this stop. They can put a school on probation for improper practices and even revoke a school’s charter. But what must SUNY do? Because the law makes the state and district directly responsible for special education compliance, it isn’t clear what the authorizer should do to investigate and remedy such problems.

Are there other charter school programs that are engaging in similar practices as those of Success Academy?

AFC’s complaint only focuses on Success Academy schools. It is not clear whether other charter schools in the city follow similar practices. This seems important to know, regardless of whether or not such practices are considered to be improper. If the practices are more widespread, this raises questions about why the complaint focuses exclusively on Success Academy and its schools.

Are some changes to student programs appropriately within a charter school’s control while others are not?

The complaint mainly calls out two kinds of practices, both of which AFC considers to be improper -- grade placement changes and instructional setting changes. AFC says that the CSE must be involved with and make decisions about both of those areas. It is not clear that these practices should be treated similarly, though. Changes in instructional settings – such as the decision to move a child from a general classroom with supports to a more restrictive setting, for example, a 12-1 student teacher ratio, seem to be a core part of an IEP placement and very much the purview of the IEP team.  But determinations about the appropriate grade level for a student and adjustments to that level are more traditionally subject to a school’s discretion. Whether or not such changes constitute changes in a student’s placement seems less clear. The AFC complaint interprets the concept of “change in placement” very broadly, and this element is worthy of close scrutiny.

What is the impact of viewing most changes as "changes in placement”?

By broadly defining changes that impact the program or educational success of a student with disabilities as “changes in placement” that must be considered and approved by an IEP team, AFC may be calling into question the ability of  parents to exercise their right to choose a charter school for their kids with disabilities (rather than wait for a CSE to place a child there). That would be a major consequence and a controversial one.

How does pendency apply in a charter school?

Finally, the AFC complaint raises the issue of how pendency applies in a New York charter school. In the special education context, pendency means that a student whose placement is in dispute must remain in that placement until such time as the placement is formally changed by the IEP team or on appeal. AFC argues that Success Academy ignored viable requests for pendency from parents of students who were having their programs unilaterally changed by Success Academy schools and their management organization.  They cite instances of federal authorities supporting those pendency claims when parents of Success Academy students appealed. This too is a murky area in which the law is under-developed; it appears from the complaint that district education officials did not believe they could support the pendency claims made by these parents. In fact, in the early 2000s, when charter schools were new in New York, the NYC DOE issued a memorandum on special education in charter schools that included a statement that students who choose to attend charter schools do not have pendency rights in those schools. That memorandum is long gone, and it is no longer clear what the district’s position is on pendency. Like so many issues, it is complex and deserves close attention.

The main message we take from the AFC complaint is we need more clarity. Confusion about who does what in the special education process leads to bad things for children – to both improper action and improper inaction. In New York City, there are signs of movement on this front; the district is proactively working with the NYC Special Education Collaborative of the NYC Charter Center, as well as leaders from charter schools and the National Center for Special Education in Charter Schools, to explore the issues that impact kids with disabilities in charters. Through its complaint, AFC is pushing for clarity in a different way. We will watch the AFC complaint, follow its progress and continue to advocate for a clearer, more predictable, student and parent-friendly process for serving and supporting students with disabilities in New York charter schools.

Letter to OSERS and OSEP Regarding Results-Driven Accountability

On December 21, 2018, the National Center for Special Education in Charter Schools submitted input to the Office of Special Education and Rehabilitative Services (OSERS) and the Office of Special Education (OSEP) related to its inquiry on Results-Driven Accountability (RDA to evaluate existing regulations and guidance).

Highlights of NCSECS recommendations include:

  • Redesign RDA to require States to include robust measures that utilize data related to student progress and performance;

  • Dedicate resources to support rigorous research and evaluation of RDA; and

  • Provide Technical Assistance to states dedicated to support charter schools and students with disabilities. 

Read NCSECS' full comments to OSERS and OSEP here.

Statement on Decision to Withdraw Federal School Discipline Guidance

Today, in response to the U.S. Department of Education’s decision to rescind the 2014 Discipline Guidance, Lauren Morando Rhim, executive director for the National Center for Special Education in Charter Schools (NCSECS) issued the following statement:

“Student civil rights protections exist to safeguard against explicit and implicit discriminatory practices that disproportionately impact students of color and students with disabilities as documented in an abundance of research and school-reported data. The National Center for Special Education in Charter Schools (NCSECS) is disappointed that the U.S. Department of Education has decided to rescind the 2014 Discipline Guidance and is particularly alarmed by the Department’s questioning that implicit discrimination exists. The guidance was useful in helping schools and districts design programs that curb disproportionate discipline towards students of color and students with disabilities.  

Many traditional public and charter schools, like Kingsman Academy Public Charter School in Washington D.C., have adopted policies identified in the discipline guidance and successfully maintained safe school environments while limiting the need for exclusionary discipline practices. Such school environments demonstrate that it is possible to adopt the guidance as a means to foster safe schools.  

The federal Offices for Civil Rights at both Education and Justice, in partnership with state education agencies have an obligation to uphold students’ civil rights and not rollback protections. Students with disabilities and students of color deserve better. Now more than ever, schools must continue to make progress towards safe and inclusive learning environments.

Statement Regarding the School Safety Commission's Report and Recommendations

Today, in response to the release of the Federal Commission on School Safety report and its recommendations, Lauren Morando Rhim, executive director for the National Center for Special Education in Charter Schools (NCSECS) issued the following statement:

“The Commission’s findings and recommendations represent a significant step backwards for students with disabilities and students of color especially in light of the recommendation to rescind the 2014 Discipline Guidance which includes accompanying research-based tools and resources. It is truly confounding that on one hand the Commission embraced successful school-wide programs such as Positive Behavior Intervention and Support while simultaneously slapping down the very guidance that has helped schools and districts implement such effective programs. The selectivity used to pick through the research and best practices demonstrates the Commission’s willingness to actively sacrifice the educational welfare of our most vulnerable children, which disproportionately impacts students with disabilities and students of color. Sacrificing the educational welfare of some children to achieve the academic progress of others is the wrong paradigm: the academic success of all children should be our national, educational priority. NCSECS urges Secretary DeVos to maintain the Discipline Guidance because students with disabilities and students of color deserve more.”