Kevin C. Brown, Esq.
Associate Commissioner and General Counsel
Kentucky Department of Education
300 Sower Blvd, 5th Floor
Frankfort, Kentucky 40601
Dear Mr. Brown:
The National Center for Special Education in Charter Schools (NCSECS) is dedicated to ensuring that students with disabilities have equal access to charter schools and that public charter schools are designed and operated to enable all students to succeed. NCSECS is a leader and partner with state charter authorizers, charter networks, and charter schools across the U.S. We advocate for and support the fundamental principles that families should be afforded school choice and that public schools have the opportunity and obligation to serve all students. Public charter schools can create effective, inclusive learning environments and can be exemplars of educational equity, quality, and innovation.
We write today to provide input on the draft Kentucky charter school regulations currently under review and to identify resources to assist the state in better meeting the needs of students with disabilities who require special education services. Below are our recommendations:
1. Provide clarity as to whether charter schools in Kentucky are treated as Independent Local Education Agencies (LEAs) under state law for the purpose of special education.
The Kentucky charter school statute lacks clarity about whether or not charter schools function as LEAs. See sections 3(17) and 8(3) of the statute. This is a serious gap, because allocation of authority and responsibility for special education depends on LEA status. For example, if districts remain the LEA for charter schools within their catchment area, those districts retain primary responsibility for special education and providing a full spectrum of placement options for students. If, instead, each charter school is an independent LEA, that considerable obligation falls to the charter school. A school LEA may have limited resources with which to provide such services. Given the absence of clarity on this point in the Kentucky charter school law, the regulations should address it and plainly state in the sections on student admissions and enrollment and/or on authorizer accountability, what the allocation of LEA responsibility and authority is. NCSECS has experience with these approaches and believes that both are viable, so long as the entity designated as the LEA has adequate resources and capacity to perform that function effectively.
2. Prohibit disclosure of student disability status on admission and enrollment forms except when it enables a student greater access to a charter program.
NCSECS is familiar with instances in which charter schools that were permitted to require information about the disability status of students applying to charter schools used that information as a barrier to admission. Instances of such “counseling out” may be infrequent but are inappropriate and should not be allowed. A revision to the Kentucky charter school regulations can preclude such practices. NCSECS recommends adding an additional provision, which could be designated 4(4)12, to section 4(4) of the regulation relating to student admissions and enrollment. This new provision would explicitly forbid charter schools from requiring applicants to provide information about their disability status. NCSECS would further provide an exception to this provision in instances where such information is used to allow students with specific disabilities to gain greater access to a charter program.
3. Require authorizer training on effectively serving students with disabilities and on equitable admissions practices.
After more than 20 years of charter schools in this country, one factor that is abundantly clear from research and experience is the crucial role that authorizers play in charter quality and accountability. The draft Kentucky regulations relating to authorizers prudently identify a number of topics on which authorizers must receive regular training in order maintain the expertise needed to do their work well. The required topics for authorizer training should be expanded to include effectively serving students with disabilities and ensuring equitable admissions. NCSECS recommends adding to section 3(4)(b) an additional subsection (9) that requires authorizer training on equitable admissions practices and services for students with disabilities. This regulation should also more generally include special education as a consideration in determining whether an authorizer is competent and effective.
4. Require examination of a school’s track record on serving students with disabilities when considering conversion to charter status.
The draft regulations relating to conversion charter schools and charter school appeals do not get into sufficient detail to identify the criteria for these steps. NCSECS recommends providing clarity on such criteria and explicitly spelling out that they should include special education considerations. For example, the track record of a school that seeks to convert to charter status should be scrutinized for indications of how it has served students with disabilities. This is a critical step toward ensuring that schools who seek charter status are well equipped to serve students with disabilities.
5. Increase specificity around special education throughout the draft regulations.
Finally, the draft regulations would benefit from more specificity around special education considerations broadly. Perhaps the best source of model viable language is the “Model Policy Guide” issued by NCSECS in April 2017. See https://www.ncsecs.org/wp-content/uploads/LeveragingPolicytoIncreaseAccess4.24.pdf. This document offers language on a range of issues that can be inserted into regulations. Specifically, it addresses areas such as charter applications and admissions that are the subject of current Kentucky draft regulations. It also provides specific language on many other areas, such as the roles of charter schools and of authorizers in the special education arena, with particular attention to assessing quality of programs and equitable access.
Additional potentially useful resources from NCSECS include “Getting Lost While Trying to Follow the Money: Special Education Finance in Charter Schools,” issued by NCSECS in November 2015. See http://www.publiccharters.org/wp-content/uploads/2015/11/sped_finance_web.pdf and an interactive webpage for our Charter School Special Education Finance Project that allows you to pull up special education finance information for chartering states: https://www.ncsecs.org/map/state-data/.
Thank you for the opportunity to provide input into Kentucky’s draft charter school regulations. NCSECS is encouraged by the state’s commitment to offering its families more school choice and hopes that it takes the extra steps necessary to ensure that all students can access and thrive in charter schools. As you finalize these regulations and transition to the implementation phase, NCSECS invites you to call on us and our resources as a guide for best practices for serving students with disabilities.
Paul T. O’Neill
Co-founder and Senior Fellow