The extent to which special student populations (ELL, Special Education and Economically Disadvantaged) gain access to charter schools is understudied. The new study Separate and Unequal?: The Problematic Segregation of Special Populations in Charter Schools Relative to Traditional Public Schools utilizes state, district, and local level data to understand the enrollment of high-need special populations in charter schools compared with non-charter public schools.

Vasquez Heilig, J. Holme, J., LeClair, A. V., Redd, L., & Ward, D. (in press). Separate and Unequal?: The Problematic Segregation of Special Populations in Charter Schools Relative to Traditional Public Schools. Stanford Law & Policy Review, 27(2), 251-293.

In this article, we examine the extent to which charters in the state of Texas are serving high needs populations (English Language Learners, Special Education, and low-income students) at the same rates as traditional public schools. We first conduct statewide analyses to compare charter school and traditional public district demographics by locality. We also compare levels of segregation of those populations between traditional public schools by locality and charter status. We then conduct a local-level analyses to understand high-need students demographic patterns within the footprint of a large urban district to evaluate the extent to which students with greater than average instructional needs are served by charter schools in equal proportion to the neighboring public schools. We then conclude by descriptively examining the access and enrollment of high-need students in several popular “exemplar” charters.

Summary of Findings

We find that while Texas charters appear to be demographically similar to traditional public schools at the aggregate, the granularity provided by geospatial analyses demonstrate that charters under-enroll ELL students and special education students relative to nearby non-charter schools. State-level dissimilarity analyses show only modest disparities in segregation and access of high-need students within the Texas charter system compared to traditional public schools. However, local-level descriptive and geospatial analyses of charters in a large metropolitan area shows that there are large disparities in the enrollment of high-need students relative to traditional public schools nearby. (Please click on the article links above for more detailed findings)

Policy Implications

We conclude by discussing implications and recommendations for law and policy. The policy implications that logically emerge from the geographic granularity of these data could either be first-order incremental or second-order substantial. On the one hand, a set of first-order changes to educational policy related to charter schools would seek to take what is in place and make incremental adjustments to policy that aim to better regulate public charter schooling. On the other hand, a second-order change would be an approach that is a substantial departure that would purposefully curtail growth that charters have exhibited over the past two decades.

Second-Order Substantial Approach

One example of a second-order change that sought to challenge charters existentially came through litigation in the state of Washington. In 2015, the Washington Supreme Court in League of Women Voters of Wash. v. State, noting that charters resulted in “the loss of local control and local accountability,” found that charters were not “common” public schools under the Washington Constitution and thus could not be constitutionally funded as such.[1]

In 2012, voters in Washington state approved Initiative 1204 (I-1204), often known as the Charter School Act and codified as RCW 28.A.710. The Act established charters in the state of Washington and authorized up to 40 schools in the state. The Charter School Act purposefully labeled charter schools as “common school” allowing them to receive public tax dollars on a per pupil basis.[2] Further, the Act governed charters under a politically appointed board and established that charters were “exempt from all school district policies…all state statutes and rules applicable to school districts” beyond those specifically identified within the Act.[3]

The Washington Supreme Court ruled in League of Women Voters of Wash. v. State that charter schools were not common schools as defined in Article IX, section 2 of the Washington Constitution and voided the Charter School Act.[4] The decision upheld and relied upon the 1909 ruling in School District No. 20 v. Bryan that established that common schools must be under the control of voters and uniform for every child.[5] This aspect of the decision upheld the ruling of the lower court. The Washington Supreme Court, however, overturned the lower court ruling that the act was severable because the Act’s unconstitutional funding source was “so intertwined with the remainder of the Act and so fundamental to the Act’s efficacy” as to render the Act inviable as a whole.

The Court explained that I-1204 clearly indicated that charters were “to be funded on the same basis as common schools” but that such funds are restricted to use for “common schools,” which charters are not. Because the Act unconstitutionally diverted funds from common schools to charters, the court found the Charter School Act unconstitutional in its entirety. The Supreme Court decision also declared that legislatures could not just fund charters from the general fund either. The courts explained that because property taxes that in-part fund common schools were not segregated and could not be sorted from the general fund, they could not be used.

Bringing challenges to charter policy through constitutional litigation presents challenges that are highly context dependent. The variety of state constitutional provisions and language means that an approach that may have legs in one state would be nonsensical in another, particularly given the variations in how each states’ constitutional provisions have been interpreted over the years. Each states’ constitutional provisions have a rich history of being interpreted as they relate to the public schooling system in that state, and a variety of innovative litigation strategies directed at school employment, school funding, or the like have likely created a rich and idiosyncratic foundation of doctrine that would need to be evaluated on a case-by-case, state-by-state basis. This is not to say that litigation is not an important tool for achieving desirable and equitable ends, but the approach depends heavily on the specifics of each state’s constitutional doctrine surrounding schools, any applicable education clause, or other potentially appropriate clauses. Given the unique nature of courts and their limited ability to fashion a policy-oriented remedy, a strategy advancing any particular policy aim may be better suited for the political branches.

First-Order Incremental Approaches

Given the increasingly accepted role that charters play in the public education landscape, first-order incremental policy changes present a set of approaches to foment accountable charter schools that serve all student populations equitably.[6] The data in this paper suggest that claims by charter operators of comparable levels of enrollment of high needs students should be regarded with some suspicion. These findings also indicate that policymakers and the courts should find ways to hold charters accountable for serving high-needs students at the same rates as nearby schools so that charters don’t become an engine of stratification, draining the “easier to serve” students from strained nearby non-charter public schools. To address these challenges, a variety of policy recommendations are already gaining wide-spread acceptance among other scholars looking at the emerging research around charter schools.

Enrollment and retention. Just last year, the Annenberg Institute for School Reform at Brown University released a set of recommendations that were the culmination of multiple years of collaborative work and research on charters.[7] The Institute recommended that schools engage the public in robust discussions aimed at developing long-term plans for the schools that take demographic factors and changes into account and that charter authorizers require impact studies that consider these factors before approving new charter applications.[8] Beyond planning and transparency, the report specifically addresses enrollment and retention procedures employed by charter schools, recommending that policies around enrollment and retention be transparent, detailed, and publicly available.[9] In order to hold charter schools accountable on these practices, the Institute suggests public disaggregated data-reporting requirements and enrollment tracking as well as an ombudsman to whom parents can address and challenge enrollment decisions and enrollment-related grievances.[10]

Discipline disparities. Relatedly, and of particular public interest at the moment, among the recommendations offered by the report the Institute provides recommendations about discipline policies that can ensure greater equity and consistency across sectors.[11] The report notes that the U.S. Department of Education’s Office for Civil Rights (OCR) has taken increased interest in discipline disparities between the sectors.[12] In one of OCR’s “Dear Colleague” letters, the Office has reminded charter schools in particular that they are subject to the same nondiscrimination laws as traditional public schools.[13] In particular, the letter reminds charter schools of their duty to comply with Title VI of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, or national origin, Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex, and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which both prohibit discrimination based on disability, and refers specifically to the schools’ obligations to comply with these laws in their discipline policies and practices.[14]

Policy proposals around student discipline have been gaining traction lately and are particularly attractive policy levers because they have a real potential for success in state legislatures across the country. More importantly these proposals have the potential to prevent the increases in segregation that may accompany charter sector growth by imposing limits and transparency requirements on student discipline, particularly in-school and out-of-school suspension, expulsion, or unnecessary referral to disciplinary alternative education program.

A growing body of research shows that vulnerable populations are disproportionately impacted by these discipline policies. For example, a recent study from the University of Pennsylvania’s Center for the Study of Race and Equity in Education shows that Southern states, Texas included, suspend and expel black students at significantly higher rates than their peers.[15] This finding is consistent with research elsewhere, which shows similar disparities for other populations, including Latino students, students who are homeless or in foster care, English language learners, and students who require special services.[16]

Research suggests that at least some charter schools employ these discipline methods at much higher rates than traditional public schools.[17]Due largely to current gaps in data and large differences between how charter schools operate, considerable debate remains as to whether charter schools are particularly bad actors with regard to disparities in student discipline. While the reality undoubtedly varies depending upon the operator and the context, where these discipline methods are overemployed by charter schools, they may contribute to segregation between the charter and traditional public sector schools by pushing vulnerable student populations out of the charter sector. Requiring consistent, transparent discipline policies in charter schools will help stem the flow of students into the school-to-prison pipeline, ensure compliance with federal law, and may have the collateral effect of reducing segregative effects of the sort seen in Houston.

To this end, the Annenberg Institute recommends that charter authorizers require operators to promulgate and implement clear policies on student discipline that comply with federal laws, publish those policies and provide students with due process protections and parental appeals before extreme disciplinary measures are imposed, and adhere to reporting requirements that break down discipline by subgroup in order to ensure transparency.[18]

Local control. To ensure that all schools in the community have the proper local control in which students can thrive, states could pass a suite of bills that emphasize local accountability. Legislation could be designed to repeal the portions of charter school acts that writ-large gave away local control and local accountability by exempting charter schools from the vast majority of the education code in any particular state. Many of these acts, some of which date from the 1990s when very little was known about charter schools in the research literature, should now be updated based on the empirical literature and close various loopholes that have allowed charters to function in education “markets” in ways that are more segregative and discriminatory towards special populations than traditional public schools. [19]

For example, laws could be enacted where they don’t currently exist that require all schools that receive public funding to be subject to public records requests and publicly elected boards with public meetings. Parents in the community from diverse backgrounds must also feel that their students have access and are safe in the school. States should provide funding for charter school monitors that ensure compliance with building safety codes (i.e. earthquake and current lead/asbestos), provide school lunch, abide by the American Disability Act (ADA) and the Individuals with Disability Act (IDEA), and be open to collective bargaining/employment agreements to ensure that classes are staffed with credentialed teachers and to limit excessive teacher turnover.

Locally-based policy solutions can also hold charters accountable to data derived from GIS analyses. While charter proponents may prefer to discuss average demographics of charter schools, policymakers should look beyond state demographics and discern whether charter schools are serving local communities equitably— if they don’t do so, then codified consequences would result. One potential way to do this is an approach where charters would transition into an in-district charter or all-school magnet or community school if the school neglected special populations or selectively enroll less expensive subsets. This process could be triggered by parents in the schools, just as charter advocates have sought to use trigger laws to turn public schools into charters. The state or county would be required to hold a series of town halls, collaborative proposal development meetings, and community votes to ascertain the needs of the existing school community and to project what the future needs and unique resources required or offered by the school and district.[20] Such a transition could also be initiated by a publicly-elected charter authorizer board exercising its authority in a meaningful way that promotes equity between and amongst charters and traditional public schools. Former charter schools would receive access to district facilities only if they agree to return to the district and abide by all employment, curricular requirements, and other regulations to ensure equity and access to a high quality education for all students in the community.

We conclude,

Charters have a choice whether they want to be racially and economically diverse schools that serve ELL, Special Education and low-SES kids. Based on the various admissions and management policies documented in the research literature,[1] charters can currently choose their students, rather than families choosing their schools— in essence, school choice has evolved into charter schools choose. To address this issue, policymakers and communities must have extensive background knowledge and data to understand the charter conundrum. These groups must also exhibit the political will power to hold charters accountable despite entrenched support from the charter lobby, foundations, wealthy philanthropist and other proponents. As a result, it is still an open question whether charters will be beacons of opportunity or harbingers of another century of racial and economic segregation.

[1] League of Women Voters of Wash. v. State, 184 Wn.2d 393 (Wash. 2015).

[2] Wash. laws of 2013, ch.2, § 201 (5)-(6).

[3] Wash. Laws of 2013; ch. 2, § 204 (3).

[4] Wash. Const., art. IX, § 2.

[5] School District No. 20 v. Bryan, 51 Wash. 498, 99 (Wash. 1909).

[6] Personal communication with Cynthia Liu from the K12 News Network by e-mail on March 30, 2016 aided in the development of these recommendations.

[7] Annenberg Institute for School Reform at Brown University, Public Accountability for Charter Schools: Standards and Policy Recommendations for Effective Oversight (2015) available at http://annenberginstitute.org/?q=publication/charter-accountability-report.

[8] Id at 4.

[9] Id at 8.

[10] Id.

[11] Annenberg Institute for School Reform at Brown University, Public Accountability for Charter Schools: Standards and Policy Recommendations for Effective Oversight (2015) available at http://annenberginstitute.org/?q=publication/charter-accountability-report.

[12] Id.

[13] Catherine E. Lhamon, U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter: Charter Schools (May 14, 2014) at 1-2.

[14] Id at 2, 6.

[15] Edward J. Smith & Shaun A. Harper, University of Pennsylvania, Ctr. for the Study of Race and Equity in Educ., Disproportionate Impact of K-12 School Suspension and Expulsion on Black Students in Southern States (2015), available at http://www.gse.upenn.edu/equity/SouthernStates.

[16] See e.g. Kimberle Williams Crenshaw, Priscilla Ocen, & Jyoti Nanda, African Am. Pol’y Forum & the Ctr. for Intersectionality and Soc. Pol’y Studies at Columbia Law School, Black Girls Matter: Pushed Out, Over Policed and Underprotected (2015) available at http://www.atlanticphilanthropies.org/sites/default/files/uploads/BlackGirlsMatter_Report.pdf (black female students); U.S. Dept. of Educ. Office for Civil Rights, Civil Rights Data Collection: Data Snapshot (Early Childhood) (2014), available at https://www2.ed.gov/about/offices/list/ocr/docs/crdc-early-learning-snapshot.pdf (black students and Native Hawaiian or Pacific Islander females in preschool); Deborah F. Fowler, et al., Texas Appleseed, Texas’ School to Prison Pipeline: Dropout to Incarceration (2007), available at http://www.njjn.org/uploads/digital-library/Texas-School-Prison-Pipelin…;(black, Latino, and special education students in Texas); Office of the State Superintendent of Educ., Reducing Out-of-School Suspensions and Expulsions in District of Columbia Public and Public Charter Schools (2014), available at http://osse.dc.gov/sites/default/files/dc/sites/osse/publication/attachments/OSSE_REPORT_DISCIPLINARY_G_PAGES.pdf (black students, Latino students, homeless and foster youths, and students with disabilities in the District of Columbia).

[17] DC Lawyers for Youth, Every Student Every Day Coalition, District Discipline: The Overuse of Suspension and Expulsion in the District of Columbia (2014), available at http://www.dcly.org/district_discipline (noting high rates of discipline by charter schools in the District of Columbia); Jaclyn Zubrzycki, Sean Cavanagh, & Michele McNeil, Charter Discipline: The Impact on Students – Charter Schools’ Discipline Policies Face Scrutiny, Educ. Week (Feb. 20, 2015) available at http://www.edweek.org/ew/articles/2013/02/20/21charters_ep.h32.html; infographic athttp://www.edweek.org/ew/section/infographics/charter-discipline-infographic.html.

[18] Id at 9.

[19] Julian Vasquez Heilig, Charters and Access: Here is Evidence Cloaking Inequity Blog (Nov. 20, 2015 n conclusion,esissue, ld be toe approach could be tondations tialpower tions.that their students are safe in the school, so ch https://cloakinginequity.com/2015/11/20/drinking-charter-kool-aid-here-is-evidence/

[20] Julian Vasquez Heilig, The Gem on the Hill: How to Create a Community-Based In-District Charter (Aug. 20, 2014) https://cloakinginequity.com/2014/08/20/the-gem-on-the-hill-austin-creates-a-community-based-in-district-charter/