Archived Information

General Legislative Provisions

This first part of the review examines statutory provisions that have implications for, but do not necessarily address directly, students with disabilities or special education.

Various provisions in state statutes grant charter schools varying levels of authority to govern themselves and to make decisions regarding the operation of the schools, including decisions related to personnel, curriculum, and expenditures. The extent of a charter school's operational autonomy will have an impact on how special education programs are implemented in these schools. As described in the following paragraphs, statutory provisions that give higher levels of autonomy include ones that allow or require charter schools to (1) operate independent from local school districts, (2) make their own personnel decisions, (3) be exempt from state and district education laws and regulations, (4) assume liability for their actions, and (5) receive their funding directly from the state.

Independence from districts. The charter school statutes in 14 states allow charter schools to operate independent of the school district, while the charter school statutes in 10 states require charter schools to operate as public schools within local school districts (see Table 1). In Wisconsin, charter schools operate either independently or as part of the local school district, depending on the sponsor. Many of the statutes that permit charter schools to operate independently of the school district also contain provisions prescribing the organization of the charter school as a legal entity, and, in most of these states, charter schools are required to organize as non-profit organizations. The exceptions are Arizona, Delaware, California, and Colorado, where entities may be either for-profit or non-profit. The statute in North Carolina allows the level of independence to be negotiated in the chartering process.

Four states either do not include a specific reference to independence or the reference is ambiguous, making interpretation of the statute difficult. For example, in three of these states (Florida, Michigan, and Minnesota), the statutes dictate that charter schools organize as nonprofit corporations and provide for their own governance. These provisions imply an operational status that is independent of the school district. However, Colorado permits, and South Carolina requires, charter schools to organize as nonprofit corporations, yet both states require charter schools to operate as part of the district. Michigan and Minnesota allow a university to sponsor or authorize a charter school. This arrangement suggests independence from the school district, although independence is not explicitly granted in the statutes. An analysis of state rules and regulations governing charter schools, which is beyond the scope of this review, may clarify these issues.

Table 1. How Charter Schools Operate In Relation To The School District

Personnel decisions. In a majority of states (20 of 29), charter school staff are employees of the charter school for most purposes (with some states requiring charter school employees to be subject to terms of district collective bargaining agreements) (see Table 2). The charter school statutes of Kansas and Mississippi explicitly make charter school personnel employees of the school district. Although not expressly stated in statute, this is also implicit in the statutes of Arkansas, Georgia, and New Mexico, where charter schools are described as local public schools under the management of a local school board (substituting a performance-based contract for education laws, rules, and regulations), and in the statute of Hawaii, where the law authorizes individual public schools to implement alternative instruction and administrative programs and exempts them from most state laws. In Wisconsin, the employment status of charter school personnel depends on whether the charter school is an instrumentality of the local school district. In South Carolina, the employment status of charter school personnel depends on whether the charter school is a conversion or a new start.

Table 2. Employment Status of Charter School Personnel

Some states give charter schools the authority to determine the qualifications of their professional employees, including the freedom to hire non-certified teachers (see Table 3). Ten states allow charter schools to hire some percentage of non-certified teachers, usually with restrictions. In Delaware, charter schools may hire non-certified teachers only when no qualified alternative certification exists, as long as such teachers constitute no more than 35 percent of teachers in the school. Seven states require charter school teachers to be fully certified or, as is the case in Connecticut, to possess some type of temporary or alternative certification. Even in those states that require certification, there are some exceptions. Specifically, Michigan charter schools sponsored by public universities are allowed to have non-certified university faculty teach at the school, and in Ohio charter schools, non-certified teachers may teach up to 12 hours per week.

Table 3.  State Requirements Regarding Certification of Charter School Teachers

The remaining 12 states do not directly address the issue of teacher certification in their state charter school statutes. However, charter school teachers in Alaska, Arkansas, Georgia, Hawaii, Kansas, Mississippi, and New Mexico are considered to be employees of a district, which implies that they are subject to the same certification requirements as other district employees. For Arizona, California, and Texas, freedom from certification requirements may be implied by blanket exemptions from state laws and regulations. Conversely, the Colorado statute's lack of exemption from state and district laws and regulations may indicate that certification is required. More definitive information on teacher certification requirements is likely to be available in state rules and regulations, which were not included in this review.

Every charter school is part of its state's educational system and all states participate in IDEA, so all charter schools have obligations under IDEA. Most of the state charter school statutes reviewed for this report were passed before the 1997 amendments to IDEA. The IDEA amendments clarify obligations of charter schools to students with disabilities and ways in which charter schools may access federal special education funds and services, whether through a district or directly from the state. If a charter school is considered a freestanding LEA (that is, a local education agency or district), it must be treated by the state the same as other freestanding LEAs in regard to applying for federal funds. For charter schools that are part of an LEA, the LEA must serve children with disabilities attending those schools in the same manner as it serves children with disabilities in other schools. The LEA must provide IDEA funds to those schools in the same manner as it provides those funds to its other schools.⁴

Table 4. State Statutes That Automatically Exempt Charter Schools From Most Education Laws and Regulations

In either case, schools must identify potentially eligible children, assess them to determine whether or not they have disabilities and whether they need special education and related services, and develop and implement an Individualized Education Program (IEP) for each child found eligible. Those children must be educated in what is referred to under the law as the "least restrictive environment" and, in general, in an integrated setting. The children have due process protections in relationship to the IEP and the educational services that they receive. For example, parents may request an administrative hearing if they disagree with a proposed placement. Even though the question of whether states exempt charter schools from special education laws is moot, it is interesting to note that seven state statutes (Arizona, Louisiana, Massachusetts, Minnesota, Missouri, New Hampshire, and North Carolina) specifically assert that charter schools are not exempt from state laws governing special education.

Liability. Twenty-two of the 29 states address liability in their charter school statutes. The statutory language varies greatly with regard to this complex issue. Thirteen states (Arizona, Connecticut, Delaware, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, South Carolina, and Wyoming) protect charter school sponsors from liability relating to any acts or omissions of their charter schools. The strongest statements are made by Minnesota and Pennsylvania, both of which hold charter schools solely liable for all actions related to the operation of their schools. In five states (Colorado, Florida, Illinois, Nevada, and Wisconsin), issues of liability are negotiated between the charter school and its sponsor and are incorporated into the charter.

Texas and Rhode Island incorporate a third type of liability provision into their laws, which provides charter schools with immunity from liability to the same extent as a school district. The remaining two states (California and Massachusetts) do not offer definitive statements about the issue of liability. The California charter school statute declares that, "The governing board [of district] may require that the petitioner or petitioners provide information regarding the proposed operation and potential effects of the school, including, but not limited to, the potential civil liability effects upon the school and upon the school district." The Massachusetts charter school statute states that, "Employees of charter schools shall be considered public employees for purposes of tort liability. The board of trustees shall be considered the public employer for purposes of tort liability."

In addition to the flow of funding, another important issue is the amount of funding. According to the statutes in nine states (Alaska, Arizona, Colorado, Connecticut, Florida, Illinois, New Hampshire, New Jersey, and Wisconsin), charter schools that receive their funding through the local district may receive less than 100 percent of the state or district per-pupil operating revenues. For six of these states (Arizona, Colorado, Connecticut, Illinois, New Hampshire, and Wisconsin), this possible discrepancy is because the amount of funding is negotiated between the charter school and the district, with specific restrictions in some states. For example, the Illinois charter school statute states that, "As part of a charter school contract, the charter school and the local school board shall agree on funding and any services to be provided by the school district to the charter school. In no event shall the funding be less than 95% or more than 105% of the school district's per capita student tuition multiplied by the number of students residing in the district who are enrolled in the charter school." For two of the nine states (Florida and Alaska), the charter school statutes specify that the district may withhold a percentage of charter school funding to cover administrative costs. The Florida statute specifically caps the level of administrative fees at 5 percent. In New Jersey, the amount of funding is set in the charter school statute at 90 percent of per-pupil operating revenues.

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[Introduction]

[Legislative Elements Related to Special Education]