U.S. Department of Education Takes First Step toward Regulating Charters

Last week something important happened, “finally,” as Valerie Strauss emphasized in her Washington Post report.  The U.S. Department of Education’s Office of Civil rights issued new guidance confirming that charter schools must comply with the same civil rights protections as public schools.

As quoted by Education Week, Assistant Secretary for Civil Rights Cathrine E. Lhamon issued the following: “I am writing to remind you that the Federal civil rights laws, regulations, and guidance that apply to charter schools are the same as those that apply to other public schools.  For this reason, it is essential that charter school officials and staff be knowledgeable about federal civil rights laws.  These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.”

While Education Week‘s Evie Blad explains that the new guidance applies particularly to admissions, provision of services for students with disabilities and English language learners, she continues:  “In addition to those areas, charter schools should ensure their policies and practices comply with all federal civil rights law, including Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex; and Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination based on disability.”

Does the new guidance mean that the Office of Civil Rights of the U.S. Department of Education has the enforcement capacity to tour the country examining the policies and practices of the thousands of charter schools that may be violating the civil rights of their applicants or their students?  No.  The U.S. Department of Education does not maintain an enforcement staff.  The guidance, however, will strengthen the Department’s capacity to respond to formal complaints submitted to its Office of Civil Rights.

Several organizations that have been fighting for the rights of children in charter schools praised the Department’s release of the new guidance.  The new guidance will strengthen the case of organizations that have already filed formal civil rights complaints about alleged violations, and it will encourage others to be aggressive in seeking enforcement of federal civil rights law.

The Southern Poverty Law Center—which filed a lawsuit in New Orleans in 2010 on behalf of students with severe disabilities who had been unable to secure appropriate placement in the city’s schools post-Hurricane Katrina, after the traditional school district was radically transformed and largely charterized—comments on the new guidance: “This action is especially important in New Orleans, where we’ve filed suit over the widespread failure of charter schools to provide appropriate educational services to children with disabilities.”

Advancement Project, which has led a national protest movement about the racially discriminatory overuse of harsh discipline practices like expulsions and suspensions, commented:  “We applaud DOE’s announcement today regarding charters—particularly DOE’s emphasis that its previous guidance on the legal and educational risks posed by harsh disciplinary measures, such as suspensions and expulsions, applies fully to charters.”

And the Leadership Conference on Civil and Human Rights wrote: “We applaud the Department of Education for releasing this very important, long-overdue guidance, which makes crystal clear that charter schools—like all public schools—have a federal obligation to ensure that all children, regardless of race, national origin, sex, or disability status, receive a fair and equal opportunity to succeed.  This guidance is the first since the Clinton administration to clarify the responsibilities charter schools have under federal civil rights laws.”

At a meeting with Secretary of Education Arne Duncan I attended several years ago, he said, “Good charter schools are part of the solution.  Bad charter schools are part of the problem.”  Despite that his Department required all states submitting proposals for Race to the Top to remove any statutory caps on the authorization of new charter schools, and despite that his Department provides funding for support and expansion of charter schools, his Department of Education has taken no steps until now to promote regulation of charter schools for the purpose of protecting their students’ rights.

Groups across the country that seek to protest what they believe are blatantly discriminatory practices by charter schools will now, based on the Departmental Guidance released last week, have a greater chance of ensuring that civil rights violations are addressed.

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