By Thomas W. Carroll

In recent months, the New York State Board of Regents (led by Chancellor Merryl Tisch) and the United Federation of Teachers (UFT), New York City’s teachers union, have called on public charter schools to enroll more students with disabilities.

Over the weekend, the UFT specifically proposed legislation (view report here) to mandate that each charter school serve precisely the same percentage of students with disabilities as the average for the local district’s schools.  This would serve, in a sense, as a special-education enrollment quota.  The UFT-proposed enrollment quota is the wrong way to meet a legitimate goal.

For a little perspective, charter schools in New York State enroll a disproportionately higher share of African-American students, Hispanic students, and economically disadvantaged students than their local school districts.  Nonetheless, it remains true that students requiring special-education services generally are, in total, underrepresented in individual charter schools.

The UFT’s quota idea is not new; it was floated in 2007 during negotiations over a lift of the cap on the number of charter schools.  The final compromise, as part of an overall bill that raised the number of authorized charter schools from 100 to 200 schools statewide, was to require charter schools to make a “good faith” effort to recruit special-education students.

This “good faith” provision has been difficult to implement well because charter schools are prohibited from discriminating on the basis of disability, making it impossible to treat students with disabilities any differently in the admissions process.  In fact, state chartering entities have forced charter schools to delete any questions about disability status from their admissions applications and have refused any charter schools’ proposals to establish a special-education admissions preference, making efforts at targeted student recruitment even more difficult.

So, what we have is: (a) a clear and widespread desire to do more matched with (b) a set of restrictions guaranteed to ensure charter schools can’t do more.

Here are seven ideas to solve this conundrum.

First, allow charter schools to give overt preference to students with disabilities in their admissions lotteries. Right now, charter schools are prohibited from considering disability status in any way regarding admission decisions.  The proposed change could be made by modifying Section 2854.2(a) of the New York Education Law to add a clause that reads: “provided, however, that nothing in this article shall be construed to prevent a charter school from granting an admissions preference to students with disabilities.”

Second, allow charter schools to contract with regional Boards of Cooperative Education Services (BOCES) to provide some special-education services, just as school districts are allowed to do. Right now, district schools – especially small ones without a sufficient density of students with any one particular disability – are able to group students across schools and district lines by contracting with BOCES to provide necessary services.  Districts also use BOCES to provide instruction, often in district space, for students with rare disabilities, such as for students who are visually impaired, where the district may not have qualified staff to provide the required services.

Through a drafting oversight in the original charter school law in 1998, BOCES are not authorized to contract with charter schools for any purpose.  BOCES and the State School Superintendents Association favor correcting this oversight.

This could be done by simply adding the phrase “charter school” to the list of authorized contractors enumerated in Section 1950.4(h) of the Education Law, and by adding a subdivision that would allow BOCES “to enter into contracts with any charter school, to the same extent and for the same purposes as such contracts with public school districts are authorized. Such charter schools are hereby authorized and empowered to do and perform any and all acts necessary or convenient in relation to the performance of any such contracts.”

Third, allow charter schools in districts with more than one charter school to create multi-school consortia to provide special-education services. Right now, this is inadvertently prohibited by language in the charter-school law that does not allow a school’s students in any one grade to be educated at more than one school location.  This quirky provision was intended to avoid a single charter from being used to create multiple schools.  But, this provision has served to limit charter schools from working together to serve students with disabilities.  This could be fixed by amending Section 2853.1(b-1) of the Education Law to add a provision that stipulates “a charter school, located within a city with more than one charter school, that provides special education programs and services to its students at different locations pursuant to paragraph a of subdivision 4 of section 2853 of this Article shall be deemed to be operating at a single site.”

Fourth, require district schools and charter schools to transfer promptly any academic records related to students requiring special-education services when such students transfer schools. A set time line such as 10 business days upon receipt of request could be established.  In the case of transferring students, delays in record transfers can impair the ability of the receiving school to provide appropriate special-education services.

Fifth, once the reforms noted above are enacted, mandate that charter schools that are serving less than a set percentage of the host district’s special-education average, say 75 percent, provide an admission preference to students with disabilities. Even if it made sense, the union’s proposed quota system won’t work because charter schools can’t admit students that don’t apply.  Alternatively, establishing an admission preference would help ensure that students needing special-education services who did apply would be nearly guaranteed admission.

To this end, Section 2854.2(a) of the New York Education Law could be amended to add a clause that reads: “provided, however, that charter schools determined by the State Education Department to be serving less than 75 percent of the local district average for special-education students shall be required to grant an admissions preference to students with disabilities, which shall supersede any other preference granted other than to siblings of existing enrollees, until such point at which the 75 percent threshold is attained.”

Importantly, setting the threshold that triggers this mandatory enrollment preference below the district average recognizes that, as has been shown in studies by the State Education Department and others, districts tend to over-classify some students for special-education purposes – particularly African-American and male students.  It would be wrong to encourage charter schools to perpetuate this over-classification problem by tying them to the same inflated threshold.

Sixth, grant any charter application that would serve special-education students aggressively a priority over any other charter application. Presently, the New York charter-school law grants an approval preference to applications serving students “at risk of academic failure.”  A new and higher application approval preference should be granted to applications for special-education charter schools (like the New York Center for Autism Charter School), or to applications for schools that can demonstrate they would offer extensive special-education programming.  This would require amending Section 2852.2 of the Education Law to require granting “the highest preference to applications that demonstrate the capability to provide high-quality education to students with disabilities.”

Seventh, require annual publication by the State Education Department of special-education statistics for charter schools and district schools. This report should break out for each school the number of students with disabilities, by grade and by classification, allowing policymakers and others to track whether these reforms are having the intended effect.

Taken together, this set of proposals would create the additional capacity within charter schools to serve more students with special-education needs, encourage the creation and approval of schools that better serve special-education students, and create a mechanism for monitoring progress.